After the unsuccessful bid to introduce the "nature positive" changes prior to the recent Federal election, new discussions are emerging about the future direction of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
There is a lot of noise about environmental approvals and upcoming reforms:
- Commonwealth Environment Minister, Senator the Hon. Murray Watt has announced that there will be amendments to the EPBC Act;
- the Productivity Commission has recently released two interim reports as part of their "5 Pillars" review, "Creating a more dynamic and resilient economy" and "Investing in cheaper, cleaner energy and the net zero transformation". Both reports put Federal environmental law reform forward as a necessary part of increasing productivity;
- we are now more than half way to the next statutory review of the EPBC Act, with the recommendations of the 2009 Hawke Review and the 2019 Samuel Review still not implemented.
Environmental approvals processes are seen as a brake on productivity, and are often cited as barriers to achieving energy transition and attracting investment. It is also clear that our regulatory system needs to do better in protecting Australia's environment.
Over its 25 year life, there have been numerous statutory reviews, audit reports and commentaries criticising the EPBC Act, its failure to deliver environmental protection and frustrations with its complexity, delays and costs to project. Despite an almost universal cry for amendment, significant amendments to the EPBC Act have never materialised because:
- The EPBC Act reflects and implements international agreements to which Australia is a party, which limits the ability to fundamentally amend decision making criteria and relevant considerations
- The EPBC Act captures all sectors, and therefore needs to serve every industry, including housing, mining, transport, water, defence, manufacturing, renewables, other energy and agriculture. This means that there are as many different views as stakeholders, but also that amendments that are general enough to capture every industry, but specific enough to provide predictability and certainty, are a delicate balance
- The EPBC Act is complex legislation – it regulates the environment, and that has unknowns, complexities and trade offs that need to be catered for. The EPBC Act needs to accommodate all of the complexity and balancing that comes with environmental assessment, and then apply that right across the unique and complex Australian landscape
- All of the above points underline that the EPBC Act has to maintain discretion in decision making, to allow the "balance that integrates" to be achieved. That means that political decision making is likely here to stay, and restrictive decision making criteria that provide certainty and codification of decisions, and takes away flexibility, does not serve either the environment or development well
- The key to making the EPBC Act work well is clear policy and reliable data – and we lack both of those things. That requires a large investment from Government, and generosity from proponents and other interested stakeholders, to achieve.
So how do you "fix" the EPBC Act?
Wholesale legislative reform is difficult, resource intensive and unlikely to deliver a better regime. The complexity of the EPBC Act, the diverse stakeholders and the limitations on amendments arising from the source of constitutional power under the Act together mean that large scale reform is likely to take a lot of time and energy, and deliver disappointment. That appears to now be recognised by Government.
Like most legislative regimes, the way the EPBC Act is administered and implemented is key to its success. Predictability and consistency in dealing with the Department and decision makers, understanding the expectations and rules upfront and knowing what to expect in terms of timeframes, conditions and compliance are just as important for users of the EPBC Act as the Act itself.
We have worked with the EPBC Act since its inception, and seen its implementation evolve over time. Drawing on our experience working on various projects under the Act, proposed approvals bilaterals, strategic assessments and compliance actions, we think there are a number of administrative and minor legislative amendments that would make the EPBC Act more functional, and deliver for both the environment and for projects.
|
Recommendation |
The Fix |
|
Recommendation 1: Climate has to be dealt with at a national level, not a project by project level, but complexity in resolving these issues should not hold up other amendments It's not helpful for the EPBC Act to duplicate considerations under the Safeguard Mechanism or State and Territory environmental impact assessment requirements, although it will be necessary to resolve how scope 2 and 3 emissions are considered. Much of the litigation under the EPBC Act focusses on climate, generally with an argument that a project has such significant greenhouse gas emissions that it impacts matters of national environmental significance, or alternatively that "climate" should be a matter of national environmental significance. While the EPBC Act is limited to project by project assessments, that approach will continue to struggle. |
We agree that accounting for new emissions needs to be considered, but note the Safeguard Mechanism provides a national level regime for accounting and offsetting scope 1 greenhouse gas emissions and under the EPBC Act the Environment Minister is already required to provide advice if a new project will trigger the thresholds for the Safeguard Mechanism. Consideration should be given to providing a clear statement through guidance materials (and conscious of the approach taken in the Australian States and Territories) about the assessment of greenhouse gas emissions and its interaction with environmental assessment. This is particularly elevated since the ICJ Advisory Opinion on Obligations of States in respect of climate change released on 23 July 2025, which opined that states including Australia have an obligation to act with due diligence implementing domestic law to support achievement of the 1.5°C goal of the Paris Agreement, and prevent significant harm to the environment including climate. The Productivity Commission interim report "Investing in cheaper, cleaner energy and the net zero transformation" proposes a broadening of the Safeguard Mechanism which we expect to be considered through that process in the coming months. The implications for this with the EPBC Act reform should be considered together. Climate is complex, and its treatment under the EPBC Act has been the subject of debate for some time. Given that there are a range of issues that need to be addressed for the EPBC Act, meaningful amendments should not be delayed by resolution of climate. |
|
Recommendation 2: Climate change should be considered for renewable energy and critical minerals projects Projects that contribute to achieving a reduction in greenhouse gas emissions (such as renewables) should have that included as a consideration in decision making. |
