DEED OF AGREEMENT - Department of the...

Approved 120412

DEED OF AGREEMENT

BETWEEN

COMMONWEALTH OF AUSTRALIA

AND

<INSERT NAME OF ACCESS PARTY>

IN RELATION TO

ACCESS TO BIOLOGICAL RESOURCES IN COMMONWEALTH AREAS FOR COMMERCIAL OR POTENTIAL COMMERCIAL

PURPOSES AND BENEFIT-SHARING

MODEL ACCESS AND BENEFIT-SHARING AGREEMENT COMMONWEALTH OF AUSTRALIA AND ACCESS PARTY

BSA number: <200X/XX> Page ii

Contents PARTIES 1

CONTEXT AND PURPOSE 1

OPERATIVE PROVISIONS 1

1 Definitions 1

2 Interpretation and Guidance on Construction 2

3 Commencement and Review 3

4 Conditions of Access and Use 3

5 Benefit-sharing with the Commonwealth 3

6 Use of Traditional Knowledge and Engagement with Indigenous Peoples 4

7 Rights In and Dealings with Samples, Products and Intellectual Property 4

8 Handling and Management of Samples 5

9 Acknowledgment of the Provision of Access to Biological Samples 6

10 Taxes, Duties and Government Charges 6

11 Financial Accounts and Records 6

12 Reporting 6

13 Publicity 8

14 Confidential Information 8

15 Audit and Access to Premises 9

16 Dispute Resolution 9

17 Termination 10

18 Notices 12

19 Assignment and Novation 12

20 Negation of Employment, Partnership and Agency 12

21 Waiver 13

22 Survival 13

23 Applicable Law 13

24 Compliance and Standards 13

25 Definitions 14

SIGNATURE 17

Schedule 1: Particulars

Schedule 2: Conditions

Schedule 3: Benefit-Sharing with the Commonwealth

Schedule 4: Non-monetary Benefits

Schedule 5: Use of Traditional Knowledge and Engagement with Indigenous people

Attachment A: Sample Record


BSA number: <200X/XX> Page 1

DEED OF AGREEMENT

ACCESS TO BIOLOGICAL RESOURCES IN COMMONWEALTH AREAS FOR COMMERCIAL OR POTENTIAL COMMERCIAL PURPOSES AND BENEFIT-SHARING

PARTIES

This Deed is made between and binds the following parties:

1. Commonwealth of Australia represented for the purposes of this Deed by the

Department of Sustainability, Environment, Water, Population and Communities

ABN 34 190 894 983 of GPO Box 787 Canberra ACT 2601, Australia

(Department)

2. <Name of Access Party> ABN <11 111 111 111> of <address> (Access Party)

CONTEXT AND PURPOSE

This Deed is made in the following context:

A. The objectives of the Convention on Biological Diversity (Convention) include,

among other things, the fair and equitable sharing of the benefits arising out of

the utilisation of Genetic Resources.

B. Article 15 of the Convention recognises the sovereign rights of each State party

over its natural resources.

C. The Australian Government gives effect to article 15 in relation to

Commonwealth owned and managed land through section 301 of the

Environment Protection and Biodiversity Conservation Act 1999

(Commonwealth) (EPBC Act) and Part 8A of the Environment Protection and

Biodiversity Conservation Regulations 2000 (Commonwealth) (EPBC

Regulations), which regulate Access to Biological Resources in

Commonwealth Areas through a permitting system.

D. Where an application is made for a permit under Part 8A of the EPBC

Regulations for commercial or potential commercial purposes, the applicant will

enter into a benefit-sharing agreement with each Access Provider before the

permit can be issued.

E. This Deed constitutes a benefit-sharing agreement for the purposes of the EPBC

Regulations.

OPERATIVE PROVISIONS

1. Definitions

1.1. Definitions

1.1.1. In this Deed, terms have the meaning in clause 25 unless the context indicates

otherwise.



