This updated analysis assesses how the EPBC Bills stack up against the Samuel Review recommendations; examines the newly released national standard for matters of national environmental significance; and identifies key issues that need to be addressed in the Senate and inquiry to ensure the amendment package delivers for nature, community and climate.
What happened in parliament and where is the reform process up to?
After several days of debate, and consideration of a range of amendments put forward by independent members of the House, the seven Bills introduced by the Federal Government to reform federal environment laws passed the House of Representatives.
You can read EDO’s first impressions of the Bills in our earlier update: EPBC Act reforms make it to parliament – EDO’s first impressions.
Only one amendment was agreed – relating to the new proposed offset framework and a requirement to publish the proposed Restoration Contributions Holder’s annual report on the department’s website within 20 days of being received.
More information about the Bill and its passage through the House of Representatives is available on the Parliament website.
The Bill will now move to the Senate.
The Senate Environment and Communications Legislation Committee has referred the Bills to an inquiry that is expected to run to the following timetable:
- Hearings 14, 20 and 21 November in Canberra
- Public submissions due 5 December 2025
- Committee to report by 24 March 2026
You can find more information, including how to make a submission on the inquiry page.
The Senate is able to consider, debate and vote on the Bills despite the fact there is an inquiry in progress. With the Albanese Government pushing for the Bills to be passed quickly, it’s possible that the Bills could come up for debate and vote in the next sitting week, the final one for the year, commencing 24 November 2025.
In addition, this week the first draft Standard for Matters of National Environmental Significance (known as the ‘Draft MNES Standard’) was also released for public comment. National Environmental Standards are a foundational part of the recommendations of the independent review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (to which these reforms mostly relate) by Professor Graeme Samuel AC (Samuel Review). Submissions on the draft standard are due 30 January.
Here is our updated analysis of the Bills, and the first draft (MNES) Standard recently released
EDO lawyers have been undertaking detailed analysis of the Bills since they were introduced on 30 October 2025. With the Bills and a key draft National Environmental Standard now released, a critique of the Bills against the recommendations specified in the Samuel Review is possible.
While it is questionable as to why the independent review did not recommend consideration and assessment of greenhouse gas emissions (rather than only disclosure), where climate change is known to be the biggest threat to Australia’s environmental values, the Review includes many helpful recommendations to get Australia’s federal environmental laws on track to better protecting nature and to curb the extinction crisis.
How do the EPBC Act reforms put forward compare to the recommendations of the Samuel Review?
- National Environmental Standards being brought into the EPBC Act but do not meet the standard recommended by Samuel
The lynchpin of the recommendations made by the Samuel Review was the introduction of National Environmental Standards containing clear, enforceable outcomes that must be met by all actions, decisions etc made under the EPBC Act.
Commendably, the Bill introduces the power to make these Standards, which will be legislative instruments (enabling parliamentary oversight and disallowance), and which require public consultation before they are made.
However, the Bills do not provide for the Standards to be implemented in the manner recommended by the Samuel Review.
First, there is no clear requirement that Standards be made, or requirements setting out the matters that mandatory Standards should address. The Samuel Review recommended that a full suite of specific Standards was needed, and emphasised that “All the Standards are necessary to improve decision-making by the Commonwealth and to provide confidence that any agreements to accredit States and Territories will contribute to national environmental outcomes not just streamline development approvals.”
Crucially, the Samuel Review was clear that the EPBC Act should “require that activities and decisions made by the Minister under the Act, or those under an accredited arrangement, be consistent with National Environmental Standards” (our emphasis). The Bills weaken this requirement in the following ways:
- Rather than requiring that activities and decisions are (objectively) consistent with Standards, the Bill provides that for decisions on whether or not to approve a development, or whether to accredit another framework the Minister must be satisfied (a subjective test) that it not be inconsistent with any prescribed Standards. This turns the test from an objective one of whether or not the proposal complies, into a subjective matter based on what the Minister personally thinks. This inserts significant discretion into the decision, and makes external accountability of the decision very difficult.
- Inserting broad powers for the Minister to exempt certain proposals from meeting the standards , which go beyond the “rare” and “demonstrably justified” exemption power recommended by Samuel (see further discussion on exemptions below).
- Rather than the Standards each applying to every decision as relevant, the Bill provides that a regulation will specify which particular Standard applies to each decision. Further the Bill specifies that a regulation can specify the way the Standard must be applied in the decision, potentially weakening the requirement to a decision-maker simply ‘having regard’ to the Standard for some decisions.
A fundamental component of Standards as recommended by the Samuel Review is that they must be legally enforceable. This refers to the ability to hold decision makers to account in upholding them when making decisions under the Act. The Samuel Review stated: ‘The ability of the public to hold decision-makers to account is a fundamental foundation of Australia’s democracy.’
