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Contents (1995 - 101)
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Threatened Species Conservation Act 1995 No 101
Current version for 26 May 2017 to date (accessed 28 June 2017 at 07:01)
Part 7A Division 5
Division 5 Cancellation, suspension and retirement of biodiversity credits
127ZD   Grounds for cancellation of biodiversity credit
(1)  The Chief Executive may cancel a biodiversity credit that is in force, or that has been suspended under this Part:
(a)  if the Chief Executive is of the opinion that any management action in respect of which the biodiversity credit was created has not been carried out or completed, or is not being carried out, in accordance with the biobanking agreement, or
(b)  if the person who applied for the creation of the credit provided any information to the Chief Executive in, or in connection with, the application that was false or misleading in a material particular, or
(c)  if the credit was created in error, or
(d)  if the holder of the credit has requested or agreed to the cancellation, or
(e)  if authorised to do so by any other provision of this Act or the regulations.
(2)  Without limiting subsection (1), if the Minister varies or terminates a biobanking agreement because of activities authorised by a mining authority or petroleum title granted in respect of a biobank site, the Chief Executive may cancel any biodiversity credits created in respect of the biobank site that have not been transferred by the biobank site owner.
(3)  The Chief Executive must not cancel a biodiversity credit unless before doing so the Chief Executive:
(a)  gives notice to the holder of the credit that he or she intends to do so, and
(b)  specifies in that notice the reasons for his or her intention to do so, and
(c)  gives the holder of the credit a reasonable opportunity to make submissions in relation to the proposed cancellation, and
(d)  takes into consideration any such submissions by the holder of the credit.
(4)  The Chief Executive is not to cancel a credit if the Chief Executive is satisfied that the holder of the credit is a bona fide purchaser of the credit without notice of the circumstances that are grounds for the cancellation of the credit.
Note.
 However, the Chief Executive may require a wrongdoer to retire a specified number or class of credits under section 127ZI.
(5)  Subsections (3) and (4) do not apply if the holder of a biodiversity credit has requested or agreed to the cancellation of the credit.
127ZE   General provisions relating to cancellation of biodiversity credits
(1)  The Chief Executive cancels a biodiversity credit by making a recording in the register of biodiversity credits, in relation to the biodiversity credit concerned, that indicates that the credit is cancelled.
(2)  The Chief Executive must give the holder of the credit notice in writing of the cancellation.
(3)  No compensation is payable for the cancellation of a biodiversity credit.
(4)  However, if a biodiversity credit is cancelled because of activities authorised by a mining authority or petroleum title granted in respect of a biobank site, the reasonable costs incurred by the biobank site owner in carrying out, before the cancellation, the management actions in respect of which the biodiversity credits were created are taken, for purposes of the Mining Act 1992 or the Petroleum (Onshore) Act 1991, to be a loss caused by deprivation of the possession or of the use of the surface of the land concerned as a result of the exercise of the rights conferred by the mining authority or petroleum title.
(5)  If a biodiversity credit is cancelled, the Minister may vary or terminate the relevant biobanking agreement (with or without the consent of the owner of the biobank site) to make it clear that any obligation to carry out, or to continue to carry out, a management action that arises only because of the creation of that credit ceases to have effect.
(6)  If the variation or termination is made without the consent of the owner:
(a)  the variation or termination is to be made by the Minister by order published in the Gazette, and
(b)  a copy of the order is to be laid before each House of Parliament within 30 sitting days of that House, or such other period as may be prescribed by the regulations, after publication of the order.
(7)  The Minister is not to make an order referred to in subsection (6) unless:
(a)  written notice of the Minister’s intention to vary or terminate the agreement has been given to the owner of the biobank site stating that the owner may make submissions to the Minister within the period specified in the notice (being a period of not less than 28 days), and
(b)  the Minister has considered any submissions made by the owner of the biobank site, being submissions made within that specified period.
(8)  The cancellation of a biodiversity credit does not prevent the Minister from seeking an award of damages against the owner of a biobank site for a breach of a biobanking agreement.
127ZF   Suspension of biodiversity credit
(1)  If the Chief Executive considers that there may be reasons for cancelling a biodiversity credit, the Chief Executive may suspend the biodiversity credit for a period of up to 2 months pending an investigation into the matter.
(2)  The Chief Executive suspends a biodiversity credit by making a recording in the register of biodiversity credits, in relation to the biodiversity credit concerned, that indicates that the credit is suspended.
