Federal environmental reform: recasting the EPBC Act

What did the Samuel Review identify for reform?

The DCCEEW currently makes certain environmental data publicly accessible on its website through its 'Find Environmental Data' portal, which hosts various geospatial catalogues, datasets and databases. However, the Samuel Review described the existing environmental data and information framework as complex, unreliable and incomplete, and identified issues in the information supply chain as depicted in the following figure:

Source: Samuel Review page 165

The key concerns included:

• Fragmented and inconsistent data collection: environmental data is collected in a disparate and uncoordinated manner, leading to significant gaps in fundamental information.
• Lack of a central, trusted source: there is no single authoritative source of environmental information that stakeholders can rely on.
• No standardisation: data collected through assessments, research, monitoring or restoration programs is not required to be submitted in a standardised, electronic format, limiting integration with state and territory systems.
• Insufficient information for decision-making: critical data is often unavailable when needed to support sound environmental decisions.
• Outdated systems: DCCEEW’s current systems for analysing and sharing environmental information are outdated and not fit for purpose.

To address these issues, the Samuel Review recommended the assignment of a custodian to provide national level leadership for the national environmental information supply chain; the identification of National Environmental Information Assets; implementation of a National Environmental Standard for sharing data and information; and a 'federated' data platform for environmental information.

What did the Nature Positive package propose?

Under the Nature Positive Plan, the Government broadly accepted the key data and information items from Samuel Review. The Government initially proposed that a Data Division would be established within the DCCEEW to oversee and coordinate improvements to the management of environmental data and information, and that the Data Division would develop and implement a monitoring, evaluation and reporting framework. The Data Division was to be charged with the preparation of a Standard for Data and Information.

How did the nature positive position evolve over the consultation phase?

Over the consultation phase from October 2023 to March 2024, a draft National Environmental Standard for Data and Information (Data Standard) was iteratively refined (see our previous Insight), along with development of the Exposure Draft of the Nature Positive (Environment Information Australia) Bill 2024 to establish Environment Information Australia (EIA) as the national custodian of environmental data and reporting (see our previous Insight).

Environment Information Australia

The EIA was to be a new government agency led by a statutory appointee and responsible for:

• developing and implementing a Monitoring, Evaluation and Reporting framework
• reporting on progress toward environmental goals, including a 'nature positive' Australia
• maintaining a public environment data portal and public register of National Environmental Information Assets
• preparing State of the Environment reports
• establishing and maintaining environmental economic accounts.

It was proposed that the EIA would provide a public data portal aggregating data from various sources, including proponents and state and territory regulators. This portal was to feature a mapping visualisation tool offering spatial data on protected areas, critical habitats and environmental values. Significantly, the EIA was also proposed to use datasets to establish a baseline for achieving the goal of a 'nature positive Australia'.

The Government introduced the Nature Positive (Environment Information Australia) Bill 2024 May 2024, but it did not pass prior to lapsing at the February 2025 election. 

National Environmental Standard for Data and Information

The objective of the proposed Data Standard is to improve accountability and clarify expectations around data use and provision. The draft Standard outlined that environmental data submitted to decision-makers must be:

• F.A.I.R: Findable, Accessible, Interoperable and Reusable, per forthcoming Technical Guidance.
• Ethical: aligned with C.A.R.E principles, respecting First Nations data sovereignty and intellectual property rights.
• Fit for purpose: suitable for its intended use, as defined in Technical Guidance.
• Reliable: with reliability categorised under a three-tiered hierarchy.

Key policy questions to be resolved

An immediate issue will be whether the Government retains the previously proposed EIA model as a separate function to the DCCEEW, albeit to be introduced again as a component of a holistic reform package rather than as a separate staged reform as was done during the previous Parliament.

The previous draft of the proposed Standard would see significant new requirements on data submitted for environmental assessments and approvals. The Government will need to strike the right balance between the need for reliable and accessible information and not imposing excessive obligations on project proponents such that application and approvals processes become slower.

One of the challenges for the data management function will be the suitable integration of indigenous knowledge and information. 

The manner in which the DCCEEW uses environmental data to identify the baseline for achieving 'nature positive' goals will be a fundamental element for future decision-making and approvals.

What did the Samuel Review identify for reform?

