Recasting the EPBC Act and Navigating the Environment Protection Reform Bills
Australia's national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), is 25 years old and undergoing once-in-a-generation reform. For the second year in a row, environmental reforms are at the top of the national legislative agenda. In 2024, the Australian Government introduced three “Nature Positive” Bills to reform the EPBC Act, but these Bills were withdrawn in March 2025. This year, the Government announced it was going to reignite and fast-track its reforms of the EPBC Act (EPBC Act Reforms). This means that the most significant changes to federal environmental laws in over 20 years will be thrust into the public debate.
The EPBC Act Reforms are poised to profoundly affect project proponents, communities, landowners, and businesses whose activities may impact matters of national environmental significance. The EPBC Act Reforms are no longer proposed to proceed in stages. Instead, substantive changes to the Act will now be consolidated into a single bill, expected to be introduced in early November. A suite of seven bills (together, the Environment Protection Reform Bills) was introduced to the House of Representatives on 30 October 2025. The key bills being the Environment Protection Reform Bill 2025 (Cth) (Reform Bill), the National Environment Protection Agency Bill 2025 (Cth) (NEPA Bill), and the Environment Information Australia Bill 2025 (Cth) (EIA Bill).
The Bills have been referred for inquiry by the Senate Environment and Communications Legislation Committee, with submissions accepted until 5 December 2025, and the Committee due to report by 24 March 2026.
I The Three Key Pillars of the Reforms
The Government outlined that the reforms were informed by three key pillars:
Stronger environmental protection and restoration—to not just look after our special places, but to restore and regenerate them for future generations.
More efficient and robust project assessments and approvals, delivering a system which can better respond to big national priorities like the renewable energy transition, a future made in Australia and the housing that we need.
Greater accountability and transparency in decision-making, so that all Australians can have confidence in these laws, including delivering our election commitment for Australia's National Environment Protection Agency.
I Core Legislative and Regulatory Changes
The Australian Government has committed to establishing a new National EPA that will bring together the range of regulatory functions under the EPBC Act into one, independent organisation.
The National Environment Protection Agency (‘NEPA’) is proposed to be established as an independent body. The CEO of the NEPA will be a statutory appointment and not subject to direction by the Minister. The NEPA will have primary responsibility for:
Compliance and enforcement, including auditing.
Assessment and approval of permits.
Monitoring of bilaterals, including providing advice to the Minister on compliance with bilateral agreements.
While a Federal EPA is still on the cards, the Minister will reportedly retain decision-making powers, particularly for large mining and renewable energy projects. The CEO of NEPA may still be appointed as a delegate of the Minister to assess and approve actions. Concurrently, a new independent Environment Information Australia (EIA) will be established. The Head of EIA is given functions around providing access to the Minister, the CEO NEPA and the public to high quality information and data, preparing and publishing State of the Environment reports, maintaining environmental economic accounts and declaring data or information to be a national environmental information asset.
a. National Environmental Standards
A centrepiece of the Reform Bill is the ability for the Minister to make National Environmental Standards (NES), which are legislative instruments designed to provide clear and consistent guidance on decision-making under the EPBC Act. The NES are intended to set the boundaries for decision-making to deliver the minimum protections to be achieved under the Act.
Generally, decisions must not be inconsistent with these standards, so they are critical to the implementation of the amendments. Five standards were nominated for initial consultation: Matters of National Environmental Significance (MNES); Regional planning; Restoration actions and restoration contributions; Community engagement and consultation; and First Nations engagement and participation in decision making. The first draft Standard for MNES has also been released for consultation with submissions due by 30 January 2026.
b. Ministerial Rulings
The Reform Bill would introduce new powers for the Minister to make rulings, setting out the Minister’s opinion on how the EPBC Act and subordinate instruments (e.g. National Environmental Standards) should be applied, including in making approval decisions. These rulings are non-legislative instruments, but would be binding on the Minister and delegates, except in exceptional circumstances. The intent is to increase transparency, certainty and consistency in decision making.
III Assessment and Approval Framework
The Reform Bill proposes to make amendments to the existing EPBC Act, retaining the basic structure and the requirement for proponents to refer their project for a decision on whether an action is a ‘controlled action’ requiring assessment and approval.
a. Streamlined Assessments
The Reform Bill consolidates assessment pathways, with a new streamlined assessment pathway replacing three existing pathways. The previous assessment approaches of assessment on referral information, assessment on preliminary documents and assessment by public environment report are removed and substituted with a new assessment pathway of ‘streamlined assessment’. Streamlined assessments will only be available if the Minister is satisfied that the approach will allow the Minister to make an informed decision whether or not to approve the action. In theory, the streamlined pathway would require the Minister to decide whether to approve the referred action within 30 business days after deciding that the pathway applies.
b. New Approval Tests
If an action has passed the initial gateway and is to be assessed as a controlled action, new tests will then guide what may be approved. Generally, the Minister will only be able to approve an action if satisfied (taking into account any conditions to be imposed) that:
The action is not inconsistent with relevant National Environmental Standards.
