On October 30, Bills were introduced into the House of Representatives to reform the Environment Protection and Biodiversity Conservation Act 1999 (Cth), create a National Environment Protection Agency and establish a charges and cost recovery framework. 

In total, seven Bills have been introduced as part of the government’s reform package, with the three key reform Bills being: 

Public consultation is now open on this reform package until 5 December 2025, with the Environment and Communications Legislation Committee to report by 24 March 2026.  

Find the inquiry page for more details about how to make a submission here.  EDO will be providing more detailed analysis to assist with submissions shortly.  This is a pivotal moment to fix a failing Act.  

The  independent review of the EPBC Act conducted by Professor Samuel in 2020 (the Samuel Review) found that the EPBC Act has failed to achieve its objectives, that “Australia’s natural environment and iconic places are in an overall state of decline and are under increasing threat” and that “the environment has suffered from two decades of failing to continuously improve the law and its implementation”. 

The Bills are intended to respond to and implement the recommendations of the Samuel Review.  

While EDO lawyers continue to pore over the details of the hundreds of pages in the Bills, here is a quick update on what we know so far.  

Climate impacts will still not be required to be assessed under Australia’s federal environment laws 

Contrary to the Advisory Opinion of the International Court of Justice, the government has put forward Bills that still do not require federal assessment and mitigation of the greenhouse gas emissions of proposed activities.  

The Advisory Opinion clarified that nations, including Australia, have a duty to prevent transboundary environmental harm, which includes regulating all greenhouse gas emitting activities and ensuring adequate environmental impact assessment is undertaken to understand and minimise emissions. The Bills fail to meet these requirements, and, if passed, may expose Australia to legal action to address this failure to meet international obligations.  

The Bills do not require:  

  • disclosure of scope 3 emissions, which are typically the most significant emissions from fossil fuel projects, although the Bills provide a requirement for disclosure of scope 1 and 2 emissions; or  
  • assessment of these emissions in deciding whether the activity is allowed to go ahead.  

Claims the Safeguard Mechanism is adequately regulating greenhouse gas emissions in Australia are false and unfounded.  

The Safeguard Mechanism only comes into effect after activities are approved for those activities that meet the threshold. The mechanism does not prevent approval of emitting activities in the first place. See our briefing note here for more information.  

Large-scale deforestation and other harmful activities still supported with exemptions from the Act 

The Bills do not remove exemptions that have allowed unsustainable activities to continue around Australia without EPBC Act oversight.  

The exemptions for prior authorisations or “continuations of use” have been relied on by proponents of certain activities, such as agricultural deforestation or the use of shark nets, to continue without federal assessment and approval – even where these activities have significant impacts on matters of national environmental significance (MNES).  

The environment has declined in health since the Act commenced in 2000, and so the impact of these activities on matters of national environmental significance has increased drastically.  

Australia has obligations to protect these matters of national significance under international agreements and commitments, including the Convention on Biological Diversity, which Australia is arguably failing to meet by maintaining this exemption.  

Native forest logging is also exempt from EPBC Act assessment under the Regional Forest Agreements, even though forestry activities can have significant impacts to many threatened species that rely on these forests as vital habitat.  

The bulldozing of forests is pushing some of our most iconic species, including the greater glider, koala and grey-headed flying fox, to the brink of extinction.  

It is clear the Regional Forest Agreements are not regulating forestry impacts sufficiently to ensure Australia’s species of national significance are not at threat.  

EPBC Act reform is an opportunity to ensure that all activities that have or are likely to have a significant impact on matters of national environmental significance, including land clearing and forestry, can be assessed and regulated under Commonwealth law. 

National Environmental Standards power and restrictions on unacceptable impacts are in the Bills 

The implementation of National Environmental Standards was the centrepiece of the Samuel Review’s recommendations.  

The Bills provide a new power to create National Environmental Standards, and where the standards are prescribed for a decision, generally requires decision makers to not be inconsistent with the standards. A regulation can be made to vary the way the Standards are to be applied to some decisions though.  

The specific drafting of the National Environmental Standards is yet to be seen, but will be integral to determine whether they meet the threshold set by the Samuels Review recommendations and actually lead to increased environmental protection.   

The Bills also introduce a requirement that Standards are subject to the “no regression” principle.  

This requirement must be applied by the minister before varying or revoking a National Environmental Standard to ensure any change for the Standard will not reduce:  

  • environmental protections;  
  • consultation rights;  
  • access to environmental data or information; or  
  • the likelihood that outcomes or objectives specified in the standard are achieved.   

Unfortunately, this principle won’t apply at the first review of the Standards which must occur 18 months after commencement.  