2. Interpretation and Guidance on Construction

2.1. Interpretation

2.1.1. In this Deed, unless the contrary intention appears:

a. words importing a gender include any other gender;

b. words in the singular include the plural and words in the plural include the

singular;

c. words importing a person include a partnership and a body whether

corporate or otherwise;

d. a reference to dollars is a reference to Australian dollars;

e. a reference to any legislation or legislative provision includes any statutory

modification, substitution or re-enactment of that legislation or legislative

provision;

f. if any word or phrase is given a defined meaning, any other part of speech

or other grammatical form of that word or phrase has a corresponding

meaning;

g. a reference to an Item is a reference to an Item in a Schedule;

h. if any conflict arises between the terms and conditions contained in the

clauses of this Deed and any part of a Schedule (and attachments if any),

the Schedule prevails;

i. if any conflict arises between any part of a Schedule and any attachment

or part of an attachment, the Schedule prevails; and

j. a reference to writing is a reference to any representation of words, figures

or symbols.

2.2. Guidance on Construction of this Deed

2.2.1. This Deed records the entire agreement between the parties in relation to its

subject matter.

2.2.2. This Deed will only be varied by a formal Deed of variation executed by the

parties.

2.2.3. As far as possible, all provisions in this Deed will be construed so as not to be

void or otherwise unenforceable.

2.2.4. If anything in this Deed is void or otherwise unenforceable, then it will be severed

and the rest of the Deed remains in force.

2.2.5. A provision of this Deed will not be construed to the disadvantage of a party

solely on the basis that it proposed that provision.



3. Commencement and Review

3.1. Commencement Date

3.1.1. This Deed commences on the date the first Access Permit issued in connection

with this Deed commences.

3.2. Review

3.2.1. The operation of this Deed may be reviewed every two (2) years from the

Commencement Date at the request of a party.

3.2.2. Subject to clause 3.2.1, the timing and form of reviews will be agreed between

the parties.

3.2.3. If requested by a party, any review under clause 3.2.1 will be conducted by an

independent person agreed by the parties.

3.2.4. Where a review is conducted by an independent person, the cost of the review

will be borne by the party requesting the review unless the parties agree to share

equally the costs of that review.

3.2.5. Clause 14 [Confidential Information] applies to the conduct of a review under

clause 3.2.1 and the parties will take all reasonable steps to ensure that any

independent person conducting a review in line with clause 3.2.1 complies with

the requirements of this Deed relating to Confidential Information.

3.2.6. The parties will discuss the findings of a review conducted under clause 3.2.1

and may agree to vary the Deed in accordance with clause 2.2.2.

4. Conditions of Access and Use

4.1. Conditions of Access and Use

4.1.1. In performing this Deed, the Access Party will comply with the conditions

specified in Schedule 2.

5. Benefit-Sharing with the Commonwealth

5.1. Benefit-Sharing with the Commonwealth

5.1.1. The Access Party will provide the Commonwealth with:

a. the monetary benefits, being the agreed percentage of Exploitation

Revenue set out in Schedule 3; and

b. the benefits specified in Schedule 4.

5.2. Payments by the Access Party

a. Amounts payable by the Access Party to the Commonwealth under this

Deed will be paid within 30 days following receipt of a correctly rendered

tax invoice in accordance with the GST Act.



6. Use of Traditional Knowledge and Engagement with Indigenous Peoples

6.1. Use of Traditional Knowledge and Engagement with Indigenous Peoples

6.1.1. If the Access Party uses any indigenous peoples’ knowledge in connection with

this Deed, the Access Party will:

a. comply with the guidelines relating to engagement with Indigenous peoples

as specified in Item B1 to Schedule 5 (if any) or as notified by the

Commonwealth from time to time;

b. enter into an agreement with the holders of the indigenous peoples’

knowledge regarding use of the knowledge, its source and any agreed

benefits; and

c. provide a copy of the written agreement (or the terms of any oral

agreement) entered into in accordance with clause 6.1.1b within 6 months

of entering into the agreement.

7. Rights In and Dealings With Samples, Products and Intellectual Property

7.1. Rights In Samples, Products and Intellectual Property

a. As between the Access Party and the Commonwealth, rights in Samples,

Products and Intellectual Property in Samples and Products vest in the

Access Party.