The centrepiece of the reforms recommended by the Samuel Review are the proposed National Environmental Standards (NES). The Review found that the EPBC Act had no comprehensive mechanism to describe the environmental outcomes it was seeking to achieve or to ensure individual decisions contributed to them.

The Review called for enforceable standards to guide all decisions, ensuring that activities at every scale contribute to national environmental objectives. The intent was to produce a suite of NES that are relevant to all decision-makers operating or accredited under the EPBC Act, which establish clear outcomes and that set the boundaries for decision-making supported by comprehensive guidance on assessment processes.

Initial detailed draft standards (to be supplemented in future) were produced following significant stakeholder consultation through the Review process, for:

• Matters of National Environmental Significance (MNES)
• Indigenous engagement and participation in decision-making
• Compliance and enforcement
• Data and information.

The platform of proposed Standards was designed for implementation not only by the Minister as a decision-maker, but also by accredited state / territory or other third-party decision‑makers to adhere to the Standards in making decisions for the purposes of the EPBC Act. As such, the NES would facilitate the aim of achieving a 'one touch' environmental approval process, effective for federal and state / territory purposes.

The NES are intended to be concise, specific and focused on the outcomes required. They would constitute brief legislative instruments that clearly define the environmental outcomes to be achieved for environmental approvals under the proposed reformed regime.

What did the Nature Positive package propose?

The Government’s Nature Positive Plan endorsed the NES approach, addressing the lack of clear policy guidance under the current EPBC Act.

How did the nature positive position evolve over the consultation phase?

Over the consultation phase from October 2023 to March 2024, five draft NES were prepared for consultation (and, in some cases, iteratively revised):

• MNES: outlining specific outcomes and requirements for decisions relating to MNES currently under the Act, focused on achieving nature positive results.
• Restoration actions and contributions: detailing the mitigation hierarchy for offsetting environmental impacts, as well as reporting requirements.
• Regional planning: setting out how regional plans should be developed, including consultation requirements and mapping of areas. 
• Data and information: establishing standards for the quality, accessibility and reliability of environmental data used in decision-making. 
• Community engagement and consultation: requiring proponents to publish information about proposals and provide opportunities for public feedback early in the process.

The consultation packages also included proposals for:

• the Minister to have the power to make, vary and revoke NES, and that the NES must be reviewed at least every five years and cannot be weakened.
• the Minister to seek advice from statutory committees, particularly for standards relating to Indigenous engagement.
• accreditation of decision-making processes and approvals to require compliance with the NES.
• under transitional provisions, actions referred but not determined as controlled actions before commencement must be assessed under the new legislation (ie against the NES).

Key policy questions to be resolved

A key issue to be resolved in the forthcoming reforms is whether the suite of NES as drafted will in fact streamline assessment and approval processes, particularly where the need for earlier, more comprehensive data and assessment documentation will be borne by proponents when preparing a referral.

Industry will be looking for the NES to provide early guidance for potential issues or constraints on project locations and approval conditions, such that they successfully reduce the uncertainty of outcome and the time and costs incurred reaching the decision stage.

The policy challenge will be whether the NES strike the right balance between giving businesses a clearer picture up‑front of what is required to develop and submit a proposal, and providing the flexibility needed for effective decision-making while ensuring environmental protection outcomes are clear and upheld.

Current regime

The EPBC Act regulates new projects by providing that any proposed action¹ that will or is likely to have a significant impact on a protected matter requires referral to, and may require assessment and approval from, the Federal Environment Minister (Minister).

The EPBC Act currently includes multiple assessment pathways, being assessment:

• on referral information
• on preliminary documentation
• by public environment report
• by public inquiry
• by environmental impact statement.

The Act also provides for both one-off accredited assessments of state and territory assessment and approval processes, plus a scheme for creation of bilateral agreements governing the use of state and territory assessment processes to assess protected matters under the EPBC Act.

Practically, project proposal assessments are delegated to the Department (if not covered by a bilateral assessment agreement or other accredited process), with approval decisions made by the Minister or (more commonly) a department delegate.

What did the Samuel Review conclude?

The Samuel Review identified that convoluted, inflexible and lengthy environmental impact assessment processes make engaging with the EPBC Act time-consuming and costly.

