Best Practice Guidelines for the Collection and Transfer of Genetic Resources

Australian law in relation to the collection, transfer, and use of genetic resources is piecemeal, fragmented, and incomplete. This creates problems for researchers, access providers, and Indigenous Australians.

The aim of these Guidelines is to overcome these problems and to develop a common standard across Australia that reflects best practice. The Guidelines go beyond existing laws and procedures* to adopt and apply a uniform and consistent approach across Australia that:

• Recognises the interests of access providers;
• Facilitates the access, use, and transfer of genetic resources;
• Recognises Indigenous Australians’ historical and ongoing stewardship of genetic resources;
• Ensures compliance with international, national, and local laws and regulations;
• Minimises the administrative and legal burdens of access and benefit sharing measures; and
• Creates a predictable environment for the collection, use, and transfer of genetic resources.

These Guidelines apply when:

• you collect genetic resources;
• someone collects genetic resources on your behalf;
• you receive genetic resources from someone else (an intermediary); or
• you transfer genetic resources to a third party.

The Guidelines do not cover Indigenous Traditional Knowledge (which will be covered in separate Guidelines).

* For example, while there is no formal legal requirement to enter into Benefit Sharing Agreements with access providers in Victoria, the Guidelines recommend that researchers do so.

Best Practice Requirements When Collecting Genetic Resources in Australia

Requirement 1:  Identify who has the authority to grant access

The first task that needs to be completed is to work out who has the authority to grant access to the land where the genetic resources are to be collected. In many cases it will be relatively straightforward to work out who has the authority to grant access, such as where genetic resources are collected from private land or National Parks. In other cases, such as when collecting from leasehold land or land subject to native title, it is important to identify who has the appropriate authority to grant access.

When collecting from land in which there is an Indigenous interest (even if the interest does not include a formal legal right to control access to genetic resources which is sometimes the case with land subject to native title), it is important to obtain prior informed consent from the relevant Indigenous Communities (along with a Benefit Sharing Agreement). This may mean negotiating with two (or more parties) such as the freeholder and the Indigenous Community.

Requirement 2:  Satisfy collection obligations

When genetic resources are collected in Australia it is necessary to comply with different laws. The legal obligations that arise depend on:

• the genetic resources being collected,
• where the resources are collected from (The Commonwealth, the States, and the Territories have their own requirements), and
• the reason why the resources are collected.

The links below provide details of the laws that must be complied with depending on where the genetic resources are collected.

Australian Capital Territory
Commonwealth
New South Wales
Northern Territory
Queensland
South Australia
Tasmania
Victoria
Western Australia

Requirement 3:  Obtain prior informed consent

When genetic resources are collected from the wild (natural in situ habitats), prior informed consent should be obtained from the relevant access provider. In doing so, the access provider should be contacted in advance of collection and provided with enough information (detailed below) for them to decide whether to allow the collection to occur.

Where genetic resources are collected from public lands or waters in Commonwealth areas or in any Australian State or Territory, the requirement to obtain prior informed consent may be satisfied when permits are obtained from the relevant authorities (listed in Requirement 2). Where there is doubt about whether there is prior informed consent to use the genetic resources, prior informed consent should be obtained from the access provider who has the authority to grant access. It is important that the person who gives the consent has the authority to do so and that the consent is in writing.

When seeking prior informed consent, the access provider should be informed about:

• the genetic resources being collected,
• the quantity of the resources being collected,
• the purpose/s of the collection (eg for research, commercial use, wild harvesting),
• what the genetic resources will be used for, and
• what and how benefits will be shared (detailed below).

Requirement 4:  Negotiate a Benefit Sharing Agreement

Once prior informed consent has been obtained, a Benefit Sharing Agreement should be negotiated between the access provider and the collector of the resources. A Benefit Sharing Agreement is a contract that sets out the benefits that will be provided in return for access to the genetic resources. Benefits can be non-monetary and/or monetary.

Non-monetary benefits may include educational and employment opportunities, attribution of credit, co-authorship, or involvement in the research project.
Monetary benefits may include royalty shares, direct payment, or ownership of intellectual property.

Format of the Benefit Sharing Agreement
The format that a Benefit Sharing Agreement takes will depend on:

• the type of genetic resources being collected,
• where the resources are collected from, and
• whether the resources are collected for commercial or non-commercial purposes.

(i) Format of Benefit Sharing Agreement in jurisdictions with biodiscovery laws

Commonwealth
When genetic resources are to be collected from Commonwealth land and waters for commercial research, the Benefit Sharing Agreement should be based on the model agreements developed by the Commonwealth government. Where genetic resources are to be collected from Commonwealth land and waters for non-commercial research, a statutory declaration should be made stating that the collected resources will not be used or transferred to others for commercial purposes.

