At the start of the final parliamentary sitting week for 2025, there were three options for national environmental law reform. As we said to the inquiry hearing in Canberra:
“This parliament could fail to pass legislation and leave us with the failed Environment Protection and Biodiversity Conservation Act (EPBC Act) for another five or 10 years, which would take us past the 2030 targets and get us closer to the extinction deadline for koalas.
“The second option is that this parliament could pass these bills as proposed unamended or even weakened, as recommended by industry. That risks this parliament actually having the legacy of making a failed EPBC Act worse for nature.
“Both of those options are unthinkable.
“The only viable option is for this parliament to draft amendments to strengthen these bills to protect nature and actually deliver outcomes for nature, climate and community.
“We have really talented people in Parliamentary Counsel. We have a list of amendments and solutions right here. So it has to be option three.“
EDO is relieved that option three prevailed, with an historic deal made between the government and the Greens to amend the broken EPBC Act. The Bills have now passed the parliament.
The wins
- Setting an end date to the exemption from Regional Forest Agreements (RFAs) from the EPBC Act
- Tightening land clearing loopholes for the Great Barrier Reef catchment and regrowth vegetation
- Water trigger prevented from being devolved to state and territory government
- Some safeguards around devolution of EPBC Act powers
- Exclusion of fossil fuels from streamlined assessment, national interest approval exemptions and bioregional planning pathways
- Less discretion when applying National Environmental Standards
- Offsets via “pay to destroy” restoration fund not possible for specified threatened species
- Review of the EPBC Act now every five years
The concerns
- Unacceptable impacts test subject to higher bar
- Climate impact assessment remains the same
- Stop-work environmental protection order powers curtailed
- While the new National Environmental Protection Agency has finally been introduced, its independence needs strengthening
The wins
The amendments passed through last-minute negotiations included the following significant steps forward for nature protection.
Setting an end date to the exemption from Regional Forest Agreements (RFAs) from the EPBC Act
For over 25 years, logging of Australia’s native forests has been exempted from the protection and oversight of the EPBC Act.
The amendments to the Act passed this week have legislated an end date for this exemption: 1 July 2027.
This means that any native forest logging that is likely to have a significant impact on a matter of national environmental significance (MNES) that occurs after that date must be subject to the EPBC Act.
This is a momentous change, one that legal and ecological experts have long called for and is a significant improvement to the integrity of the EPBC Act as Australia’s national environmental protection law.
However, the government has stated its intention to work with affected states to accredit forestry operations to enable those operations to take place without needing approvals for each individual operation, for example through strategic assessments, bioregional plans, or devolving approval powers for these activities.
This will require close and ongoing scrutiny to ensure the government’s stated intention to ensure that forestry operations comply with National Environmental Standards is effective and enforced.
Tightening land-clearing loopholes for the Great Barrier Reef catchment and for regrowth vegetation
Australia is a global deforestation hot spot. Until the amendments passed this week, most of that deforestation was undertaken with no effective federal oversight under the EPBC Act.
In the past decade, much of this deforestation has occurred in NSW and Qld, including in the catchment of the Great Barrier Reef, which has led to sedimentation and other pollution impacts on the World Heritage-listed treasure.
The amendments made this week make it clear that the “continuation of use” exemption does not apply to certain land clearing.
Specifically, vegetation clearing will be subject to the EPBC Act assessment where it will or may have a significant impact on a matter of national environmental significance and:
- the vegetation is within 50m of a Great Barrier Reef catchment watercourse, wetland or drainage line; or
- the vegetation is anywhere across Australia and has not been cleared for 15 years or more, where it is not a forestry operation.
Both amendments will commence immediately from royal assent, to reduce the risk of panic clearing.
The “continuous use” exemption has until now allowed vegetation clearing to continue without EPBC Act assessment where the vegetation was cleared prior to the EPBC Act commencing.
This has meant that vegetation areas of any size that have recovered and become important regrowth and habitat for other species could be cleared without federal oversight.
The amendments will finally remove this exemption to better protect regrowth vegetation and vegetation near waterways in the sensitive Great Barrier Reef catchment.
However, laws can only be as effective as their enforcement.
We welcome the minister’s confirmation in parliament yesterday that “the new provisions regarding agricultural land clearing and the enforcement of those provisions will certainly be a priority for the new National Environmental Protection Agency”.
Water trigger prevented from being devolved to state and territory governments
The exemption that has prevented the “water trigger” being devolved will remain in the Act. This trigger applies when large-scale coal mining and unconventional gas projects will or may be likely to have a significant impact on water resources.