The action will not give rise to unacceptable impacts.
Any residual significant impacts of the action will be compensated to a net gain.
c. Unacceptable Impacts
The EPBC Act currently allows the Minister to determine that a referred action is 'clearly unacceptable', but does not prescribe any criteria. The Reform Bill introduces new definitions of ‘unacceptable impacts’ for respective MNES. If an action has an unacceptable impact the Minister must not approve it. For listed threatened species and ecological communities, an unacceptable impact is a significant impact which would or is likely to:
Seriously impair the viability of the species/community (being the ability of the species/community to survive and recover in the wild, either as a whole or in a particular region).
Cause serious damage to critical habitat of the species/community where the habitat is irreplaceable and necessary for the species/community to remain viable in the wild.
d. Net Gain and Restoration Contributions
A new “net gain” test replaces the current policy of “no net loss”. The requirement is that any ‘residual significant impacts’ on nationally protected matters must be fully offset to achieve a ‘net gain’ for the environment. The Reform Bill introduces a Restorations Contributions framework, whereby developers can pay money into a fund to acquit their offset obligations. A net gain could be achieved either by the proponent directly delivering an offset or through making an upfront financial contribution to a restoration fund. The establishment of a new “restoration contributions holder” is proposed to administer the special account and deliver restoration actions.
e. Greenhouse Gas Emissions Disclosure
The Government ruled out the introduction of a “climate trigger” in the EPBC Act. Instead, the regulation of emissions will continue to be undertaken through the Safeguard Mechanism. However, the Reform Bill would require proponents to disclose estimates of scope 1 and 2 greenhouse gas (GHG) emissions as part of the assessment of a controlled action. The required GHG emissions information would include a reasonable estimate of the likely amount of scope 1 and scope 2 greenhouse gas emissions of the action; the strategies and measures the proponent will implement to manage those emissions; and how those strategies and emissions are consistent with the laws and relevant government policies of the Commonwealth. This information is intended to be made available for transparency purposes only and will not inform decisions under the Act.
IV Strategic Streamlining Tools
a. Bioregional Planning
The Government intends that regional planning under the amended EPBC Act will support better and faster decision-making. Bioregional planning is a landscape and/or seascape scale approach to environmental planning. Bioregional plans will identify:
Development zones and the priority class of actions (priority actions) that can be taken in a development zone. Actions not requiring approval under bioregional plans are proposed to include registered priority actions taken in a development zone in accordance with relevant conditions specified in the bioregional plan.
Conservation zones, including the classes of actions that are prohibited in the conservation zone (restricted actions).
Bioregional plans must not be made unless agreed to by each relevant State and Territory, and the impacted protected matters will be compensated to a net gain.
b. Accreditation of State and Territory Frameworks
The Reform Bill proposes changes to bilateral agreements to increase flexibility and expand the scope of the processes that can be accredited. New criteria are applied to accreditation, with State or Territory assessment processes having to demonstrate that they will not have an unacceptable impact, pass the net gain test and not be inconsistent with national environmental standards. Importantly, the current restriction on bilaterals applying to the water trigger is removed, subject to the decision maker seeking advice from the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development.
c. National Interest Provisions
The Reform Bill introduces a new concept of a 'national interest proposal', allowing the Minister to approve a project that meets the national interest, even if the project is inconsistent with NES, has unacceptable impacts or does not meet the net gain test. Matters the Minister can consider in determining the national interest include Australia's defence, security and strategic interests, and Australia's obligations under agreements with other countries. The national interest concept is intended to be used sparingly.
V Compliance and Transitional Provisions
a. Increased Penalties and Enforcement
Maximum penalties for breaches of the EPBC Act have been significantly increased. Bodies corporate may now be liable for a penalty of up to 10% of the annual turnover of the body corporate for the 12-month period ending at the end of the month of the contravention, or 2.5 million penalty units, if 10% of annual turnover is more than 2.5 million penalty units. New environment protection orders have been introduced to be used in urgent circumstances where it is reasonably believed that a contravention of the EPBC Act, is causing, or poses an imminent risk of, serious damage to a protected matter or the environment.
b. Early Works and Decision Expiry
In an amendment that will be welcomed by project proponents, there is a new process to allow minor preparatory components of a larger action to commence after a referral is made, but before a final decision, subject to the Minister’s written agreement. Furthermore, "Not a controlled action" decisions will lapse after 5 years if not substantially commenced (including not controlled action – particular manner decisions). This applies to decisions made after commencement of the amendments.
c. Application of New Laws
Transitional provisions indicate that existing approvals and applications at the time of the amendments generally are intended to proceed unaffected. However, the new approval tests around National Environmental Standards, unacceptable impacts and net gain will only apply where a referral is made after commencement. If you have an existing approval and wish to vary the approval, new tests such as 'net gain' and 'unacceptable impacts' will not apply.
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