Queensland
When genetic resources are to be collected from Queensland State land and waters for:

• biodiscovery research (the analysis of molecular, biochemical or genetic information about native biological material for the purpose of commercialising the material), or
• the commercialisation of native biological material or a product of biodiscovery research.

The Benefit Sharing Agreement should be based on the model agreements developed by the Queensland government. In all other cases where genetic resources are to be collected, notably in relation to non-commercial research or the collection and use of genetic resources from non-State land, the recommended Benefit Sharing format detailed below should be followed.

In Queensland, plants listed in Annex 1 of the Plant Treaty that are to be collected for food or agriculture purposes are excluded from the Queensland biodiscovery law. In this situation, you do not need to use the format that is required under the Queensland biodiscovery law. Instead, you should use the Standard Material Transfer Agreement developed under the Plant Treaty.

Northern Territory
When genetic resources are to be collected anywhere in the Northern Territory for research, the Benefit Sharing Agreement should be based on the model agreements developed by the Northern Territory government.

Model agreements for plant genetic resources are here.

(ii)  Recommended Benefit Sharing format

In situations where a specific format is not required, parties have the freedom to adopt whatever format they want for their Benefit Sharing Agreement. In these cases, the agreement does not have to be a formally drafted legal contract. For instance, a legally binding Benefit Sharing Agreement could be made by email. All Benefit Sharing Agreements should include certain information. At minimum, it is recommended that the agreement should specify:

• the names and contact details of the parties,
• the genetic resource being collected,
• the quantity of the resource being collected, and
• the benefits to be shared with the provider.

Examples of recommended Benefit Sharing formats for commercial and non-commercial research are available here.

Best Practice Requirements when Receiving Genetic Resources from Intermediaries

When you receive genetic resources from intermediaries such as herbaria, traders, nurseries, or culture collections, whether they are in Australia or overseas, you should inquire about whether the genetic resources are compliant with access and benefit sharing requirements: that is, that they were collected with the prior informed consent of the access provider and that there is a Benefit Sharing Agreement in place.

(i) Receiving genetic resources from intermediaries that are ABS compliant, where the intended use falls within the existing agreement
Where genetic resources were collected with prior informed consent and under a Benefit Sharing Agreement, you should adhere to the terms and conditions that were agreed to when the resources were initially collected.

(ii) Receiving genetic resources from intermediaries that are ABS compliant, where the intended use does not fall within the existing agreement
If you are wanting to use genetic resources in a way not agreed on by the access provider, you should negotiate a new agreement with the access provider for that use. For example, if the initial agreement did not include commercialisation and you want to commercialise, a new Benefit Sharing Agreement that covers commercial uses should be negotiated. Alternatively, it would be possible for you to obtain the genetic resources from a new provider so long as the new provider has the authority to grant access.

(iii) Receiving genetic resources from intermediaries that are not ABS Compliant
When you receive genetic resources from a third party that are not ABS compliant (because they were collected without prior informed consent and a Benefit Sharing Agreement), you should make reasonable best efforts to identify the access provider of those genetic resources.

Where you have identified the access provider you should:

• obtain their consent to use the resources, and
• enter into a Benefit Sharing Agreement with them.

Where the access provider is not willing to provide their retrospective consent to access the resources and you are unable to finalise a Benefit Sharing Agreement, you should not use the resources.

Where after reasonable best efforts you are unable to identify or locate the relevant access provider, the collection and use of the genetic resources will be governed by the Public Benefit Sharing Declaration. This provides that in recognition of the custodianship of Indigenous Australians and of the importance of genetic resources that signatories commit to undertake the following public benefit sharing activities:

• Share research outputs widely and openly;
• Acknowledge Indigenous Australians’ historical and ongoing stewardship of genetic resources in publications and other communications;
• Deposit samples of the genetic resources at relevant ex situ collections for conservation and sustainable use, if the genetic resources are not already publicly available;
• Commit to share a reasonable percentage of any profits arising from the use of the genetic resources with relevant organisations such as Indigenous Australian groups, environmental conservation organisations, or community organisations, and
• Where possible provide annual scholarships and other education and training programs for Indigenous

If the access provider is subsequently identified, reasonable efforts should be made to conclude a Benefit Sharing Agreement with them.

Best Practice Requirements when Transferring Genetic Resources to a Third Party

Where you are transferring genetic resources to a third party, it is important that the third party adheres to the same terms and conditions that were agreed to when the resources were initially collected.

