A Comprehensive Guide To The New Reforms Of The Environment Protection And Biodiversity Conservation Act

On 28 November 2025, the highly anticipated reforms to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) were passed by both Houses, consisting of seven pieces of legislation, with the most significant one being the Environment Protection Reform Act 2025 (Reform Package).

The Reform Package implements the core recommendations that arose out of the 2020 independent Samuel Review of the EPBC Act in order to deliver "stronger environmental protection and restoration", "more efficient and robust project assessments" and "greater accountability and transparency in decision making". The most significant amendments to the EPBC Act are set out below.

National Environmental Standards Introduced

A new, legally binding framework is now featured in the EPBC Act which allows the commonwealth minister for Environment and Water (Minster) to make, vary and revoke National Environmental Standards (NESs). Decision-makers are then compulsorily required to apply the relevant NES in decision-making, as prescribed under the EPBC Act or regulations.

Generally, before making an NES, the Minister must be satisfied that:

• The standard promotes the objects of the EPBC Act; and
• The standard is not inconsistent with Australia's obligations under relevant international agreements.

An NES must prescribe "one or more outcomes or objectives" and may prescribe the parameters, principles, processes, or actions taken to achieve an outcome or objective.

Under the "no regression principle", the Minister can only vary or revoke an NES if the Minister is satisfied that the variation or revocation meets any prescribed requirements and does not reduce:

• Environmental protections;
• The likelihood that environmental data or information provided to the government is appropriate;
• "The likelihood that appropriate consultation or engagement" will occur under the EPBC Act, including with Indigenous persons; and
• "The likelihood that outcomes or objectives specified in the standard will be achieved".

Unless the proposed variation of the NES is minor or mechanical in nature, the minister will be required to publish the draft proposed variation and invite public comment.

New Criteria for Approval of Projects

Consistency With an NES

Under a new provision, s 136A of the EPBC Act, the Minister cannot approve the taking of an action unless it is consistent with one or more of the prescribed NESs.

The "Unacceptable Impacts" Test

A new "unacceptable impacts" test will apply to the approval of projects under the EPBC Act. The Minister must not approve the taking of an action unless the Minister is satisfied that the taking of the action will not have an unacceptable impact on a matter of national environmental significance (MNES). The EPBC Act designates the criteria of what is an "unacceptable impact" for each MNES. Projects with unacceptable impacts will not be approved subject to exceptional circumstances, and importantly, cannot be compensated for through offsets. Instead, projects with unacceptable impacts must be avoided or mitigated below the "unacceptable impact" criteria in order to gain approval.

The "unacceptable impact" criteria will vary according to the protected MNES. One example of an MNES is the "world heritage values of a declared world heritage property". An unacceptable impact is stated to be "a significant impact that causes loss, damage or alteration to part or all of the world heritage values".

Residual Significant Impact – Net Gain Test

Approval will not be granted to an action that will have or is likely to have a residual significant impact (RSI) on an MNES unless it passes the "net gain test".

An RSI on an MNES is defined to be an impact that is significant and cannot be avoided, mitigated, or repaired in the course of taking the action and in the course of complying with any attached conditions to the approval.

An action will pass the net gain test if the action will or is likely to have:

• A condition attached to the approval that requires the holder to compensate for the damage caused by the RSI and a condition requiring the holder to pay a restoration contribution charge related to the RSI; and
• Compliance with the condition(s) results in a net gain for the MNES as prescribed under the regulations or as otherwise is appropriate under requirements to the Minister's satisfaction; and
• Any other prescribed matter in relation to the compensation for damage is satisfied.

National Interest Exemption and Approval

The EPBC Act seeks to improve environmental outcomes by strengthening the national interest exemption. The Minister can now impose conditions on a national interest exemption for an action and to set a period for which the exemption is in force. National interest exemptions can now also be granted by application or by the Minister's initiative without an application.

A national interest approval is also introduced. In rare circumstances where the Minister cannot approve an action as it fails to meet any of the above criteria, the Minister may nonetheless approve it if it is a national interest proposal.

If an action is a national interest proposal and is inconsistent with the prescribed NES, the Minister may approve the action if the Minister is satisfied that insofar that there are inconsistencies with the prescribed NES, the inconsistencies are "reasonably necessary for the taking of the action to result, or be likely to result, in the intended outcome for the national interest proposal". Similarly, an action that is a national interest proposal that has an unacceptable impact or an RSI may be approved if the Minister is satisfied that either the unacceptable impact or RSI is "reasonably necessary for the taking of the action to result, or be likely to result, in the intended outcome for the national interest proposal".

Project Assessments with Increased Efficiency

Bioregional Planning

New provisions are included to allow for the making of bioregional plans that specify development zones and actions and restoration measures. The Minister will be required to take into account any relevant bioregional plan or bioregional guidance plan when granting approvals, although certain "registered priority actions" under bioregional plans can be taken without approval.

Strategic Assessments

Amendments are now made to the EPBC Act in relation to strategic assessments with the intention to allow strategic assessments to be used more often in landscape scale assessment of classes of actions and to reduce assessment timeframes.

Accreditation and Bilateral Agreements

Provisions in the EPBC Act are now updated and streamlined in relation to accreditation and bilateral agreements to increase durability. Additionally, state, territory and other Commonwealth agency processes will only be accredited if they meet national environmental protections and are consistent with NESs.