7.2. Dealings with Samples, Products and Intellectual Property

a. The Access Party will not:

i. transfer or dispose of Samples or Products; or

ii. grant rights (including Intellectual Property rights) in Samples or

Products;

to a third party unless:

iii. it does so under an agreement on proper terms, being terms

consistent with this Deed so far as practicable and which would

normally be contained in an agreement between persons dealing

with each other at arms length and from positions of comparable

bargaining power; or

iv. the third party has entered into an agreement with the

Commonwealth, or provided an enforceable undertaking to the

Commonwealth, to provide the Commonwealth with benefits in

accordance with clause 5.1.1 and to comply with the requirements of

this clause 7.2 in the event of any further dealing.

b. Any agreement entered into with a third party under clause 7.2(a)(iii) for

commercial or potential commercial purposes will ensure that the

Commonwealth continues to receive an equitable share of the benefits

arising from subsequent use of the Samples or Products, or the rights in

those Samples or Products, by the third party.

c. Any agreement entered into with a third party under clause 7.2(a)(iii) for

non-commercial purposes will include an undertaking that the third party

will not carry out R & D Activity for, or allow others to use the Material for,



commercial or potential commercial purposes unless a benefit-sharing

agreement has been entered into with the Access Party or the

Commonwealth.

8. Handling and Management of Samples

8.1. Sample Records and Reports

a. The Access Party will maintain accurate and complete records so as to

enable tracking of the Samples to this Deed numbered <200X/XXX>.

b. The Access Party will maintain Sample Records in accordance with

clause 12.1.3(b).

c. A Sample Record created in accordance with clause 8.1(b) and clause

12.1.3(b) for a particular Sample will be retained by the Access Party

while the Sample is in the Access Party’s possession.

8.2. Dealings with Samples

a. The Access Party will not dispose of, or grant rights (including Intellectual

Property rights) in, Samples or Products except in accordance with

clauses 7 or 8.4.

8.3. Offer of Samples

a. The Access Party will offer to gift or provide for permanent loan duplicates

of the Samples and Sample Records (or where Samples are not

available, Sample Records only) to an Australian public institution that is a

repository of taxonomic specimens of the same order or genus as the

Samples, or to an Australian university or publicly funded research

agency.

b. In offering duplicate Samples under clause 8.3(b), the Access Party:

i. will require the institution to provide an enforceable undertaking to

the Access Party that it will not carry out R & D Activity for, or allow

others to use the Material for, commercial or potential commercial

purposes unless a benefit-sharing agreement has been entered into

with the Access Party or the Commonwealth; and

ii. may set any other reasonable conditions not inconsistent with this

Deed relating to the use of those gifted or loaned duplicate Samples.

8.4. Disposal of Samples

a. If the Access Party does not propose to keep a Sample, the Access

Party will offer the Sample and Sample Record to the Commonwealth.

b. If the Commonwealth does not agree to take the Sample and Sample

Record, the Access Party may dispose of the Sample and will send

details of the Sample disposed of, and the Sample Record, to the

Commonwealth by 31 March next occurring.

c. This clause 8.4 does not apply to Samples disposed of in accordance with

clauses 7.2 or 8.4.



9. Acknowledgment of the Provision of Access to Biological Resources

9.1. Acknowledgment

a. The Access Party will acknowledge the provision of Access to Biological

Resources by the Commonwealth in the Access Area in all publications

in a manner approved by the Commonwealth in advance.

10. Taxes, Duties and Government Charges

10.1. Taxes, Duties and Government Charges

10.1.1. Unless otherwise indicated and subject to this clause 10, a party liable for all

taxes, duties and government charges imposed or levied in Australia or overseas

in connection with this Deed and its performance will pay those taxes, duties and

government charges.

10.1.2. Amounts payable by the Access Party to the Commonwealth under this Deed

include an amount on account of GST imposed on any supplies made by the

Commonwealth to the Access Party under this Deed that are taxable supplies

within the meaning of the GST Act.

10.1.3. No party may claim or retain from the other party any amount in relation to a

supply made under this Deed for which the first party can obtain an input tax

credit or decreasing adjustment.

11. Financial Accounts and Records

11.1. Financial Accounts and Records

11.1.1. The Access Party will create and maintain financial accounts and records

relating to this Deed:

a. so as to enable all receipts and payments related to this Deed, including

Exploitation Revenue and amounts payable by the Access Party in

accordance with clause 5.1.1.a, to be identified and reported in accordance

with this Deed;

b. in accordance with Australian Accounting Standards;

c. so as to enable the audit of those accounts and records in accordance with

Australian Auditing Standards; and

d. so as to enable the identification of all relevant taxation liabilities and

payments.

