You may have heard that the Albanese Government is eager to have the reforms to federal environment laws passed as quickly as possible. While the due date for submissions to the Senate Inquiry into the Bills is 5 December, we recommend getting submissions in as soon as you can to have the best chance of having your concerns taken into account.

You can find more information, including how to make a submission on the inquiry page. Read EDO’s submission here.

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

However, the Senate is able to consider, debate and vote on the Bills despite the fact there is an inquiry in progress. 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.              

See our previous updates here for more information on EDO’s analysis of the Bills and the recent MNES Standard:

To help with submissions, below we have synthesised suggested areas of focus for submissions based on our analysis of the three core Bills:

Based on our expert analysis, the reform package needs to do two things: (1) address, not exacerbate, the failings of the current Act, and (2) strengthen the proposed amendments that will finally ensure we have national laws that will actually protect our iconic matters of national environmental significance and deliver outcomes for nature, community, a safe climate and future generations.

First, ensure we don’t continue to fail. Everyone agrees the EPBC Act is not working, so we need to ensure that the reforms don’t repeat or exacerbate failings of the current Act. This means we need amendments to do the following:

  1. Strictly limit any devolution of federal responsibilities – Accreditation of assessment frameworks must only occur if strong standards are introduced and the frameworks meet these standards. Amendments are needed to retain federal oversight for final decisions – not devolve it. The current EPBC Act prevents any devolution of the water trigger to ensure protection of precious water resources – this exemption should remain.
  2. Strictly limit ‘restoration contribution’ payments that are a ‘pay to destroy’ option. The reform package must ensure offsets deliver real, measurable environmental outcomes, and do not allow proponents to pay to destroy which undermines any improvement in the framework.
  3. Do not increase subjective ministerial discretion and exemptions in decision making. This means we need to:
    • Amend the Bills to ensure key decisions are based on objective, accountable tests and not discretionary, subjective consideration of whether the minister is ‘satisfied’.
    • Limit all national interest exemptions and remove the national interest proposal exemption. National interest proposal exemptions should otherwise be limited to introduce safeguards consistent with Recommendation 3(c) of the Samuel Review which proposed that this exemption be confined to national emergencies, where the Bills extend this application to broad ‘strategic interests’ and international agreements of any kind.
    • Remove the new power for the minister and the CEO of the National Environmental Protection Agency (NEPA) to make ‘rulings’ as to how the standards should be applied and to partially accredit frameworks without going through the full accreditation process. At the very least the Bills should constrain circumstances in which rulings can be used e.g. for improving environmental protection measures, ensure consistency with unacceptable impacts, objects of the Act and standards.
  4. Strengthen the assessment and approval pathways and ensure objective, transparent and accountable decision making, including by:
    • Appropriately limiting the new streamlined assessment pathway by including specific requirements for environmental impact assessment and public consultation and ensuring that only low risk activities can move through a streamlined assessment pathway.
    • Strengthening bioregional planning zones by establishing clear, thorough assessment requirements for preparing bioregional plans, comprehensively protecting matters of national environmental significance in conservation zones, requiring certain at risk matters of national environmental significance to be protected via conservation zones,  providing limits on the level of risk of priority actions that can be fast tracked, and excluding the water trigger from bioregional planning to ensure Federal oversight remains for each project.
    • Strengthening strategic assessment processes by removing or tightening the new provisions allowing ‘minor variations’ to strategic assessment. Retain public consultation on terms of reference for the Strategic Assessment to ensure assessment is robust and covers all relevant issues for the area. Strengthen how new environment protections (e.g. Standards) apply to strategic assessments Provide NEPA with oversight of strategic assessments.
    • Removing the NOPSEMA accreditation option and strengthen offshore petroleum regulation – Remove standalone NOPSEMA accreditation provisions and tighten amendments to the strategic assessment framework. Alternatively, introduce stronger upfront and ongoing protections of procedural rights and environmental protection (including an objective test for accreditation, mandatory assurance, and mandatory suspension where non-compliant).
    • Preventing impacts prior to approval – Remove this new power under the Bills to ensure activities cannot commence prior to being granted approval. 
  5. Protect and recover our threatened species – We need the Bills to continue to ensure that decisions cannot be made that are inconsistent with recovery plans and threat abatement plans. The Bills should be amended to:
    • Safeguard the use of protection statements for good environmental outcomes: require protection statements provide equal or greater protection than recovery plans and conservation advices; prevent protection statements being used to undermine recovery plans and conservation advices including by ensuring existing requirements to not act inconsistently with recovery plans or threat abatement plans remain.
    • 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); and strengthen reporting on progress on achieving threatened species and ecological community recovery.
    • The provisions amending reconsideration request powers should be removed to ensure that this important power remain effective. This is a critical avenue to review existing approvals that are leading to unpredicted or unassessed unsustainable outcomes due to changes in the circumstances they are operating under.
  6. Remove existing exemptions that have failed to protect habitat: Remove the exemption for activities under Regional Forest Agreements from EPBC Act assessment, or at least require that the exemption is subject to limitations allowing conditioning of these activities and the application of the National Environmental Standards. Repeal the continuous use and prior authorised actions exemption.