ABS compliant genetic resources should only be transferred to third parties who agree to comply with the terms and conditions that the resources were initially collected under.

Non-ABS compliant genetic resources should only be transferred to third parties who agree to comply with the Third Party Public Benefit Sharing Declaration for the Transfer of Genetic Resources.

Where third parties do not agree to comply with the initial terms and conditions or the Third Party Public Benefit Sharing Declaration for the Transfer of Genetic Resources as is relevant, the genetic resources should not be transferred to that third party.

Definitions

The following definitions are used in the Guidelines.

‘ABS’: Access and Benefit Sharing.

‘ABS compliant genetic resources’: genetic resources that were collected with prior informed consent and under a Benefit Sharing Agreement (or Standard Material Transfer Agreement).

‘Access provider’: the person or organisation who has the authority to grant permission to access and use genetic resources within their control. An access provider may be a public entity, a private landholder, leaseholder, or custodian of the land.

‘Genetic resources’: any biological material derived from plants, animals, and microorganisms, including seeds, tissues, germplasm, or the compounds contained in these resources.

‘Intermediary’: a person or institution who transfers genetic resources but who is not the authorised access provider of the genetic resource. Examples of intermediaries include nurseries, museums, arboretums, seed traders, herbariums, or microbiome culture collections.

‘Nagoya Protocol’: The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization is an international supplementary agreement to the United Nations’ Convention on Biological Diversity. The Nagoya Protocol entered into force on 12 October 2014.

‘Non-ABS compliant genetic resources’: genetic resources that were not collected with prior informed consent and under a Benefit Sharing Agreement (or Standard Material Transfer Agreement).

‘Plant Treaty’: The International Treaty on Plant Genetic Resources for Food and Agriculture. The Multilateral System of the Plant Treaty offers a legal mechanism for the access, use and transfer of the genetic resources of 64 food and forage crop species that are listed in Annex 1 of the Treaty. The Treaty entered into force on 29 June 2004.

‘Public Benefit Sharing Declaration’: a signed non-confidential document declaring the signee’s intention to deliver public benefit sharing in exchange for the access and use of genetic resources which cannot be retrospectively made ABS compliant.

‘Reasonable best efforts’: where a genuine effort has been made to identify where and when the genetic resources were collected and who the relevant access provider was. What counts as ‘reasonable best efforts’ will depend on the circumstances of each case including the nature and purpose of the use of the resources, the availability and accessibility of provenance data or other information sources, whether public benefit is likely to accrue from the research, and the capacity available for verifying the provenance of the resources. In exceptional cases, where a very large number of genetic resources are being accessed and the collection is being made to further public benefits (such as through ecological or environmental research), it may be reasonable not to seek to identify who has the authority to grant access, so long as the researcher complies with the Public Benefit Sharing Declaration.

‘Standard Material Transfer Agreement (SMTA)’: The SMTA is a standard, non-negotiable access and benefit sharing contract that has been developed under the Plant Treaty for the transfer and use of plant genetic resources for food and agriculture.

Revisions

These Guidelines are for information purposes, and to assist you in understanding your legal rights and obligations in a general sense. They are not tailored to any particular fact, situation or specific requirements and should not be relied on as legal advice. This document is intended to evolve with changes in the law. If you come across an error or a situation which is not covered by these Guidelines, please email carol.ballard@uq.edu.au.

Permits

Collecting in the Australian Capital Territory

Under ACT law, permits are required where native species are collected from State lands and where protected species are collected anywhere in the ACT.

Collecting Native Species from State Land
Under the Nature Conservation Act 2014 (ACT) a licence is required to collect native plant species from State lands. This licence is applied through via an online process. A permit is not required when native species are collected from private land unless the species is listed as protected.

Collecting Protected Species
Under the Nature Conservation Act 2014 (ACT), a licence is required to collect species which are listed as protected or threatened. This is required even if the collection occurs on private land. The process for obtaining this licence is available online.

Collecting on Commonwealth Lands and Waters

Under Commonwealth law, a permit is required whenever biological resources are collected from Commonwealth lands or waters. An additional permit is required for flora which are listed as ‘threatened’.

Collecting Biological Resources from Commonwealth Lands and Waters
Under Part 8A of the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth), a permit is required to collect biological resources from Commonwealth lands and waters for research and development purposes. Additionally, where biological resources are to be collected from Commonwealth land and waters for commercial research, a Benefit Sharing Agreement should be concluded with the access provider based on the model agreements developed by the Commonwealth government. Where biological resources are to be collected from Commonwealth land and waters for non-commercial research, a statutory declaration should be made stating that the collected resources will not be used or transferred to others for commercial purposes.  In cases of non-commercial research, an application form and Statutory Declaration form must be emailed to grm@environment.gov.au, and written permission must be obtained from the access provider.

