Purpose and structure of the Bill

The purpose of the High Seas Biodiversity Bill 2026 (the Bill) is to implement Australia’s obligations under the Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ Agreement; also referred to as the High Seas treaty). This will enable formal ratification of the Agreement by Australia (meaning Australia will become a party to the Agreement).

The Bill has 8 Parts:

• Part 1—Preliminary sets out commencement information, the objects of the Act and definitions, and details the application of the Act and its constitutional basis. It also specifies that the Minister must take a precautionary approach when performing functions and exercising powers under the Act and the rules.
• Part 2—Marine genetic resources and digital sequence information establishes a notification-based regime for Australian entities collecting marine genetic resources (MGR) in areas beyond national jurisdiction and utilising MGR, and a requirement that MGR and digital sequence information be deposited in a regulated database or regulated repository. It also establishes relevant offences.
• Part 3—Protection of specially managed areas establishes a process to give effect to decisions under the BBNJ Agreement relating to the establishment of area-based management tools in areas beyond national jurisdiction. It enables the Minister to declare that an area beyond national jurisdiction is a specially managed area and to determine a plan to manage the area (a special management plan) and, where Australia has objected to the area-based management tools, to declare alternative measures to manage the area. It also establishes relevant offences.
• Part 4—Environmental impact assessment establishes an environmental impact assessment regime for activities within Australian jurisdiction that may result in substantial pollution of, or significant harmful changes to, the marine environment in an area beyond national jurisdiction, and for other activities whose impacts on the marine environment are more than minor or transitory or are unknown or uncertain. It also establishes relevant offences.
• Part 5—High Seas Biodiversity Register requires the Minister to establish a High Seas Biodiversity Register which would contain details of certificates and exemptions relating to the collection and utilisation of MGR issued in accordance with Part 2.
• Part 6—Compliance and enforcement enables the Secretary to appoint inspectors; applies – with some modifications – parts of the Regulatory Powers (Standard Provisions) Act 2014 relating to monitoring and investigation powers; facilitates enforcement of civil penalty provisions, infringement notices, enforceable undertakings and injunctions in accordance with the Regulatory Powers Act; enables the Secretary to issue a notice requiring a person to provide information, including where doing so might tend to incriminate the person; enables the Secretary to require audits and sets out associated requirements.
• Part 7—Information management establishes standard provisions prohibiting the unauthorised use and disclosure of information, and authorising the use or disclosure of information by the Minister and entrusted persons.
• Part 8—Miscellaneous provides for the Minister or Secretary, on behalf of the Commonwealth, to make, vary or administer an arrangement for the making of payments by the Commonwealth, or to make, vary or administer a grant of financial assistance, relating to Australia’s obligations under the BBNJ Agreement. Part 8 also:
  • requires 10-yearly reviews of the operation of the Act
  • enables the Minister and Secretary to delegate their functions and powers to others including the CEO of the National Environmental Protection Agency (NEPA), departmental officials and employees and APS employees
  • enables the Minister to make rules, including for the charging and recovery of fees.

Background

Introduction

Areas beyond national jurisdiction (ABNJ) include the seabed beyond the outer limits of national jurisdiction (‘the Area’) and the waters superjacent to the seabed beyond the limits of a state’s national jurisdiction (the ‘high seas’). These areas ‘make up 40 percent of the surface of the planet, 62 percent of the surface of the oceans and nearly 95 percent of their volume’ (p. 2). These areas are home to significant biodiversity uniquely adapted to the extreme environment of the deep sea – much of which is yet to be officially described, as well as fisheries resources, and mineral resources.

At present, only 1.45% of ABNJ are included in marine protected areas (MPAs) (including 2 in Antarctic waters and 7 in the North Atlantic) and only 27.3% of the ocean floor has been mapped to modern standards.

ABNJ face mounting threats, including overfishing and emerging mesopelagic fisheries, maritime shipping, climate change (including acidification and warming), plastic and other forms of pollution, and the potential commencement of deep-sea mining.

The high seas and the biodiversity, fish and other resources it contains are considered the ‘common heritage of mankind’.[1] This refers to:

…a basic principle of international law [that] the overriding common interest of mankind [is] in the preservation of the quality of the marine environment and in the rational and equitable development of resources lying beyond national jurisdiction.

This means that no one nation has the specific or sole responsibility for management of these areas. The United Nations Convention on the Law of the Sea (UNCLOS) establishes the international legal framework for activities in the oceans and seas, including ‘rules for the allocation of States’ rights and jurisdiction in maritime space, the peaceful use of the oceans and the management of their resources’. Article 192 of UNCLOS establishes a general obligation on States to ‘protect and preserve the marine environment’ and broadly requires States to implement domestically, and work collaboratively on, measures ‘to prevent, reduce and control pollution of the marine environment from any source’ and to ensure that such pollution does not impact ABNJ.