Second, we need to make sure that the potential new elements of the Act are set up to be effective and turn around the trajectories of decline. This means we need the reforms to:

  1. Establish a strong independent national EPA as the primary decision-maker that can make objective decisions based on national environmental standards, free from political influence.
  2. Ensure that new national standards are made, are applied consistently and objectively and to all projects; and that monitoring, enforcement and reporting ensure that standards are being met and environmental outcomes are being delivered.
  3. Ensure a strong, clear and enforceable definition of unacceptable impacts on matters of national environmental significance.
  4. Clarify the definition of net gain to ensure absolute net gain is achieved.
  5. Retain the proposed increased penalties and enforcement powers to ensure the Act is complied with and upheld.
  6. Expand the climate disclosure requirements to include disclosure of scope 1, 2 and 3 (direct and indirect) emissions and require these emissions to be considered in decision-making.

This legal update provides further detail on these key issues and recommendations that EDO will be including in our submission:

  • Part One:  Recommendations to ensure the Bills address, not exacerbate, the failings of the current Act
  • Part Two – Amendments to strengthen the critical new elements and address the gaps.

Part One:  Recommendations to ensure the Bills address, not exacerbate, the failings of the current Act

EDO is seriously concerned that features of the Bills as currently drafted are a regression on the current EPBC Act and require amendment to ensure the Bills don’t take environmental protection backwards. Six key issues that need to be fixed are listed below.

  1. Devolution of EPBC assessment and approval powers, including now of the water trigger

The Bills facilitate increased devolution of EPBC Act assessment and approval powers, and remove the exemption that has applied preventing devolution of the water trigger for unconventional gas and large-scale coal mining. The Federal Government has an obligation to retain federal oversight of decisions to ensure that Australia’s international agreements are met, and to prevent states/territories being the sole decision-maker on matters of national environmental significance.

  • Recommendation: Retain strong federal oversight for final decisions – not devolve it. Also the current EPBC Act prevents any devolution of the water trigger to ensure protection of precious water resources – this exemption should remain.

 2. The proposal to introduce ‘restoration contribution payments’  

The Bills introduce the ability to pay money, via ‘restoration contribution payments’ into a fund instead of securing a real offset or impacts. The ability to pay money into a fund is not offsetting; it is essentially ‘payment for destruction’, and is a regression from the current policy.

  • Recommendation: The reform package must ensure offsets deliver real, measurable environmental outcomes, and do not allow proponents to pay to destroy which undermines any improvement in the framework.

