Nature Repair Act 2023

Part 1—Preliminary

1 Short title

This Act is the Nature Repair Act 2023.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

<table cellspacing="0" cellpadding="0" style="width:355.55pt; border-collapse:collapse"><thead><tr><td colspan="3" style="width:344.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Commencement information</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Column 1</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Column 2</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Column 3</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Provisions</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Commencement</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Date/Details</span></p></td></tr></thead><tbody><tr><td style="width:74.35pt; border-top:1.5pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1.</span><span> </span><span>The whole of this Act</span></p></td><td style="width:180.7pt; border-top:1.5pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The day after this Act receives the Royal Assent.</span></p></td><td style="width:68.4pt; border-top:1.5pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>15</span><span> </span><span>December 2023</span></p></td></tr></tbody></table>

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Objects of this Act

The objects of this Act are: (a) to promote the enhancement and protection of biodiversity in native species in Australia; and (b) to contribute to meeting Australia’s international obligations in relation to biodiversity, including the Biodiversity Convention; and (ba) to contribute to meeting Australia’s domestic goal of no new extinctions; and (c) to promote engagement and co‑operation of market participants (including Aboriginal persons and Torres Strait Islanders, governments, the community, landholders and private enterprise) in the enhancement or protection of biodiversity in native species in Australia; and (d) to: (i) support and promote the unique role of Aboriginal persons and Torres Strait Islanders in enhancing and protecting biodiversity in native species in Australia; and (ii) enable the use of the knowledge of Aboriginal persons and Torres Strait Islanders related to biodiversity in native species in Australia, guided by the owners of that knowledge; and (e) to contribute to building a knowledge base, and capacity, related to the enhancement or protection of biodiversity in native species in Australia.

4 Simplified outline of this Act

A biodiversity project is a project to enhance or protect biodiversity in native species.

An eligible person may apply for a biodiversity project to be registered on the Biodiversity Market Register. To be registered, a biodiversity project must meet various requirements, including requirements:

(a) to be carried out by one or more project proponents (including the applicant) who are fit and proper persons; and

(b) to be covered by a methodology determination.

Methodology determinations are legislative instruments that cover particular kinds of biodiversity projects, and set out how a project is to be carried out and the circumstances in which a biodiversity certificate will be issued for a project.

The Minister may make a biodiversity assessment instrument that prescribes requirements to be complied with by methodology determinations.

A biodiversity certificate represents the biodiversity outcome that a registered biodiversity project is designed to achieve. Biodiversity certificates are the property of their registered holders, and may be transferred.

This Act imposes certain obligations on project proponents. These obligations include:

(a) obligations to comply with requirements in the methodology determination that covers a project; and

(b) reporting and notification obligations; and

(c) record‑keeping and monitoring obligations.

The Biodiversity Market Register holds entries for each registered biodiversity project and each biodiversity certificate.

This Act is administered by the Minister and the Clean Energy Regulator. The Regulator has a range of powers available to enforce the obligations of a project proponent, including the following:

(a) civil penalties (some of which apply only after a biodiversity certificate has been issued for a project);

(b) other powers under the Regulatory Powers Act;

(c) powers to require projects to be audited;

(d) powers to require project proponents to relinquish biodiversity certificates;

(e) the power to make a biodiversity maintenance declaration that prohibits certain activities in a project area.

This Act also contains provisions for:

(a) the establishment of the Nature Repair Committee to advise the Minister in relation to the Minister’s functions under this Act; and

(b) biodiversity integrity standards which a methodology determination must meet; and

(c) internal review of decisions under the Act, and review by the Administrative Review Tribunal.

5 Crown to be bound

(1) This Act binds the Crown in each of its capacities. (2) This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence. (3) The protection in subsection (2) does not apply to an authority of the Crown. (4) The protection in subsection (2) does not apply in relation to: (a) subsection 150(5); or (b) section 155.

6 Extension to external Territories

This Act extends to every external Territory.

