2022-2023

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

NATURE REPAIR MARKET (CONSEQUENTIAL AMENDMENTS) BILL 2023

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by the authority of the

Minister for the Environment and Water, the Hon Tanya Plibersek MP)

NATURE REPAIR MARKET (CONSEQUENTIAL AMENDMENTS) BILL 2023

 

GENERAL OUTLINE

The Nature Repair Market (Consequential Amendments) Bill 2023 (the Bill) would make minor consequential amendments to the Clean Energy Regulator Act 2011 (CER Act) and the National Greenhouse and Energy Reporting Act 2007 (NGER Act) to support the commencement of the Nature Repair Market Bill 2023 (NRM Bill).

The NRM Bill would provide a framework for a voluntary national biodiversity market that would enable eligible landholders to undertake projects that enhance or protect biodiversity in native species and receive a tradeable certificate for doing so. The intention is that this framework would facilitate private investment in projects that will support biodiversity protection and restoration, through providing for biodiversity certificates to be purchased, claimed, used and publicly traded.

The NRM Bill would be primarily administered by the Clean Energy Regulator (the Regulator). In order to ensure that the NRM Bill is able to effectively operate, this Bill includes the following minor consequential amendments to the CER Act and the NGER Act to:

CER Act

·         provide for a number of new authorised uses and disclosures for protected information under the CER Act, relating to administering the NRM Bill and instruments made under the NRM Bill (a biodiversity law), or facilitating compliance with Australia’s obligations under relevant international agreements relating to biodiversity;

 

·         ensure that the Minister responsible for the CER Act consults with the Minister responsible for the NRM Bill (the Biodiversity Minister) before giving a direction about the Regulator’s powers and functions under the NRM Bill;

 

·         amend the functions of the Regulator to include functions conferred on it by a biodiversity law;

 

·         include additional fields of expertise relating to the NRM Bill for members of the Regulator;

 

·         ensure the Regulator is able to delegate its powers to certain officials of the Department administered by Biodiversity Minister;

 

·         ensure a person is not prevented from giving a document containing protected information to a court or tribunal if necessary to do so for the purpose of giving effect to the NRM Bill;

 

 

NGER Act

·         ensure that the Minister may determine requirements to be met by registered greenhouse and energy auditors preparing for, or carrying out, an audit under the NRM Bill; and

 

·         provide for a register of greenhouse and energy auditors to be kept for the purposes of the NRM Bill.

FINANCIAL IMPACT STATEMENT

The Bill would have no financial impact on the Australian Government Budget.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The full statement of compatibility with human rights is attached to this explanatory memorandum.

 

 

NATURE REPAIR MARKET (CONSEQUENTIAL AMENDMENTS) BILL 2023

 

NOTES ON CLAUSES

Clause 1 – Short title

1.      Clause 1 would provide that the Nature Repair Market (Consequential Amendments) Bill 2023 (the Bill), once enacted, may be cited as the Nature Repair Market (Consequential Amendments) Act 2023 (the Act).

Clause 2 – Commencement

2.      The table at clause 2 would provide for the commencement of the Bill.

 

3.      Item 1 of the table would provide that the whole of the Bill would commence on the later of the day the Bill receives the Royal Assent and the day the Nature Repair Market Act 2023 (the NRM Bill) commences. However, the Bill would not commence at all if the NRM Bill does not commence. This is because the Bill would make amendments to the Clean Energy Regulator Act 2011 (CER Act) and the National Greenhouse and Energy Reporting Act 2007 (NGER Act) that are necessary as a result of the NRM Bill.

 

4.      The note below the table would explain that the table relates only to the provisions of the Act as originally made. It will not be amended to deal with any later amendments of the Act. The purpose of this note is to clarify that the commencement of any subsequent amendments is not reflected in the table.

 

5.      Subclause 2(2) would clarify that any information in column 3 of the table is not part of the Act. Information may be inserted in this column, or edited in this column, in any published version of the Act. For example, the date the Act commenced would be inserted in this column once that has occurred.

Clause 3 – Schedules

6.      Clause 3 would provide that the legislation that is specified to be amended or repealed in a Schedule to the Bill is amended or repealed according to the terms of the relevant Schedule, and that any other item in a Schedule to the Bill has effect according to its terms.

7.      Schedule 1 would make minor amendments to the CER Act and the NGER Act.

SCHEDULE 1 – AMENDMENTS

Clean Energy Regulator Act 2011

Item 1 – Section 3

8.      Section 3 of the CER Act sets out a simplified outline for that Act. It explains that the CER Act establishes the Clean Energy Regulator (the Regulator) and that the Regulator has such functions as are conferred on it by or under the Carbon Credits (Carbon Farming Initiative) Act 2011 (CFI Act), the NGER Act, the Renewable Energy (Electricity) Act 2000 (REE Act) and the Australian National Registry of Emissions Units Act 2011.