12. Reporting

12.1. Annual Report

12.1.1. The Access Party will provide the Commonwealth with an Annual Report in

electronic and/or hardcopy form on or before the 31 March first occurring after

the Commencement Date, and on annual basis thereafter.



12.1.2. Annual Reports will identify this Deed numbered <200X/XXX> as the benefit-

sharing agreement to which the Annual Report relates.

12.1.3. Annual Reports will include the following information:

a. Financial information

i. Exploitation Revenue received;

ii. amounts payable by the Access Party to the Commonwealth,

including amounts payable to the Commonwealth in accordance

with clause 5.1.1.a; and

b. Sample Record

i. for each Sample collected under an Access Permit:

A. a unique identifier for the Sample, which is also on a label attached to the Sample or its container;

B. the date the Sample was taken;

C. the place and latitude and longitude from which the Sample was accessed;

D. an appropriate indication of the quantity or size of the Sample;

E. a summary of taxa collected and isolated (if any);

F. the scientific name of, or given to, the Sample;

G. the location of the Sample as at 31 March;

H. details of any subsequent disposition of the Sample, including the names and addresses of third parties in possession of the Sample or a part of the Sample as at 31 March; and

I. details of the disposal (including destruction) of the Sample;

in accordance with the template at Attachment A to this Deed;

c. Undescribed or unidentified species

i. the scientific name of or given to a Sample of a species, which was

undescribed or unidentified in an earlier Annual Report, when it is

so described or identified;

d. Research activities

i. A summary of R & D Activity undertaken, including:

A. any results of R & D Activity; and

B. any information related to R & D Activity that may be useful in increasing knowledge of the biodiversity of the Access Area, or may assist in biodiversity conservation more generally.

e. Information about the commercialisation of Samples and Products

i. progress in establishing third party agreements under clause

7.2(a)(iii)

ii. progress toward commercialisation of Products; and

iii. any disposal (including destruction) of Products.



12.1.4. The Annual Report will report on activities undertaken by the Access Party in

performance of this Deed from the Commencement Date to the 31 March first

occurring, and on an annual basis thereafter.

12.2. Other Reports

12.2.1. The Access Party will provide such other reports as the Commonwealth may

reasonably request from time to time.

13. Publicity

13.1. Public Statement

13.1.1. If requested by the Commonwealth, the Access Party will provide to the

Commonwealth a short statement about the Samples collected from the

Access Area and the results of any R & D Activity for publication by the

Commonwealth.

14. Confidential Information

14.1. Confidential Information Not to be Disclosed

14.1.1. Subject to clause 14.2, a party will not, without the prior written consent of

another party, disclose any Confidential Information of that other party to a

third party.

14.2. Exceptions to Obligations

14.2.1. The obligations on the parties under this clause 14 will not be breached to the

extent that Confidential Information:

a. is disclosed by a party to its officers, employees, agents, contractor staff or

professional advisers engaged in, or in relation to, the performance or

management of this Deed solely in order to comply with obligations, or to

exercise rights, under this Deed;

b. is disclosed to a party’s internal management officers, employees, agents,

contractor staff or professional advisers solely to enable effective

management or auditing of Deed-related activities;

c. is disclosed by the Department to the responsible Minister;

d. is disclosed by the Department, in response to a request by a House or a

Committee of the Parliament of the Commonwealth;

e. is shared by the Department within the Department’s organisation, or with

another agency, where this serves the Commonwealth’s legitimate

interests;

f. is authorised or required by law to be disclosed; or

g. is in the public domain otherwise than due to a breach of this clause 14.

14.2.2. Where a party discloses Confidential Information to another person pursuant

to clauses 14.2.1(a), (b) or (e), the disclosing party will notify the receiving

person that the information is confidential.



14.2.3. In the circumstances referred to in clauses 14.2.1(c) or (d) the disclosing party

will not provide the information unless the receiving person will keep the

information confidential.

14.2.4. The parties will secure all Confidential Information against loss and

unauthorised access, use, modification or disclosure.