Permits to collect listed threatened species from Commonwealth Lands and Waters
For species which are listed as threatened, another permit is required unless the collection is granted an exemption from the Environmental Minister in the national interest. The application forms must be emailed to EPBC.permits@environment.gov.au.

Other permitting systems may apply to specific national parks.

Collecting in New South Wales

Under New South Wales law, a permit is required to collect plants classified as ‘protected native plants’ from State land. Separate permits exist depending on whether the collection is for research or commercial purposes.

Collecting Protected Species from State Land
Under the Biodiversity Conservation Act 2016 (NSW), a ‘protected native plants licence’ must be obtained from the New South Wales Department of Planning and Environment to collect plants which are classified as “protected” from State land for research purposes. The process for obtaining this scientific licence is outlined here.

If protected species are collected from State land for commercial purposes, a commercial licence is required. The process for obtaining this permit is outline here.
Protected species are native species which are listed as threatened plant species in schedule 1, plants from threatened ecological communities in schedule 2, or protected plant species in schedule 6.

This permit is only required if the collection occurs on public land.

If collecting non-protected plants you require permission from the area manager if collecting in National Parks/ Conservation areas.

Collecting in the Northern Territory

Under Northern Territorial law, permits are required to collect plants anywhere in the Territory, regardless of whether the land where collection occurs is public or privately owned. A Land Use Agreement may also be required where plant collection takes place on Indigenous land.

Collection Permit
In the Northern Territory, a permit must be obtained prior to collecting or researching wildlife for any purpose and on any land in the Northern Territory. The process for obtaining this permit is outlined here.

When genetic resources are to be collected anywhere in the Northern Territory for research, the Benefit Sharing Agreement should be based on the model agreements developed by the Northern Territory government.

Model agreements for plant genetic resources are here.

Land Use Agreements
If collection occurs on Indigenous land, a Land Use Agreement under section 19 of the Aboriginal Land Rights (Northern Territory) Act 1976 (NT) may be required. The process for establishing this is described here.

Collecting on Aboriginal Areas
In the Northern Territory, you can apply for a ‘request for information’ from the Aboriginal Areas Protection Authority (AAPA) where you can ask for spatial information in the areas you intend to sample or collect from for a small fee. You can use this information to avoid sensitive areas when sampling.

Roadside Collection
You may also need a permit to collect on roadside corridors in the Northern Territory. You can contact: The Department of Infrastructure, Planning and Logistics (08) 8999 4449 or apply for a permit to work within a road reserve at nt.gov.au.

Collecting in Queensland

Under Queensland law, permits are required in three situations: where the species being collected are classified as “protected”; where the collection is from a protected area; and where collection from State land or water is for the purpose of biodiscovery and may be commercialised. If more than one of these conditions is met, multiple permits are required.

Collecting Protected Species
Under the Nature Conservation Act 1992, a protected plant harvesting licence must be obtained from the Department of Environment, Science and Innovation to collect whole plants which are classified as “protected”. This is required regardless of whether plants are collected from State, private, or Indigenous land.

Protected species are native species which are listed as critically endangered, endangered, or vulnerable under the Nature Conservation Act, or which are listed as special least concern species in schedule 2 of the Act. To obtain a licence, you must complete and submit this form. There is an exemption where only small quantities of plant parts are harvested, in which case a harvesting licence will not be required.

Collecting from Protected Areas
If natural resources are collected from protected areas to conduct scientific research, a permit is required under the Nature Conservation Act 1992. Protected areas include national parks, nature refuges, special wildlife reserves, conservation parks, resources reserves, coordinated conservation areas, and world heritage areas. Permits can be obtained through the Queensland Government’s online services portal.

A different permit under the Forestry Act 1959 is required to collect biological material from State forests, forest reserves, or timber reserves for scientific activity. This can be obtained through the Queensland Government’s online services portal.

A separate permit is required to enter a national park for scientific purposes. This process is outlined here.

Collecting from State Lands or Waters for Biodiscovery Purposes
If native biological resources are collected for biodiscovery/commercialisation from State lands or waters, a Benefit Sharing Agreement with the State is required under the Queensland Biodiscovery Act 2004 (Qld). For this purpose, the Queensland government requires that a specific formal template of a Benefit Sharing Agreement with the State is used.