 

9.      Item 1 would substitute a new simplified outline in section 3. The new simplified outline would include a new paragraph (b). New paragraph (b) would insert a reference to the NRM Bill. This would have the effect of clarifying that the Regulator’s functions extend to those functions conferred on it by or under the NRM Bill. This is appropriate as it is intended that the Regulator would be the primary administrator of the voluntary biodiversity market established by the NRM Bill.

 

10.  The simplified outline is not intended to be comprehensive and is included in the CER Act to assist readers to understand the substantive provisions of the Act. It is intended that readers will rely on the substantive provisions of the Act.

Item 2 – Section 4

11.  Section 4 of the CER Act defines a number of key terms that are used in that Act.

 

12.  Item 2 would amend section 4 of the CER Act to insert new definitions for the following terms: biodiversity, Biodiversity Convention, Biodiversity Department, biodiversity law, Biodiversity Minister, biodiversity project, international biodiversity agreement and international biodiversity body.

 

13.  The terms biodiversity and biodiversity project would take the same meaning as those terms in the NRM Bill.  

 

14.  Under the NRM Bill, 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 diversity within species and between species, and diversity of ecosystems. For the purposes of the CER Act, this term would be relevant to the term international biodiversity agreement, proposed to be inserted in section 4 by item 2.

 

15.  Under the NRM Bill, the term 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). For the purposes of the CER Act, this definition is relevant to the amendment proposed by item 18, which would insert new section 47A into the CER Act. New section 47A would authorise the use or disclosure of certain protected information relating to a biodiversity project where the use or disclosure is for the purposes of facilitating the development of one or more methodology determinations.

 

16.  The term Biodiversity Convention would refer to the Convention on Biological Diversity, done at Rio de Janeiro on 5 June 1992, as in force for Australia from time to time. For the purposes of the CER Act, this term would be relevant to the term international biodiversity agreement. It is appropriate for the Bill to incorporate this international agreement as in force for Australia from time to time, as it ensures that the Bill would always reflect the up-to-date version of Australia’s international obligations.

 

17.  The term Biodiversity Minister would mean the Minister who administers the NRM Bill. This term would be relevant to a number of new authorisations to use or disclose protected information. These would allow disclosure to the Biodiversity Minister (see the amendments proposed by item 13 and 14) or would require consultation with the Biodiversity Minister (see the amendment proposed by item 9).  

 

18.  The term Biodiversity Department would mean the Department administered by the Biodiversity Minister. This term would be relevant to the amendments proposed by items 7 and 15. Item 8 would amend existing section 35 of the CER Act, concerning delegation of the Regulator’s powers and functions. Item 15 would insert new subsection 46(3), which would allow the disclosure of protected information to the Secretary or an official of the Biodiversity Department for certain purposes.

 

19.  The term biodiversity law would mean the NRM Bill or a legislative instrument made under that Bill, or the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act) as applied by the NRM Bill. This term would be relevant to a number of new provisions that would permit the use or disclosure of protected information for the purposes of, or related to, a biodiversity law (see the amendments proposed by items 12-15).

 

20.  The term international biodiversity agreement would mean any of the Biodiversity Convention, any other international agreement signed on behalf of Australia that relates to biodiversity and imposes obligations on Australia to take action to enhance or protect biodiversity, and an international agreement signed on behalf of Australia that relates to biodiversity and is specified in a legislative instrument made by the Biodiversity Minister for the purposes of this definition. This term would be relevant to the amendment proposed by item 15, which would insert new subsection 46(3) into the CER Act. New subsection 46(3) would authorise an official of the Regulator to disclose protected information to the Secretary or an official of the Biodiversity Department for the purpose of, among other things, facilitating the monitoring of Australia’s compliance with its obligations under an international biodiversity agreement.

 

21.  The term international biodiversity body would mean a body established under an international biodiversity agreement or a body established by a body established under an international biodiversity agreement. This term would be relevant to the amendment proposed by item 20, which would allow the regulations to prescribe an international biodiversity body to whom protected information can be disclosed under section 49 of the CER Act.

 

 

Item 3 – Section 4 (definition of methodology determination)

22.  Item 3 would amend section 4 of the CER Act to repeal the existing definition of methodology determination. This is necessary because the existing definition defines methodology determination by reference to the meaning of the term in the CFI Act. Following the commencement of the NRM Bill, the term methodology determination will be separately used in that Act to cover relevant instruments made under that Act.

 

23.  Instead, the amendments to section 47 of the CER Act proposed by items 16 and 17 would clarify that, where the CER Act refers a methodology determination in that section, it takes the meaning of the term in the CFI Act. Conversely, new section 47A (proposed by item 18) would have the effect that where the CER Act refers a methodology determination in that section, it takes the meaning of the term in the NRM Bill. New section 47A would authorise the use or disclosure of certain protected information relating to a biodiversity project where the use or disclosure is for the purposes of facilitating the development of one or more methodology determinations under the NRM Bill.