As long as the application of the Standards is to the Minister’s satisfaction, it will be difficult for the decision-maker to be held to account to ensure that the Standards are upheld in all decisions no matter who is in power.
Finally, the effectiveness of the Standards in improving environmental protection and outcomes under the EPBC Act will depend on what those standards require, how those requirements are framed, and whether there are processes in place to monitor and report on whether outcomes are being achieved.
Draft MNES Standard compared with the Samuel Review recommendations
As mentioned above, the Federal Government has released its first draft Standard, the draft National Environmental Standard (Matters of National Environmental Significance) 2025 (draft MNES Standard) for public consultation. It is expected a draft Offsets Standard will be released for public comment shortly.
The Samuel Review helpfully provided a recommended draft MNES Standard within the report (from page 203) (Samuel MNES Standard) to demonstrate clearly what was envisaged as necessary.
Unfortunately, the draft MNES Standard put forward by the government provides a weaker, less clear, and much less enforceable benchmark for projects and decisions to be held to and fails to meet the standard recommended by the Samuel Review.
Compared to the draft MNES standard provided in the Samuel Review, the draft MNES Standard provides a weaker, less clear, and much less enforceable benchmark for projects and decisions to be held to. The Samuel MNES Standard contains clear, unqualified requirements for actions, decisions, plans and policies, whereas the draft MNES Standard qualifies requirements with phrases like “if possible”, “where necessary”; or focused on procedural rather than substantive/on ground matters (for example “appropriately consider” “having regard to”).
The Samuel MNES Standard formulation of requirements around both the application of the mitigation hierarchy, and for cumulative impacts assessment of proposed activities are stronger and clearer than those in the draft MNES standard.
As noted, the application of the draft MNES Standard is discretionary, where its implementation is subject to the Minister’s “satisfaction” and so it will be difficult for the public to hold a decision-maker to account where they fail to uphold the Standard meaningfully.
Further, the draft MNES Standard could be compromised easily in its efforts to protect environmental values from impacts by allowing proponents to pay money via restoration contributions to “offset” those impacts, justifying the impacts without ensuring the impact is actually compensated.
The draft MNES Standard does not substantially add anything to what is already required under the Act, or proposed changes to the Act. For example:
- Principle 1 – Apply the mitigation hierarchy. This will already be required by the amended Act.
- Principle 2 – Consider the impacts. This is already required in the current Act. However, the MNES Standard provides a bit more guidance, particularly in relation to the consideration of circumstances and cumulative impacts.
- Principle 3 – Compensate residual impacts. This will be required by the amended Act.
- Principle 4 – Use data and consult people. Generally required by the current Act. The Standard doesn’t make those requirements any stronger.
- The proposed draft MNES Standard objectives are quite similar to the descriptions of unacceptable impacts proposed it be inserted into the Act.
The draft MNES Standard introduces some requirements for how impacts to matters of national environmental significance should be assessed for proposed activities that are additional to those mentioned in the Bill. However, there is a need for more clarity and objectivity in the criteria to meet the Samuel Review recommendation that the Standards be enforceable and provide clear outcomes to protect nature.
- Monitoring and evaluation of the effectiveness of the Act in achieving environmental outcomes
The Samuel Review also noted ‘[t]he development of a coherent framework to monitor and evaluate the effectiveness of the EPBC Act in achieving its environmental outcomes is needed. Key reforms recommended by this Review, particularly the establishment of National Environmental Standards, provide a solid foundation for this framework. Each Standard for MNES should have a monitoring and evaluation plan, and these plans should be underpinned by a National Environmental Standard for environmental monitoring and evaluation.”
Unfortunately, there is nothing in the Bills or the draft MNES Standard that provides a monitoring and evaluation plan of the level recommended as essential by the Samuel Review. This lack of monitoring and evaluation compromises the ability of decision-makers, and all stakeholders, to properly assess and apply the Standards and the unacceptable impacts definitions, which rely on an understanding of the baseline of the environment.
- Samuel recommended stronger environmental protections for forests under Regional Forest Agreements, the Bill does not do so
The Samuel review recommended that RFAs (Regional Forest Agreements under the Regional Forest Agreements Act 2002 (RFA Act)) must be required to “demonstrate consistency with the National Environmental Standards to avoid the need for an EPBC Act assessment and approval”. This is because significant impacts to threatened species continue to take place through forestry activities without EPBC Act oversight. To better protect threatened species habitat, the Review recommended that the EPBC Act be amended to replace the current exemption at Pt 4 Div 4 of the EPBC Act, and that that the accreditation model as recommended in the Samuel Review be adopted for RFAs, with a requirement for consistency with Standards and mandatory Commonwealth compliance and enforcement oversight. This, the Samuel Review noted, would require amendments to both the EPBC Act and the RFA Act.
