Australia: Biobanking 2.0 – the new government's draft biodiversity conservation laws

On 3 May 2016, the NSW Government published public consultation drafts of the Biodiversity Conservation Bill 2016, and the Local Land Services Amendment Bill 2016 (together, the Draft Bills).

If enacted, the Draft Bills would effect sweeping reform to the State's biodiversity conservation laws, including expanding the role of offsetting for developments with biodiversity impacts.


The Draft Bills follow on from the final report of the Independent Biodiversity Legislation Review Panel entitled A review of biodiversity legislation in NSW (Report), presented to government on 18 December 2014. In March 2015, the NSW Government committed to implementing all 43 of the Report's recommendations.

The Report favoured an approach that would:

  1. simplify the legislative framework by repealing existing biodiversity conservation laws and enacting a single Biodiversity Conservation Act;
  2. encourage a broader application of offsetting through expansion of existing mechanisms such as biodiversity certification and BioBanking, as well as implementation of a new State-wide biodiversity offsets fund; and
  3. focus on conserving biodiversity and ecological integrity at a bioregional and State level.


  1. Consolidation of legislation

The Draft Bills would substantially remodel NSW biodiversity laws, repealing and replacing the:

  1. Threatened Species Conservation Act 1995 (and with it the Threatened Species Conservation Regulation 2010 and Threatened Species Conservation (Biodiversity Banking) Regulation 2008);
  2. Nature Conservation Trust Act 2001; and
  3. Native Vegetation Act 2003 (and with it the Native Vegetation Regulation 2013).

The Draft Bills would also replace parts of the National Parks and Wildlife Act 1974 and will make consequential amendments to a suite of other legislation.

The draft Biodiversity Conservation Bill 2016 (Draft Biodiversity Bill), the central pillar of the reforms, is divided into 14 parts. Several key parts of the Draft Biodiversity Bill are discussed as follows.

  1. New framework for protecting threatened wildlife (Part 2)

The Draft Biodiversity Bill proposes a new, risk-based approach to regulating wildlife interactions that would replace the existing licence-based framework under the National Parks and Wildlife Act 1974. Under the new approach, there would be three tiers of wildlife interactions that would otherwise be prohibited:

  1. exempt activities listed in the regulations, which would be able to be carried out in certain circumstances with a licence and without any reporting or record keeping requirements;
  2. activities able to be carried out in compliance with a code of practice, without the need to obtain a licence; and
  3. activities authorised by a biodiversity conservation licence.
  1. Areas of outstanding biodiversity value (Part 3)

The Draft Biodiversity Bill would provide for an area to be declared an "area of outstanding biodiversity value". As a result, the Minister for the Environment would be required to take reasonable steps to enter into a private land conservation agreement with an owner of such land. Private land conservation agreements would be made under Part 5 of the Draft Biodiversity Bill (see paragraph 5 below) and could be specified to apply for either a temporary period or exist in perpetuity.

  1. Changes to threatened species identification (Part 4)

The process for listing threatened plants and animals would be largely carried over to the new Biodiversity Conservation Act, if enacted. The threat categories will be updated to align with International Union for Conservation of Nature standards. For example, species that are currently "presumed extinct" will be categorised as "extinct", and an ecological community may be listed as a "collapsed ecological community".1

The Draft Biodiversity Bill will facilitate the work of the Threatened Species Scientific Committee (Committee, being the Scientific Committee established under the Threatened Species Conservation Act) by expanding the scope of provisional listing, allowing the Committee to quickly list species that, for example, are under immediate and significant threat of extinction.2

The Draft Biodiversity Bill also provides for an expansion of the Saving Our Species Program, and the NSW Government has committed to investing $100 million over five years.3

  1. New system of conservation agreements with private landowners (Part 5)

Under Part 5 of the Draft Biodiversity Bill, there would be three types of private land conservation agreements:

  1. biodiversity stewardship agreements, which would provide for permanent protection of biodiversity on private land in exchange for an upfront payment and ongoing payments to support management of the site;
  2. conservation agreements, which could be permanent or finite, and would be supported by smaller stewardship payments to landholders; or
  3. wildlife refuge agreements, which would be able to be terminated at any time, or converted into conservation agreements or biodiversity stewardship agreements.