Amend the EPBC Act so that the decision making criteria in s.130 also includes consideration of the need for particular industries (e.g. renewable energy and critical minerals necessary for those developments) to support achieving Australia's legislated greenhouse gas reduction targets and meeting its international obligations. |
|
Recommendation 3: Fix offsets Environmental (biodiversity) offsets are not provided for in the EPBC Act, and are currently regulated by a 2012 Environmental Offsets Policy. Environmental offsets should be able to be:
Generally, the Commonwealth cannot manage tenure for offsets, and has to rely on the States and Territories for offsets to be legally secured, which means that the best option for delivering successful offsets is by integrating with State and Territory processes. |
Amend the EPBC Act to provide for financial settlement offsets, supported by a governance and delivery strategy. Work with each of the States and Territories to investigate strategic priority offset areas, that can be managed to provide a home for financial offsets and provide certainty that offsets are being delivered. |
|
Recommendation 4: Amend the EPBC Act so that strategic assessments work, or do regional planning, or both One of the great struggles of the EPBC Act is that it does not properly accommodate landscape level assessment, and project by project assessment does not adequately capture cumulative impacts and benefits of projects. Strategic assessments were introduced into the EPBC Act, but suffer from inflexibility, protracted and un-defined timeframes, perceived inability to change long term approvals and have not successfully provided approval certainty. Regional planning was proposed as part of the nature positive amendments, and was broadly welcomed across stakeholders. Supported by the right data and investment, regional planning provides an opportunity to streamline approvals and ensure more comprehensive assessments. |
Amend the strategic assessment regime to provide for flexibility in approvals and delivery, and improve the process to allow for a more streamlined assessment and approval. Introduce regional planning amendments that can support approval and delivery within a viable timeframe, particularly to support renewable energy zones, urban planning and identification of strategic environmental areas. |
|
Recommendation 5: Coordinate better with the States and Territories, and accredit approvals processes While all jurisdictions have had assessment bilaterals with the Commonwealth, with one minor exception there has never been an approvals bilateral. This is despite most EPBC Act assessments duplicating assessment of the same species, water management controls and administration and reporting matters. Even if we don't get to approvals bilaterals, the Commonwealth should work with the States and Territories to streamline assessment processes, reduce duplication and achieve a single and consistent set of conditions. While all jurisdictions have had assessment bilaterals with the Commonwealth, with one minor exception there has never been an approvals bilateral. This is despite most EPBC Act assessments duplicating assessment of the same species, water management controls and administration and reporting matters. Even if we don't get to approvals bilaterals, the Commonwealth should work with the States and Territories to streamline assessment processes, reduce duplication and achieve a single and consistent set of conditions. |
Consider legislative amendments to facilitate accreditation of a broader range of State and Territory assessment processes, and achieve accreditation of approvals processes. Work with the States and Territories to understand and if necessary, support amendments to processes to incentivise and achieve appropriate accreditation. |
|
Recommendation 6: Get data Good data equals good and faster decisions. The Nature Positive package recognised that with the proposed Environment Information Australia. |
Management and collection of data does not need legislation. Regardless of the process followed data should be collated, accessible and verified, and support good decision making. |
|
Recommendation 7: Fix the little and annoying things There are a number of frustrating constraints under the EPBC Act that create process and uncertainty with no clear benefit. Examples include:
|
A number of relatively minor amendments to the EPBC Act would greatly improve its functionality and effectiveness. |
|
Recommendation 8: 'National Environmental Standards' need to be workable The 'National Environmental Standards' that were a recommendation of the Samuel Review and formed part of the last iteration of EPBC reform proposals continue to be discussed as a key concept for the new reform approach. The concept is sound, and could provide greater clarity and efficiency in decision making. However, it is important that National Environmental Standards support well-located and well-designed proposals, rather than seeking perfection, and don't add an extra layer of complexity to decision making (and additional avenues for litigation). National Environmental Standards need to inform, rather than constrain, good decision making. |
Amendments that give effect to National Environmental Standards must provide greater clarity to inform location and design of proposals, rather than a higher compliance burden. They also need to be flexible, recognising the breadth and complexity of decision making under the EPBC Act, and that a "one size fits all" approach does not deliver good outcomes for approvals or the environment. National Environmental Standards should support accreditation of State and Territory approval processes. |
|
Recommendation 9: Fix the administration of the EPBC Act Consistent feedback from proponents who work with the EPBC Act is that it is frustrating to deal with constantly changing goal posts and expectations. The top 5 we see are:
|
These are all matters that are fixed at a policy level, and through standardisation of processes in a transparent way. Good engagement with both industry and environment advocates, State and Territory Governments, as well as improved data, can go a long way to addressing these issues. Retention and development of specialists within the Department should be supported. |
|
Recommendation 10: Talk and inform There are a number of niggles with the EPBC Act that are specific to industries, and that result in peculiar outcomes. An example is that of renewable energy, where greenhouse gas reduction and energy transition is a key pillar of Australia's policy, but our environmental approvals system is seen as one of the barriers to delivery (which is not the whole story). Having regular discussions at a policy level with industry and within government, and setting clear expectations for assessments will go a long way to alleviating these concerns. |
There have been a range of initiatives and policy settings over time, including the National Renewable Energy Priority List. Regular industry forums that allow feedback to be given from the Department on industry performance, and from industry on Departmental performance, can go a long way to resolving emerging concerns early. |
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