14.3. Period of Confidentiality

14.3.1. The obligations under this clause 14 will continue, notwithstanding the

termination of this Deed:

a. in relation to information described in Item B to Schedule 1 – for the period

set out in respect of that information; and

b. in relation to any information agreed after the Commencement Date to be

Confidential Information – for the period agreed by the parties in writing

in respect of that information.

15. Audit and Access to Premises and Records

15.1. Audit and Access to Premises and Records

15.1.1. The Access Party will:

a. give the Commonwealth, or any persons authorised in writing by the

Commonwealth, access to premises where obligations under this Deed

are being carried out; and

b. permit those persons to inspect and take copies of any Material relevant to

this Deed.

15.1.2. The rights referred to in clause 15.1.1 are subject to:

a. the Commonwealth providing reasonable prior notice;

b. reasonable security procedures in place at the premises; and

c. if appropriate, execution of a deed of confidentiality by the person to whom

access is given.

15.1.3. The Auditor-General and the Privacy Commissioner are persons authorised for

the purposes of clause 15.1.1.

15.1.4. This clause 15 does not detract from the statutory powers of the Auditor-General

or the Privacy Commissioner.

16. Dispute Resolution

16.1. Procedure for Dispute Resolution

16.1.1. The parties will deal with a dispute arising under this Deed as follows:

a. the party claiming that there is a dispute will give the other party a notice

setting out the nature of the dispute;



b. within five Business Days each party will nominate a representative not

having any prior involvement in the dispute;

c. the representatives will try to settle the dispute by direct negotiation

between them;

d. failing settlement within a further 10 Business Days, the parties may agree

to refer the dispute to an independent third person with power:

i. to intervene and direct some form of resolution, in which case the

parties will be bound by that resolution; or

ii. to mediate and recommend some form of non-binding resolution;

e. the parties will co-operate fully with any process instigated under clause

16.1.1(d) in order to achieve a speedy resolution; and

f. if a resolution is not reached within a further 20 Business Days, any party

may commence legal proceedings.

16.2. Costs

16.2.1. The parties will bear their own costs of complying with this clause 16, and the

parties will bear equally the cost of any third person engaged under clause

16.1.1(d).

16.3. Application of Clause

16.3.1. This clause 16 does not apply to:

a. legal proceedings by any party for urgent interlocutory relief; or

b. action by the Department under or purportedly under clause 17.2

[Termination on Cancellation of Permit] or clause 17.3 [Termination for

Fault].

16.4. Performance of Obligations

16.4.1. Despite the existence of a dispute, the parties will (unless requested in writing by

another party not to do so) continue to perform their respective obligations under

this Deed.

17. Termination

17.1. Termination by Agreement

17.1.1. This Deed may be terminated at any time by agreement of the parties in writing.

17.2. Termination on Cancellation of Permit

17.2.1. If an Access Permit to which this Deed relates is cancelled, the

Commonwealth may immediately terminate this Deed by written notice to the

Access Party.



17.3. Termination for Fault

17.3.1. The Commonwealth may by notice terminate this Deed immediately (but

without prejudice to any right of action or remedy which a party has or may have)

if:

a. the Access Party fails to fulfil, or is in breach of, any of its obligations

under this Deed and the Commonwealth considers that this failure or

breach is not capable of remedy;

b. the Access Party fails to fulfil, or is in breach of any of its obligations

under this Deed and does not rectify the omission or breach within 10

Business Days of receiving a notice from the Commonwealth to do so;

c. the Access Party is unable to pay all its debts as and when they become

due and payable;

d. the Access Party has applied to come under, received a notice requiring it

to show cause why it should not come under, or has otherwise come

under, one of the forms of external administration referred to in Chapter 5

of the Corporations Act 2001 (Commonwealth) or equivalent provisions in

legislation of the States and Territories pertaining to incorporated

associations or in the Corporations (Aboriginal and Torres Strait Islander)

Act 2006 (Commonwealth), or an order has been made for the purpose of

placing the Access Party under external administration;

e. being an individual, the Access Party becomes bankrupt or enters into a

scheme of arrangement with creditors;

f. in relation to this Deed, the Access Party breaches any law of the

Commonwealth, or of a State or Territory;

g. the Commonwealth is satisfied that any statement made in the Access

Party’s application for an Access Permit to which this Deed relates is

incorrect, incomplete, false or misleading in a way that would have affected

the original decision to issue the Access Permit; or

h. the Commonwealth exercises any other specific right of termination under

the Deed.

