Federal environmental reform: recasting the EPBC Act

A new, independent National Environmental Protection Agency. The CEO of the NEPA will be a statutory appointment and not subject to direction by the Minister. The CEO of the NEPA will be given a number of responsibilities under the Act, including compliance and enforcement functions, assurance of accreditation arrangements and the issuing of new enforcement tools such as environment protection orders.

A new function within the Department is to be headed by an independent statutory officer and is to be focused on the management of environmental data. The EIA would provide national leadership for the improvement of the availability and accessibility of high-quality, national environmental data and information, and ensure there is independent reporting and accountability for the state of the environment. 

A framework to establish legally enforceable National Environmental Standards that are intended to set the boundaries for decision-making to deliver the minimum protections to be achieved under the Act. These are intended to be subordinate legislation and will initially relate to matters such as the existing Matters of National Environmental Significance and environmental offsets.

To remove certain lower-tier assessment pathways (such as assessment on referral information and public environment reports) and replace them with a 'streamlined assessment' pathway, intended to result in faster approvals timeframes. The bills also introduce a number of new tools to enable the Minister to ensure the protection of the environment, including 'Rulings' and 'Protection Statements' about how the Act should be interpreted and protections implemented. 

Strategic assessments under Part 10 are retained, with new flexibility proposed, including to allow for the relevant policy, plan or program to evolve without necessarily requiring a new strategic assessment to be undertaken.

A new concept of bioregional assessments, allowing for broad-scale assessments to be undertaken to establish 'development' and 'conservation' zones, with 'priority actions' in development zones not to require further assessment and approval.

A new concept of passing the 'net gain' test will apply to compensate for significant residual impacts on protected matters. This can be achieved either by the proponent compensating for damage by securing an environmental offset, or by paying a restoration contribution charge in respect of the residual significant impact (unless the Minister has declared that a restoration contribution charge is not available for the relevant MNES).

Requirements for consultation with First Nations peoples are not included in the Bills, however new requirements are to be proposed through a National Environmental Standard consistent with the approach recommended in the Samuel Review.  

No 'climate trigger' is included. Instead, the EPR Bill requires certain proponents to disclose greenhouse gas emission information and reduction plans—this is anticipated to apply at least to facilities covered by the Safeguard Mechanism. This information is intended to be made available for transparency purposes only and will not inform decisions under the Act. 

Increased enforcement powers and, for certain large turnover body corporates, much higher maximum penalties for certain civil penalty provisions apply up to $825 million. 

A redefined concept of an 'unacceptable impact', which varies for each protected matter. If an action has an unacceptable impact, the Minister must not approve it. Similar restrictions apply to other decisions made under the Act (eg to approve a regional plan, or when accrediting states/territories' assessment and approval powers). 

Various changes to the existing accreditation processes, placing a greater emphasis on the role of accredited state and territory processes to issue 'one-touch' approvals without the need for duplicative assessment by the Government. 

The reforms introduce a strengthened national interest pathway, giving the Minister broad discretion to approve projects that serve Australia’s strategic priorities (noting that these exemptions are not available for fossil fuel actions). Under this approach, a project may proceed even if it conflicts with NES, has unacceptable impacts or fails the net gain test, where it is deemed critical to Australia’s defence, security or international obligations. At the same time, refinements to the existing exemption mechanism allow the Minister to dis-apply certain controlling provisions for protected matters, while imposing conditions and prescribing requirements to limit adverse impacts. Together, these changes create a more flexible framework for projects of national significance, balancing strategic imperatives with environmental safeguards.

Proponents will be able to discharge their offset compensation liability (including under the new 'net gain' framework) by paying a restoration contribution charge to the Government. The money provided under this charge will be spent by a new independent Restoration Contributions Holder, supported by an expert advisory committee.

Authorisation to commence minor or preparatory works for an action after referral and before an approval has been issued. The Minister may also provide written agreement for other works that may commence.

NCA and NCA-PM decisions will lapse after five years if the action has not 'substantially commenced'. The five-year period may be extended once by the Minister for a further period of up to five years (the total maximum being 10 years, lapsing from the date of the initial decision).

Actions that are a lawful continuation of a use will no longer be exempt from approval if they involve clearing of vegetation from land within 50 metres of a watercourse, wetland or drainage line in a catchment area of the Great Barrier Reef Marine Park or the land has not been cleared of vegetation for at least 15 years (and the action is not a forestry operation).

The exemption from approval for actions undertaken in accordance with an RFA will sunset on 1 July 2027.