The NSW Government intends to commit $240 million over the next five years, and $70 million per annum (escalated with inflation) thereafter, to be used by the Biodiversity Conservation Trust (BCT) for the purpose of entering into and administering private land conservation agreements with landholders. This monetary contribution will be additional private funds contributed under the new biodiversity offsets scheme (discussed further below).

It is the NSW Government's intention that this simpler framework will be more accessible for landholders, and that the payments from the BCT will incentivise landowners to enter into conservation agreements.

  1. New biodiversity offsets scheme (Parts 6 and 7)

The reforms would establish a single biodiversity offsets scheme, intended to improve consistency and streamline timeframes in assessing and offsetting the biodiversity impacts of development.

Under the scheme, a new Biodiversity Assessment Method (BAM) would be used to assess biodiversity value at a particular site.4 This would replace other methods, including Species Impact Statements, the BioBanking Assessment Methodology and the Framework for Biodiversity Assessment, among others.

The BAM is intended to be more scientifically robust, consistent and transparent than existing methodologies. It is also intended to provide guidance on how a developer could apply the "AMO principle" (prioritising avoidance, then minimisation, then offsetting of biodiversity impacts). The BAM guidelines would be required to be followed where a proposed development either triggered the existing "significant effect" threshold or the new BAM threshold.

Development consent would not be able to be granted for a development assessed under the BAM to have "serious and irreversible impacts on biodiversity values" (except for development that is classified as State significant development or State significant infrastructure under the Environmental Planning and Assessment Act 1979 (EPA Act)).5

The new scheme would modify the existing market-based system, allowing developers to offset obligations by:

  1. generating biodiversity credits (such as by establishing a biodiversity stewardship agreement) and retiring them;
  2. purchasing biodiversity credits and retiring them; or
  3. making a payment into the Biodiversity Conservation Fund (BCF).

This BCF would be managed by the BCT (see paragraph 8 below) and would be used to secure offsets on the basis of developer payments.

The regulations would prescribe that offsets must be "like-for-like or better", meaning they must replace the biodiversity values being lost or target higher conservation priorities. However, the regulations would also outline a process for varying the "like-for-like" requirements, leaving it open for the consent authority to determine on a case by case basis whether an offset obligation for a development should be reduced.6

  1. Biodiversity certification (Part 8)

The Draft Biodiversity Bill contains a new biodiversity certification framework to replace the existing scheme in Part 7AA Threatened Species Conservation Act 1995 (NSW).

Currently, only planning authorities may apply to the Minister for biodiversity certification.7 Under the new framework, any person would be able to apply to the Minister for biodiversity certification, with landowner's consent.8 By allowing developers to pursue biodiversity certification, the NSW Government aims to improve certainty for developers while also allowing councils to focus on proposals that are of most benefit to their local government area.

The new framework would also introduce a two tier system of certification:

  1. regular proposals for biodiversity certification; and
  2. proposals that are declared by the Minister to be "strategic applications for biodiversity certification" (Strategic Applications), following application of criteria prescribed in the regulations.

The order conferring biodiversity certification would determine which approved conservation measures would apply. For either category, this could include the retirement of biodiversity credits or an equivalent payment to the BCF. For Strategic Applications, additional approved conservation measures could be specified, including:

  1. reservation of land under the National Parks and Wildlife Act 1974;
  2. adoption of development controls (or State infrastructure contributions) under the EPA Act to conserve or enhance the natural environment; or
  3. any other measure determined by the Minister for the Environment.

This added flexibility for Strategic Applications is intended to provide an incentive for planning authorities to undertake proactive biodiversity certification, integrating biodiversity concerns into strategic planning and commencing biodiversity impact assessment before development occurs in a local government area.