3. Safeguards needed on fast-tracked approval mechanisms to ensure integrity in environmental assessment and community oversight

The Bills introduce and amend various pathways to allow fast-tracked decisions for proposed activities. These options risk weakening environmental assessment and reducing public consultation and oversight, which may lead to worse environmental outcomes than the current Act.

a) Streamlined assessment – the Bills introduce a new ‘streamlined assessment’ process through which the Minister has the discretion to accept an application as containing sufficient information from referral to move through a 30 business day assessment. There are no limits on the scale of risks for a development to go through this assessment pathway, and no requirements on the quality of environmental impact assessment or public consultation.

  • Recommendation: Include specific requirements for environmental impact assessment and public consultation and ensure that only low risk activities can move through a streamlined assessment pathway.

b) Bioregional planning – the Bills amend the bioregional planning pathway under the EPBC Act to allow fast tracking of declared ‘priority actions’ in plan areas with no project specific EPBC Act assessment, however no guidelines are provided for landscape scale assessment required to be undertaken to formulate a plan and only short 30 business day consultation applies. There are no limits on the level of risk of activities which can be declared ‘priority actions’, where these activities will not be subject to project specific federal assessment.

  • Recommendation: Clear, thorough assessment requirements should be specified in the Bills for preparing bioregional plans. Conservation zones should comprehensively protect matters of national environmental significance. Require certain at risk matters of national environmental significance to be protected via conservation zones. Provide limits on the level of risk of priority actions that can be fast tracked. Exempt the water trigger from bioregional planning to ensure Federal oversight remains for each project.

c) Strategic assessment – the Bills amend the strategic assessment pathway under the EPBC Act to remove the need to consult on terms of reference for strategic assessment which set out the factors needing to be considered, and to facilitate easier amendment of strategic assessments without consultation mandated.

  • Recommendation: Remove or tighten the new provisions allowing ‘minor variations’ to strategic assessment. Retain public consultation on terms of reference for the Strategic Assessment to ensure assessment is robust and covers all relevant issues for the area. Strengthen how new environment protections (e.g. Standards) apply to strategic assessments Provide NEPA with oversight of strategic assessments.

d) NOPSEMA – the Bills propose to move regulation of offshore gas to an accredited framework, moving away from the strategic assessment that currently applies. This risks undermining existing procedural rights which have been assured under the current framework, particularly for First Nations, and leaves future regulation of offshore oil and gas activities at risk of backsliding against the EPBC Act.

  • Recommendation: Remove standalone NOPSEMA accreditation provisions and tighten amendments to strategic assessment framework. Alternatively, introduce stronger upfront and ongoing protections of procedural rights and environmental protection (including an objective test for accreditation, mandatory assurance, and mandatory suspension where non-compliant).

e) Minor preparatory works – the Bills propose to allow activities to commence on a site subject to a referral prior to an approval being granted if considered minor or preparatory. There already exist many instances were proponents have illegally commenced activities which are not yet approved – facilitating this under the law risks undermining environmental impact assessment activities, assumes approval and undermines respect for environmental laws.

  • Recommendation: Remove this power under the Bills to ensure activities cannot commence prior to being granted approval. 

4. Discretion and exemptions must be reduced to ensure accountability and transparency are upheld:

a)Discretion overall – The Bills provide a subjective test of ‘ministerial satisfaction’ throughout all environmental protection decision making. This creates uncertainty and undermines all decision points, makes it difficult to hold decision makers to account ,and leaves EPBC Act decisions at the mercy of political imperatives and lobbying power. This is particularly risky on key decisions as to whether the standards have been met, accreditation of frameworks, rulings, protection statements, bioregional planning, strategic assessments, and streamlined assessments. All broad powers for these critical decisions need guardrails to ensure they are not used inappropriately.

  • Recommendation: Amend the Bills to ensure key decisions are based on  objective, accountable tests and not discretionary, subjective consideration of whether the minister is ‘satisfied’.

b) National interest – the Bills continue the existing broad power to exempt activities from EPBC Act approval under the ‘national interest’ with no limits on what can be considered in applying this exemption. The Bills also extend these powers through new ‘national interest proposals’ which are subject to even broader considerations compared to the current Act, including ‘strategic interests’ and international agreements.

