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Federal environmental reform: recasting the EPBC Act

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Streamlined assessments and approvals

Removal of two assessment pathways (public environment reports and assessment on referral information) and introduction of a new 'streamlined assessment' pathway, intended to result in faster approvals timeframes. The EPR Bill also introduces a number of new tools to enable the Minister to ensure the protection of the environment, including 'Rulings' and 'Protection Statements' about how the EPBC Act should be interpreted and protections implemented.

Latest updates

Key provisions of the EPR Bill include:

  • Reduction in assessment pathway options: removal of two assessment pathways (referral information and public environment report) and introduction of a new 'streamlined assessment' with a 30-business-day approval timeframe. Unlikely to be available for higher-impact projects and not available for fossil fuel actions. Assessment pathways of preliminary documentation, accredited assessment process, environmental impact statement and public inquiry are maintained.
  • Assessment pathway procedure: ability for the Minister to request additional information to determine the appropriate assessment approach, providing an opportunity for proponents to top up referrals in attempting to qualify for the streamlined pathway. The Minister can also revoke and change assessment approach decisions, but only to impose a more stringent pathway.
  • Refinements to accredited assessments: updates to the accredited assessment process, including powers to suspend/revoke accreditations, new limitations on when the Minister may enter into a bilateral 'approval' agreement and a requirement that bilateral agreements must authorise the Minister to exclude specified actions from the agreement. The NEPA is given a role in accrediting state and territory assessment processes and advising the Minister whether a bilateral agreement should be suspended or cancelled where an accredited process or specified manner of assessment is amended.
  • New assessment tests: see our separate commentary on the updated 'unacceptable impacts' definition and new 'net gain' test.
  • Protection statements: power for the Minister to issue protection statements setting out the key matters a decision-maker must consider during the approval of actions in protecting threatened species or ecological communities. A protection statement can also provide that payment of a restoration charge should not be available for a residual significant impact on a species or community.
  • Rulings: also applicable to other areas of the EPBC Act, the EPR Bill includes a new power for the Minister to issue rulings on how the EPBC Act and various supporting instruments should be interpreted.  

How we got there

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.

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 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 another 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

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

A key challenge for the reforms revolved around balancing 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 considerations relevant to the reforms included:

  • 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 NEPA 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. This exemption gives the Minister a broad discretion, and was subject to amendments in the Senate, which removed the ability of fossil fuel actions to obtain the benefit of a national interest exemption.

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.