Environment Protection and Biodiversity Conservation Act reforms: key changes and implications

Reforms to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) have passed Parliament following a last-minute deal reached between the Labor government and the Greens on the final sitting day for 2025. The amendments represent the most significant environmental law reforms since the EPBC Act commenced in 2000, heralding “a new era for the environment and productivity in Australia”, according to Prime Minister Albanese.

As summarised in our previous Insight, the reform package to the EPBC Act comprises seven Acts:

• Environment Protection Reform Act 2025 (Reform Act);
   
• National Environmental Protection Agency Act 2025 (NEPA Act);
   
• Environment Information Australia Act 2025 (EIA Act); 
   
• Environment Protection and Biodiversity Conservation (Restoration Charge Imposition) Act 2025 (Restoration Charge Act); and
   
• three separate acts concerning the imposition of general, customs and excise charges under the EPBC Act.

The Acts passed on 28 November 2025, with some elements, namely the transitional provisions and the provisions enabling establishment of the National Environmental Standards (NES), to commence following Assent. The NEPA Act and EIA Act will commence on 1 July 2026, together with parts of the Reform Act that relate to the NEPA. The balance of the Reform Act’s provisions will commence upon proclamation or within 12 months. 

This insight explores how key parts of the EPBC Act have changed. We unpack key amendments resulting from the deal and in response to submissions received from the business community, and consider the new draft NES that are open for public comment until 30 January 2026.

Several key changes have been introduced.

National Environment Protection Agency (NEPA)

Relevant legislation: EPBC Act, section 515AAA and Part 17 and NEPA Act

The NEPA Act establishes the National Environment Protection Agency. Its core functions are to undertake compliance and enforcement activities, including undertaking audits, issuing environment protection orders (EPOs) and monitoring and auditing the operation of bilateral agreements and bioregional plans. 

In response to concerns from the business community, amendments were passed to limit the duration of EPOs to a maximum of 14 days (which the CEO of NEPA can only extend by an additional 14 further days). The Minister for Environment and Water (Minister) may delegate any functions (including the power to assess and approve projects), other than those specified in section 515(1A), to the CEO of NEPA.

The CEO of NEPA’s enforcement powers are set out by way of amendments to Part 17 (Enforcement) of the EPBC Act, including powers relating to environment protection orders under a new Division 13A.

Head of Environment Information Australia (HEIA)

Relevant legislation: EIA Act

The EIA Act establishes the Head of Environment Information Australia, an independent leadership position responsible for improving the national availability and accessibility of high-quality environmental data and information. 

The HEIA will also be responsible for producing State of Environment reports every two years, establishing environmental economic accounts and declaring national environmental information assets (such as a public environment data portal). The first report must be prepared no later than 15 December 2028 (schedule 3, part 2, section 4).

National Environmental Standards (NES)

Relevant legislation: EPBC Act, Part 19B Draft NES

The Minister has new powers to make National Environmental Standards in the form of legislative instruments. 

The NES are subject to ‘no regression principles’ under section 514YG, which prevent future variations or revocations to NES weakening environmental protections. To date, two draft NES have been released for public consultation: 

• Matters of National Environmental Significance; and 
   
• Offsets.

The NES need to be taken into account in exercising several functions under the EPBC Act, including at the approval stage of a controlled action under section 136B (discussed below). Further details on NES are outlined below.

Assessment pathways for controlled actions

Relevant legislation: EPBC Act, Part 8, Division 5A and amendments to section 87

A new 30-day ‘streamlined assessment’ pathway is introduced, replacing the following assessment methods for controlled actions: assessment on referral documentation and a public environment report.

‘Fossil fuel actions’ (that involve producing or extracting petroleum or coal) are expressly excluded from streamlined assessment under section 87(5A). 

All assessment pathways for a controlled action now require a proponent to disclose estimates for scope 1 and 2 greenhouse gas emissions under section 33 and Chapter 4, Divisions 4, 5A, 6 and 7. Further details are outlined below.

Approval tests

Relevant legislation: EPBC Act, Part 9, sections 136A, 136B and 136C

The Minister must not approve an action unless satisfied that:

• Section 136A – the approval is consistent with any prescribed NES;

• Section 136B – the action will not have unacceptable impacts on a protected matter, as defined in section 527F; and

• Section 136C – the approval passes the net gain test in section 527K.

The Minister may approve an action that does not meet these tests if the action is a national interest proposal as determined by the Minister under Division 2A of Part 11 or where a national interest exemption applies under Division 3 of Part 11. Fossil fuel actions are expressly excluded from being national interest proposals (section 157A).