The Samuel Review recommended:

• streamlined, risk-based assessments that are proportionate to the level of impact
• clear guidance and modern systems
• appropriate cost recovery mechanisms
• single-touch environmental approvals via state and territory accreditations.

What did the Nature Positive package propose?

Consistent generally with the recommendations of the Samuel Review, the Nature Positive Plan (NPP) proposed: 

• reforms focused on simplifying assessment processes and promoting certainty, including via the use of the new National Environment Standards (NES) to provide necessary detail for assessment processes and benchmarks.
• new 'single-touch accreditation' of state and territory environmental assessments and approvals under the federal regime, removing duplicative federal approval steps where robust state-level accreditation processes are in place.
• clear guidance to assist proponents to reduce unnecessary referrals and clarify the types of impacts that do not require an approval.
• adopting a national approach to threatened species listing and ecological communities.
• reducing the number of assessment pathways and introducing a risk-based assessment approach, including removing the initial referral step where a proposed development clearly requires detailed assessment.
• introducing outcome-focused NES that will set clear pathways for developments and assessments. Notably, the NPP also proposed a new Federal Environment Protection Australia (EPA) with oversight over all assessment and approval processes. Subsequent commentary has cast doubt on the scope of assessment and approval powers to be conferred on this new agency. NPP also contained a new 'call-in' power for the Minister to make decisions that would otherwise be made by the EPA [or other decision-maker]. 

How did the nature positive position evolve over the consultation phase?

The first round of consultation in October 2023 introduced three key assessment pathways:

• Low impact pathway: where proponents are relatively certain their action is not likely to have a significant impact on a protected matter, for an 'approval not required decision'.
• Standard pathway: where proponents must apply for approval if they consider their action is likely to have a significant impact on a protected matter.
• Other pathways: regional plans, strategic assessments and accredited assessments (ie accreditation of the assessment process of a state or territory).

The December 2023 NPP consultation also canvassed various procedural updates to accredited assessment processes, including creating a role for the EPA CEO to issue accreditations. It also provided for accredited assessment processes to be suspended or revoked, which would require proposed actions to undergo a new assessment as if there was no accreditation. In our view, this would significantly limit the likely utility of this assessment pathway and expose proponents to an uncontrollable risk / uncertainty.

Subsequent consultation (March 2024) outlined proposed transitional arrangements, including:

• recognition of existing EPBC Act authorisations, which would continue to have effect as if the authorisation had been made under the new Act; and
• 'grandfathering' of bilateral agreements, management arrangements and authorisation processes for up to two years after the Nature Positive legislation commenced.

Key policy questions to be resolved

The assessments and approvals process is a core component of the EPBC Act reforms.

The key challenge for the Government is encouraging appropriate development and more efficient decision-making without compromising the quality of assessments. While this is of economy-wide importance, there is immediate pressure around improving assessment and approval timelines to assist housing affordability, critical minerals mining and processing, and development of renewable energy projects to aid the energy transition.

Key policy choices will include:

• retaining appropriate flexibility in approval pathways so projects are streamed quickly into the appropriate assessment process.
• how to ensure transparency and trust in the ministerial call-in power.
• minimising the risk of judicial review challenge to ministerial call-ins, which will be a new, extra administrative decision in the approval process.
• appropriate division of responsibilities between the Minister, the CEO of the EPA and other delegated decision-makers.
• defining the reformed state / territory accreditation processes and incentivising states, territories and the Federal Government to use them.
• balancing faster decision-making against appropriate public comment and engagement.
• the scope of the NPP-contemplated a 'national interest exemption' which allows the Minister to exempt a specified action from requiring an environmental approval for a proposed action that has or is likely to have a significant impact on a nationally protected matter. Similar to the current regime, this exemption appears to be discretionary, and the Government is likely considering whether thresholds should be implemented to ensure this exemption does not undermine the environmental protection and 'nature positive' objectives of the reforms.

^{1  'Section 523 of the EPBC Act defines an 'action' as including a project, development, undertaking, activity or series of activities, or an alteration to any of the aforementioned actions.} 

What did the Samuel Review identify for reform?