To date, various regimes have been established to support this obligation, including:

• the prevention of pollution from ships in accordance with the International Convention for the Prevention of Pollution from Ships 1973 (MARPOL), as modified by the Protocol of 1978 relating thereto and by the Protocol of 1997
• the prevention of marine pollution by the dumping of wastes and other matter in accordance with the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter and the 1996 London Protocol
• management of highly migratory fisheries and other fisheries resources in defined aeras including ABNJ by Regional Fisheries Bodies (RFBs), which are established by the United Nations Food and Agricultural Organization and comprise countries with interests in a fishery or region
• regulation of marine resource activities by the International Seabed Authority (ISA), a specialised body established by UNCLOS which is developing regulations to guide an assessment of the environmental impacts arising from exploration for marine minerals.

However, the ability of these frameworks to comprehensively address threats to ABNJ have been described as ‘fragmented, incomplete and inadequate’ (p. 440). Concerns about ‘serious threats to marine and coastal biological diversity’ were first raised by the Conference of the Parties to the Convention on Biological Diversity in 1995 (p. 25), with an Ad Hoc Open-ended Informal Working Group established by the United Nations General Assembly in 2004, and an intergovernmental conference convened in 2017 to develop the text for a treaty.

The BBNJ Agreement

Background

The text of the BBNJ Agreement was formally adopted at the ‘Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’ on 19 June 2023. The treaty opened for signature on 20 September 2023 and was signed by Australia on this day. On 19 September 2025 the sixtieth ratification was recorded, triggering the treaty’s entry into force 120 days later (17 January 2026). At the time of publication, the Agreement has been signed by 145 States, with 86 haven taking steps to accept or ratify it.

The BBNJ Agreement is formally recognised as the third implementing agreement under UNCLOS, following the:

• Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea[2]
• Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UN Fish Stocks Agreement).[3]

The BBNJ Agreement ‘sets binding rules to conserve and sustainably use marine biodiversity, share benefits more fairly, create protected areas, and advance science and capacity building’.

Key components of the BBNJ Agreement

The BBNJ has four main parts (see Table 1).

Table 1  Key components of the BBNJ Agreement

A Preparatory Commission has been established to prepare for the entry into force of the BBNJ Agreement, and its third and final meeting will be held in March 2026.

The first meeting of the COP is required to be held within 1 year of entry into force of the BBNJ Agreement (by January 2027). On the agenda for this meeting is the adoption of procedures for the COP and subsidiary bodies as well as financial rules, the establishment of subsidiary bodies and related mechanisms, and confirmation of arrangements with the Global Environmental Facility in relation to the provision of funding. Proposals for area-based management tools are unlikely to be considered until the second COP at the earliest.

Interactions with the Convention on Biological Diversity and other international and regional governance regimes

The BBNJ Agreement complements the Convention on Biological Diversity (CBD) [4] and the Nagoya Protocol on Access and Benefit Sharing. These establish a framework for the conservation of biological diversity, the sustainable use of the components of biological diversity, and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources primarily within the limits of a Party’s national jurisdiction. Australia implements its obligations under the CBD through the Environment Protection and Biodiversity Conservation Act 1999, and through cooperation with the states and territories.

The BBNJ Agreement specifically provides that the Agreement is to ‘be interpreted and applied in a manner that does not undermine relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies and that promotes coherence and coordination with those instruments, frameworks and bodies’ (Art 5(2)). It also requires Parties to cooperate and endeavour to promote the objectives of the Agreement when participating in those bodies (Art 8). It has been argued that this political pressure has the potential to strengthen environmental management under these instruments and bodies (pp. 5–6). Although, there are some carve outs from the BBNJ Agreement; for example, Part II (MGR) does not apply to fishing regulated under relevant international law and fishing-related activities or military activities (Art 10(2)).

Australia’s engagement and consideration of the BBNJ Agreement by JSCOT

Australia is reported to have been ‘an active proponent and leader of negotiations to secure the Agreement’, given its ‘vast maritime jurisdiction’ (p. 3). The National Interest Analysis describes the BBNJ Agreement as ‘complementary to Australia’s own domestic and regional practices in ocean conservation and management’ (p. 4). These include Australia’s commitment to the Kunming-Montreal Global Biodiversity Framework under the CBD and the goal of protecting 30 per cent of marine and coastal areas by 2030.

Australia is a member of the High Ambition Coalition for biodiversity beyond national jurisdiction (HAC). Members of the Coalition are ‘committed to swift entry into force and ambitious implementation of the BBNJ Agreement’. The Australian Government has also provided funding to support Pacific Island States sign and ratify the BBNJ Agreement.

