Australian Parliament passes key reforms to Australia’s national environmental laws

Alert

28 November 2025

20 min read

Tim Power |

Following several weeks of consultations and hearings by the Senate's Environment and Communications Legislation Committee, the Australian Parliament has passed seven Bills (Reforms) that constitute the most important change to national environmental law in 25 years. This has been made possible by a deal struck between the Government and the Greens, who hold the balance of power in the Senate, although the Reforms are also responsive to industry feedback in certain respects, in particular concerning the meaning of 'unacceptable impacts' and retention of the possibility of assessing projects by preliminary documentation.

The Reforms, which include the Environment Protection Reform Bill 2025 (Reform Bill), National Environmental Protection Agency Bill 2025 (NEPA Bill) and the Environment Information Australia Bill 2025 (Information Bill), will substantially change the operation of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and have significant implications for the environmental assessment and approval of projects in Australia.¹ It is anticipated that the Reforms will come into effect in mid-2026.

The Reforms are the Australian government's response to an independent review of the EPBC Act conducted by Professor Graeme Samuel AC in 2020. The Samuel Review was highly critical of the complexity of the EPBC Act and its duplication with other Commonwealth and State and Territory environmental laws, and its failure to halt and reverse the decline in the Australian environment. It also made numerous recommendations to improve the Act, including the introduction and use of national standards, tying the accreditation of State and Territory assessment and approval processes to compliance with the standards, and simplifying the range of environmental impact assessment processes.

While the scope of reforms to the EPBC Act is broad, this article focusses on key reforms to the referral, environmental impact assessment and approvals process for controlled actions under Part 9 of the EPBC Act.

Key takeaways

The Minister for Environment would remain responsible for the environmental impact assessment and approval of projects.
A new National Environmental Protection Agency would be established as an independent regulator with enhanced compliance and enforcement powers.
The Reforms provide for bioregional plans to manage environmental impacts at a landscape or seascape scale, aiming to address cumulative impacts and streamline approvals for priority actions within designated development zones, while establishing conservation zones as 'no-go' areas.
Assessments on referral information and public environment reports would be replaced with a new streamlined assessment, in which there would be no public comment period, and the Minister could approve the action in 30 business days. The streamlined assessment mechanism would not be available for petroleum production and coal projects.
The Minister would be empowered to prepare National Environmental Standards to provide guidance on how to meet the requirements of the EPBC Act.
Approval of an action must be consistent with a National Environmental Standard, must not have an unacceptable impact on matters protected by the EPBC Act and must not have a significant residual (ie., post avoidance and minimisation) impact on a protected matter unless it meets a new net gain test. However, these obligations on the Minister would not apply to actions that have been declared a national interest proposal or exempted on national interest grounds.

Governance and new agencies

The environmental impact assessment, approval and enforcement procedures and powers under the EPBC Act is the portfolio responsibility of the Commonwealth Minister for the Environment, supported by the Department of Climate Change, Energy, the Environment and Water (DCCEEW). In practice, the Minister has delegated many of its statutory powers and functions to senior DCCEEW officers.

The Reforms propose to establish three new authorities:

National Environmental Protection Agency (NEPA) that would primarily have an enforcement role under the EPBC Act;
Head of Environmental Information Australia (HEIA), whose role would be to improve the availability, accessibility and quality of national environmental information and data for the Minister, the CEO of NEPA and the public. The HEIA would be required to prepare and publish a State of the Environment report and maintain environmental economic accounts, and make declarations about and publish national environmental information assets; and
Restoration Contributions Holder, whose role will be to pool and manage restoration contribution charges (discussed further below).

Governance and new agencies

A critical part of the Reform Bill is the power of the Minister to make National Environmental Standards. The Standards would provide guidance on how to meet the requirements of the EPBC Act. Any Standard made by the Minister must promote the objects of the EPBC Act, and not be inconsistent with Australia's obligations under international agreements and treaties.