  • Recommendation: Limit all national interest exemptions and remove the national interest proposal exemption. National interest proposal powers should otherwise be limited to introduce safeguards consistent with Recommendation 3(c) of the Samuel Review which proposed that this exemption be confined to national emergencies, where the Bills extend this application to broad ‘strategic interests’ and international agreements of any kind.

c) Rulings – the Bills introduce a new power for the Minister and the CEO of NEPA to make ‘rulings’ as to how the Standards should be applied. These rulings can be used to facilitate partial accreditation of frameworks without needing to go through the new accreditation framework.

  • Recommendation: Remove this power, or constrain circumstances in which rulings can be used e.g. for improving environmental protection measures, ensure consistency with unacceptable impacts, objects of the Act and standards.

5. Strengthen conservation planning and species recovery obligations:

While the intention of the government for these reforms has been stated as including strengthening environmental protection, the key instruments which set out actions needing to be undertaken to improve environmental outcomes – conservation planning documents – risk being weakened.

a) Protection statements – New protection statements could be used in a manner which undermines recovery plan and conservation advice requirements, including by weakening existing requirements for decision-makers to not act inconsistently with recovery plans or threat abatement plans. Removal of the requirement for recovery and threat abatement plans.

  • Recommendation: Continue to ensure that decisions cannot be made that are inconsistent with recovery plans and threat abatement plans: require protection statements provide equal or greater protection than recovery plans and conservation advices; prevent protection statements being used to undermine recovery plans and conservation advices including by ensuring existing requirements to not act inconsistently with recovery plans or threat abatement plans remain.

b) Conservation planning – Unfortunately the Bills do not provide any improvements that will lead to strengthened conservation outcomes. This is sorely needed to ensure the Bills are a step forward for protecting matters of national environmental significance under threat.  

  • Recommendation: Update the Bills to 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); and strengthen reporting on progress on achieving threatened species and ecological community recovery.

c) Reconsideration request amendments make this power ineffective – The Bills introduce significant restrictions on the power for communities to seek reconsideration of decisions where circumstances have changed or new information has come to light. The amendments propose to limit any reconsideration request for controlled action decisions to 28 days from the decision (where there is no time limit currently in the EPBC Act), and introduce a very high onus on the quality of evidence to support the reconsideration. These amendments render the reconsideration request power effectively obsolete – as it will be difficult for the evidentiary burden to be met, and it is unlikely that any change in context or information will come to light within 28 days of the decision.

  • Recommendation: The provisions amending reconsideration request powers should be removed to ensure that this important power remain effective. This is a critical avenue to review existing approvals that are leading to unpredicted or unassessed unsustainable outcomes due to changes in the circumstances they are operating under.

6. Remove outdated exemptions for deforestation, clearing and other environmental impacts

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 increasingly significant impacts on matters of national environmental significance (MNES).  

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. 

Recommendation:

  • Remove the exemption for activities under Regional Forest Agreements from EPBC Act assessment, or at least require that the exemption is subject to limitations allowing conditioning of these activities and the application of the National Environmental Standards.
  • Continuous use and prior authorised actions exemptions should be repealed.

Part Two: Strengthen the critical new elements

The Bills contain positive features which could be a step forward for federal environmental regulation. Unfortunately, the current legal drafting of the Bills builds in significant discretion, various exemptions and loopholes that undermine the strengthened protection that the reform package is seeking to achieve, as outlined below. Amendments are needed to ensure trust is restored in the EPBC Act and that it delivers on the core principles of stronger environmental protection, and greater accountability and transparency in environmental decision-making, now and under future governments.

Six key amendments are set out below.