Item 4 – Section 4 (definition of objectives of the Regulator)

24.  Item 4 would amend section 4 of the CER Act to repeal the existing definition of objectives of the Regulator. This term is no longer used in the CER Act and is therefore spent and can be repealed.

Item 5 – Paragraph 12(a)

25.  Section 12 of the CER Act clarifies the functions of the Regulator. It provides that the Regulator has such functions as are conferred on it by a climate change law (paragraph 12(a)), or by any other law of the Commonwealth (paragraph 12(b)). It also provides that the Regulator has the function of doing anything incidental to or conducive to the performance of any of the above functions (paragraph 12(c)).

 

26.  Item 5 would amend existing paragraph 12(a) of the CER Act to add a reference to a biodiversity law. This would make it clear that the Regulator has such functions as are conferred on it by a biodiversity law. A biodiversity law would be defined in section 4 of the CER Act as the NRM Bill or a legislative instrument made under that Bill, or the Regulatory Powers Act as it applies to the NRM Bill (see item 2).

 

27.  This amendment is appropriate as the Regulator is intended to be the primary administrator of the voluntary biodiversity market established by the NRM Bill. Accordingly, the NRM Bill would confer functions on the Regulator.

Item 6 – At the end of subsection 18(2)

28.  Section 17 of the CER Act provides that the Regulator consists of a Chair and at least 2, and not more than 4, other members.

 

29.  Section 18 of the CER Act sets out the requirements for a person to be appointed as a member of the Regulator. Subsection 18(1) requires the appointment to be made by the Minister by written instrument. Subsection 18(2) requires that, to appoint a person as a member of the Regulator, the Minister must be satisfied that the person has substantial experience or knowledge, and significant standing, in at least one of a number of listed fields of expertise.

 

30.  Item 6 would amend existing subsection 18(2) to add new paragraphs (m) and (n). New paragraphs 18(2)(m) and 18(2)(n) would have the effect that two new fields of expertise would be added to the list in subsection 18(2), being agriculture (paragraph 18(2)(m)) and biological or ecological science (paragraph 18(2)(n)). These additional fields of expertise are considered relevant to the performance of the functions that would be conferred on the Regulator by the NRM Bill. This would ensure that the members of the Regulator have appropriate experience and expertise to administer the NRM Bill.

Item 7 – After paragraph 35(1)(e)

31.  Subsection 35(1) of the CER Act allows the Regulator to, by writing, to delegate any or all of its functions and powers to a number of persons, including:

 

·         a member of the Regulator;

 

·         a person who is a member of the staff of the Regulator and either an SES employee (or acting SES employee) or an APS employee at Executive Level 2 or equivalent, and

 

·         a person who is assisting the Regulator under section 37 and either an SES employee (or acting SES employee) in the Department or an APS employee in the Department at Executive Level 2 or equivalent.

 

32.  Section 37 of the CER Act allows the Regulator to be assisted by, relevantly, officers and employees of Agencies (within the meaning of the Public Service Act 1999) whose services have been made available to the Regulator in connection with the performance of any of its functions.

 

33.  Item 7 would amend existing subsection 35(1) to insert new paragraphs (f) and (g).

 

34.  New paragraph 35(1)(f) would have the effect that the Regulator may, by writing, delegate any or all of its functions and powers to a person who is both a person assisting the Regulator under section 37, and an SES employee or acting SES employee in the Biodiversity Department.

 

35.  New paragraph 35(1)(g) would have the effect that the Regulator may, by writing, delegate any or all of its functions and powers to a person who is both a person assisting the Regulator under section 37, and an APS employee who holds, or performs the duties of, an Executive Level 2 position, or an equivalent position, in the Biodiversity Department.

 

36.  The purpose of these new provisions is to ensure that the Regulator can delegate its powers or functions under the NRM Bill to staff of the Biodiversity Department where appropriate, and where the person is already a person assisting the Regulator under section 37. This would particularly be relevant in the event that the Department (that administers the CER Act) and the Biodiversity Department are not (sometime in the future) the same Department.

 

37.  Effective delegation is a fundamental component of good governance and risk management. It enables powers and functions (including decision-making) to be exercised by persons other than the person to whom the power or function is vested in circumstances where it is not practical or reasonable for the one person to exercise the power or function themselves.

 

38.  Limiting delegations to officials at Executive Level 2 ensures that only persons with appropriate seniority and expertise in the Biodiversity Department would be exercising the Regulator’s powers. Delegating powers and functions to Executive Level officers is consistent with the Australian Administrative Law Guide which provides that it may be appropriate for such officers to make decisions, particularly where there is a limited exercise of discretion (such as many of the powers Regulator’s functions and powers in the NRM Bill). This would not prevent significant decisions being made by persons of higher classifications (such as SES employees or acting SES employees) and it is intended that such limitations would be operationally imposed in the administration of the NRM Bill.

