5th Dec 2023, 8:59 PM – Senate Nature Repair Market Bill 2023 and Nature Repair Market (Consequential Amendments) Bill 2023 - Third Reading - Pass the bills

The majority voted in favour of a motion to agree with the remaining stages of the bills (as amended) and so pass them in the Senate. In other words, they voted to read the bills for a third time. They will now be sent back to the House of Representatives, where our MPs will decide on whether they agree with the Senate amendments.

What is the bill's main idea?

According to the bills digest summary:

• The Nature Repair Market Bill 2023 (NRM Bill) seeks to establish the legislative framework for a voluntary national market in biodiversity certificates. The market would enable project proponents to undertake – on a range of land tenures, including in aquatic environments and the ocean to the extent of Australia’s territorial sea (generally, 12 nautical miles from the coast) – projects that protect or enhance biodiversity. The project proponent would be able to apply to the Clean Energy Regulator for a unique biodiversity certificate that could then be sold to interested persons in the market.
• The NRM Bill is framework legislation, with significant elements of the scheme to be provided in a series of legislative instruments to be made by the Minister, including rules, biodiversity assessment instruments and methodology determinations.
• The Nature Repair Market (Consequential Amendments) Bill 2023 makes minor amendments to the Clean Energy Regulator Act 2011 and National Greenhouse and Energy Reporting Act 2007 to facilitate operation of the proposed scheme.
• The Bills indirectly respond to two key reports and reviews relating to the state of Australia’s biodiversity, the State of the Environment Report 2021 and the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Samuel Review). These highlight the deteriorating state of terrestrial and marine biodiversity and the failure of our national environmental law to adequately protect Australia’s biodiversity and iconic places.
• Over 400 submissions were made to 2 rounds of consultation undertaken by the Department of Climate Change, Energy, the Environment and Water (DCCEEW).
• A review of submissions indicates stakeholder views’ range from cautiously optimistic – largely in recognition of the urgent need to increase investment in the protection and enhancement of biodiversity – to highly critical of a broad range of policy and technical issues. Chief among these are concerns about market-led commodification of nature and the integration of the proposed market with the still-to-be-implemented reform of Australia’s national environmental laws. A large number of submitters were of the view that the Bills should not progress until those reforms are finalised.

What were the Senate amendments?

Amendments to the Nature Repair Market Bill 2023

(1) Clause 1, page 1 (line 16), omit “ Market ”.

(2) Page 4 (line 21) to page 245 (line 16), omit “Nature Repair Market Committee” (wherever occurring), substitute “Nature Repair Committee”.

(3) Clause 7, page 11 (after line 8), after the definition of engage in conduct , insert:

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.

(4) Clause 7, page 11 (lines 9 to 13), omit the definition of environmental offsetting purpose , substitute:

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.

(5) Clause 68, page 95 (lines 18 to 20), omit subclause (1A).

(6) Clause 70, page 97 (lines 2 to 8), omit subclause (3), substitute:

(3) A biodiversity certificate must set out such matters (if any) as are specified in the rules.

(7) Clause 70B, page 97 (line 25) to page 98 (line 13), omit the clause.

(8) Clause 71, page 98 (line 20), omit “or 70B”.

(9) Clause 76A, page 100 (lines 16 to 22), omit the clause, substitute:

76A Biodiversity certificates not to be used for environmental offsetting purpose

(1) A biodiversity certificate must not be used for an environmental offsetting purpose.

(2) This section has effect despite any other provision of this Act or any other law of the Commonwealth, or a State or Territory.

(3) To avoid doubt, section 225 (Concurrent operation of State and Territory laws) does not apply to this section.

(10) Clause 164, page 187 (lines 12 to 22), omit paragraphs (1)(da) and (db).

(11) Clause 212, page 234 (lines 20 and 21), omit paragraph (fa).

Amendments to the Nature Repair Market (Consequential Amendments) Bill 2023

According to the supplementary explanatory memorandum (which is a political document that was prepared by the Government itself):

The proposed amendments to the Bill would amend the EPBC Act to:

• expand the scope of the water trigger to apply to all forms of unconventional gas development (rather than coal seam gas development) including activities involving unconventional gas (unconventional gas production) (by drilling, hydraulic fracturing, or other means), including from coal seams, shale rock, tight reservoirs, and any other sources prescribed by regulation. The water trigger will continue to apply to large coal mining development.

• expand the scope of the Independent Expert Scientific Committee to provide advice on EPBC Act approvals involving unconventional gas developments, in addition to coal seam gas and large coal mining developments.

• amend the name of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IESC) to reflect the broadened remit (to Independent Expert Scientific Committee on Unconventional Gas Development and Large Coal Mining Development).

• define what is meant by an unconventional gas development and unconventional gas production and allow for further sources to be added in regulations if there are emerging technologies that may need to be captured in future.

• provide clarity in relation to the application of the expanded water trigger giving proponents greater certainty through explicitly excluding projects that are:

• currently in production as approved under a Commonwealth, state or territory law or is a development that has permanently ceased extraction or production or where post-production has permanently ceased,

• have an existing approval under Part 9 of the EPBC Act or notice of a proposed approval decision, or

• have previously been determined to not need an approval under the EPBC Act (i.e. the action is not a controlled action, not a controlled action particular manner)

• provide that relevant projects currently undergoing EPBC Act assessment (i.e. have been determined to be controlled actions under the EPBC Act but have not yet been approved) will need to be assessed for impacts on water resources.