The Bills also introduce a definition of “unacceptable impacts”, and stipulate that the minster can only approve a project if they are satisfied it will not have or be likely to have unacceptable impacts.   

This is a key safeguard, but ambiguities in terms used within the definition must be removed to ensure it is effective. 

New National Environmental Protection Agency and stronger enforcement powers and penalties  

The Bills seek to create a new national environmental regulator, the National Environmental Protection Agency (NEPA). The proposal to create the NEPA is very similar to the framework proposed but not passed in the Nature Positive package last year for Environment Protection Australia. 

The Bills create the NEPA as a listed entity under the Public Governance Performance and Accountability Act 2013. They also create the office of the NEPA CEO.  

NEPA, through its CEO, will be responsible for compliance and enforcement of several national environmental laws, including the EPBC Actand the Underwater Cultural Heritage Act 2018.  

NEPA’s CEO will be directly vested with permitting powers, including in relation to the wildlife trade, and offshore carbon capture and storage under the Environment Protection (Sea Dumping) Act 1981.  

The minister will retain EPBCActassessment and approval functions but can delegate these to the NEPA CEO.   

A key difference to the 2024 proposal, and one that significantly undermines the independence of those decisions, is a provision that delegated decision makers are subject to the direction of the delegator.  

This means that NEPA would have to abide by any directions made by the minister if making delegated decisions.  

EDO has long advocated for an independent and empowered national environment protection regulator.  

Establishing the NEPA is, in our view, a step in the right direction.  

However, there are some significant deficiencies in the design of the proposed NEPA, deficiencies that will potentially undermine its independence and reduce its accountability. 

These deficiencies do not inspire confidence that NEPA will be the tough cop on the beat the government claims and nature desperately needs.  

For further detail, see our blog post on the 2024 Nature Positive Bills and our briefing note on the 2024 EPA proposal. 

The Bills also provide two new compliance and enforcement options in the EPBC Act — compliance audits and environmental protection orders — and significantly increase maximum penalties the court can impose for breaking the law.  

These improvements are consistent with the Samuel Review, which found that under the current EPBC Act, compliance and enforcement was weak and ineffective, and that penalties must be sufficient to be an active deterrent rather than a “cost of doing business”. 

Devolution of federal EPBC approval powers is back on the table  

The Bills facilitate increased devolution of Commonwealth Government powers under the EPBC Act for assessment and approval to state and territory governments and other entities.  

The Bills empower the minister to declare or to enter into a bilateral agreement that removes the need for federal assessment or approval under the EPBC Act on the basis of an accredited framework.  

There are existing powers in the current EPBC Act to devolve assessment and approval powers, however, the devolution of approval powers (the riskiest part of devolution) has never been used due to legal ambiguities with existing provisions.  

Clarification of the authority to devolve EPBC Act approval powers has been attempted multiple times by various governments, and each time it has failed to pass the Senate due to the significant risks posed to integrity and environmental protections in decision making.  

The Commonwealth Government has an obligation to maintain responsibility for the protection of matters of national environmental significance, in accordance with Australia’s international agreements and the fact that the protected matters are important to all Australians.  

Accreditation is a devolution of this responsibility. There are too many risks in accrediting states and territories with approval powers at a time when Australia needs strong federal leadership and strengthened environmental laws.  

Introduces ‘Pay to Destroy’ provisions to offsets framework  

The Commonwealth Federal Government is proposing to replace its existing Environmental Offsets Policy, with a new legislative framework for Restoration Actions and Restoration Contributions (Offsets Framework).   

The Offsets Framework will be implemented via direct amendments to the EPBC Act, including a new Part 12B to establish a Restoration Contributions Holder and Restoration Contributions Special Account, and a proposed new National Environmental Standard for Environmental Offsets. 

The Offsets Framework will interact with new provisions in the EPBC Act that: 

  • require consideration of the mitigation hierarchy, which states offsets are a last resort after action to avoid, mitigate and repair impacts; 
  • provide that offsets cannot be used to overcome unacceptable impacts; and 
  • require that offsets adequately compensate for “residual significant impacts” to deliver a net gain. 

While introducing the mitigation hierarchy into the Act, the minister is only required to “consider” the hierarchy, rather than ensure that it is adequately applied.  

Significant questions have been raised about the effectiveness of environmental offsets and their ability to deliver environmental outcomes that genuinely compensate for the negative impacts of projects.  

Where environmental offsets are used, they must always be in accordance with best practice principles to ensure that offsets can achieve real environmental outcomes that compensate for the impacts of projects. This is not reflected by the Bills. 

As proposed, the Offsets Framework contains too much flexibility, including a new option to pay a “restoration contribution charge” in lieu of securing direct, upfront offsets and inadequate accountability measures.  