The Bill does not make these amendments. It does not make any changes to provisions exempting forestry operations covered by a RFA from the Act’s operative provisions. As such, there is nothing for Standards to apply to, as they are mandated for (some) decision making under the Act, and no decisions under the Act are required for actions under an RFA. As set out above, there is nothing in the Bills that require project proponents of RFAs to comply with Standards.
If the Bill in its current form passes both houses, the current exemption from the requirement for EPBC Act approval will remain in place for RFAs. No additional requirements will be placed on RFA operations to comply with National Environmental Standards, to avoid unacceptable impacts, or otherwise provide any additional Commonwealth oversight on these operations.
- Fast-tracking is provided for, without foundational landscape-scale mapping and planning that the Samuel Review recommended as a precondition
The Samuel Review found that to halt and reverse the current trajectory of environmental decline, there must be planning on a regional landscape scale, as well as significant investment in restoration.
However, the Bills do not require this planning to take place. The proposed new framework for “bioregional plans” as well as the existing framework for “strategic assessments” as amended by the Bills are primarily tools to green-light development. There are no requirements in the Bills for upfront strategic assessment to inform the plans, no specific criteria or requirements for conservation zones, nor “action to address threats to MNES”.
There is also nothing in the Bills that requires the delivery of regional landscape recovery.
Samuel recommended Regional Recovery Plans as a key tool in coordinating action to address threats to MNES and identifying accountability for implementation. Only then did he recommend that strategic assessments or ecologically sustainable development (ESD) plans be made, and that they be consistent with the Regional Recovery Plan. The recommended landscape approach was for these tools (Regional Recovery Plans and ESD Plans) to work in concert. It is important the mechanism is not misused to simply green-light development without delivering important gains for the environment, which the current Bills risk doing.
- Go zones are clear but no-go zones are riddled with loopholes
The Samuel Review envisages that there will inevitably be “hard lines” and “no-go zones”. It observed that “…a system that allows for developments that impact certain habitats is not consistent with a Standard that requires impacts on these habitats to be avoided”.
As drafted, the Bills do not provide definite hard lines against any impacts without exemptions undermining them.
As an example of this, the proposed bioregional planning framework provides for so-called “conservation zones”. However, these will not operate as no-go zones, they will merely be zones where a specified type of developments (known as “restricted actions”) are not to occur. Even then, there are wide powers for the Minister to exempt certain actions from being “restricted actions” and therefore allowed to take place in “conservation zones”.
Bioregional plans as provided for under the Bills risk becoming another pathway to streamline development via priority actions in development zones, without providing robust and genuine benefits to the environment assured through the legislation.
- National interest “proposals” go far beyond Samuel’s recommendations
The Samuel Review recommended that there be one exemption to the overarching requirement for decisions under the Act to be consistent with Standards, where it is in the ‘national interest’ to do so, stating:
“The Act should include a specific power for the Minister to exercise discretion to make a decision that is inconsistent with the National Environmental Standards. The use of this power should be a rare exception, demonstrably justified in the public interest and accompanied by a published statement of reasons which includes the environmental implications of the decision.”
The Bills instead:
- extend the existing national interest power;
- creates new, broader exemptions under ‘national interest proposals’; and
- reduces transparency over the use of these exemptions.
These national interest exemptions allow the Minister to exempt activities from the requirement to be assessed and obtain approval under the Act, including any application of the many new environmental protection criteria (National Environmental Standards, “unacceptable use” definitions, etc.).
The Bills place no limit on things the Minister can designate as being in the national interest. The new ‘national interest proposal’ provides an even broader definition than the existing national interest exemption, specifying “strategic interests” and international agreements as relevant.
Although there is a requirement for the Minister to publish a statement of reasons for determining that a project is a national interest proposal, this requirement is entirely undermined by a requirement that if the Minister considers that publishing certain aspects of those reasons is not in the national interest, the Minister must not publish those matters.
There is no requirement for the environmental implications of the decision to be addressed in the statement of reasons. This is contrary to the Samuel Review, which focused on the need for reliance on the national interest exemption to be limited and transparent.
- The ability to pay to destroy without ensuring offsets are achieved for impacts is contrary to the Samuel Review recommendations
The Samuel Review noted the importance of bringing integrity to offsets under the EPBC Act. The Review found the Environmental Offsets Policy “contributes to environmental decline rather than active restoration”. The Review states:
The impact of development is not counterbalanced with legislated recovery processes. This is exacerbated by an EPBC Act environmental offsets policy which is ineffective at compensating for loss and inconsistently implemented. The decision-making hierarchy of ‘avoid, minimise and only then offset’ is not being applied – offsets are too often used as a default measure not as a last resort.