The NSW Government also intends to provide financial encouragement for Strategic Applications by:

  1. providing planning authorities with low interest loans to cover the cost of offsets and assessment in biodiversity certification; and
  2. designing a mechanism for recovering certification costs through a levy or similar biodiversity contribution.
  1. A new Biodiversity Conservation Trust to replace the Nature Conservation Trust (Part 10)

The Draft Biodiversity Bill would create the BCT, replacing the existing Nature Conservation Trust (NCT). Unlike the NCT, the new BCT would be constituted as a statutory body representing the Crown. The BCT would have broader functions and powers than the NCT, including powers to:

  1. negotiate, enter into and administer private land conservation agreements, and assist in the enforcement of compliance with those agreements;
  2. provide loans and other financial assistance to planning authorities, to assist with applications for biodiversity certification;
  3. manage and control the BCF, and establish and maintain the Biodiversity Conservation Trust Public Fund (replacing the Revolving Fund Scheme and the Public Fund in ss 7 and 27A of the Nature Conservation Trust Act 2001 (NSW));
  4. acquire, transfer and retire biodiversity credits;
  5. enter into private land conservation agreements as land owner; and
  6. as with the existing NCT, buy, sell, or otherwise deal with land with a legally binding conservation agreement attached.
  1. New land management framework (Local Land Services Act 2013 (NSW))

The draft Local Land Services Amendment Bill proposes the repeal of the Native Vegetation Act 2003 (and with it the Native Vegetation Regulation 2013), and establishment of a new risk-based framework for clearing native vegetation to enable ongoing agricultural land management. This framework would be based around the Native Vegetation Regulatory Map under the amended Local Land Services Act 2013 (NSW) (LLS Act). The Map would identify land on which the clearing of native vegetation is:

  1. exempt from the new land management framework under the LLS Act (because, for example, it has already been cleared);
  2. regulated by the LLS Act; or
  3. excluded from the application of the LLS Act and instead regulated by the EPA Act and the new Biodiversity Conservation Act, as well as other legislation.

On regulated land, certain low-risk native vegetation clearing activities that are part of routine land management would not require a formal approval or notification to LLS. In addition, landowners would be able to clear native vegetation in accordance with published codes of practice.


Whether or not the reforms, if enacted, will assist in realising strategic planning goals in areas of biodiversity significance remains to be seen.

The NSW Government has attempted to strike a balance between the need for development to meet the demands of a growing society and the implications for biodiversity of identifying and expanding into new sites for development.9

However, by expanding the scope of offsetting, the proposed reforms heighten the risks and implications inherent with this policy approach. The offsets approach has been subject to criticism on the basis that:

  1. it can only compensate for lost biodiversity rather than prevent the loss from occurring;10
  2. the permanent "retirement" of a biodiversity credit is illusory – future governments may legislate to "unlock" reserved land at any time;
  3. as has been demonstrated via application of current offsets policies, there are inherent difficulties in establishing a functioning market for biodiversity credits; and
  4. in theory, a credit should only come from protecting biodiversity value that is at risk of being lost (for example, by clearing or development).11 If pressure to establish a supply of credits undermines this principle, then the coherence, fairness and effectiveness of the offset system will be reduced.

The new offsets scheme will need to limit demand for biodiversity credits by keeping avoidance and mitigation of biodiversity impacts as its primary objective in accordance with the AMO hierarchy principle. At the same time, it will need to provide a supply of credits that are appropriately capable of offsetting biodiversity loss. The BAM, and the incentives for individual landholders to create and sell credits, need to be carefully designed with these issues in mind.

It will also be crucial that the biodiversity certification process is appropriately implemented, to allow developers to accurately factor in biodiversity risk early in the planning stages for a prospective development.

The public consultation period for both Draft Bills extends until 28 June 2016. Submissions may be made here.


1 S 4.6 draft Biodiversity Conservation Bill.

2 Part 4, Division 4, draft Biodiversity Conservation Bill.

3 Part 4, Division 6, draft Biodiversity Conservation Bill.

4 Part 6 Division 2 draft Biodiversity Conservation Bill.

5 S 7.17 draft Biodiversity Conservation Bill.

6 S 7.15 draft Biodiversity Conservation Bill.

7 S 126J Threatened Species Conservation Act 1995.

8S 8.5 draft Biodiversity Conservation Bill.

9 The Hon Justice Brian J Preston, 'Biodiversity Offsets: Adequacy and efficacy in theory and practice' (2016) 33 Environmental Planning Law Journal 93.

10 The Hon Justice Brian J Preston, 'Biodiversity Offsets: Adequacy and efficacy in theory and practice' (2016) 33 Environmental Planning Law Journal 93.

11 The Hon Justice Brian J Preston, 'Biodiversity Offsets: Adequacy and efficacy in theory and practice' (2016) 33 Environmental Planning Law Journal 93, 111.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.