The High Seas Alliance has identified 8 priority areas for consideration as high seas marine protected areas, including the South Tasman Sea and Lord Howe Rise. In October 2024, the Australian Government announced ‘$100,000 for a research symposium on the south Tasman Sea and Lord Howe Island Rise in partnership with the High Seas Alliance’s Deep Ocean Stewardship initiatives and WWF’. The symposium was held in May 2025.

The Joint Standing Committee on Treaties (JSCOT) inquired into the BBNJ Agreement during the 47th Parliament. It recommended that binding treaty action be taken and noted the Australian government’s intention to make a declaration in accordance with Article 71 that the COP respect the competence of the Antarctic Treaty System. This reflects concerns raised by stakeholders relating to Australia’s pursuit of offshore sovereignty over Antarctica being incompatible with the BBNJ Agreement.

Policy position of non-government parties / independents

There appears to have been limited commentary on the introduction of the Bill.

The Coalition have previously indicated their bipartisan support for ‘worthwhile and valuable international activities and decisions’ including ‘work on international oceans leadership and matters like progression of the High Seas Treaty’. The Australian Greens have previously advocated for the Australian Government to lead efforts to secure the BBNJ Agreement.

Key issues and provisions

Providing notice for the collection and utilisation of marine genetic resources

Part 2 of the Bill establishes a notification-based regime for the collection and utilisation of marine genetic resources (MGR) in areas beyond national jurisdiction. The Explanatory Memorandum explains that Part 2 ‘is intended to implement Australia’s obligations under Articles 12(2), 12(4)–(8) and 14(2)–(4) of the BBNJ Agreement’ (p. 11).

Part 2 of the Bill does not apply to any part of the area beyond national jurisdiction if the area is in Antarctica or in the area covered by the Convention on the Conservation of Antarctic Marine Living Resources (being the area south of the Antarctic Convergence (60° south), referred to as the Convention area) (subclause 14(3)).[5] Regulated fishing activities are also generally exempted from notification requirements (clauses 17–18). This is consistent with Articles 5 and 10(2) of the BBNJ Agreement.

Divisions 2 to 4 of Part 2 of the Bill set out the obligations of notifying entities to give the Minister pre-collection notices, post-collection notices, and utilisation notices about collection activities and utilisation activities. The Minister may give the notifying entity a collection notification certificate or a utilisation notification certificate, as is relevant.

A notifying entity must also deposit the utilised material or information into a regulated repository or regulated database (which may be prescribed by the rules). The owner of a repository or database is required to maintain records about the use of deposited material or information (such as the number of times the material or information was accessed) and provide biennial reports to the Minister.

Failure to comply with these requirements may result in civil or criminal penalties.

Part 5 of the Bill requires the Minister to establish a High Seas Biodiversity Register and maintain publicly accessible records of collection notification certificates and utilisation notification certificates, as well as certain other information.

These measures will enable Australia to make notifications and provide reports to the CHM (Art 12) and submit reports to the Access and Benefit Sharing Committee on Australia’s implementation of Part II of the Agreement (Art 16(2)).

Establishing specially managed areas

Part III of the BBNJ Agreement provides for the COP to make decisions to establish area-based management tools (ABMT) and related measures for a specified ABNJ (‘a decision’). The COP may also adopt temporary emergency measures where a natural phenomenon or human-caused disaster has caused, or is likely to cause, serious or irreversible harm to marine biological diversity of ABNJ to ensure that that harm is not exacerbated.

Part 3 of the Bill establishes a process to give effect to those decisions, with different processes applying depending on whether Australia has lodged an objection in accordance with Article 23 of the BBNJ Agreement. Part 3 does not apply to any part of the area beyond national jurisdiction if the area is in Antarctica or the Convention area (clause 53).

If Australia has not lodged an objection (or has lodged and then subsequently withdrawn an objection), the Minister must declare, by legislative instrument, that the ABNJ covered by a decision is a specially managed area and determine a plan to manage the area (‘special management plan’) (clause 55). The special management plan must be consistent with the ABMT specified in the decision and (subclause 55(4)):

The Minister is required to make the instrument within 120 days of the COP decision being made (or 90 days of the objection being withdrawn if Australia made and subsequently withdrew an objection) (subclause 55(5)).

If Australia has lodged an objection to the COP decision, and the Minister is not satisfied that another Australian law is equivalent to the ABMT and applies to the relevant area, the Minister must, by legislative instrument, specify the ABNJ covered by the decision and determine measures to manage the area (an ‘alternative measures determination’) (clauses 58 and 59). The Explanatory Memorandum suggests that ‘an alternative measures determination may manage the risks to the marine environment in the relevant area beyond national jurisdiction in a completely different manner to the area-based management tool, but result in the same environmental outcome’ (p. 64).