17.4. Consequences of Termination

17.4.1. If this Deed is terminated under clauses 17.2 or 17.3:

a. the Access Party will not thereafter use, or cause, permit or allow to be

used, any:

i. Samples;

ii. Products; or

iii. Intellectual Property arising from R & D Activity; and

b. the Access Party will deliver to the Commonwealth or destroy, at the

Commonwealth’s discretion, all Samples and Products that are the

subject of this Deed and that are in the Access Party’s possession at the

date of termination.



17.4.2. Termination under clause 17.2 or 17.3 will not affect any third party agreements

under clause 7 existing at the date of termination.

18. Notices

18.1. Format, Addressing and Delivery

18.1.1. A notice under this Deed is only effective if it is in writing, and dealt with as

follows:

a. if given by the Access Party to the Commonwealth - addressed to the

Commonwealth at the address specified in Item C of Schedule 1 or as

otherwise notified by the Commonwealth; or

b. if given by the Commonwealth to the Access Party - given by the

Commonwealth and addressed (and marked for attention) as specified in

Item D of Schedule 1 or as otherwise notified by the Access Party.

18.1.2. A party may, by written notice to any other party, change its address for the

service of notices.

18.1.3. A notice is to be:

a. signed by the person giving the notice and delivered by hand;

b. signed by the person giving the notice and sent by pre-paid post; or

c. transmitted electronically by the person giving the notice by electronic mail

or facsimile transmission.

18.2. When Notice is Effective

18.2.1. A notice is deemed to be effected:

a. if delivered by hand - upon delivery to the relevant address;

b. if sent by post - upon delivery to the relevant address; or

c. if transmitted electronically - upon actual receipt by the addressee.

18.2.2. A notice received after 5.00 pm, or on a Saturday, Sunday or public holiday in

the place of receipt, is deemed to be effected on the next Business Day in that

place.

19. Assignment and Novation

19.1. Assignment and Novation

19.1.1. The Access Party will not novate its obligations, and will not assign its rights,

under this Deed without the Commonwealth’s prior written approval.

20. Negation of Employment, Partnership and Agency

20.1. Negation of Employment, Partnership and Agency

20.1.1. The Access Party will not represent itself, and will use its best endeavours to

ensure that its personnel do not represent themselves, as being an officer,



delegate, employee or agent of the Commonwealth or as otherwise able to bind

or represent the Commonwealth.

20.1.2. The Access Party is not by virtue of this Deed an officer, delegate, employee or

agent of the Commonwealth.

20.1.3. The Access Party does not by virtue of this Deed have any power or authority to

bind or represent the Commonwealth.

21. Waiver

21.1. Waiver

21.1.1. A failure or delay by a party to exercise any right or remedy it holds under this

Deed or at law does not operate as a waiver of that right.

21.1.2. A single or partial exercise by a party of any right or remedy it holds under this

Deed or at law does not prevent the party from exercising the right again or to

the extent it has not fully exercised the right.

22. Survival

22.1. Survival

22.1.1. The operation of clauses 5 [Benefit-Sharing with the Commonwealth], 9

[Acknowledgment of the Provision of Access to Biological Resources], 11

[Financial Accounts and Records], 17.4 [Consequences of Termination] and any

other provision which expressly or by implication from its nature is intended to

continue to survive the termination of this Deed shall survive the termination of

this Deed.

22.1.2. Clause 15 [Audit and Access to Premises and Records] applies for a period of

seven (7) years after the date of termination of this Deed.

23. Applicable Law

23.1. Applicable Law

23.1.1. This Deed is to be construed in accordance with, and any matter related to it is

to be governed by, the law of the Australian Capital Territory.

23.1.2. The parties submit to the jurisdiction of the courts of that Territory.

24. Compliance and standards

24.1. Compliance and standards

24.1.1. The Access Party will comply with all laws, policies, codes of practice and

guidelines relating to the performance of this Deed, including the Australian

Code for the Responsible Conduct of Research.