(3)  The Chief Executive must give the holder of the credit notice in writing of the suspension.
(4)  No compensation is payable for the suspension of a biodiversity credit.
127ZG   Application for retirement of biodiversity credits
(1)  The holder of a biodiversity credit that is in force may, by application in writing to the Chief Executive, retire the credit.
Note.
 Once the creation of a biodiversity credit is registered, it remains in force unless it is cancelled or retired—see section 127Y.
(2)  Any application to retire a biodiversity credit may be made by the holder of the credit:
(a)  for the purpose of complying with a credit retirement condition specified in a biobanking statement, or
(b)  for the purpose of complying with a direction made by the Minister or a court under this Part or under the National Parks and Wildlife Act 1974, or
(c)  for the purpose of complying with a condition of an approval or consent granted by the Minister under Part 3A, Part 4 or Part 5.1 of the Planning Act, or
(d)  on a voluntary basis.
(3)  If the Chief Executive accepts the application, the Chief Executive is to retire the biodiversity credit.
Note.
 Biodiversity credits may also be retired under Division 7.
127ZH   General provisions relating to retirement of biodiversity credits
(1)  The Chief Executive retires a biodiversity credit by making a recording in the entry relating to the credit in the register of biodiversity credits to indicate that the credit has been retired.
(2)  The retirement of a biodiversity credit does not affect any requirement imposed on the owner of a biobank site under a biobanking agreement. In particular, it does not affect any requirement that the owner carry out, or continue to carry out, management actions in respect of the land in relation to which the credit was created.
(3)  A biodiversity credit that has been suspended by the Chief Executive may not be retired during any period in which the suspension has effect.
(4)  The regulations may make further provision for the retirement of biodiversity credits, including the procedure for retiring a credit and the circumstances in which the Chief Executive may refuse an application to retire a credit.
127ZI   Order requiring biobank site owner to retire biodiversity credits
(1)  The Minister may, by order in writing to a person, direct the person to retire biodiversity credits of a specified number and class (if applicable) within a time specified in the order.
(2)  A direction may be given to a person under this section only if:
(a)  the person is the owner of a biobank site (or a former owner), and
(b)  the Minister is satisfied that, because of any act or omission by the person, one or more biodiversity credits were created in respect of a management action that was not carried out or completed, or that is not being carried out, in accordance with the relevant biobanking agreement, and
(c)  the biodiversity credit or credits created have been transferred to another person or retired.
(3)  The number of biodiversity credits, and class (if applicable), that are required to be retired is to be equivalent to the number and class of biodiversity credits that, in the opinion of the Minister, were created in respect of management actions not carried out or completed, or not being carried out, in accordance with the biobanking agreement and which have been transferred or retired.
(4)  A direction may be given to a person under this section only if before doing so the Minister:
(a)  gives notice to the person that he or she intends to make the direction, and
(b)  specifies in that notice the reasons for his or her intention to do so, and
(c)  gives the person a reasonable opportunity to make submissions in relation to the proposed direction, and
(d)  takes into consideration any such submissions by the person.
(5)  A person must not, without reasonable excuse, fail to comply with an order under this section.
Maximum penalty: 5,000 penalty units.
Note.
 If the owner of a biobank site fails to comply with the order, that failure is also grounds for the cancellation or suspension of registration of a biobank site.
(6)  It is not an excuse for a failure to comply with an order under this section that the person who is the subject of the order does not, at the time the order is made, hold a sufficient number of biodiversity credits to comply with the order.
Note.
 If the person who is the subject of the order does not hold a sufficient number of credits to comply with the order, the person may obtain the required number by purchasing them or carrying out the necessary management actions to create them.
(7)  A court that convicts a person of an offence under subsection (5) may, in addition to or in substitution for any pecuniary penalty for the offence, by order direct the person to retire, in accordance with this Part, biodiversity credits of a specified number and class (if applicable) within a time specified in the order and, if the person does not hold sufficient biodiversity credits to comply with the direction, to acquire the necessary biodiversity credits for the purpose of retiring them.
(8)  Any action taken under this section does not prevent the Minister from seeking an award of damages against the owner or former owner of a biobank site for a breach of a biobanking agreement.
(9)  In this section:
conviction includes the making of an order under section 10 of the Crimes (Sentencing Procedure) Act 1999.