Federal environmental reform: recasting the EPBC Act

These provisions apply to each of the substantive provisions of the Reform Act as they are commenced.

In some cases, the transitional provisions state that the new provisions do not apply to anything done before the 'commencement day'. The commencement day for each amended or inserted provision is the date on which that amendment or provision commences (see section 675 of the Reform Act) unless the Government proclaims a different date (which it has not yet done).

This means that, for the purposes of the transitional provisions, different provisions inserted or amended by the Reform Act will have different commencement days.

The Environment Minister has the power to make NES.

The provisions of the Reform Act that will require the Minister (and other decision makers) to ensure that certain decisions are consistent with relevant NES have not commenced.

The Environment Minister has made four NES this year and is developing a fifth.

Existing use provisions no longer apply to certain land clearing actions that began prior to the commencement of the EPBC Act.

The holder of an EPBC Act approval may request to surrender the approval. The surrender is only effective if the Minister accepts it. The Minister will consider, among other things, whether the action has substantially commenced and the risks of the surrender to matters of national environmental significance (MNES).

Prior to the Reform Act, the Minister had (and still has) the power to decide that an action is 'not a controlled action' provided it is carried out in a particular manner.

A proponent of such an action may ask the Minister to reconsider that decision if the proponent considers the particular manner identified is no longer appropriate for the action. As part of this request, the proponent can propose taking the action in an alternative manner.

Proponents can make such a request even after the action has begun.

Prior to the Reform Act, the Minister had (and still has) the power under Part 10 of the EPBC Act to:

1. enter into an agreement with a person responsible for the adoption or implementation of a policy, plan or program with respect to the assessment of the impacts of any actions carried out under that policy, plan or program on MNES;
2. endorse the policy, plan or program (following the completion of the agreed assessment); and
3. approve actions or classes of actions undertaken in accordance with the endorsed policy, plan or program (approvals granted under Part 10 have broadly the same effect as approvals granted under Part 9).

From 20 February 2026, this process has been streamlined. In particular:

1. the Minister has the express power to:
   1. approve minor variations of a policy, plan or program endorsed under Part 10 (and make consequential amendments to any approvals granted under Part 10 in respect of that policy, plan or program);
   2. vary the conditions of a Part 10 approval;
   3. suspend, revoke or reinstate a Part 10 approval; and
   4. accept a surrender of a Part 10 approval.
2. Part 10 approvals are issued to nominated approval holders, who can transfer the approval with the Minister's consent. Anyone named in the approval can continue to rely on the approval; and
3. Part 10 approvals do not apply if certain other decisions under the EPBC Act are in force (such as a Part 9 approval, a not-controlled action determination or a national interest exemption).

The Minister's power under Part 10 to endorse a policy, plan or program is separate to the powers which the Minister will have under Part 12A (once it commences) to make a bioregional plan which permits certain priority actions to be undertaken without approval.

However, the Department of Climate Change, Energy, the Environment and Water has indicated that some broad scale strategic biodiversity assessments will be carried out under Part 10 instead of Part 12A. One example of this is the Central Coast Strategic Assessment which is currently the subject of assessment under Part 10.

The Minister has the power to allow actions to continue to be taken (with or without additional conditions) in circumstances where:

• the Minister originally decided that the action is not a controlled action; and
• after the proponent commences the action, the Minister reconsiders his or her original decision and determines that the action is a controlled action.

Any such continuation can only be for a limited period (for example, to allow the proponent to obtain approval under the EPBC Act for the action).

The Minister's existing powers under Division 3 of Part 11 to grant exemptions from specified controlling provisions of the EPBC Act have been refined.

The provisions allow for the Minister to issue a national interest exemption either on the Minister's initiative or in response to an application, to include conditions on the exemption and to prescribe how the action may be carried out in order to limit or mitigate adverse impacts to the relevant protected matter covered by the exemption.

The Minister also has the power to grant exemptions from Part 13 (see new Division 7A of Part 13).

The Minister has the power to issue statements of expectations and statements of intent to certain advisory bodies.

A new Part 20B states the circumstances in which a person who is provided with confidential information in connection with the EPBC Act can disclose that information to other persons (including State or Territory government bodies and law enforcement agencies). Civil penalties apply to any unauthorised use or disclosure of protected information.

A new Part 21A allows the Minister to prescribe one or more programs in relation to the protection, conservation, restoration or recovery of the environment including in relation to the expenditure of Commonwealth money under such programs.

The NEPA was established upon the commencement of the National Environmental Protection Agency Act 2025 on 1 July 2026.

On 1 July 2026, a number of functions under the EPBC Act that were held by the Minister or the Secretary of the Department of Climate Change, Energy, the Environment and Water were transferred to the CEO of the NEPA.

The Environment Information Australia Act 2025 also commenced on 1 July 2026, establishing Environment Information Australia.

The Environment Minister has made the following four NES:

• Matters of National Environmental Significance (commenced 21 August 2026);
• Data and Information (commenced 21 August 2026);
• Environmental Offsets (commenced 22 August 2026); and
• Community Engagement (commenced 22 August 2026).