Current approach

A strategic assessment is a landscape-scale assessment of the impact of multiple actions on protected matters, currently provided for under Part 10 of the EPBC Act. Once a strategic program is prepared, assessed and endorsed, strategic assessment approvals (or 'Class Approvals') may then be issued to remove the need for individual actions taken in accordance with the strategic assessment arrangements and the approval from requiring referral and approval under the EPBC Act.¹

Samuel Review

The Samuel Review identified that strategic assessments have often led to significant streamlining of environmental regulation. However, the review also found that strategic assessments are used too infrequently, are subject to arrangements that are legally and administratively complex and are 'effectively frozen' in time as they are not able to be varied once endorsed.

The Samuel Review recommended addressing the following as part of any proposed reform:

• ensuring strategic plans are only endorsed where consistent with the proposed new National Environmental Standards (NES) and any regional recovery plans (RRP).
• clarifying the consequences for failure to implement a commitment in an endorsed plan.
• identifying an 'approval holder' for class approvals to make it easier to amend the conditions of an approval or suspend or revoke the approval.

What did the Nature Positive package propose?

The initial Nature Positive Plan indicated the Government's intention to improve the functionality, flexibility, adaptability and assurance of strategic assessments to require strategic assessments to consider climate change, environmental adaptation and resilience measures, and be consistent with the new NESs and any RRPs.

How did the Nature Positive position evolve over the consultation phase?

Consultation materials released by the Government in December 2023 included a strategic assessment paper, setting out what was proposed at that time. Interesting elements included:

• the CEO of the EPA (CEO) would be responsible for endorsing a strategic plan and granting strategic assessment approvals, with no statutory timeframe to be imposed on the CEO of the EPA to endorse a strategic plan.
• any strategic plan and impact assessment would be required to demonstrate consistency with any NES and, before endorsing a strategic plan, the CEO would need to be satisfied that the plan includes a consideration of the expected impacts of climate change and includes appropriate adaptation and resilience measures in response to the impacts.
• any strategic assessment approvals would be required to include an approval holder (and would be transferrable) while still being able to specify other persons who could take the approved class of actions.
• the Minister would have a 'call-in' power to take over the decision of whether to endorse a strategic plan, before the plan had been endorsed by the CEO. The Minister would then also make any corresponding decision on any strategic assessment approval.
• the CEO would have an oversight and assurance role in relation to a strategic plan and a strategic assessment approval under a plan. This would include the CEO reviewing any endorsed strategic plans at least once every five years and being empowered to vary any strategic assessment approval, or suspend or revoke a strategic assessment approval due to non-compliance or unacceptable impacts on protected matters.
• if a strategic assessment approval was suspended, any actions relying on the approval would be subject to the prohibitions and requirements for assessment and approval in the new Act, as though there were no strategic assessment approval.
• the failure to comply with the strategic assessment approval conditions would be an offence.

In March 2024, the Government released proposed transitional arrangements that confirmed the intention that class approvals issued under Part 10 of the EPBC Act that are in effect on the commencement of the new legislation will continue to have effect on commencement of the new Act.

Key policy questions to be resolved

We consider the shift towards improving certainty for community, government and business is absolutely warranted to ensure the most can be gained from the streamlining provided by strategic assessments.

However, the arrangements as proposed still have matters requiring clarification, including how the new 'approval holder' requirement would operate in practice. Additionally, arrangements enabling the CEO to suspend a strategic assessment approval could reduce certainty to the community and business by effectively prohibiting assets developed and operating in accordance with the approval. For this reason, the consequences of suspension need to be further considered in any legislative reform package.

^{1  A current example is the strategic assessment for offshore petroleum in Commonwealth waters.}  

What did the Samuel Review identify for reform?

The Samuel Review identified the need for a 'fundamental shift in focus – from project-by-project development transactions, to effectively planning at the right scale for a sustainable environment and for sustainable future development'.

In particular, the Samuel Review emphasised the need to address cumulative impacts and key threats through national and regional plans, ecologically sustainable development plans and strategic assessments.

The development of regional plans was identified as a means to support the management of the environment at the right scale, with the following regional planning tools being recommended:

• Government-led regional recovery plans: that identify recovery priorities for multiple threatened species and ecological communities at the landscape scale.
• Ecologically sustainable development plans: that identify environmental, economic, Indigenous and social priorities, incorporate outcomes for MNES and support the regulation of development.
• Strategic assessments: that consider the staged proposed development by proponents in a coordinated manner.