The rules may provide for matters that may be specified in a special management plan for a specially managed area, and for other areas covered by a decision where Australia has lodged an objection, such as establishing a permitting regime and prohibiting non-permitted actions (clauses 57 and 61).

Clauses 62 and 63 establish offences and civil penalties relating to contraventions of a special management plan or an alternative measures determination.

Requiring environmental impact assessments

Part IV of the BBNJ Agreement establishes an environmental impact assessment (EIA) process for States to minimise the risk of harm to the marine environment in ABNJ. As summarised in the Explanatory Memorandum (p. 70), States are responsible for:

• screening and, in some circumstances, assessing the proposed activities that are within their jurisdiction or control that meet a threshold of risk of harm to the marine environment in an ABNJ
• only authorising such activities after determining that appropriate measures have been put in place to prevent significant adverse impacts on the marine environment; and
• ensuring activities under their jurisdiction or control that take place in an ABNJ comply with the requirements of Part IV.

Part 4 of the Bill establishes the process for conducting an EIA of activities within Australian jurisdiction and in ABNJ. Part 4 does not apply to any part of the area beyond national jurisdiction if the area is in Antarctica or the Convention area (clause 65).

The first step in the process is essentially a self-assessment of whether a referral is required. Clause 66 requires a person proposing to carry out an activity to refer the activity to the Minister if:

• in the case of domestic activities (that is, an activity to be carried out in Australian jurisdiction), the person thinks the impacts of the activity have resulted or may result in substantial pollution of the marine environment in an ABNJ, or significant and harmful changes to the marine environment in an ABNJ
• in the case of international activities (that is, an activity to be carried out in an ABNJ), the person (being an Australian entity) thinks that the impacts of the activity on the marine environment in an ABNJ have been or may be more than minor or transitory, or unknown or uncertain without further assessment.

Notably, a person does not have to refer an activity if it is an exempt activity. Clause 69 allows the Minister to:

• declare, by legislative instrument, a class of domestic activities to be exempt activities if the Minister is satisfied that the activities will be assessed by a specified Australian law which provides an equivalent EIA process (subclauses 69(1) and (2)). While the Explanatory Memorandum does not provide potential examples, it is likely that such an instrument could specify:
  • the Environment Protection and Biodiversity Conservation Act 1999, which establishes an EIA regime for actions that may have a significant impact on matters of national environmental significance including the Commonwealth marine area and the Great Barrier Reef Marine Park
  • the Offshore Petroleum and Greenhouse Gas Storage Act 2006, which establishes a licensing regime for oil and gas and carbon capture and storage activities in Commonwealth waters (that is, beyond coastal waters). At the time of writing, the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) administers an EIA process relating to offshore oil and gas activities (but not the injection and storage of greenhouse gas) in accordance with a Part 10 strategic assessment under the EPBC Act. Recent amendments to the EPBC Act will however enable the Minister to accredit NOPESMA’s environmental management or authorisation framework and declare that a specified class of actions does not require approval under the EPBC Act.[9]
• determine that an international activity is an exempt activity if the impacts of the activity on ABNJ have been assessed under an Australian law or an international agreement to which Australia is a party, the Minister has been provided with a copy of the assessment, and the Minister is satisfied that the assessment is equivalent to an EIA under proposed Division 3 (subclauses 69(3) and (4)). The determination is not a legislative instrument. The Explanatory Memorandum states that determinations ‘would be on a case-by-case basis’ (p. 74).

The Minister can also request that a person refers an activity (clause 68).

The proposed EIA process is summarised in Table 2.

Table 2 Summary of proposed EIA process

Clause 74 allows the Minister to reconsider an initial decision as to whether an international activity is a controlled activity, in response to comments or recommendations of a party to the BBNJ Agreement or the STB and where the Minister considers it appropriate to do so.

The Minister may, at any time, review an authorisation with a view to varying, suspending or revoking an authorisation (clauses 86 to 96). In the case of an international activity, the Minister must review the activity if it has had, or may have, a significant adverse impact on the marine environment in an ABNJ and either the nature and severity of the impact was not foreseen at the time of the authorisation or the impact was caused by a breach of an authorisation.

Clauses 75 and 97 provide that a range of decisions relating to the approval of controlled activities are reviewable by the Administrative Review Tribunal.

Division 5 of Part 4 establishes a range of offences and civil penalties associated with carrying out a domestic activity or an international activity:

• without a relevant exemption or authorisation
• that has had or may have significant adverse environmental impacts, where the activity was not covered by a relevant exemption or authorisation or
• that breaches a condition imposed by an authorisation.

Penalties are broadly comparable with those for similar offences and civil penalty provisions under the EPBC Act.[10]