The four NES apply to any new bilateral agreements with states and territories but not to individual project assessments and approval decisions until the new approval tests commence on 1 December 2026, if not commenced earlier by proclamation.

The development of a fifth NES for First Nations Engagement is underway.

A person other than the designated proponent of an action has only 28 business days from the date the Minister publishes a notice of a controlled action decision to make a reconsideration request. This will apply to any reconsideration request made after 24 August 2026, even if the referral was made before this date.

The provision defining greenhouse gas emissions information (GHGE information) and that states the requirements for proponents in giving GHGE information has commenced.

The substantive provisions requiring applicants to provide GHGE information with a referral have not commenced. The requirement to give GHGE information will only apply to actions referred on or after the day the substantive provisions commence.

Not-controlled action decisions made after 24 August 2026 will lapse after five years unless the action has been substantially commenced within that period. The Minister may extend the lapsing date up to the 10th anniversary of the notice of the decision.

The office of the Restoration Contributions Holder has been established, including its functions, powers and directions limitations. The provisions imposing the Restoration Contributions Charge have not commenced.

The Minister has the power to make, vary, revoke and review protection statements for listed threatened species and ecological communities.

The requirement for the Minister to not act inconsistently with protection statements when deciding whether to approve the taking of an action has not commenced.  

Under the new Division 12, the NEPA CEO has the power to:

• require a person to conduct an environmental audit with respect to an environmental authority, order or exemption; and
• require a compliance audit of activities in relation to an environmental authority, order, or exemption, or in relation to a marine park permission or order.

The audit power applies to the abovementioned documents made and actions taken on or after 24 August 2026.

Where the Minister had issued a notice requiring an environmental audit before 24 August 2026 and the approval holder has not given the Minister a written report before that date, the previous provisions continue to apply.

A new Division 13A of Part 17 grants the NEPA CEO the power to issue an environment protection order where the CEO reasonably believes a person has contravened, is contravening, or is likely to contravene the EPBC Act, the Environment Protection and Biodiversity Conservation Regulations 2000 (EPBC Regulations) or conditions of an environmental authority or exemption, and that contravention has caused, is causing, or is likely to cause, serious damage, or poses a risk of serious damage. This power applies to existing approvals and conduct occurring before 24 August 2026.

The Minister has the power to publish rulings setting out the Minister's opinion on how specified provisions of the EPBC Act, EPBC Regulations, a NES or any other EPBC Act instrument should apply to particular persons, actions, protected matters, applications or circumstances.

The NEPA CEO has similar powers with regard to any provisions conferring a function or power on the CEO or relating to the performance or exercise of the CEO's functions or powers.

The Minister and NEPA CEO must publish draft copies of these rulings on their respective websites, inviting public comment and taking these comments into account when publishing their respective rulings.

Any person performing a function or power under the EPBC Act on or after 24 August 2026 must not act inconsistently with a ruling of the Minister or the NEPA CEO, unless the person is satisfied that, given the particular circumstances of the matter, it would be inappropriate to comply with this requirement.

The definitions of 'unacceptable impacts', 'residual significant impact' and 'net gain test' have commenced.

The substantive provisions which deal with the consequences of unacceptable impacts, a residual significant impact or not passing the net gain test have not commenced.

These definitions, and the test, will only apply to decisions where the referral was made on or after the commencement date of the substantive provisions.

Criminal and civil penalties have increased.

The criminal offence provisions attached to the Part 3 prohibitions have risen to 1,000 penalty units, up from the previous 420 or 120 penalty units.

The civil penalty provisions have been restructured. New s 481A 'Maximum amount of civil penalty for certain contraventions' provides for the maximum civil penalty to be the greater of 5,000 penalty units (individuals) or 50,000 penalty units (bodies corporate), three times the benefit derived or detriment avoided, or, for bodies corporate, 10% of annual turnover (capped at 2.5 million penalty units).

These increases apply only to conduct occurring wholly on or after 24 August 2026; conduct occurring wholly before that date remains subject to the previous penalty amounts (per item [714]).

1. the requirement for the following decisions to be consistent with relevant NES (except in the case of a national interest proposal):
   1. granting approval (s 136A);
   2. revoking, varying or adding conditions to an approval (s 143(2));
   3. extending an approval period (s 145D);
2. streamlined assessment pathways;
3. national interest proposals (Part 11 Division 2A);
4. the Minister's power to change the assessment approach (s 92);
5. the requirement for actions that will have residual significant impacts to pass the net gain test (s 136C);
6. the power for the Minister to impose a condition on an approval requiring the approval holder to pay a restoration contributions charge in relation to a residual significant impact of the action (but not in respect of unacceptable impacts unless the taking of the action is in the national interest) (s 134(3)(ac) and Divisions 2 to 6 of Part 12B);
7. the substantive provision prescribing unacceptable impacts and the prohibition on actions with unacceptable impacts (except in the case of a national interest proposal) (s 136B);
8. reforms to bilateral management or authorisation frameworks;
9. bioregional planning process (Part 12A); and
10. the substantive provisions requiring applicants to provide prescribed GHGE information as part of the approvals process.