Collecting in Road Corridor Areas
A Road Corridor Permit is required when collecting plant plants in road corridor areas. This permit is needed in addition to any other relevant permits listed above.

Collecting in South Australia

Under South Australian law, permits are required in two situations: where native plants are collected from State land, or where threatened species are collected anywhere in South Australia. The permit for collecting stipulates that the permit holder should submit plant samples to the Herbarium in Adelaide. The applicant is also required to search the central archives/register of sites and objects within locations of interest before submitting an application.

Collecting Native Species from State lands for Scientific Research
Under the Native Vegetation Act 1991 (SA), a scientific research permit must be obtained from the Department for Environment and Water to collect native plants from State land. The process for obtaining this permit is set out here.

Separate permits are required to collect for non-scientific purposes: commercial collection; collection for individual, community, and botanic gardens; and bush food collection. Processes for obtaining these permits are outlined here.

Collecting Threatened Species
Under the Native Vegetation Act 1991 (SA), a scientific research permit must be obtained from the Department for Environment and Water to collect species which are listed as ‘threatened’. The process for obtaining this permit is set out here.

Collecting in Tasmania

Under Tasmanian law, permits are required in two situations: where the species being collected are classified as protected, and where native plants are collected from State lands.

Collecting Protected Species
Under the Threatened Species Protection Act 1995 (Tas), a permit must be obtained from the Department of Primary Industries, Parks, Water and Environment to collect native plant species which are listed as endangered, vulnerable, or rare. This is required regardless of whether plants are collected from State, private, or Indigenous land. The Department maintains a list of threatened species.

This permit is not required if the native plant is collected from a domestic garden where it is in cultivation. For the collection of marine species, a separate licencing process is used instead.

Collecting Native Plants from State Lands
If native plants are collected from public lands managed by the Tasmanian Parks and Wildlife Service, or from Private Sanctuaries or Private Nature Reserves (unless owned by the collector), then a permit is required under the Nature Conservation Act 2002 (Tas). This includes National Parks, State Reserves, Game Reserves, Nature Recreation Areas, Conservation Areas, Regional Reserves, Historic Sites, Public Reserves under the Crowns Lands Act 1976 (Tas), and all other Crown land that does not currently have reserve status under the National Parks and Reserves Management Act 2002 (Tas). The process for obtaining a permit is outlined here.

A separate permit is required for collecting plants from Wellington Park.

Collecting in Victoria

Under Victorian law, permits are required in two situations: where protected species are collected from State Land, and where research is conducted in National Parks. Additional restrictions may apply in areas declared as critical habitats.

Collecting Protected Species from State Land
Under the Flora and Fauna Guarantee Act 1988 (Vic), a permit must be obtained from the Victorian Department of Environment, Land, Water & Planning Regional Office to collect plants which are classified as “protected” from State land for commercial purposes. These are recorded in a protected flora list.

Conducting Research in National Parks
Under the National Parks Act 1975 (Vic), a separate permit is required to conduct research in areas designated as National Parks. This process is outlined here.

Collecting in Critical Habitats
Under the Flora and Fauna Guarantee Act 1988 (Vic), areas may be declared as “critical habits”, which may encompass both State and private land. These areas may be subject to ministerial ‘Habitat Conservation Orders’. There are currently no declared critical habitats in Victoria.

Collecting in Western Australia

Under Western Australian law, permits are required whenever native plants are collected from Western Australian lands or waters, where threatened plants are collected from anywhere in Western Australia, or where collection is made for the purpose of bioprospecting.

Collecting Native Species from Western Australian Lands and Waters
Under the Biodiversity Conservation Act 2016 (WA) and the Biodiversity Conservation Regulations 2018 (WA), a permit is required to collect native species from State lands in Western Australia. Separate permitting processes exist for commercial and non-commercial collections which are outlined here.

Collecting Protected Species
Under the Biodiversity Conservation Act 2016 (WA), authorisation is required to collect plant species which are listed as protected. The process for obtaining this authorisation is set out here.

Collecting from Protected Areas
Under the Conservation and Land Management Act 1984 (WA), a permit is required to collect from land regulated under this Act. This includes State forests, timber reserves, national parks, conservation parks, nature reserves, marine nature reserves, marine parks, marine management areas, and any other land placed under the control of the Department of Public Service. The process for obtaining this permit is available here.

Bioprospecting Licence
If collection is for the purpose of identifying, extracting or recovering biological resources and occurs on State land, a bioprospecting licence is also required under the Biodiversity Conservation Regulations 2018 (WA). The process for obtaining this licence is set out here.