Standards would specify outcomes or objectives, and may specify parameters, principles, processes or actions for achieving the outcomes or objectives.

Standards may be varied or revoked, but in so doing, the Minister must be satisfied that there is 'no regression' in protections of the environment as a result. Standards must be reviewed within 18 months of commencement, and at least every five years after that.

As elaborated below, the Minister's decision on whether to approve a controlled action must be consistent with a National Environmental Standard.

Drafts of the National Environmental Standards for Matters of National Environmental Significance and Restoration Actions and Restoration Contributions have been released for public comment.

Bioregional plans

Zoning

The Samuel Review was critical of the piecemeal nature of the environmental assessment and approval of individual projects, and the lack of attention to the cumulative impacts of development on the environment on a broader scale. In response to these concerns, the Reform Bill includes a new Part 12A that would expand the scope for making bioregional plans within States and Territories that aim to manage the environment at a landscape and seascape scale. This is intended to better address the cumulative impacts of development.

Under the Reform Bill, bioregional plans must include:

Development zones and the class of priority actions which can be taken within this zone. The Minister must be satisfied that the priority actions are likely to have a significant impact on protected matters, and these impacted protected matters must be specified in the bioregional plan;
Conservation zones and the class of restricted actions which are prohibited in this zone. The Minister must be satisfied that the restricted actions are likely to have a significant impact on protected matters, and these restricted protected matters must be specified; and
Bioregional restoration measures which the Minister is satisfied are necessary or convenient to mitigate, repair or compensate likely damage to the impacted protected matters caused by priority actions.

Development control

Proponents seeking to take a priority action in a development zone will have to register the action with the Minister, but no referral or further approval under the EPBC Act would be required. However, registrations lapse after 5 years if the priority action has not substantially commenced in that time frame. Following industry consultation, the Reform Bill now includes mechanisms under which the Minister will give proponents written notice 6 months before the 5-year expiry date, and proponents can request an extension of time at least 20 business days before the expiry date. The Minister would have a discretion to grant the extension, if appropriate to do so, to a date no later than 10 years from the date of the original notice.

This streamlined process is aimed to increase planning certainty, encourage investment, and promote efficient development within these zones. Bioregional plans may attach conditions to undertaking a priority action in a development zone. However, under the government’s agreement with the Greens, priority actions cannot include petroleum production and coal extraction projects.

Conversely, conservation zones would prohibit restricted actions, creating 'no-go' zones of environmental protection unless the proponent obtains an exemption, although the Minister is prohibited from granting exemptions for petroleum production and coal extraction projects in conservation zones if they are restricted actions.

The Minister will be able to vary, suspend or revoke bioregional plans.

Bioregional guidance

The Minister can prepare bioregional guidance with the agreement of the relevant State or Territory. These would have no statutory effect, but contain information on the environmental and heritage values of the region to inform decision makers under the EPBC Act, and proponents.

Matters of national environmental significance

Changes to nuclear actions

The EPBC Act makes it a criminal offence to undertake a project or development (referred to in the Act as an action) that is having, or will or is likely to have, a significant impact on one of nine matters of national environmental significance, or MNES. One of the MNES is the impact of nuclear actions on the environment.

The Reform Bill renames this MNES to radiological exposure actions and makes some adjustments to its definition, most notably to specify that the radiological exposure action of uranium mining and milling excludes operations for the recovery of mineral sands or rare earth elements. However, there remains to our mind some doubt of the benefit of this clarification for the relatively common situation where it is the processing and refinement of heavy metal concentrate and rare earth products, rather than the mining of ore and rehabilitation of mine sites, that trigger radioactivity levels.

No climate trigger

There has been much debate about whether the Reform Bill should include a 'climate trigger' MNES. The Reform Bill includes no such trigger, consistent with the recommendations of the Samuel Review.