7 Definitions

In this Act:

Aboriginal land council, for an area of land, means a body corporate that:

(a) is established under an Act of the Commonwealth, a State or a Territory for the purpose of holding, for the benefit of Aboriginal persons or Torres Strait Islanders:
(i) title to land vested in it by or under that Act; or
(ii) an estate or interest in land granted under that Act; and
(b) has functions relating to land that under a law of the Commonwealth, a State or a Territory is land rights land; and
(c) consists of Aboriginal persons or Torres Strait Islanders who:
(i) live in an area to which one or more of the body’s functions relate; or
(ii) are registered as traditional owners of land in an area to which one or more of the body’s functions relate; or
(iii) have an association with an area to which one or more of the body’s functions relate if the Aboriginal persons or Torres Strait Islanders are accepted as members of the land council on the basis of that association.

Aboriginal person has the same meaning as in the Aboriginal and Torres Strait Islander Act 2005.

activity period of a registered biodiversity project means the activity period identified in the notice of approval of registration under paragraph 15(7)(d), subject to any variation under rules made for the purposes of paragraph 20(1)(c).

alternative assurance agreement: see subsection 104A(2).

area means:

(a) an area of land; or
(b) an area of Australian waters; or
(c) an area that is a combination of land and Australian waters.

audit information has the meaning given by section 124.

audit team leader means a registered greenhouse and energy auditor appointed under any of the following provisions:

(a) paragraph 12(3)(a);
(b) paragraph 68(1)(e);
(c) paragraph 103(1)(d);
(d) paragraph 103(1)(e);
(e) paragraph 104(3)(d);
(f) paragraph 104(3)(e);
(g) paragraph 121(2)(a);
(h) subsection 122(1).

Australia, when used in a geographical sense, includes the external Territories.

Australian waters means:

(a) the territorial sea of Australia; or
(b) the waters of the sea on the landward side of the territorial sea of Australia; or
(c) the territorial sea of each external Territory; or
(d) the waters of the sea on the landward side of the territorial sea of each external Territory; or
(e) inland waters.

biodiversity means the variability among living organisms from all sources (including terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part) and includes:

(a) diversity within species and between species; and
(b) diversity of ecosystems.

biodiversity assessment instrument means an instrument under section 58.

biodiversity audit means:

(a) an audit under section 121 or 122; or

(b) an audit carried out for the purposes of preparing an audit report prescribed by the rules or a methodology determination for the purposes of any of the following provisions:

(i) paragraph 12(3)(a);

(ii) paragraph 68(1)(e);

(iii) paragraph 103(1)(d);

(iv) paragraph 103(1)(e);
(v) paragraph 104(3)(d);
(vi) paragraph 104(3)(e).

biodiversity audit report means:

(a) an audit report under section 121 or 122; or

(b) an audit report prescribed by the rules or a methodology determination for the purposes of any of the following provisions:

(i) paragraph 12(3)(a);

(ii) paragraph 68(1)(e);

(iii) paragraph 103(1)(d);

(iv) paragraph 103(1)(e);
(v) paragraph 104(3)(d);
(vi) paragraph 104(3)(e).

biodiversity certificate means a certificate issued under section 70.

biodiversity conservation contract: see section 79.

biodiversity conservation contractor: see section 79.

biodiversity conservation purchasing process: see section 83.

Biodiversity Convention means the Convention on Biological Diversity, done at Rio de Janeiro on 5 June 1992, as in force for Australia from time to time.

Note: The Convention is in Australian Treaty Series 1993 No. 32 ([1993] ATS 32) and could in 2023 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

biodiversity integrity standards: see section 57.

biodiversity maintenance area, in relation to a biodiversity maintenance declaration: see subsection 154(1).

biodiversity maintenance declaration means a declaration made by the Regulator under subsection 154(1).

biodiversity outcome, in relation to a biodiversity project, means the enhancement or protection of biodiversity that the project is designed to achieve.

biodiversity project means a project, carried out in a particular area, that is designed to enhance or protect biodiversity in native species (whether the effect on biodiversity occurs within or outside the area).

biodiversity project report means:

(a) a category A biodiversity project report; or
(b) a category B biodiversity project report.

body corporate under external administration means:

(a) a Chapter 5 body corporate; or
(b) a body corporate that has a corresponding status under a law of a foreign country.

category A biodiversity project report: see sections 101 and 102.

category B biodiversity project report: see section 104.