 

39.  Limiting delegations to officials at Executive Level 2 is also consistent with existing section 35 of the CER Act in relation to staff of the Regulator and the Department.

Item 8 – At the end of subsection 41(3)

40.  Subsection 41(1) of the CER Act provides that the Minister may, by legislative instrument, give directions to the Regulator in relation to the performance of its functions and the exercise of its powers. Subsection 41(3) requires a direction given under subsection 41(1) to not be inconsistent with the objects of the CFI Act, the NGER Act or the REE Act.

 

41.  Item 8 would amend existing subsection 41(3) of the CER Act to insert a new paragraph (e). New paragraph 41(3)(e) would have the effect that a direction given by the Minister under subsection 41(1) must not be inconsistent with the objects of the NRM Bill.

Item 9 – At the end of section 41

42.  Subsection 41(1) of the CER Act provides that the Minister may, by legislative instrument, give directions to the Regulator in relation to the performance of its functions and the exercise of its powers.

 

43.  If the NRM Bill is enacted, the Regulator’s powers and functions would include powers and functions under a biodiversity law. A biodiversity law would be defined in section 4 of the CER Act as the NRM Bill or a legislative instrument made under that Bill, or the Regulatory Powers Act as it applies to the NRM Bill (see item 2).

 

44.  Item 9 would amend existing section 41 of the CER Act to insert new subsection (5). New subsection 41(5) would require the Minister, when giving a direction under subsection 41(1) that relates to the performance of the Regulator’s functions, or the exercise of the Regulator’s powers, under a biodiversity law, to consult with the Biodiversity Minister.

 

45.  This requirement would only apply where the Minister and the Biodiversity Minister are not the same person and recognises that, under the constitutional doctrine of responsible government, the Biodiversity Minister has responsibility for the administration of the NRM Bill.

Item 10 – Subsection 43(3)

46.  Subsection 43(1) of the CER Act imposes a prohibition on the use or disclosure of protected information by a person who is, or has been, an official of the Regulator, and who has obtained the protected information in the person’s capacity as an official of the Regulator.

 

47.  A use or disclosure of protected information does not breach the prohibition in section 43 if it is authorised by Part 3 of the CER Act, or if it is in compliance with a Commonwealth law or a prescribed State or Territory law (subsection 43(2)).

 

48.  Subsection 43(3) provides an additional exception to the prohibition in subsection 43(1). It has the effect that an official of the Regulator is not to be required to produce to a court or tribunal a document containing protected information, or to disclose protected information to a court or tribunal, except where it is necessary to do so for the purposes of giving effect to a climate change law.

 

49.  Item 10 would amend existing subsection 43(3) of the CER Act to insert a reference to a biodiversity law. The effect would be that an official of the Regulator could be required to produce to a court or tribunal a document containing protected information, or to disclose protected information to a court or tribunal, if it is necessary to do so for the purposes of giving effect to a biodiversity law. A biodiversity law would be defined in section 4 of the CER Act as the NRM Bill or a legislative instrument made under that Bill, or the Regulatory Powers Act as it applies to the NRM Bill (see item 2).

 

50.  This amendment would ensure that a biodiversity law is treated in the same manner as a climate change law for the purposes of the exception in subsection 43(3).

Item 11 – Section 44 (heading)

51.  Item 11 would amend the heading of section 44 of the CER Act to insert a reference to a biodiversity law. This amendment would be consequential to the amendments to existing section 44 proposed by item 12.

 

Item 12 – Paragraphs 44(a) and (b)

52.  Section 44 of the CER Act authorises an official of the Regulator to use or disclose protected information if the use or disclosure is for the purposes of either a climate change law (paragraph 44(a)) or the performance of the Regulator’s functions under a climate change law (paragraph 44(b)), or where the use or disclosure is in the course of the official’s employment or service as an official of the Regulator (paragraph 44(c)).

 

53.  Item 12 would amend existing paragraphs 44(a) and 44(b) of the CER Act to insert a reference to a biodiversity law. A biodiversity law would be defined in section 4 of the CER Act as the NRM Bill or a legislative instrument made under that Bill, or the Regulatory Powers Act as it applies to the NRM Bill (see item 2).

 

54.  The effect of this amendment would be to authorise an official of the Regulator to use or disclose protected information where the use or disclosure is for the purposes of a biodiversity law or the performance of the Regulator’s functions under a biodiversity law. This is appropriate as the Regulator would be the primary administrator of the NRM Bill and would have relevant functions conferred under that legislation.