Offsets and passing the net gain test

The Reform Bill includes changes to how offsets and compensation for environmental impacts will be managed, shifting away from a policy-based model towards a legislative regime that aims to promote greater certainty and transparency:

Legislating the Offsets Mitigation Hierarchy – Proponents will be required to demonstrate that they have taken appropriate measures to avoid, mitigate, or repair environmental impacts before any conditions related to compensation for residual significant impacts are attached to an approval. A residual significant impact is a significant impact that will not be avoided, mitigated or repaired in the course of taking the action or complying with conditions of an approval; and
The 'Net Gain Test' – Proponents are currently able to offset residual environmental impacts by achieving 'no net loss'. The Reform Bill proposes to raise the bar by introducing the net gain test, where every residual significant impact must be compensated so that the environment is, in theory, left better off than before that action. The net gain test can be passed if a condition is imposed on an approval that either requires the proponent to compensate for damage to a protected matter that constitutes a residual significant impact (eg., through offsets) or by paying a restoration contribution charge. However, a protection statement for a listed threatened species or community can exclude the option of satisfying the net gain test by paying a restoration contribution charge in respect of residual impacts on that species or community.

The Restoration Contributions Holder would collect and pool restoration contributions charges into the Restoration Contributions Special Account. The Holder would be tasked with strategically allocating funds towards specific restoration actions, ensuring that offset investments are targeted towards specific ecological conservation and regeneration projects.

Amendments are also proposed to the Nature Repair Act 2023 which would allow biodiversity certificates issued under that Act to be used for environmental offsetting purposes.

Impact assessment and approval of controlled actions

Referrals

The EPBC Act process is initiated by proponents of actions who refer their projects (or actions) to the Minister. This process is retained, but two notable amendments are included in the Reform Bill:

a proposed action cannot be referred if it is covered by an alternate pathway, discussed below; and
proponents would be able to apply for the Minister's written agreement to undertake an action that is a 'minor or preparatory' component of a larger action. This would remove the need for the fairly widespread current practice of proponents excluding preparatory works, such as geotechnical and environmental investigations, from the scope of a referred action so they can undertake the preparatory works without contravening the Act.

No controlled action – use it or lose it!

The Minister will continue to have the discretion to decide whether a referred action is a controlled action that requires assessment and approval under the EPBC Act. The key amendment proposed by the Reform Bill is that a no controlled action decision will lapse after 5 years if the action has not substantially commenced within that time. This lapse period will apply to any decision made after the commencement of the Reform Bill, regardless of whether the action was referred before, on or after that date. However, following industry consultation, the Reform Bill now includes mechanisms under which proponents (ie., the original referring party) are given written notice 6 months before the expiry date, and proponents can apply for an extension of time at least 20 business days before the expiry date. The Minister can grant extensions on one or more occasions to no later than 10 years after notice of the original decision was given that the project is not a controlled action.

This change is proposed to avoid 'land banking' of referrals, as well as situations where projects proceed based on dated or 'stale' impact assessment information.

Provision of greenhouse gas information

Proponents will have to provide a reasonable estimate of the likely amount of scope 1 or 2 greenhouse gas emissions, and the strategies and measures consistent with relevant laws and policies that the proponent will implement to manage those emissions. The information may be included in a referral, otherwise it must be included in an EIS, provided to an inquiry, or provided under the proposed new streamlined assessment process, described below.

The regulations could prescribe a threshold amount for scope 1 and 2 emissions, below which a reasonable estimate and management strategies will not need to be disclosed.

The obligation to provide the greenhouse gas emission estimates would only apply to referrals made after the commencement date of the Reform Bill, but applies to all assessment pathways.

Streamlining the impact assessment processes for controlled actions

In addition to accredited State and Territory impact assessments discussed below, the Minister presently has five impact assessment procedures to choose from under the EPBC Act – assessment on referral information, assessment on preliminary documentation, public environment report, an environmental impact statement and public inquiry.