25. Definitions

25.1. Definitions

25.1.1. In this Deed, unless the context indicates otherwise:

Access Area means the Commonwealth Area specified in Item

A to Schedule 2 where the Access Party may have Access to Biological Resources;

Access Party means the person named as Access Party on page 1 of this Deed and includes, where the context permits, the officers, delegates, employees, agents and successors of the Access Party;

Access Provider

has the meaning that it has in regulation 8A.04 of the EPBC Regulations;

Access to Biological Resources

has the meaning that it has in regulation 8A.03 of the EPBC Regulations;

Access Permit means a permit issued in accordance with Part 17 of the EPBC Regulations for the purposes of Part 8A of the EPBC Regulations authorising Access to Biological Resources in the Access Area;

Annual Report means the report provided by the Access Party to the Commonwealth annually in accordance with clause 12.1 of this Deed;

Biological Resources has the meaning that it has in section 528 of the EPBC Act;

Business Day means in relation to the doing of any action in a place, any day other than a Saturday, Sunday or public holiday in that place;

Commencement Date means the date described in clause 3.1 of this Deed;

Commonwealth means the Commonwealth of Australia;

Commonwealth Area has the meaning that it has in section 525 of the EPBC Act;

Confidential Information means: a. the information described in ItemsA1 and

A2 to Schedule 1 of this Deed (if any); and b. information that the parties agree in writing

after the Commencement Date is Confidential Information for the purposes of this Deed;



Deed means this Deed and includes any Schedules and attachments;

Department means the Commonwealth represented by and acting through the Department of Sustainability, Environment, Water, Population and Communities (or any other Commonwealth department or agency that is, from time to time, responsible for the administration of this Deed) and includes, where the context permits, the officers, delegates, employees, agents and successors of the Department;

EPBC Act means the Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth);

EPBC Regulations means the Environment Protection and Biodiversity Conservation Regulations 2000 (Commonwealth);

Exploitation Revenue means any monies received by the Access Party from third parties arising from the Access Party’s use of Biological Resources, including monies received for:

a. transferring, delivering or providing access to Samples or Products;

b. assigning or granting rights (including Intellectual Property rights) in Samples or Products; or

c. sale; but not including monies received by the Access Party for the purpose of R & D Activity;

Genetic Resources has the meaning that it has in section 528 of the EPBC Act;

GST has the meaning that it has in A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth);

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth);

Intellectual Property includes: a. all copyright (including rights in relation to

phonograms and broadcasts); b. all rights in relation to inventions, plant

varieties, trademarks (including service marks), designs and circuit layouts; and

c. all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;

but does not include:



a. Moral Rights; b. the rights of performers; or c. rights in relation to Confidential

Information; d.

Material

means any thing in relation to which property rights, including Intellectual Property rights, arise;

Moral Rights

includes the following rights of an author of copyright Material:

a. the right of attribution of authorship; b. the right of integrity of authorship; and c. the right not to have authorship falsely

attributed;

Product means Material produced, obtained, extracted or derived through R & D Activity;

R & D Activity means research or development on Samples or Products;

Sample means a Sample of Biological Resources collected from the Access Area under an Access Permit issued in conjunction with this Deed;

Sample Record means the records required to be maintained for each Sample under clause 12.1.3(b);

Schedule

refers to a Schedule to this Deed and may include attachments and incorporate other documents by reference



SIGNATURE EXECUTED as a Deed on <Insert date clearly and in full> SIGNED for and on behalf of Department of Sustainability, Environment, Water, Population and Communities by: <Name of signatory>

) ) )

Signature

In the presence of: <Name of witness>

Signature of witness

SIGNED for and on behalf of <insert name> by: <Name of signatory>

) ) )

Signature

In the presence of: <Name of witness>

Signature of witness

Insert mode of attestation required by Access Party



SCHEDULE 1. PARTICULARS

A. Confidential Information (Clause 14)

A.1. The Commonwealth’s Confidential Information is:

Item Period of Confidentiality

A.2. Access Party’s Confidential Information is:

Item Period of Confidentiality

Specify Confidential Information and the period of confidentiality

B. Commonwealth Address for Notices (Clause 18)

The Director Protected Area Policy and Biodiscovery Department of Sustainability, Environment, Water, Population and Communities GPO Box 787 CANBERRA ACT 2601 AUSTRALIA

C. Access Party’s Address for Notices (Clause 18)

C.1.