Item 13 – After subsection 45(2)

55.  Section 45 of the CER Act deals with disclosure of protected information to relevant Ministers and their staff. Subsection 45(1) provides that an official of the Regulator may disclose protected information to the Minister. Subsection 45(2) provides that an official of the Regulator may disclose protected information to a Minister if the Minister is responsible for administering a program, or collecting statistics, relating to greenhouse gas emissions, energy consumption or energy production.

 

56.  Item 13 would amend existing section 45 of the CER Act to insert new subsection 45(2A).

 

57.  New subsection 45(2A) would authorise an official of the Regulator to disclose protected information to the Biodiversity Minister, where the protected information was obtained under a biodiversity law, or where it is covered by section 222 of the NRM Bill.

 

58.  Section 222 of the NRM Bill would cover information that was obtained under the CFI Act but was later recognised as also having been provided for the purposes of the NRM Bill. The purpose of section 222 of the NRM Bill is to prevent a person from having to provide the same information to the Regulator twice.

 

59.  It is appropriate that the Biodiversity Minister have access to protected information in these circumstances, as the Biodiversity Minister has responsibility for administering the NRM Bill.

 

 

Item 14 – Subsection 45(3)

60.  Subsection 45(3) of the CER Act authorises an official of the Regulator to disclose protected information to a person employed, under section 13 or 20 of the Members of Parliament (Staff) Act 1984, as a member of staff of a Minister referred to in subsections 45(1) or (2).

 

61.  Item 14 would amend existing subsection 45(3) to insert a reference to new subsection 45(2A). This amendment is consequential to the amendment proposed by item 13 and would have the effect that subsection 45(3) would also authorise an official of the Regulator to disclose protected information to a person employed as a member of staff to the Biodiversity Minister.

 

62.  This is consistent with new subsection 45(2A), which would provide for such information to be disclosed to the Biodiversity Minister (see amendment proposed by item 13).

Item 15 – At the end of section 46

63.  Subsection 46(1) of the CER Act authorises an official of the Regulator to disclose protected information to the Secretary, or an officer of the Department who is authorised in writing by the Secretary, provided the disclosure is for one or more of the listed purposes. These listed purposes concern advising the Minister, monitoring the operation of a climate change law, evaluating the effectiveness of a climate change law, facilitating the monitoring of Australia’s compliance with its international obligations relating to climate change, and facilitating the development of an international agreement relating to climate change.

 

64.  Item 15 would amend existing section 46 of the CER Act to insert new subsection 46(3). New subsection 46(3) would authorise an official of the Regulator to disclose protected information to the Secretary of the Biodiversity Department, or an officer of the Biodiversity Department who is authorised in writing by that Secretary, provided the disclosure is for the purpose of advising the Biodiversity Minister, monitoring the operation of a biodiversity law, evaluating the effectiveness of a biodiversity law, facilitating the monitoring of Australia’s compliance with its international obligations under an international biodiversity agreement, or facilitating the development of an international agreement that relates to biodiversity.

 

65.  A biodiversity law would be defined in section 4 of the CER Act as the NRM Bill or a legislative instrument made under that Bill, or the Regulatory Powers Act as it applies to the NRM Bill (see item 2). The Biodiversity Department would be defined in section 4 of the CER Act as the Department administered by the Minister responsible for the NRM Bill (see item 2).

 

66.  The purpose of new subsection 46(3) would be to replicate existing subsection 46(1) for disclosures relating to biodiversity or a biodiversity law, while providing clarity in relation to the relevant Department for such disclosures.

Item 16 – Section 47 (at the end of the heading)

67.  Item 16 would amend the heading of existing section 47 of the CER Act to add the words ‘under the Carbon Credits (Carbon Farming Initiative) Act 2011’ at the end. This amendment would clarify that section 47 only applies to the use or disclosure of protected information for the purposes of developing methodology determinations under the CFI Act.

 

68.  This amendment is consequential to the amendment proposed by item 18, which would insert new section 47A into the CER Act. New section 47A would apply to the use or disclosure of protected information for the purposes of developing methodology determinations under the NRM Bill.

Item 17 – Paragraph 47(1)(d)

69.  Item 17 would amend existing paragraph 47(1)(d) to insert the words ‘under that Act’ at the end of the paragraph.

 

70.  This amendment would clarify that section 47 only applies to the use or disclosure of protected information for the purposes of developing methodology determinations under the CFI Act.

 

71.  This amendment is consequential to the amendment proposed by item 18, which would insert new section 47A into the CER Act. New section 47A would apply to the use or disclosure of protected information for the purposes of developing methodology determinations under the NRM Bill.

Item 18 – After section 47

72.  Item 18 would insert new section 47A into the CER Act.

 

73.  New subsection 47A(1) would authorise the Regulator to use or disclose protected information that relates to a particular biodiversity project if:

 

·         an application was made under the NRM Bill more than 7 years ago for the project to be approved for registration; and

 

·          the project has been approved for registration under that Bill; and

 

·         the information was contained in, or given in connection with, the application or was contained in a biodiversity report provided under the NRM Bill for that project.