The Bill repeals two of these assessment options - assessments on referral information documentation and public environmental reports - and replaces them with a new 'streamlined assessment' mechanism. The Minister may make a decision to use the streamlined assessment mechanism for all projects except for petroleum production and coal extraction projects under the 'water trigger' in the EPBC Act.

The streamlined procedure essentially involves no public consultation, and an approval decision would need to be made within 30 business days of the Minister deciding that the action is to be assessed under the streamlined process. This is very rapid, and it is assumed that the project design and its impacts would need to be largely resolved and meet (or be quickly capable of meeting) the requirements of relevant National Environmental Standards for the Minister to decide the streamlined process should apply. The Explanatory Memorandum explains that the streamlined procedure is intended to incentivise developers to provide as much information as possible 'up front', presumably in the referral.

The streamlined assessment procedure is a significant innovation, and would allow very quick approval decisions to be made, provided the proponent can provide most, if not all, of the information about the controlled action and its impacts to enable to the Minister to make an informed decision on whether to approve it – although the Minister would still be able to 'stop the clock' by requesting information about the controlled action and its effects before making a decision.

The changes to the impact assessment processes will not affect assessments already underway when the Reform Bill commences.

Ministerial approval decisions

Perhaps one of the strongest criticisms made by the Samuel Review was the absence of an objective or purpose that should be met when deciding whether to approve a controlled action. This has left many to criticise the EPBC Act as regulating the destruction of the Australian environment rather than protecting it. The Reform Bill seeks to overcome this criticism by requiring a decision to approve a controlled action to:

be consistent with an approved National Environmental Standard;
not have an unacceptable impact. The Bill includes a tabulated definition of unacceptable impact by reference to each of the protected matters. For example, an unacceptable impact in respect of listed species is an impact that seriously impairs (that is, the impact results in an impairment or alteration of a thing that is of a severe nature and extent) the viability of a species. The Government has accepted industry submissions that the definition of unacceptable impact should not include forward-looking or conjectural considerations such as whether an impact is likely to seriously impair listed species;
not have a residual significant impact on a protected matter unless it passes the net gain test, discussed above;
be 'not inconsistent' with Australia's obligations under the Ramsar Convention and Australia's Ramsar management principles and management plans for wetlands of international significance;
be not inconsistent with Australia's obligations under the Biodiversity and APIA Conventions and CITES; and
be not inconsistent with a threat abatement plan, protection statement or recovery plan prepared under the EPBC Act.

These obligations will only apply to referrals of actions made after the commencement of the Reform Bill.

Moreover, these constraints will not apply to approving the controlled action if it was a national interest proposal. The inclusion of a national interest carve-out has come in for much comment, and is considered in further detail below.

Similar considerations also apply to decisions to revoke, vary or add to any conditions of an approval, including in respect of approvals granted before the commencement of the Reform Bill.

Alternate approval pathways

As an alternative to the conventional referral, assessment and approval of controlled actions under the process summarised above, the Bill proposes that certain actions or classes of actions (excluding certain radiological exposure actions and unconventional gas and large coal mining development) can be declared under the following alternate pathways that are accredited by the Minister:

a declared management or authorisation framework established under Commonwealth law;
a framework administered by the NOPSEMA in respect of offshore petroleum and carbon capture storage activities in the Commonwealth marine area;
a declared management or authorisation framework established under State or Territory law accredited in a bilateral agreement between the Commonwealth and the State or Territory;
an approved plan, policy or program under the strategic assessment and approval provisions in Part 10 of the EPBC Act; and
certain permissible actions under a bioregional plan, discussed above.

A declared action or class of action would be permitted to have a significant impact on a protected matter without further approval under the EPBC Act.

The Minister will have the power to suspend, vary or revoke a declaration in certain situations, including if the body administering the declared framework has not complied with the framework, or has given effect to the framework in a manner that causes [or has the potential to cause] an unacceptable impact. However, this would not affect projects that had already commenced in accordance with the declared framework.