The Samuel Review recommended that the EPBC Act set out the explicit criteria the Government should use to make its own regional plan, or to assess and accredit plans developed by other parties, and that the plans be developed in a way that would allow national outcomes to be fully integrated into state and territory planning systems.

What did the Nature Positive package propose?

Under the Nature Positive Plan, the Government embraced the recommendation for the development of regional plans, identifying that the Government had committed $29.3 million to make an immediate start on regional planning and guide sustainable development.

It was proposed that regional plans would adopt a three-level spatial system:

• Areas of High Environmental Value: where development would largely be prohibited.
• Areas of Moderate Environmental Value: where development would be allowed, subject to an approval process and any agreed rules.
• Development Priority Areas: where the planning process has determined that development can proceed without a separate federal environmental approval.

It was also proposed that regional plans would identify areas necessary for restoration and management.

How did the nature positive position evolve over the consultation phase?

Over the consultation phase from October 2023 to March 2024, the Government proposed the development and implementation of regional plans as a tool to facilitate priority development activities and net positive outcomes for protected matters at the landscape and/or seascape scale.

In particular, it was proposed that the Minister would have power to make a regional plan creating two regulatory zones:

• Conservation Zones: where specific actions would be prohibited; and
• Development Zones: where priority activities may proceed under set conditions, and subject to registration of the activity with Environment Protection Australia. Restoration measures would offset development impacts, with responsibilities assigned to governments or consenting third parties.

Regional plans were also proposed to be developed in two stages, each underpinned by robust data, modelling and consultation:

• Stage 1: the Government will work with state and territory governments to map environmental and other values and identify areas important for development; and
• Stage 2 (after the mapping is complete): the priorities, objectives and strategies to achieve a nature positive outcome will be determined, which may include the development of a regional plan.

A draft National Environmental Standard for Regional Planning (draft Standard) was also iteratively refined setting out additional requirements for ongoing monitoring, evaluation and reporting, and specifying that Regional Plans would be developed through engagement with local communities, local government, First Nations groups and other relevant stakeholders.

Pilot programs were subsequently announced in QLD, NSW, Vic and SA.

Key policy questions to be resolved

This proposed shift in approach has the potential to reduce duplication in the environmental assessment approach at federal, state and territory levels, although its success will depend upon the cooperation of government at all levels and the balancing of other stakeholder interests.

The ability for the Government to implement workable regional plans is also fundamentally interconnected with the quality of mapping information able to be obtained and the mechanism for determining restoration contributions under the proposed respective National Environmental Standards.

Questions facing the Government include:

• Whether regional planning mapping will recognise areas of land featuring both high environmental value and development potential / need for essential infrastructure or priority resources, thereby using the regional planning process to balance competing priorities of environmental conservation with other factors.
• Relatedly, whether areas of high environmental value can nonetheless be eligible for assessment and approval in defined circumstances, eg for essential infrastructure or to allow for development of high value resources (eg critical minerals to support energy transition objectives).
• Transitional arrangements for application of development prohibitions for existing proponents / landholders in new areas of high environmental value.
• Perhaps least likely, provision for compensation or other measures to landowners who experience decreased property values as a result of regional planning outcomes.
• Opportunities to promote high environmental value areas for advanced offset programs.

What did the Samuel Review identify for reform?

The Samuel Review acknowledged the role of biodiversity offsets as an aid to environmental restoration. However, it identified major shortcomings in the current system, describing the EPBC Act offsets policy as 'ineffective' and 'contributing to environmental decline rather than restoration', with 'major shortcomings both in its design and implementation'. It noted that for project proponents, biodiversity offset requirements can be difficult to comply with, cause delays and involve significant costs.

What did the Nature Positive package propose?

The Nature Positive Plan proposed a transformation of the offset system, including:

• a mandatory hierarchy of actions, being to avoid, reduce or mitigate impacts to be worked through (and 'strictly enforced') prior to considering environmental offsets.
• requirement for offsets to be 'like for like' and deliver net benefits where residual impacts cannot be avoided.
• provision for conservation payments where suitable offsets cannot be secured.
• a National Environmental Standard for Environmental Offsets requiring 'net positive outcomes' ie to leave the environment in a better state than prior to the action.