Streamlined Assessment Pathways

The EPBC Act seeks to simplify, streamline and improve the assessment and approval pathways whilst retaining the national environmental significance requirement. The Minister will be required to choose one of five approaches when making an assessment, which include an accredited assessment process, a single new streamlined assessment that replaces two of the three existing assessment pathways, an assessment on preliminary documentation (the retained existing assessment pathway), an environmental impact statement or a public inquiry.

Reconsideration Framework Changes

Improvements have been made to reconsideration provisions, which include:

• Allowing a Minister to determine an action that was previously not a controlled action but was reconsidered to be a controlled action to continue to be taken while under assessment in the EPBC Act, subject to conditions that limit its environmental impacts;
• Clarifying the reconsideration request requirements including by imposing a 28-day time limit for third parties requesting a reconsideration of a controlled action decision; and
• Introducing a new power for the Minister to reconsider a decision that an action is not a controlled action because the Minister believes it will be taken in a particular manner.

Environment Bodies Established

The National Environmental Protection Agency (NEPA) and the head of Environment Information Australia (EIA) are established under the National Environmental Protection Agency Act 2025 and Environment Information Australia Act 2025, respectively.

The NEPA will have regulatory and implementation functions under environmental Commonwealth laws, including the EPBC Act, such as issuing permits and licences, and carrying out compliance and enforcement activities. Following NEPA's establishment, the CEO of NEPA will have other functions in relation to administering and enforcing the EPBC Act.

The EIA is established to improve the availability and accessibility of information and data through reporting, including on the "State of the Environment". Provisions relating to this have therefore been removed from the EPBC Act.

Strengthened Compliance Powers and Penalties

The EPBC Act now has increased criminal penalties and includes a new civil penalty formula that applies to the most serious contraventions. This new formula is modelled on similar schemes in Commonwealth laws that target financial crime. This means that the maximum penalty for certain breaches has increased. For example, under the new s 481A of the EPBC Act, the maximum penalty for a contravention of a civil penalty provision by a body corporate is the greater of:

• 50,000 penalty units;
• If it can be determined by the court, either the sum of the benefit derived and detriment avoided multiplied by 3three, or otherwise whichever of the benefit derived and the detriment avoided the court can determine, multiplied by 3three; or
• Either 10% of the annual turnover of the body corporate for the 12-month period ending at the end of the month in which the contravention occurred, or 2.5 million penalty units (if the calculation is higher than 2.5 million penalty units).

New powers to issue environment protection orders are introduced to allow the CEO of NEPA to issue these orders in urgent circumstances where a contravention of the EPBC Act (or conditions of an environmental authority or exemption) is causing or poses an imminent risk of serious damage, although there are corresponding limits imposed on these powers as well.

Existing audit powers are expanded to introduce compliance audits by the CEO of NEPA, without a requirement to give notice of the audit.

Land-Clearing Changes

Changes to Grandfathering Land-Clearing Provisions

Previously under s 43B of the EPBC Act, actions that were considered lawful before the commencement of the EPBC Act in 1999 were allowed to continue. Section 43B has been amended to exclude this from applying to actions that consist of or involve clearing vegetation from:

• Land that has not been cleared of vegetation for a period of at least 15 years and is not a forestry operation; and
• Land that is within 50 metres of a watercourse, wetland or drainage line in the catchment area of the Great Barrier Reef Marine Park.

Forestry operation is defined under the EPBC Act as the planting of trees, the managing of trees before harvest, and the harvesting of forest products for commercial purposes, and includes any related land clearing, land preparation and regeneration and transport operations.

Land-Clearing Exemption Removed

The new EPBC Act also removes the exemption that allows a Regional Forestry Agreement forestry operation to proceed without approval. The sunset day of this exemption is prescribed to be 12 months after 1 July 2026, which effectively means that land clearing will need approval from 1 July 2027.

The consequence of these amendments is that certain land- clearing actions that previously could be taken without assessment will now need to follow the assessment process as set out in the new EPBC Act.

Other Significant Changes

The following new provisions and amendments are also included in the EPBC Act:

• Approval pathways for fossil-fuel actions will now be limited under the new EPBC Act, with fossil-fuel action defined as the production or extraction of petroleum or coal. Therefore, fossil-fuel actions will be excluded under streamlined assessment, exclusion determination and bioregional planning provisions, and the national interest proposal exemption.
• The Minister will have a new power to make rulings that set out the Minister's opinion on how the law, regulations or standards should be applied in particular circumstances, and the Minister, CEO of NEPA or a delegated decision-maker is required to act consistently with a ruling unless the individual circumstances render it inappropriate to do so.
• The Minister can approve the extension of the lapsing of a "not a controlled action" decision to a maximum of five further years.
• A new provision requires the disclosure of estimates for Scope 1 and 2 greenhouse-gas emissions for the assessment of a controlled action.
• The nuclear trigger will be changed to radiological exposure actions to avoid regulatory duplication.
• The Minister will be allowed to declare that offshore projects do not require separate approval if the Minister is satisfied that the same environmental protections are provided for under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) and the corresponding regulation.

Implications for Affected Stakeholders

The reforms to the EPBC Act are wide-ranging and comprehensive. The reforms provide for a more streamlined assessment process and the removal of regulatory duplication, which may achieve greater efficiency and less delays in the approval of projects.

However, the newly prescribed NESs and additional tests, including the "unacceptable impact" test, are yet to be applied in practice. Larger penalties, new environmental bodies and further ministerial discretion and powers also require stakeholders' attention. Additionally, the transitional provisions are complex, with some provisions commencing upon Royal Assent of the EPBC Act, and others commencing later – this will affect stakeholders' existing and future projects.

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.