Threatened Species Conservation Act 1995 No 101
Current version for 17 October 2014 to date (accessed 25 November 2014 at 07:03)
Part 7ADivision 1

Division 1 Preliminary

127   Definitions

(1)  In this Part:

biobank site means land that is designated by a biobanking agreement to be a biobank site for the purposes of this Act.

biobanking agreement means an agreement entered into under Division 2.

biobanking assessment methodology means the rules established under section 127B.

biobanking scheme means the biodiversity banking and offsets scheme established under this Part.

biobanking statement means a biobanking statement issued and in force under this Part.

Biobanking Trust Fund means the Biobanking Trust Fund established under this Part.

Biodiversity Banking Account means the Biodiversity Banking Account established under this Part.

biodiversity credit means a biodiversity credit created under this Part.

credit retirement condition has the meaning given by section 127ZN.

deferred retirement arrangement has the meaning given by section 127ZT.

development means development within the meaning of the Planning Act, and includes an activity within the meaning of Part 5 of that Act.

development for which biobanking is available has the meaning given by section 127ZJ.

Fund Manager means the person for the time being appointed under this Part as Fund Manager in respect of the Biobanking Trust Fund.

holder of a biodiversity credit means a person for the time being recorded as the holder of that credit in the register of biodiversity credits.

management action means an action or proposed action in respect of which a biodiversity credit may be created.

mining authority means an authority, mineral claim or opal prospecting licence under the Mining Act 1992.

petroleum title means a petroleum title under the Petroleum (Onshore) Act 1991.

register of biobank sites means the register of biobank sites kept by the Director-General under this Part.

register of biobanking statements means the register of biobanking statements kept by the Director-General under this Part.

register of biodiversity credits means the register of biodiversity credits kept by the Director-General under this Part.

restorative action, in relation to a development or activity, means any rehabilitation or restoration action taken on the site of a development or activity after the development or activity has been substantially completed.

(2)  In this Part, a reference to an action, or carrying out an action, includes a reference to doing any thing or refraining from doing any thing.

127A   Establishment of biobanking scheme

(1)  There is established by this Part a biodiversity banking and offsets scheme (the biobanking scheme).
(2)  The biobanking scheme has the following key elements:
(a)  the establishment of biobank sites on land by means of biobanking agreements entered into between the Minister and the owners of the lands concerned,
(b)  the creation of biodiversity credits in respect of management actions carried out or proposed to be carried out on or in respect of biobank sites that improve biodiversity values,
(c)  a system that enables those biodiversity credits, once created and registered, to be traded (including by being purchased by developers) and used as an offset against the impact of proposed development on biodiversity values,
(d)  the establishment of a biobanking assessment methodology, by order of the Minister published in the Gazette, for the purpose of determining both the number of biodiversity credits that may be created in respect of management actions or proposed management actions and the number of biodiversity credits that must be retired in connection with a development to offset the impact of the development and ensure that it improves or maintains biodiversity values.
(3)  The biobanking scheme is not to be implemented until:
(a)  a joint committee of the Legislative Assembly and the Legislative Council has been appointed with functions that include preparing a report that sets out suggested guidelines for the operation of the scheme during a trial period and examines options for applying the scheme to the clearing of native vegetation (within the meaning of the Native Vegetation Act 2003), and
(b)  the report has been provided to both Houses of Parliament, and
(c)  the Minister has caused to be tabled in each House of Parliament a report by the Minister setting out what the Government has done or proposes to do in response to the report of the joint committee.
(4)  Despite subsection (3), the biobanking scheme may be implemented if the report of the joint committee referred to in subsection (3) (a) has not been prepared by the joint committee and provided to both Houses of Parliament by the end of the period of 6 months after the commencement of this Part.
(5)  If a House of Parliament is not sitting when the joint committee seeks to provide its report to that House, the joint committee may instead present it to the Clerk of the House of Parliament concerned.
(6)  Section 63C of the Public Finance and Audit Act 1983 applies in respect of the presentation of the report of the joint committee to a Clerk of a House of Parliament under this section in the same way as it applies to the presentation of documents in accordance with that Act.
(7)  For the purposes of subsections (3) and (4), each of the following actions constitutes implementation of the biobanking scheme:
(a)  the publication of the biobanking assessment methodology in the Gazette,
(b)  the establishment of any biobank site,
(c)  the issue of any biobanking statement.