The ability to pay money into a fund is not offsetting; it is essentially “payment for destruction”. The use of offsets contributions in other jurisdictions as been highly criticised. In NSW, the Independent Pricing and Regulatory Tribunal has recommended the phasing out of the Biodiversity Conservation Fund, and the NSW Government is taking steps to limit the use of the Fund.  

Further, offsetting should not be seen as commensurate with restoration. Offsets have the specific task of ‘compensating’ for the specific impacts of a project on the environment. While this may include some component of restoration, the restoration is first predicated on something being damaged or destroyed., equating to net zero at a landscape scale.  Restoration needs to be done independent of the offsets scheme and will require investment, strategy and data.  

In its current form, the Offsets Framework will allow projects to be approved with no real guarantee that genuine offsets will be delivered or that environmental outcomes will be achieved.

Fast-tracking development approvals – safeguards needed  

The Bills introduce various new pathways designed to fast-track development approvals.  

Faster assessment and approval processes has been a key platform of Minister Watt’s plans for these reforms, particularly for housing and renewable energy.  

Concerningly, there are no limits on the scale of risk of activities that can be fast-tracked through the new pathways, which may lead to weaker environmental assessment and less public scrutiny for even large-scale fossil fuel projects under current drafting.  

The Bill introduces streamlined assessment, which is designed to encourage proponents needing EPBC approval to do the environmental assessment work in advance and provide a comprehensive application on referral.

If the minister is satisfied they have sufficient information to make an informed decision whether or not to approve the activity for each matter of national environmental significance that may be significantly impacted, and if the application includes greenhouse gas information for the action, streamlined assessment can be allowed.  

There are no requirements as to what level of information should be required, even large-scale projects that would normally be assessed via environmental impact statement may be pushed through this assessment process under current drafting.  

There is scope for a regulation to specify criteria that may apply to limit what types of activities can be streamline assessed, but no requirements in the Bills as to what the regulation should specify.  

The only public consultation for streamlined assessment will be at the point of referral on deciding whether the activity requires assessment under the EPBC Act.  

Once the streamlined assessment pathway has been decided, a recommendation report must be drafted as soon as practicable as to whether the activity should be approved and if so on what conditions.  

The decision on the application must be made within 30 business days from the point of deciding the streamlined assessment pathway.  

This pathway has less public oversight and assessment rigour than any current assessment pathway under the EPBC Act.  

The bioregional planning process in the current Act is also being amended to encourage this pathway to be used for faster development. Under the reforms there can be two types of plans:​

  • Bioregional guidance plans. These plans will have no regulatory function. 
  • Bioregional plans. These plans will have a regulatory function, including establishing development zones and priority actions, conservation zones and restricted actions, and bioregional restoration measures.​ 

The intention is that through landscape-scale planning, which designates where conservation values exist and where a class of actions may be most suitable for priority actions, those priority actions can be develop more quickly under a bioregional plan in a development zone, and development of priority actions in conservation zones is discouraged.  

Once a class of action has been specified as priority actions, they will no longer need EPBC assessment or approval.  

While there is unfortunately no requirement in the Bills to consider cumulative impacts, landscape-scale planning may encourage smarter planning for development that is considered appropriate for streamlined assessment.  

Unfortunately, there are some loopholes that make this framework dangerous on current drafting:  

  • There are no limits on the kinds of activities that can be a “priority action”,  and this could be used to streamline fossil fuel activities;  
  • There are no specific requirements to undertake any type of assessment that will ensure quality landscape-scale and site-specific assessment are undertaken;  
  • Conservation zones won’t operate as strict “no go zones” – only prescribed activities are restricted in these zones but even they can be allowed to develop in a conservation zone through broad exemptions under the Bills;   
  • Proponents wanting to develop in a development zone must put in a registration request, which can be approved or refused by the minister – there is no requirement for full assessment of the activity, and no public consultation on development proposals; and  
  • Public consultation on a bioregional plan will be for 30 business days, a very quick turn around for such a powerful plan.  

Both of these reforms are in strong need of tighter guardrails to ensure they are not misused to fast-track risky, impactful development activities without proper environmental assessment and public scrutiny.   

Discretion, exemptions and loopholes  

It’s clear that the Bills propose some positive new protection mechanisms, but they may be undermined by the level of discretion, exemptions and loopholes. 

The Samuel Review found that a fundamental shortcoming of the EPBC Act is that it does not provide sufficient constraints on discretion, and this considerable discretion in decision making has resulted in uncertainty and poor environmental outcomes. 

It is disappointing to see that the government has not used this important opportunity to implement recommendations to increase accountability and integrity.   

