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Federal environmental reform: recasting the EPBC Act

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National Environmental Standards

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 will be made. 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.

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The National Environmental Standards (NES) form the legislative foundation of the Government's reform agenda. They respond to the Samuel Review's recommendation for clear, enforceable environmental outcomes under the EPBC Act. The NES are intended to strengthen environmental protection, deliver nationally consistent standards and provide greater certainty for proponents and decision-makers. 

Key provisions outlined in the EPR Bill, include:

  • Making the NES: the Minister may make, vary or revoke a Standard by legislative instrument. This process is subject to public consultation for at least 20 business days, and consultation with the Indigenous Advisory Committee for any Standard relating to Indigenous engagement.
  • Safeguards and review: a no-regression principle prohibits any change that would reduce environmental protections or compromise the quality of environmental data or consultation processes. Each Standard must be reviewed within 18 months of commencement, and subsequently reviewed every five years, ensuring continuous improvement over time.
  • Binding effect on approvals: the NES will directly bind approval decisions. For individual controlled actions, the Minister (or accredited decision-maker) must not approve an action unless satisfied the approval is consistent with the relevant NES. A limited exception applies for national-interest proposals, where an inconsistency may be approved only if reasonably necessary to achieve the intended national-interest outcome.
  • National interest proposals: the Minister may designate a controlled action as a national interest proposal where the taking of the action would deliver, or be likely to deliver, an outcome in Australia’s national interest. Relevant considerations include defence, security, strategic priorities and international obligations, but the list is not exhaustive. In such cases, the Minister may approve an inconsistency with the NES only where it is reasonably necessary for the action to achieve its intended national-interest outcome.

How we got there

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

A key issue to be resolved 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 business 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.

Read more on headline issues

National EPA (NEPA)

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.

Environment Information Australia (EIA)

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. 

National Environmental Standards (NES)

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.

Streamlined assessments and approvals

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

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.

Bioregional plans

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.

Biodiversity offsets and net gain

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).

First Nations engagement

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.  

Climate change

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. 

Penalties, merits review and third-party enforcement

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

Unacceptable impacts

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). 

Accreditation of states/territories for approval decisions

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. 

National interest proposals and exemptions

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.

Restoration fund

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.

'Minor or preparatory' works

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.

Lapsing of not controlled action decisions

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).

'Grandfathering' arrangements

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).

Regional Forest Agreements

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