127B   Biobanking assessment methodology

(1)  The Minister may, by order published in the Gazette, establish rules with respect to the following:
(a)  the actions or proposed actions in respect of which biodiversity credits may be created (management actions), being actions that will improve biodiversity values,
(b)  the creation of biodiversity credits or different classes of biodiversity credits in respect of management actions that have been carried out, are being carried out or are proposed to be carried out on or in respect of biobank sites,
(c)  the circumstances in which development is to be regarded as improving or maintaining biodiversity values, including where the impact of that development is offset against the impact of management actions for which biodiversity credits are created,
(d)  any impact on biodiversity values that cannot be offset by the retirement of biodiversity credits.
(2)  In particular, the rules are to establish a methodology for the following:
(a)  assessing the impact or likely impact of management actions or development on biodiversity values,
(b)  determining the number and class of biodiversity credits that can be created in respect of a management action, and the times at which they may be created,
(c)  determining the number and class of biodiversity credits that are required to be retired in respect of development, as an offset against the impact of the development on biodiversity values, pursuant to the issue of a biobanking statement.
(3)  The Minister is to have regard to the following principles when establishing the methodology under this section:
(a)  biodiversity values should be conserved across appropriate local and regional scales,
(b)  all types of ecological communities should be adequately conserved,
(c)  any areas conserved under the biobanking scheme must be viable in the long term.
(4)  A methodology provided for by the rules may include provision for the use of specified computer programs or databases.
(5)  The rules must comply with any requirements set out in the regulations, including as to the types of actions or proposed actions in respect of which biodiversity credits may be created.
(6)  Subject to any requirements of the regulations, refraining from doing any thing (whether or not that thing was being done beforehand) may be treated by the rules as an action that improves biodiversity values, if refraining from doing that thing improves biodiversity values or the long term security of biodiversity values. This does not limit the generality of subsection (1) (a).
(7)  The biobanking assessment methodology must include provisions that ensure that if an environmental contribution is required in respect of a development, the number of biodiversity credits required to be retired in respect of the development is reduced (or is nil) to take account of that environmental contribution.
(8)  The biobanking assessment methodology may provide for any other matters required or authorised by this Part.
Note. See also Division 7, which allows the methodology to include provision for deferred retirement arrangements where restorative actions are taken in respect of a development.
(9)  A biobanking agreement cannot be entered into, and a biobanking statement cannot be issued, until the biobanking assessment methodology is published under this section.
(10)  In this section, environmental contribution means any of the following contributions, or a part of such a contribution, if the contribution or part is required, or is to be used or applied, for the conservation or enhancement of the natural environment:
(a)  a contribution (including a dedication of land or other material benefit) required by a planning agreement under Subdivision 2 of Division 6 of Part 4 of the Planning Act,
(b)  a contribution (including a dedication of land or levy) required under Subdivision 3 or 4 of Division 6 of Part 4 of that Act.

127C   Publication, amendment and review of biobanking assessment methodology

(1)  The Director-General is to ensure that a copy of the biobanking assessment methodology is available for public inspection:
(a)  at the head office of the Department, and
(b)  on the website of the Department.
(2)  Copies of the biobanking assessment methodology, or of any part of the methodology, are to be made available to the public on request, on payment of a fee (if any) fixed by the Director-General.
(3)  Subject to any requirements of the regulations, the biobanking assessment methodology may be amended, repealed or replaced by further order of the Minister published in the Gazette.
(4)  The regulations may:
(a)  prescribe the circumstances in which the Minister is authorised to make an order that amends, repeals or replaces the biobanking assessment methodology, including by requiring consultation to be carried out before such an order is made, and
(b)  require the Minister to undertake a periodic review of the biobanking assessment methodology and provide for consultation in respect of that review.
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