In our view, the proposed amendments may exacerbate existing flaws in the EPBC Act identified by the Samuel Review by entrenching and extending discretional decision-making powers of the minister and their delegates.  

Many key aspects of the reforms are framed as subjective and discretionary, which erodes certainty and accountability.  

Nearly all provisions include criteria that must be met under a subjective test — “to the satisfaction of the minister” — rather than an objective test simply requiring compliance with a particular criteria.  

Most provisions, including the application of the National Environmental Standards to decisions on development proposals and accreditation of other frameworks to take over EPBC assessment or approval powers, involve a weaker test of “not inconsistent” with criteria, rather than a positive test such as “in accordance with” or “complies with”.  

These terms are throughout the current EPBC Act and constitute the “discretion” that the Samuel Review points to as a failing of the Act.  

The First Independent Review of the EPBC Act (the Hawke Review) also found the use of double negatives, such as “not inconsistent” weakens provisions significantly and recommended this language be replaced with stronger tests.  

In practice, “not inconsistent” has been interpreted as lowering the threshold of decision-making obligations.  

Where new safeguards are introduced, they are often undermined by discretionary exemptions, such as exemptions to restrict activities in conservation zones and broad national interest exemptions with no limit on what can be considered “in the national interest”. 

What’s more, the Bills introduce new powers to make ‘rulings’, under which the minister (or the CEO of NEPA in relation to the CEO’s powers), on their discretion, can override or stand in the shoes of the judiciary and parliament by making binding decisions on how the law should be applied by other decision makers.  

We understand rulings are also intended to be used to partially accredit a process as satisfying EPBC Act requirements, without going through the formal accreditation requirements and safeguards.  

The power to make binding rulings is a very unusual power that does not exist in other environmental laws in Australia to our knowledge.  

It appears to be inspired by the rulings feature of the Taxation Administration Act 1953 (Cth), however that power is exercised by the independent Commissioner of Taxation, not an elected minister.  

This power risks further politicisation and uncertainty around the application of the EPBC Act, contrary to the Samuel Review’s recommendation for constrained discretion and clear outcomes-based rules.  

Conservation planning to protect and recover species and ecological communities and abate threats 

Conservation planning to ensure we are taking action to protect and recover species and ecological communities and abate threats must be a priority in any EPBC Act reforms.  

The Act currently provides for the listing of species at risk of extinction and the making of recovery plans, conservation advices and threat abatement plans to direct action to support their recovery. 

The reforms will introduce provisions allowing the minister to issue “protection statements”.  

These statements are intended to clarify what a decision maker must consider during the approval of actions in protecting threatened species or ecological communities.  

Protection statements could be a useful tool that supports the implementation of new environmental protection mechanisms in the Act, such as considering whether a project will have unacceptable impacts.  

However, as drafted, the Bills will make these new protection statements the primary regulatory document.  

This approach modifies existing requirements that the minister not act inconsistently with a recovery plan and must have regard to conservation advices. 

Instead, the reforms will require only that the minister not act inconsistently with protection statements. This is a backwards step.  

Protection statements must complement, not override or diminish the role of existing conservation planning documents, such as recovery plans, threat abatement plans and conservation advices. 

The Bills also introduce a new, single definition of critical habitat, which will help address confusion about multiple terms in the Act currently.  

While this is helpful, most important will be how the Act protects critical habitat as defined under the current Act.  

As proposed, protection will be limited. For example, offence provisions will only apply to critical habitat that is identified on the register (and only if it is in or on a Commonwealth area) and there is nothing to compel the government to add the critical habitat to the register.  

However, new requirements to prevent unacceptable impacts, including on critical habitat, may lead to greater protection for these crucial areas. 

Disappointingly, the Bills fail to take broader steps to improve the conservation planning framework. Notably, the Bills do not: 

  • mandate requirements to make conservation planning documents, such as recovery plans and threat abatement plans;  
  • mandate the registration of critical habitat; 
  • require decision makers to consider new listings in project assessments; 
  • establish a mechanism for responding to emergency events (like bushfire and floods); nor 
  • strengthen reporting on progress on achieving threatened species and ecological community recovery. 

Amendments are needed to restore trust in the EPBC Act and to ensure it delivers on the core principles of stronger environmental protection, and greater accountability and transparency in environmental decision-making.  

The Bills have elements that, if strengthened, could further this. However, there are key weaknesses in the proposal that risk undermining the Act and the meagre protection it currently provides.  

The former must be strengthened and safeguards placed around the latter for the Bills to stop and turn around the decline of nature across Australia and to protect our precious natural heritage. 

Stay tuned for more details as EDO’s experts analyse the Bills in detail.