It is an important safeguard to ensure federal oversight of impacts to our water resources from these highly impactful activities.
This trigger has ensured federal oversight and stronger regulation of the water impacts of some of the largest fossil fuel projects applied for in Australia, including the Adani Carmichael coal mine and fracking in the Northern Territory Beetaloo Basin.
The original Bills had proposed to remove the exemption in the Act to allow this trigger to be devolved for assessment and approval by states and territories.
Since water laws under state and territory governments have not provided sufficient protection against the unsustainable impacts of coal and unconventional gas projects, this would have been catastrophic for the sustainability of Australia’s water resources for all water users.
But the amendments yesterday prevented this move, ensuring the powers remain with the federal government.
Some new safeguards around devolution of EPBC Act powers
The amendments require that accreditation of assessment processes must be in place before approval powers are devolved to a state or territory government or other entity.
This ensures that there will be a process of reviewing and hopefully strengthening state and territory assessment processes to meet the accreditation requirements before approval powers are devolved.
This new requirement will not apply where the activities subject to devolution are under a Regional Forest Agreement, in which case the approval powers can be devolved without accreditation of assessment powers first.
Bilateral agreements must also now include a power for the minister to “call in” specific activities for assessment by the minister instead of being assessed under a devolved pathway by a state or territory government or other entity.
There is also a new requirement for the CEO of the National EPA to review bilateral agreements where the accredited framework has been amended to ensure that the National Environmental Standards and other criteria are still being met.
The CEO must advise the minister of their review and whether they recommend any variations, suspensions or cancellations of the agreement are necessary because the criteria are no longer met.
Exclusion of fossil fuels from streamlined assessment, national interest approval exemptions and bioregional planning pathways
Fossil fuel activities are prohibited from moving through the new streamlined assessment pathway and the bioregional planning pathway as a priority activity in a “go zone”.
There is also a prohibition on applying the new national interest approval exemption to fossil fuel activities.
The new national interest approval power allows an activity to be exempt from parts of the EPBC Act where it may be considered in the “national interest”.
Fossil fuel activities are defined to include coal, gas and petroleum extraction and production activities, and Minister Watt confirmed in the Senate when the Bills passed that this includes exploration activities.
This will prevent any government allowing the fast-tracking of coal and gas activities without adequate assessment or public consultation.
However, these pathways still lack sufficient guardrails to ensure adequate environmental assessment and public oversight.
They can still be used to fast-track all other activities, including other resource activities, large-scale vegetation clearing, critical mineral mining, and renewable energy projects in inappropriate locations.
Amendments are needed via regulations and the Standards to put in place guardrails to ensure adequate environmental assessment and consultation around impactful activities, ideally limiting fast-tracking to only low-risk activities.
The “preliminary documentation” assessment pathway has also been maintained in the EPBC Act, where the original Bill proposed its removal.
This provides a pathway between the streamlined assessment and environmental impact statement pathways.
Less discretion when applying National Environmental Standards
The application of National Environmental Standards will now have to meet a positive test of a decision being “consistent with” rather than “not inconsistent with” the Standards.
This will apply when assessing individual projects at the federal level, as well as when the minister is assessing whether state or territory frameworks meet the Standards to allow for devolution of EPBC Act powers.
The discretionary test of the minister’s “satisfaction” remains in all decisions.
However, this is a step forward in requiring a more positive duty for each of the elements of the Standards to be met.
Offsets via “pay to destroy” restoration fund not possible for specified threatened species
Amendments were made yesterday with respect to the application of the new Restoration Contributions Special Account, which allows developers to “pay to destroy” by providing money (a “restoration contribution charge”) into the account rather than securing actual offsets that meet all offset principles.
The amendments enable impacts on specific matters (e.g., threatened species) to be excluded from being offset through payment into the account.
This will occur through the use of a new power to make declarations that certain matters cannot be offset via payment.
It is uncertain at this stage which matters will be declared under this new power.
There is still work needed and it is possible to strengthen the proposed Offsets Standard (currently on public exhibition).
For example, this could be done by ensuring all offsets, including those created through payments in a restoration contribution fund, must meet all offset principles.
Methods for calculating restoration contribution charges will also be developed.
Protection statements can also provide information on threatened species and communities that can help identify unacceptable impacts that cannot be offset.
This may help ensure impacts to these matters are not being allowed on the basis of a fallacy that they can be offset.
Review of the EPBC Act now every five years
The EPBC Act will now be subject to review every five years, changed from the current requirement of a review every 10 years.
This will be helpful in providing greater insight into whether the Act is meeting its objects.
It will also creates a helpful impetus for more frequent further amendments where changes are needed.