Chapter 5 body corporate has the same meaning as in the Corporations Act 2001.

civil penalty order has the same meaning as in the Regulatory Powers Act.

civil penalty provision has the same meaning as in the Regulatory Powers Act.

Commonwealth Register account means a Register account kept in the name of the Commonwealth.

corporation means:

(a) a body corporate; or
(b) a corporation sole.

covers: a methodology determination covers a registered biodiversity project if the entry for the project in the Register states that the methodology determination covers the project.

Crown land means land that is the property of:

(a) the Commonwealth, a State or a Territory; or
(b) a statutory authority of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory.

For this purpose, it is immaterial whether the land is: (c) subject to a lease or licence; or (d) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Commonwealth, the State or the Territory; or (e) covered by the making, amendment or repeal of legislation of the Commonwealth, the State or the Territory under which the whole or a part of the land is to be used for a public purpose or public purposes; or (f) held on trust for the benefit of another person; or (g) subject to native title.

Crown lands Minister:

(a) in relation to a State—means the Minister of the State who, under the rules, is taken to be the Crown lands Minister of the State; or
(b) in relation to the Northern Territory—means the Minister of the Northern Territory who, under the rules, is taken to be the Crown lands Minister of the Northern Territory; or
(c) in relation to the Australian Capital Territory—means the Minister of the Australian Capital Territory who, under the rules, is taken to be the Crown lands Minister of the Australian Capital Territory; or
(d) in relation to a Territory other than the Northern Territory or the Australian Capital Territory—means the person who, under the rules, is taken to be the Crown lands Minister of the Territory.

declared prohibited activity, in relation to a biodiversity maintenance area, means an activity specified under subsection 154(4) in relation to the biodiversity maintenance area.

deposited with the Regulator, when used in relation to a biodiversity certificate, has the meaning given by section 142.

director includes a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.

electronic notice transmitted to the Regulator has the meaning given by section 9.

eligible interest, in relation to an area of land, has the meaning given by section 89, 90 or 92.

eligible person means any of the following:

(a) an individual;
(b) a body corporate;
(c) a trust;
(d) a corporation sole;
(e) a body politic;
(f) a local governing body.

eligible voluntary action means:

(a) making an application; or
(b) giving information in connection with an application; or
(c) withdrawing an application; or
(d) giving a notice (including an electronic notice); or
(e) making a submission; or
(f) making a request; or
(g) giving information in connection with a request;

to the Regulator, where the application, information, notice, submission or request is permitted, but not required, to be made, given or withdrawn, as the case may be, under this Act.

engage in conduct means:

(a) do an act; or
(b) omit to perform an act.

environmental offsetting measure includes, but is not limited to, a measure to offset or compensate for the impacts of an action or project (however described) on the environment that is:

(a) required as a condition of an approval, licence or permit (however described) under a law of the Commonwealth, a State or a Territory; or
(b) directly financed from a fund into which money is paid as a condition of an environmental approval, licence or permit (however described) under a law of the Commonwealth, a State or a Territory; or
(c) undertaken as required or agreed to under a penalty or enforceable undertaking imposed or accepted under a law of the Commonwealth, a State or a Territory.

environmental offsetting purpose means the purpose of meeting an environmental offsetting requirement (however described) under a law of the Commonwealth, a State or a Territory including through an environmental offsetting measure.

excluded biodiversity project: see section 33.

exclusive possession native title area means a native title area, where the native title confers a right of exclusive possession over the area.

executive officer of a corporation means:

(a) a director of the corporation; or
(b) the chief executive officer (however described) of the corporation; or
(c) the chief financial officer (however described) of the corporation; or
(d) the secretary of the corporation.

Federal Court means the Federal Court of Australia.

fit and proper person has a meaning affected by sections 97, 98, 99 and 99A.

freehold land rights land means land, where:

(a) a freehold estate exists over the land, and the grant of the freehold estate took place under a law of a State or a Territory that makes provision for the grant of such things only to, or for the benefit of, Aboriginal persons or Torres Strait Islanders; or
(b) a freehold estate exists over the land, and the grant of the freehold estate took place under a law of the Commonwealth that makes provision for the grant of such things only to, or for the benefit of, Aboriginal persons or Torres Strait Islanders; or
(c) the land is vested in a person, and the vesting took place under a law of the Commonwealth that makes provision for the vesting of land only in, or for the benefit of, Aboriginal persons or Torres Strait Islanders.