The recommendations stated: “The environmental offsets policy and its implementation should also be immediately improved to ensure:
- consistency with the National Environmental Standards
- offsets are ecologically feasible and deliver genuine protection and restoration in areas of highest priority.”
A National Environmental Standard for offsets was a key part of the Samuel Review recommendations. We understand a draft of this Standard is pending release shortly.
The Bills do provide for the mitigation hierarchy to be introduced into the Act, which was recommended by the Review.
However, the Bills also introduce a “Restorations Contributions” framework, whereby developers can pay money into a fund to acquit their offset obligations. The fund will be managed by a new Restoration Contributions Holder. If the Restoration Contributions Holder is unable to deliver general restoration actions, then it can undertake alternative restorations actions, which won’t be subject to best practice offsetting rules, such as “like-for-like offsets”.
The Samuel Review did specify that “Governments should consider allowing for development proponents to pay offset obligations to an investment organisation, as a means of discharging their obligations.”
However, the Review did not suggest offsets could be delivered in ways that were not “ecologically feasible”. In fact, the Samuel Review made it clear that reforms to the offsets framework were needed to ensure they “do not contribute to environmental decline”.
The current proposed Restorations Contribution framework is a regression on the current EPBC Act framework, creating a high risk that offsets will be used to justify impacts to matters of national environmental significance with no guarantee that the offset will actually be provided to compensate for that impact.
Similar frameworks have been introduced in New South Wales and Queensland and have been demonstrated to undermine the regulation of environmental impacts. Millions of dollars are banked where proponents clearly find it easier to pay money into a fund than to secure a real and effective offset. State government’s have often found it difficult and sometimes impossible to buy and protect habitat similar to that which has been lost. In Queensland alone, 97% of environmental offsets were delivered as a financial settlement from the introduction of this regime in 2014 and 2018, when the framework was reviewed.
The NSW Government is currently reforming its laws to significantly limit the availability of financial-based offsets. The Commonwealth must learn from other states and avoid the risks associated with financial offsets that compromise environmental outcomes from being achieved to compensate impacts.
- Power to make “rulings” was not recommended by the Samuel Review
The Bill gives the Minister and the CEO of the EPA a new discretionary and open-ended power to make binding rulings as to the application of the law (either generally or specifically).
As drafted, the power is not limited in its application. A ruling does not have to be consistent with a national environmental standard or the unacceptable impacts provisions, and the only safeguard of public oversight by consultation has no time limit.
Rulings can also be used to partially accredit frameworks outside of any safeguards provided through the accreditation requirements.
The division replaces current s 520A of the Act, which empowers the Minister to issue statements about the way provisions of the Act or the regulations apply in particular circumstances.
To our knowledge, this section is not used. Policy guidance on the operation of the Act exists (e.g., the Significant Impact Guidelines) and is used without statutory force. Statements made under s 520A are not binding, whereas if a decision-maker does not comply with a ruling, they must provide reasons for the non-compliance.
Neither the specific power, nor anything similar to it, was recommended by or discussed in the Samuel Review. Samuel acknowledged the complexity of the EPBC Act and the uncertainty of its operation, including because of the vast discretion in decision-making outcomes afforded under the Act. He also discussed and recommended several ways to address this complexity and uncertainty. None of the methods canvassed involved handing the Minister, the decision-maker for most decisions under the Act, an unfettered discretion to determine binding questions of how the Act is to be interpreted and applied.
Rather than reducing uncertainty, the power for the Minister to make rulings introduces more uncertainty. In this manner, the Bill replicates the status quo. As Samuel observed: “Opaque rules and unfettered discretion in decision-making can result in poor environmental outcomes.”
- First Nations role in environmental decision making
True reform means First Nations’ rights, knowledge and culture are central to environmental planning and decisions, with self-determination and Free, Prior and Informed Consent entrenched in the legislation.
The Australian Government has adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which includes these and many other important principles to improve recognition and power of First Nations, and to make them central to decision-making that impacts their interests.
Current environmental laws do not uphold the principles of UNDRIP and do not adequately respect the views and interests of First Nations. This can lead to devastating impacts on the cultural heritage and wellbeing of First Nations.
The Samuel Review found that “the settings of the EPBC Act and the resources afforded to implementation are insufficient to support effective inclusion of Indigenous Australians in the processes for implementing the Act”.
While we understand the government is working on a Standard on First Nations engagement and participation in decision-making, in our view there is nothing in the current Bills that that would effectively strengthen the role of First Nations in environmental decision making under the EPBC Act.
Clearly there is work to be done through the inquiry process and in the Senate to amend the current Bills to ensure that they enshrine objective decision-making based on strong national environmental standards, restore community trust in the Act and deliver outcomes to protect and restore our environment.
EDO lawyers will continue working around the clock on this critical opportunity to reform our national environmental laws.