The concerns
Unacceptable impacts test subject to higher bar
The Environment Protection Reform Bill as introduced provided unacceptable impacts criteria applicable to all matters of national environmental significance.
While these definitions were criticised for needing to be more specific or scientifically founded, they are helpful in providing more guidance as to when impacts should be considered unacceptable for each environmental matter.
Significantly, where it is established that there are unacceptable impacts, the minister will not be able to approve an action.
Unfortunately, during the amendments to the Bill, the test that needs to be met to consider an impact unacceptable was weakened.
These criteria are now subject to a higher bar of certainty that the impact will occur, for example by removing the language that an impact may “be likely to have” an unacceptable impact.
The definitions otherwise remain in place as unique criteria for each matter of national environmental significance, despite many submissions from industries that sought to reduce the criteria to a single provision to be applied to every different matter of national environmental significance.
Climate impact assessment remains the same
No amendments were secured with respect to strengthening the assessment of climate impacts, and so companies will still only be required to disclose scope 1 and 2 emissions in their applications under the EPBC Act and to provide a plan for managing those impacts.
However, under the EPBC Act currently scope 1, 2 and 3 emissions can be considered in assessment of the impact of activities on matters of national environmental significance and this has not changed under the reforms.
Companies often have provided disclosure of all emissions in their EPBC referral applications over the past few years, and so responsible companies may still provide disclosure of their scope 3 emissions, particularly where this is required by jurisdictions such as NSW and Qld.
Stop-work environmental protection order powers curtailed
The power to provide environmental protection orders to address urgent illegal environmental impacts has been limited, with the orders now to expire 14 days after provision. This can be extended by a maximum further 14 days.
Further, the CEO of the EPA must now provide a level of evidence to support their reasonable belief that an environmental protection order is required.
This could slow the ability for the EPA to provide orders to stop serious imminent environmental harm.
New National EPA needs greater independence
The Bills finally introduce the long-awaited National Environmental Protection Agency (EPA), a key commitment of this government.
The EPA will have legislated enforcement powers but will only have assessment and approval powers when delegated by the minister.
When acting in a delegated power, the EPA can be subject to the direction of the minister, impacting their independence.
However, when acting in a legislated power, the EPA is not subject to the direction of the minister and must simply provide a Statement of Intent in response to the minister’s Statement of Expectation.
There will be no independent board to govern the EPA. The CEO will be appointed by the Governor-General on the minister’s satisfaction that they meet the required criteria.
EDO recommended the EPA have sufficient independence to ensure it could administer the EPBC Act without political influence.
The Bills do not remove this risk, however, the EPA as created does have some level of independence, which is a step forward, and from here its independence can hopefully be strengthened.
The process
The arbitrary deadline that the Bills must be passed before Christmas, while the Senate inquiry was still receiving submissions, was a political decision.
It meant that 1500 pages of technical legislation was rushed through without time for proper scrutiny, not only by parliamentarians voting on amendments, but also by experts, stakeholders and community members wanting to provide input on these critical Bills through the Senate committee inquiry process.
This is highly regrettable and a blight on Australia’s federal environment laws.
It increases the risk of drafting errors and unintentional consequences of rushed amendments.
Australia’s environmental laws, and their importance in protecting Australia’s most precious species and places, should be handled with more respect and consideration than was the case this year.
The unfinished business – what happens next?
The passing of the Bills is a pivotal moment. The reforms promise to deliver some significant gains and some safeguards for nature and communities, but it’s not over yet.
The Senate inquiry that was commenced to scrutinise the Bills will continue but will turn its attention to the oversight of the National Environmental Standards.
This is good news because it means there will be an opportunity to give the Standards the consideration they warrant given their significance in strengthening the Act, as proposed by Professor Samuel’s review.
Two draft National Environmental Standards are currently open for consultation until 5pm, Friday, 30 January 2026:
- Draft MNES Standards – to provide more guidance on the assessment of impacts to matters of national environmental significance; and
- Draft Offsets Standard – focused on providing improved criteria for offsets, to ensure they are effective at achieving their aims. This draft also introduces criteria around the new restorations contribution fund.
Find the draft Standards and guidance documents and details of how to have your say here.
There will also be a need for amendments to the regulations that sit under the EPBC Act to ensure safeguards are placed on key risks, like the new streamlined assessment pathway, and other policies to support the changes, including the development of methods to determine offset charges.
The real test starts now. The standards and regulations will decide if these reforms stop extinctions or become a wish-list full of loopholes.
We’ll be at the table, scrutinising every detail to make sure these reforms as a whole deliver for nature.