The use or disclosure must be for the purposes of facilitating the development of one or more methodology determinations under the NRM Bill.

74.  This authorisation would enable relevant information and lessons learned from previous projects to be appropriately incorporated into future or updated methodology determinations under the NRM Bill. This will, in turn, assist in ensuring that each methodology determination is fit for purpose for the kinds of projects that are to be covered by the determination and will contribute to the protection or enhancement of biodiversity.

 

75.  New subsection 47A(2) would clarify that the authorisation in subsection new 47A(1) would not apply to personal information (within the meaning of the Privacy Act 1988 (Privacy Act)). Under the Privacy Act, personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information is true or not, and whether the information is recorded in a material form or not. This means that the Regulator would not be able to use or disclose personal information under new section 47A for the purposes of facilitating the development of one or more methodology determinations.

Item 19 – After paragraph 49(1)(n)

76.  Subsection 49(1) of the CER Act lists a number of government and non-government agencies, bodies and persons to whom an official of the Regulator can, under subsection 49(2), disclose protected information (or a class of protected information) if authorised by the Chair of the Regulator. The Chair of the Regulator can only give such an authorisation if satisfied that the particular protected information (or the particular class of protected information) will enable or assist the relevant agency, body or person to perform or exercise any of its functions or powers.

 

77.  Item 19 would amend existing subsection 49(1) to add new paragraphs (na) and (nb).

 

78.  New paragraph 49(1)(na) would have the effect of adding the Director of National Parks to the list of agencies, bodies and persons to whom an official of the Regulator can disclose protected information under subsection 49(2). The Director of National Parks is a corporate Commonwealth entity continued in existence under section 514A of the Environment Protection and Biodiversity Conservation Act 1999. It has, relevantly, the functions of protecting, conserving and managing biodiversity and heritage in Commonwealth reserves and conservation zones, and contributing to the protection, conservation and management of biodiversity and heritage in areas outside Commonwealth reserves and conservation zones.

 

79.  New paragraph 49(1)(nb) would have the effect of adding the Regional Investment Corporation to the list of agencies, bodies and persons to whom an official of the Regulator can disclose protected information under subsection 49(2). The Regional Investment Corporation is a corporate Commonwealth entity established by section 7 of the Regional Investment Corporation Act 2018. It has, relevantly, the function of administering farm business loans.

 

 

Item 20 – After paragraph 49(1)(x)

80.  Item 20 would amend existing subsection 49(1) of the CER Act to add new paragraph (xa). New paragraph 49(1)(xa) would have the effect of adding a prescribed international biodiversity body to the list of agencies, bodies and persons to whom an official of the Regulator can disclose protected information under subsection 49(2).

 

81.  An international biodiversity body would be defined in section 4 as a body established under an international biodiversity agreement or a body established by a body established under an international biodiversity agreement (see item 2).

 

82.  It is appropriate to allow the rules to prescribe relevant international biodiversity bodies for the purposes of section 49 of the CER Act. This approach would provide the necessary flexibility to respond in a timely way to changes in Australia’s international obligations and international relations, as well as to changes in technology and advances in science that may necessitate the creation of additional international bodies. Any rules made to prescribe international biodiversity bodies for the purposes of new paragraph 49(1)(xa) would be subject to the usual parliamentary scrutiny and disallowance processes.

Item 21 – Section 56A

83.  Section 56A of the CER Act is an avoidance of doubt provision. It clarifies that an authorisation under paragraph 46(1)(b), paragraph 46(2)(e), subsection 49(2), subsection 50(2) or subsection 55(3) may authorise a specific officer or official, or may authorise a person who holds, or occupies the duties of, a specified office or position. In other words, the effect of section 56A is to remove any doubt that an authorisation under any of the listed provision may be directed at a particular person or a particular position (and thus cover the person occupying or performing the duties of that position).

 

84.  Item 21 would amend existing section 56A to insert a reference to new paragraph 46(3)(b). This is a consequential amendment to the amendment proposed by item 16 and would have the effect of clarifying that the authorisation in new paragraph 46(3)(b) may be directed at a particular officer of the Biodiversity Department or a particular position in the Biodiversity Department (and thus cover the officer occupying or performing the duties of that position).

 

85.  The Biodiversity Department would be defined in section 4 of the CER Act as the Department administered by the Minister responsible for the NRM Bill (see item 3).

National Greenhouse and Energy Reporting Act 2007

Item 22 – Section 7

86.  Section 7 of the NGER Act defines key terms for that legislation. Item 22 would amend section 7 of the NGER Act to insert new definitions for biodiversity audit and biodiversity audit report.