How did the nature positive position evolve over the consultation phase?

The new approach to offsetting was refined during consultation on the Nature Positive plan, including:

• terminology changes, with 'offsets' renamed to 'restoration actions' to align with the objective of delivering nature positive outcomes, and 'conservation contributions' renamed to 'restoration contributions'.
• confirmation that restoration actions and restoration contributions cannot be used to (i) address unacceptable impacts or (ii) enable conditional approval that would not otherwise have been granted.
• introduction of a restorations contributions calculator to determine restoration contribution costs.

A core component of the consultation packages was the draft National Environmental Standard on Restoration Actions and Contributions (the draft Restoration Standard). We have summarised below the evolution of the Restoration Standard through the consultation process:

Key policy questions to be resolved

Key policy positions to be resolved by the Government in finalising the amending legislation are:

• Approach to definition of net positive outcomes: there are various options for definition of a 'net positive' outcome, whether in the principal Act, Regulation, National Environment Standard or elsewhere. Consultation materials signal possible flexibility in approach via the use of calculator tools and supporting policy.
• Tension between state / territory and federal offset regimes: the draft Restoration Standard explicitly excludes the application of state / territory offset regimes. The exception is where the restoration action is in addition to existing actions and regulatory obligations (ie at the state / territory level) and meets the requirements of the draft Restoration Standard or is a 'registered advanced restoration action'. The Standard also requires:
  • the protection duration to be a 'reasonable expectation' for duration of the impact, which in some cases, where losses are irreversible, will be in perpetuity (where reasonable); and
  • deliver a projected gain of a certain percentage (which does not appear to have been defined yet) for the protected matter, relative to a baseline that reflects what would have happened in the absence of the proposed action.
  The Government is likely considering the interplay between the various state / territory offset regimes and the proposed reforms to federal environment law. In light of the Samuel Review and the requirement for 'restoration actions' to result in positive environmental impacts, the consequence of the reforms may be that the reforms present a higher offset bar that creates more burdensome offset requirements on proponents and makes various state / territory offset regimes incompatible where they do not meet the Restoration Standard's requirements.
• 'Unacceptable' impacts: the draft Restoration Standard provides that in accordance with the mitigation hierarchy, restoration actions and contributions can only be used where a project is not 'unacceptable'. This is a shift from the current practice as a restoration action or contribution can no longer convert an unacceptable impact into an acceptable one. The Government will need to clarify how 'unacceptable impact' decisions will distinguish between project types, for example, whether the test will be based purely on ecological impact. Industry experience with earlier offset regimes highlights the need for balanced, risk-based rules that recognise the public value of essential infrastructure while maintaining environmental integrity. Without clear guidance, the test risks uneven application across sectors, leading to inconsistent outcomes and pressure for case-by-case ministerial intervention.
• Restoration Contribution Fund: the Restoration Contribution Fund is to be established under legislation that will also establish an independent statutory office‑holder position (the Restoration Contributions Holder) who will be responsible for making investment decisions for restoration contribution, regional restoration contributions and managing the Restoration Contributions Fund. Although the consultation materials suggest there will be public reporting requirements on the Restoration Contributions Holder, the Government will need to consider implementing safeguards to ensure that restoration contributions are being appropriately managed (including ensuring the Restoration Contributions Holder is adequately resourced and is investing in appropriate restoration actions, within a timely manner).

What did the Samuel Review identify for reform?

The Samuel Review found that the EPBC Act 'is not fulfilling its objectives as they relate to the role of First Nations Australians in protecting and conserving biodiversity, working in partnership with and promoting the respectful use of their knowledge'.

The Samuel Review recommended (among other things):

• the co-design of policy and implementation to improve outcomes for First Nations Australians.
• that publication of a National Environmental Standard on best-practice First Nations engagement and participation in decision-making (which should be co-designed with the Indigenous Advisory Committee, which would be renamed as the Indigenous Engagement and Participation Committee).
• First Nations knowledge and western science should be considered on an equal footing in the provision of formal advice to the Minister.
• Traditional Owners should have greater decision‑making responsibility in jointly managed parks (where aligned with their aspirations).