  1. A new National Environment Protection Agency (NEPA) – the Bills introduce the NEPA as a separate federal agency with powers to regulate and enforce the EPBC Act. The NEPA will not have final approval powers unless they are delegated, and are subject to the direction of the Minister. The Department will also still exist and can have powers delegated to it similarly to NEPA. The NEPA will also not be governed by an independent board and so it is not subject to the level of independence from political interference as EDO has recommended to ensure integrity in environmental decision-making. 

Recommendations:

  • To ensure NEPA’s regulation is independent of political interference, the Bills should be amended to provide for governance of NEPA by an independent board; and
  • NEPA should be granted powers directly to undertake assessment and approvals, rather than their powers be subject to discretionary delegation from the Minister – who can choose delegation to either NEPA or the Department under the Bills which creates confusion, uncertainty and further potential for political interference.

2. A power to make National Environmental Standards a feature of decision-making criteria, with the principle of no regression built into the making of Standards – The National Environmental Standards were a key recommendation of the independent review of the EPBC Act by Professor Graeme Samuel AC (Samuel Review). The Bills introduce the power for the Minister to make Standards (but not a requirement), and require that decisions on approvals are not inconsistent with Standards prescribed to the decision (a regulation will specify which Standards apply to which decisions). A ‘no regression’ principle is introduced which requires that when Standards are varied or revoked they cannot lower the level of environmental protection and community consultation provided by previous Standards. The application of the Standards is subject to discretion and subjective interpretation, and there are no requirements for monitoring, reporting and response on the status of matters of national environmental significance and how the Standards are operating to achieve environmental outcomes.

3. Requirements to refuse unacceptable impacts, with improved definitions provided for in the Act – New definitions are proposed for the EPBC Act to define  what an ‘unacceptable impact’ should be for each matter of national environmental significance. Currently the definitions are vague and difficult to enforce which may limit their utility.

Recommendations:

  • Provide an objective test for applying Standards, net gain requirements and unacceptable impacts definition, including in accrediting frameworks.
  • Amend the definitions of unacceptable impacts to ensure they are able to be clearly implemented in alignment with the best available science.
  • Require regular public reporting on environmental trends, the status of each matter of national environmental significance and measurable outcomes in Standards, with the EPA to report against performance of Standards against outcomes and Act objects regularly.
  • Require Environment Information Australia to regularly report against Australia’s progress on the Global Biodiversity Framework.

4. A new ‘net gain’ requirement for certain decisions which is to be measured against the quality of the matter of national environmental significance at the time of the decision.Unfortunately this is based on a declining baseline and the requirement can be achieved via payments in the form of new ‘restorations contributions’. This is a highly concerning feature of the reforms discussed below and may undermine the achievement of real net gain for matters impacted.

  • Recommendation: Clarify the definition of net gain to ensure absolute net gain is achieved, which will better ensure Australia’s extinction crisis might be halted.

5. Retain the introduction of higher penalties, stronger enforcement powers – The Bills introduce penalties which are more likely to deter breaches of the EPBC Act if effectively utilised, and new enforcement powers. This will require adequate resourcing for monitoring, compliance and enforcement.

6. Require assessment and consideration of climate impacts and full emissions disclosure. The Bills introduce new requirements for proponents of activities involving greenhouse gas emissions above a certain threshold to disclose a prediction of their scope 1 and 2 emissions. There is also a requirement for these proponents to provide ‘the strategies and measures the designated proponent will implement to manage those emissions’, and how these strategies and measures are consistent with laws and relevant government policies. There is no requirement for the predicted emissions to be considered in the assessment and final decision though, and no requirement to disclose scope 3 emissions (which are often the most significant emissions from fossil fuel projects).

  • Recommendation: To ensure Australia’s carbon budget and emissions reduction targets are not further compromised by new projects being approved, it is essential that the EPBC Act require assessment and avoidance of unsustainable greenhouse gas emissions.
  • Recommendation: To ensure Australia’s carbon budget and emissions reduction targets are not further compromised by new projects being approved, it is essential that the EPBC Act require assessment and avoidance of unsustainable greenhouse gas emissions.