 

87.  A biodiversity audit would take the same meaning as in the NRM Bill. Under section 7 of the NRM Bill, a biodiversity audit would be defined as an audit under section 121 or 122 of the NRM Bill, or an audit carried out for the purposes of preparing an audit report prescribed for the purposes of any of paragraph 12(3)(a) (concerning applications to register a biodiversity project), paragraph 68(1)(e) (concerning applications for a biodiversity certificate for a registered biodiversity project) paragraph 103(1)(d), 103(1)(e), 104(3)(d) or 104(3)(e) (concerning biodiversity project reports) of the NRM Bill.

 

88.  A biodiversity audit report would also take the same meaning as in the NRM Bill. Under section 7 of the NRM Bill, a biodiversity audit report would be defined as an audit report under section 121 or 122 of the NRM Bill, or an audit report prescribed for the purposes of any paragraphs 12(3)(a), 68(1)(e), 103(1)(d), 103(1)(e), 104(3)(d) or 104(3)(e) of the NRM Bill.

 

89.  These new definitions are relevant to the amendments proposed by items 23 to 25, which provide the mechanisms for greenhouse and energy auditors registered under NGER Act to carry out audits and prepare audit reports for the purposes of the NRM Bill (as provided for in that Bill).

Item 23 – At the end of subsection 75(1)

90.  Section 75 of the NGER Act deals with the conduct of audits by registered greenhouse and energy auditors. Existing subsection 75(1) provides that the Minister may determine, by legislative instrument, requirements to be met by registered greenhouse and energy auditors in preparing and carrying out greenhouse and energy audits, emissions reduction fund (ERF) audits, or safeguard audits, and in preparing audit reports for those kinds of audits. Greenhouse and energy audits are provided for under the NGER Act, while ERF audits and safeguard audits are provided for under other Commonwealth legislation. Subsection 75(2) provides that the determination may set out different requirements for different types of audits and different types of audit reports.

 

91.  Item 23 would amend subsection 75(1) of the NGER Act to provide that the Minister also has the power to determine, by legislative instrument, requirements to be met by registered greenhouse and energy auditors in preparing for and carrying out biodiversity audits and in preparing biodiversity audit reports.

 

92.  The terms biodiversity audit and biodiversity audit report would be defined in section 7 of the NGER Act, as proposed by item 22.

 

93.  This amendment would allow the Minister to set requirements for registered greenhouse and energy auditors who carry out audits and prepare audit reports under the NRM Bill, consistent with the existing power to set requirements for registered greenhouse and energy auditors who carry out and report on other kinds of audits in Commonwealth legislation. It would allow the requirements set to reflect the specific needs of audits under the NRM Bill, to ensure that such audits are performed by appropriately qualified persons and are fit for purpose.

Item 24 – Subsection 75A(1)

94.  Under existing subsection 75A(1) of the NGER Act, the Regulator must cause a register of greenhouse and energy auditors to be kept for the purposes of the NGER Act and the CFI Act. The purpose of this register is to ensure that relevant and up-to-date information on registered greenhouse and energy auditors is made available to participants in the regulatory schemes under those Acts, particularly those who may be required to engage the services of such auditors.

 

95.  Item 24 would amend subsection 75A(1) of the NGER Act to the effect that the Regulator must also cause a register of greenhouse and energy auditors to be kept for the purposes of the NRM Bill. This will ensure that participants in the new voluntary biodiversity market scheme enacted by the NRM Bill will also have access to relevant and up-to-date information on registered greenhouse and energy auditors. This is appropriate as such persons may be required to engage a registered greenhouse energy auditor to carry out audits or prepare audit reports under that Bill.

Item 25 – After paragraph 75A(5)(h)

96.  Subsection 75A(2) of the NGER Act has the effect that the regulations set the requirements for a person to apply for registration as a greenhouse and energy auditor (paragraph 75A(2)(a)) and the requirements for qualifications, knowledge, expertise, competence, independence for, and other matters relevant to, a registered greenhouse and energy auditor (paragraph 75A(2)(b)).

 

97.  Existing subsection 75A(5) provides that regulations may provide for a number of specified matters, including the form and content of the register, the publication of the register, the form, content and manner of applications, fees, requirements to be met to maintain registration, review, suspension and deregistration of registration, and inspection of the performance of registered greenhouse and energy auditors in carrying out greenhouse and energy audits.

 

98.  Item 25 would amend subsection 75A(5) to insert new paragraph (ha). New paragraph 75A(5)(ha) would have the effect that, in addition to the matters described above, the regulations may provide for the inspection of the performance of registered greenhouse and energy auditors in carrying out biodiversity audits.

 

99.  This amendment would help to ensure the integrity of audits carried out under, or for the purpose of, the NRM Bill, as well as streamlining the requirements for registered greenhouse and energy auditors who carry out audits under multiple regulatory schemes.