What did the Nature Positive package propose?

In response to the findings of the Samuel Review, the Government's Nature Positive package acknowledged the exclusion of First Nations people from involvement in environmental decision-making to date, and proposed that:

• a National Environmental Standard for First Nations engagement and participation in decision-making be developed, with co-design of the Standard to be led by the Indigenous Advisory Committee.
• the Government ensure appropriate access and handling and the protection of Indigenous Cultural and Intellectual Property.
• future management models for federal National Parks could be co-designed based on the aspirations of Traditional Owners.

The package also referenced the Government's commitment to reforming the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) in parallel and that further guidance would be provided on the interrelationship between the two regimes.

How did the nature positive position evolve over the consultation phase?

While First Nations engagement was a core theme of the Nature Positive package, the Government's position did not meaningfully evolve. This is in part because a draft National Environmental Standard for First Nations engagement and participation in decision-making was not included in the consultation materials, limiting opportunities for meaningful consideration and feedback.

The consultation materials included detail on the role of the Indigenous Advisory Committee, including the requirement that the Minister must request and consider advice from the Committee in relation to a National Environmental Standard for First Nations engagement and participation in decision-making.

A notable change in the National Environmental Standard for data and information was that early drafts of the Standard included the requirement to satisfy the C.A.R.E principles for Indigenous Data Governance (Collective benefit, Authority to control, Responsibility and Ethics), but this requirement was not included in the latest draft provided through the consultation phase.

Key policy questions to be resolved

To date, the Government has provided limited detail on its reform intentions in relation to First Nations engagement under the new environmental laws and cultural heritage protection under proposed reforms to the ATSIHP Act.

Key questions remain regarding:

• whether the new environmental laws will entrench a statutory requirement for First Nations consultation and the extent of that requirement.
• how all parties involved in environmental impact assessment (including the proponent, relevant First Nations peoples and the regulator) will obtain certainty as to who needs to be consulted, when consultation must occur and for how long, and who determines when consultation has been completed (which will be particularly important if consultation is a statutory requirement).
• capacity and resourcing for First Nations organisations and individuals to participate in consultation.
• the extent of any proposed interrelationship between First Nations consultation under the new environmental laws and cultural heritage protection under proposed reforms to the ATSIHP Act.

As difficulties with consultation in recent years under the offshore petroleum and greenhouse gas storage framework and the repealed WA Aboriginal cultural heritage legislation demonstrate, providing certainty as to consultation requirements will be a critical element to ensuring a workable First Nations engagement and consultation framework.

What did the Samuel Review identify for reform?

The Samuel Review recognised climate change as a significant and increasing threat to Australia's environment. It found that cumulative impacts and future challenges like climate change were not effectively considered in decision‑making, in part due to inadequate data and information, and advances in modelling capability not being taken up.

The Samuel Review acknowledged that some contributors called for an expansion of the EPBC Act to include a 'climate trigger' to account for greenhouse gas emissions of a project in environmental assessments, but it concluded that separate laws and policies specific to emissions reductions are the appropriate mechanism to place limits on greenhouse gas emissions, rather than the EPBC Act.

The Samuel Review did recommend that proposals that are assessed and approved under the EPBC Act should transparently disclose the full greenhouse gas emissions of the development. Furthermore, the assessment of development proposals should explicitly consider the likely effectiveness of the avoidance or mitigation measures on protected matters under a range of climate scenarios.

What did the Nature Positive package propose?

The Government's Nature Positive Plan also recognises the need to integrate climate change considerations into the reforms, including to provide for improved transparency in project assessments, to improve planning and landscape-scale approaches to facilitate adaptation to climate change, and to improve information and climate-impact modelling. The Government's intention is to address those matters in the reform process without duplicating existing mechanisms for reducing greenhouse gas emissions.

Subsequent to the release of the Nature Positive Plan, the Climate Change Act 2022 was amended to provide for scope 1 greenhouse gas emission information about projects that are designated large facilities under the NGERS regime and that are approved under the EPBC Act to be provided to the Energy Minister and Climate Change Authority.

How did the nature positive position evolve over the consultation phase?