SCHEDULE 2. CONDITIONS

Note: Where a permit is issued to an Access Party in connection with this Deed, it will be attached in this Schedule 2.

A. Access Area (Clause 4)

A.1. List the areas from which the Samples will be taken, including latitude and

longitude references.

B. Time and Frequency of Entry to Access Area (Clause 4)

B.1. List the dates and times of entry to the Access Area(s).

C. Samples of Biological Resources to be Collected (Clause 4)

C.1. Include name of the species, or lowest level of taxon, to which the resources

belong (if known). If the species composition of Samples is not known, list the

sampling method(s) and the types of organisms likely to be collected.

D. Quantity of Resources to be Collected (Clause 4)

D.1. List the quantity of each Sample to be collected in the Access Area using metric

measurements.

E. Quantity of Resources to be Removed From Access Area (Clause 4)

E.1. List the quantity of each Sample to be removed from the Access Area using

metric measurements.

F. Purpose of Access (Clause 4)

F.1. Provide a brief description of the purpose(s) of collecting Samples.

G. Labelling of Samples (Clause 4)

G.1. Include a statement setting out the means of labelling the Samples.



SCHEDULE 3. BENEFIT-SHARING WITH THE COMMONWEALTH

A.1. Where the gross Exploitation Revenue received by the Access Party in a

calendar year falls within the relevant range specified in column 1 of the table

below, the Access Party will pay to the Commonwealth the corresponding

percentage of gross Exploitation Revenue specified in column 2 of the table.

Purpose of the Product

Gross Exploitation Revenue received in one calendar year ($AUD)

Payment (% of gross Exploitation Revenue)

Pharmaceutical, Nutraceutical or Agricultural

< 500,000

500,000-5,000,000 >5,000,000

0

2.5 5.0

Chemical and diagnostic

> 200,000

or < 100,000

100,000 – 3,000,000 > 3,000,000

1.5

0

1.0 2.0

Other research

> 200,000

or < 100,000

100,000 – 3,000,000 > 3,000,000

2.5

0

1.0 3.0



SCHEDULE 4. NON-MONETARY BENEFITS

A. Benefits to Biodiversity Conservation in Access Area (Clause 5)

A.1. Insert a statement about the benefits of the research to the conservation of

biodiversity in the Access Area. Benefits may include improved knowledge of

biodiversity, taxonomy, biological and ecological processes, impacts of

environmental changes, or data and knowledge that will assist in the

conservation and management of the environment.

B. Other benefits (Clause 5)

B.1. A range of non-monetary benefits may be provided in return for Access to

Biological Resources. A broad range of benefits are outlined in the Convention

on Biological Diversity’s ‘Bonn Guidelines on Access to Genetic Resources and

Equitable Sharing of the Benefits Arising out of their Utilization’

(http://www.cbd.int/doc/publications/cbd-bonn-gdls-en.pdf).

http://www.cbd.int/doc/publications/cbd-bonn-gdls-en.pdf



SCHEDULE 5. USE OF TRADITIONAL KNOWLEDGE AND ENGAGEMENT WITH INDIGENOUS

PEOPLES

A. Use of Indigenous People’s Knowledge (Clause 6)

A.1. Include details of the source of the knowledge, such as scientific or other public

documents, from the Access Provider or from another group of Indigenous

people.

B. Guidelines Relating to Engagement with Indigenous Peoples (Clause 6)

B.1. Guidelines for Ethical Research in Australian Indigenous Studies (Australian

Institute for Aboriginal and Torres Strait Islander Studies)

B.2. Please list all other policies, guidelines, codes of conduct or standards which will

be used relating to engagement with Indigenous people.

http://www.aiatsis.gov.au/research/docs/GERAISjune2011.pdf



Attachment A: Sample Record at 31 March 20xx Permit Number: xxx Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Column 8

Sample unique identifier

Scientific name

Sample size/count

Collection date ddmmyyyy

Collection place/location

Sample location at 31 March

Third Parties holding Samples at 31 March

Details of disposal or destruction of Samples at 31 March

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