holder of a biodiversity certificate means the person recorded in the Register as the holder of the certificate.

indigenous land use agreement has the same meaning as in the Native Title Act 1993.

inland waters means waters within Australia other than waters of the sea.

inspector means a person appointed as an inspector under section 184.

land rights land means land where:

(a) a freehold estate exists, or a lease is in force, over the land, where the grant of the freehold estate or lease took place under legislation that makes provision for the grant of such things only to, or for the benefit of, Aboriginal persons or Torres Strait Islanders; or
(b) the land is vested in a person, where the vesting took place under legislation that makes provision for the vesting of land only in, or for the benefit of, Aboriginal persons or Torres Strait Islanders; or
(c) neither paragraph (a) nor (b) applies, and the land is held expressly for the benefit of, or is held in trust expressly for the benefit of, Aboriginal persons or Torres Strait Islanders; or
(d) the land is reserved expressly for the benefit of Aboriginal persons or Torres Strait Islanders; or
(e) the land is specified in the rules.

This definition does not apply to the definition of Aboriginal land council or to section 92.

Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.

lease, in relation to land rights land, includes:

(a) a lease enforceable in equity; and
(b) a contract that contains a statement to the effect that it is a lease; and
(c) anything that, at or before the time of its creation, is, for any purpose, by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease.

maintained project, in relation to a biodiversity maintenance declaration: see paragraph 154(1)(a).

methodology determination means a determination under subsection 45(1).

National Native Title Register has the same meaning as in the Native Title Act 1993.

native title has the same meaning as in the Native Title Act 1993.

native title area: an area is a native title area if there is an entry on the National Native Title Register specifying that native title exists in relation to the area.

natural disturbance, in relation to a registered biodiversity project, means any of the following events, where the event could not reasonably be prevented by the project proponent for the project:

(a) flood;
(b) bushfire;
(c) drought;
(d) pest attack;
(e) disease;
(f) an event specified in the rules.

Nature Repair Committee means the committee established by section 194.

Nature Repair Committee member means a member of the Nature Repair Committee, and includes the Chair of the Nature Repair Committee.

non‑corporate government body means:

(a) a body politic; or
(b) a local governing body that is not a corporation.

paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).

permanence period of a registered biodiversity project means the permanence period that:

(a) is identified in the notice of approval of registration under paragraph 15(7)(d), subject to any variation under rules made for the purposes of paragraph 20(1)(d); and
(b) complies with section 34.

prescribed law, when used in a provision of this Act, means a law prescribed by the rules for the purposes of that provision.

project includes a set of activities.

project area, in relation to:

(a) a biodiversity project; or
(b) a registered project under a related scheme;

means the area, or areas, on or in which the project has been, is being, or is to be carried out.

project plan, in relation to a biodiversity project, means a plan that:

(a) sets out how the project is intended to be carried out; and
(b) sets out how the project is intended to achieve the biodiversity outcome for the project; and
(c) is consistent with the methodology determination that covers, or is proposed to cover, the project; and
(d) includes such information (if any) as is specified in the rules or the methodology determination that covers, or is proposed to cover, the project; and
(e) complies with such requirements (if any) as are specified in the rules or the methodology determination that covers, or is proposed to cover, the project.

project proponent, in relation to a registered biodiversity project, means:

(a) the eligible person who is recorded in the Register as the project proponent for the project; or
(b) each of the eligible persons who are recorded in the Register as a project proponent for the project.

Note: For projects with multiple project proponents, see Part 3.

protected audit information has the meaning given by section 125.

Register means the Biodiversity Market Register kept by the Regulator under subsection 161(1).

registered biodiversity project means a biodiversity project that is registered on the Register (other than a former registered biodiversity project in relation to which information is set out in the Register under rules made for the purposes of subsection 162(5)).

registered greenhouse and energy auditor has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

registered indigenous land use agreement means an indigenous land use agreement the details of which are entered on the Register of Indigenous Land Use Agreements.

registered native title body corporate has the same meaning as in the Native Title Act 1993.

registered project under a related scheme means a project that is:

(a) declared as an eligible offsets project under the Carbon Credits (Carbon Farming Initiative) Act 2011; or

(b) registered (however described) under a prescribed law of the Commonwealth, a State or a Territory.