In summary, the proposed amendments from the Government's consultation phase on the EPBC Act reforms are:

• applications for EPBC Act approvals will be required to include:
  • an estimate of scope 1 and scope 2 greenhouse gas emissions likely to be generated by the activities; and
  • a proposed plan for the management of those estimated emissions in line with federal, state and territory laws and guidance, to be published publicly.
• for Safeguard Mechanism projects, relevant data will be sent to the new federal environmental regulator, Environment Protection Australia (EPA).
• EPA and Ministerial endorsements of strategic plans must include an assessment of the extent to which the strategic plan considers climate change, including environmental adaptation and resilience measures.
• when making a regional plan, the Minister must be satisfied that the regional plan (among other things) includes consideration of the impacts of climate change and how to address them.
• restoration action management plans must outline actions to deliver and maintain the projected outcomes, and this must include consideration of likely climate change scenarios.

Although there have been recent attempts—through private members' bills—to amend the EPBC Act to introduce a climate trigger, these have not succeeded.

Key policy questions to be resolved

The call for inclusion of greenhouse gas emissions and climate change considerations as a Matter of National Environmental Significance—a 'climate trigger'—continue from Australia's peak conservation and environmental NGOs.

The Government has ruled out including a climate trigger in the EPBC Act reform package in the leadup to the release of the amending legislation.

Separately to the EPBC Act reforms, the federal Department of Climate Change, Energy, Environment and Water will be reviewing the Safeguard Mechanism in FY27 for the first time following the 2023 reforms. For more information on recent climate policy news and consideration of how the Safeguard Mechanism may be reformed following the release of the 2035 National Emissions Target and Net Zero Plan, see our recent Insight.

What did the Samuel Review identify for reform?

Current: appeals

The EPBC Act currently has limited scope for 'appeals' of project decisions. There are three avenues of review:

• Reconsideration: a person may, in limited circumstances, request that the Minister reconsiders a decision that a particular action is or is not a 'controlled action'.
• Merits review: an application can be made to the Administrative Review Tribunal for review of a decision under Part 13A (International Movement of Wildlife Species) of the EPBC Act. Other than internal review of controlled action decisions, there is currently no avenue for merits review of decisions made in relation to 'controlled actions' (or environmental impact assessment decisions generally).
• Judicial review: a 'person aggrieved' by a decision under the EPBC Act (which can include an Australian conservation or protection organisation) can seek judicial review of that decision via the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Third parties that are 'interested persons' can also seek injunctions for contraventions of the EPBC Act or the regulations.

Review findings

The Samuel Review rejected suggestions that judicial review proceedings had been overused by third parties for 'lawfare', and that the standing provisions ought to be narrowed. Instead, the Review reiterated the importance of third-party review rights given the protective purpose of the EPBC Act, while also finding that overlaying an entirely new legal review process and extending standing rights is not warranted.

The Review did recommend the introduction of a limited merits review 'on the papers' for development assessment and approval decisions, suggesting this avenue would provide a more appropriate appeal process for cases that otherwise would go through the judicial review process.

What did the Nature Positive package propose?

In welcome news for proponents, the Government's Nature Positive package rejected the Samuel Review's recommendation of introducing limited merits review into the EPBC Act. The Government's position in the package is that the introduction of an independent EPA and National Environmental Standards would be a more effective way of improving decision-making and public trust in the national environmental regime. No change was proposed to the existing judicial review avenue in relation to the opportunity to challenge errors of law.

How did the nature positive position evolve over the consultation phase?

After initial indications the Government would strengthen third-party enforcement rights, following consultation, the Government confirmed it would not be doing this. No other proposed changes were disclosed during, or following, the 2023-24 consultation phase.

Key policy questions to be resolved

Since the Nature Positive plan was put on hold, little has been disclosed about the Government's reform intentions when it comes to third-party review and enforcement rights. While the Government has reiterated its commitment to establishing a national EPA, its remit and powers remain uncertain.

Proponents would benefit from clarity on both.

We note, however, the Government has been clear that it wants to establish a regime that equally balances environmental protection with business and industry needs. Any reforms to third-party review and enforcement rights will likely be reflective of this. A departure from the largely 'neutral' position adopted by the Government on this topic in any new reform package would be surprising.