 

 

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Nature Repair Market (Consequential Amendments) Bill 2023

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The Nature Repair Market (Consequential Amendments) Bill 2023 (the Bill) would make minor consequential amendments to the Clean Energy Regulator Act 2011 (CER Act) and the National Greenhouse and Energy Reporting Act 2007 (NGER Act) to support the commencement of the Nature Repair Market Bill 2023 (NRM Bill).

The NRM Bill would provide a framework for a voluntary national biodiversity market that would enable eligible landholders to undertake projects that enhance or protect biodiversity in native species and receive a tradeable certificate for doing so. The intention is that this framework would facilitate private investment in projects that will support biodiversity protection and restoration, through providing for biodiversity certificates to be purchased, claimed, used and publicly traded.

The NRM Bill would be primarily administered by the Clean Energy Regulator (the Regulator). In order to ensure that the Regulator is able to effectively administer the NRM Bill, this Bill includes the following minor consequential amendments to the CER Act and the NGER Act to:

CER Act

·         provide for a number of new authorised uses and disclosures for protected information under the CER Act, relating to administering the NRM Bill and instruments made under the NRM Bill (a biodiversity law), or facilitating compliance with Australia’s obligations under relevant international agreements relating to biodiversity.

 

·         ensure that the Minister responsible for the CER Act consults with the Minister responsible for the NRM Bill (the Biodiversity Minister) before giving a direction about the Regulator’s powers and functions under the NRM Bill;

 

·         amend the functions of the Regulator to include functions conferred on it by a biodiversity law;

 

·         include additional fields of expertise relating to the NRM Bill for members of the Regulator;

 

·         ensure the Regulator is able to delegate its powers to certain officials of the Department administered by Biodiversity Minister;

 

·         ensure a person is not prevented from giving a document containing protected information to a court or tribunal if necessary to do so for the purpose of giving effect to the NRM Bill;

NGER Act

·         ensure that the Minister may determine requirements to be met by registered greenhouse and energy auditors preparing for, or carrying out, an audit under the NRM Bill; and

 

·         provide for a register of greenhouse and energy auditors to be kept for the purposes of the NRM Bill.

Human rights implications

This Bill engages the following human rights:

·         the right to privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

Right to privacy

Article 17 of the ICCPR prohibits arbitrary or unlawful interferences with an individual’s privacy, family, home or correspondence, and protects a person’s honour and reputation from unlawful attacks. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances.

Use and disclosure of information

As noted above, the Bill would make a number of amendments to the information sharing provisions in Part 3 of the CER Act, including providing for a number of new authorised uses and disclosures for protected information under that Act.

The CER Act defines relevantly protected information as information that relates to the affairs of a person other than an official of the Regulator. This means that information obtained by the Regulator under the NRM Bill would be protected information for the purposes of the CER Act and would be subject to the information sharing provisions in Part 3. In addition, some of the new authorisations will also apply to protected information that has been collected by the Regulator under other legislation, such as the Carbon Credits (Carbon Farming Initiative) Act 2011 (CFI Act). Information collected under the NRM Bill or the CFI Act may, incidentally, include some personal information. The use and disclosure of such information may therefore engage the prohibition on arbitrary interference with privacy.

The new authorisations are necessary for the legitimate objectives of assisting with:

·         the effective and efficient administration of Australian legislation (primarily the NRM Act);

 

·         the performance of functions and exercise of powers by relevant government bodies; and

 

·         facilitating compliance with Australia’s international obligations.

In addition, the circumstances and purposes for which protected information can be used and disclosed are clearly defined as being for these legitimate objectives.

It should also be noted that protected information that has been collected by the Regulator under the NRM Bill and the CFI Act will generally have been provided voluntarily by a person who is choosing to participate in the relevant regulatory system. A person who has voluntarily entered the biodiversity market under the NRM Bill or the carbon credit market under the CFI Act should expect that, in order to obtain the benefits of the system, a certain amount of personal information will need to be provided to the Regulator and that that information may be used in the administration of the relevant legislation. Given that one of the objects of the NRM Bill is to facilitate compliance with Australia’s international obligations relating to biodiversity, such persons should also expect that information collected under that Act may also be used for such purposes.

The new authorisations would be exercised consistently with the Privacy Act 1988 (Privacy Act) which regulates the storage, use, disclosure and publication of personal information. However, many participants in the regulatory scheme would be body corporates for which the protections in the Privacy Act do not apply.

For these reasons, this limitation to the right to privacy is reasonable, necessary and proportionate to achieve legitimate objectives and is consistent with the right to privacy in Article 17 of the ICCPR.

Conclusion

 

The Bill is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to the achievement of a legitimate objective.

 

The Hon. Tanya Plibersek MP

Minister for the Environment and Water