Register of Indigenous Land Use Agreements has the same meaning as in the Native Title Act 1993.

Regulator means the Clean Energy Regulator.

Note: The Clean Energy Regulator is established by the Clean Energy Regulator Act 2011.

regulatory approval, in relation to a biodiversity project, means an approval, licence or permit (however described) that:

(a) relates to the project or to an element of the project; and
(b) is required under a law of the Commonwealth (other than this Act), a State or a Territory that relates to:
(i) land use or development; or
(ii) the environment; or
(iii) water.

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.

relevant land registration official:

(a) in relation to a biodiversity project that:
(i) is or was a registered biodiversity project; and
(ii) is wholly or partly situated in a State or Territory;
means the Registrar of Titles or other proper officer of the State or Territory in which the project area is wholly or partly situated; or
(b) in relation to an area that is or was a biodiversity maintenance area—means the Registrar of Titles or other proper officer of the State or Territory in which the area is wholly or partly situated.

relinquishment equivalence requirements: see subsection 151(2).

relinquishment notice means a notice given by the Regulator under any of the following provisions:

(a) subsection 144(2) (false or misleading information);
(b) subsection 146(2) (reversal of biodiversity outcome other than due to natural disturbance or conduct etc.);
(c) subsection 147(2) (reversal of biodiversity outcome due to natural disturbance or conduct and no mitigation happens);
(d) subsection 147A(2) (circumstances prescribed by the rules).

reviewable decision has the meaning given by section 212.

rules means rules made under section 237.

Secretary means the Secretary of the Department.

statutory authority of the Commonwealth, a State or a Territory, means an authority or body (including a corporation sole) established by or under a law of the Commonwealth, the State or the Territory (other than a general law allowing incorporation as a company or body corporate), but does not include:

(a) an Aboriginal Land Trust established under the Aboriginal Land Rights (Northern Territory) Act 1976; or
(b) the Wreck Bay Aboriginal Community Council established by the Aboriginal Land Grant (Jervis Bay Territory) Act 1986; or
(c) a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006; or
(d) an authority or body that is:
(i) established by or under a law of the Commonwealth, a State or a Territory; and
(ii) specified in the rules.

this Act (except in sections 1, 2, 45 and 237) includes the following provisions:

(a) the provisions of a legislative instrument made under this Act;
(b) sections 134.1, 134.2, 135.1, 135.2, 135.4, 136.1, 137.1 and 137.2 of the Criminal Code, in so far as those sections relate to:
(i) this Act; or
(ii) a legislative instrument made under this Act.

Torrens system land: land is Torrens system land if the title to the land is registered under a Torrens system of registration.

Torres Strait Islander has the same meaning as in the Aboriginal and Torres Strait Islander Act 2005.

type A permanence period: see section 34.

type B permanence period: see section 34.

type C permanence period: see section 34.

vacancy, in relation to the office of a Nature Repair Committee member, has a meaning affected by section 8.

8 Vacancy in the office of a Nature Repair Committee member

For the purposes of a reference in: (a) this Act to a vacancy in the office of a Nature Repair Committee member; or (b) the Acts Interpretation Act 1901 to a vacancy in the membership of a body; there are taken to be 4 offices of Nature Repair Committee member in addition to the Chair of the Committee.

9 Electronic notice transmitted to the Regulator

(1) For the purposes of this Act, a notice is an electronic notice transmitted to the Regulator if, and only if: (a) the notice is transmitted to the Regulator by means of an electronic communication; and (b) if the Regulator requires that the notice be transmitted, in accordance with particular information technology requirements, by means of a particular kind of electronic communication—the Regulator’s requirement has been met; and (c) the notice complies with rules made for the purposes of subsection (2). (2) The rules may make provision for or in relation to the security and authenticity of notices transmitted to the Regulator by means of an electronic communication. (3) Rules made for the purposes of subsection (2) may deal with: (a) encryption; and (b) authentication of identity. (4) Subsection (3) does not limit subsection (2). (5) This section does not, by implication, limit the regulations that may be made under the Electronic Transactions Act 1999.