Exclusions based on the national interest

National interest exemption

The EPBC Act has long included an ability for the Minister to grant an exemption on national interest grounds from the application of Chapter 4 (which establishes the requirements for assessment and approvals in the EPBC Act). The national interest is not precisely defined, so that the Minister may have regard to Australia's defence or security or a national emergency, but can also consider other matters in determining the national interest.

The Reform Bill inserts a new national security exemption, which explicitly enables the Minister to impose conditions on actions covered by the exemption and provide for a set period for which the exemption applies.

National interest proposal

The concept of national interest proposals is a new and controversial aspect of the Reform Bill.

If a project is a controlled action that requires assessment and approval, the Minister can determine the controlled action to be a national interest proposal. This would empower the Minister to approve the national interest proposal even if it is inconsistent with National Environmental Standards or will have unacceptable impacts. Furthermore, national interest proposals which have a residual significant impact need not pass the net gain test.

The Minister would possess a broad discretion in deciding what is a national interest proposal, expanding the test applied to national interest exemptions to 'Australia's defence, security or strategic interests' and 'existing international obligations', while also retaining the scope to consider other matters in determining the national interest. However, as part of the government’s agreement with the Greens, the Reform Bill excludes petroleum production and coal extraction projects from being national interest proposals.

Other issues

The Reform Bill includes other important reforms including:

procedures for proponents to surrender approvals;
substantial changes to limit the scope for third parties to request the Minister to reconsider controlled action decisions, as well as other amendments to the Minister's reconsideration powers to limit their potential to disrupt the development of actions that had been found not to be a controlled action;
the power of the Minister to make rulings about how the EPBC Act, regulations and subordinate instruments (such as the National Environmental Standards) should be applied. These rulings would bind the Minister, the CEO of NEPA and delegated decision-makers;
changes to the strategic assessment of plans, policies and programs and the approval of actions and classes of actions under Part 10 of the EPBC Act. These changes introduce greater flexibility to the strategic assessment process and address the new reforms concerning National Environmental Standards, unacceptable impacts and significant residual impacts;
significantly increased criminal and civil penalties, as well as empowering the courts to impose a civil penalty by using a formula that considers either or both the benefit derived from the breach of the EPBC Act (i.e., total value of all benefits obtained that are reasonably attributable to the contravention) and the detriment avoided (i.e., by the contravention, or by reference to the defendant's annual turnover). It is designed to ensure penalties are proportionate to the scale of wrongdoing or financial position of the offender;
empowering the CEO of NEPA to issue environment protection orders to remedy non-compliance with the EPBC Act, regulations or conditions of an approval or exemption if it is causing, or poses an imminent risk of, serious damage to a relevant protected matter. Following industry consultation, the Reform Bill now provides that orders can only remain in force for up to 14 days, and can only be extended once;
a phase-out of the exemption for native forestry operations under Regional Forestry Agreements by 1 July 2027, with the apparent intention of regulating such operations under National Environmental Standards;
providing that the 'existing use rights' provisions in section 43B of the EPBC Act do not apply to the clearing of vegetation within 50 metres of a watercourse, wetland or drainage line in the Great Barrier Reef Marine Park catchment area, and to non-forestry operation clearing of vegetation where the land has not been cleared for at least 15 years. The vegetation clearing control is targeted at agricultural clearance, which presently benefits from the 'existing rights' exemption in section 43B. To prevent a 'rush' of vegetation clearance between now and when the Reforms commence in mid-2026, the Minister has announced his intention for the vegetation clearance controls to commence in the coming days; and
extensive transitional provisions.

Shi-Mei Ewing, Julian Grimm and Casey Guilmartin (White & Case, Associates, Melbourne) and Yurui Wang and Tahj Mande (White & Case, Paralegals, Melbourne) contributed to the development of this publication.

_{1 Four other Bills were also tabled that would introduce charges in connection with activities regulated under the EPBC Act.}

_{White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities.}

_{This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.}