The exemption for Regional Forest Agreements will be phased out and will no longer be exempt from application of the EPBC Act. Therefore, it must meet these tests. Further details are outlined below.

Unacceptable impacts

Relevant legislation: EPBC Act, section 527F

A new definition of ‘unacceptable impacts’ is introduced that is specific to each matter protected by Part 3. For example, an unacceptable impact is a significant impact that seriously impairs the viability of a listed threatened species. 

New definitions of ‘seriously impairs’ and ‘viability’ are also introduced in section 528. A significant impact of an action ‘seriously impairs’ something if, compared to the action not being taken, the impact results in an impairment or alteration of the thing that is of a severe nature or extent.

The Minister is required to consider whether an action will have an ‘unacceptable impact’ in the exercise of several functions under the EPBC Act, notably at the referral stage, under existing section 74B, and at the approval stage under section 136B. Further details are outlined below.

Lapsing of not controlled action decisions

Relevant legislation: EPBC Act, Part 7, Division 4

New section 79F of the EPBC Act provides that a decision that an action is not a controlled action (NCA) or not a controlled action if taken in a particular manner (NCA-PM) will lapse after five years if the action has not substantially commenced before that time. This does not apply to actions which have already secured such decisions before the Reform Act commences. New section 79G, introduced via the latest round of amendments, allows proponents to request the Minister to extend the lapsing date for up to 10 years from the original decision.

Regional planning

Relevant legislation: EPBC Act, Part 12A

Bioregional plans may now be created in conjunction with State and Territory governments. The plans will map ‘development zones’ in which certain registered ‘priority actions’ will not need to be referred or approved under Part 9, and ‘conservation zones’ in which listed ‘restricted actions’ will be prohibited unless they benefit from a Ministerial exemption. Further details are outlined below.

Transitional provisions

Relevant legislation: EPBC Reform Act, Schedule 1, Part 3

A general rule will apply where actions that have been referred before the Reform Act commences (regardless of whether they are assessed or approved before that time) will not be subject to the new NES, unacceptable impacts, net gain compensation, or greenhouse gas disclosure requirements (Reform Act, sections 688 and 690). 

Actions which have had a decision on assessment approach will not be impacted by the replacement of the referral documentation and public environment report assessment pathways with the streamlined assessment pathway (Reform Act, section 683). 

New referrals will be dealt with under the new requirements.

New sections 79F and 79G regarding NCA and NCA-PM decisions lapsing will apply to all actions which have not yet been subject to a NCA or NCA-PM decision (regardless of whether the action was referred prior to the Reform Act commencing) (Reform Act, section 682). 

Generally, the amendments made to Part 5 of the EPBC Act in relation to bilateral agreements apply to bilateral agreements entered into or varied after the commencement of the Reform Act (Reform Act, section 677(1)).

Penalties 

Relevant legislation: EPBC Act, Part 17, Division 15

The EPBC Act now imposes significantly higher penalties for both individuals and corporations. 

Section 481A establishes a new civil penalty calculation method. The maximum penalty for corporations will be the higher of:

• 50,000 penalty units ($16.5m);
   
• three times the total value of benefits derived or detriments avoided from the contravention; or 
   
• 10% of annual turnover with a maximum of 2.5m penalty units ($825m). 

The maximum penalty for individuals will be the higher of:

• 50,000 penalty units ($1.65m); or 
   
• three times the value of benefits or detriments avoided derived from the contravention.
   

A new 30-day ‘streamlined assessment’ pathway in Division 5A of Part 8 and amendments to section 87 of the EPBC Act replaces the following assessment methods for controlled actions: assessment on referral information and a public environment report. This pathway involves the CEO of NEPA or Secretary of the Department of Climate Change, Energy, the Environment and Water (DCCEEW) preparing a report recommending whether the action should be approved, and if so, the conditions of approval. Following negotiations with the Greens, the government determined that ‘fossil fuel actions’ (that involve the production or extraction of petroleum or coal) are excluded from this assessment pathway.

The Minister may only decide to proceed with the streamlined assessment method for an action if satisfied that the approach will allow the Minister to make an informed decision on whether to approve the action. Accordingly, the Minister will need to have all necessary information to decide whether to approve it. This incentivises proponents to provide as much information upfront during the referral stage if seeking the benefits of a quicker streamlined assessment. 

After deciding that an action must be assessed by streamlined assessment, the Minister has 30 business days to decide whether to approve the action. Within this 30 day period, the CEO of NEPA or Secretary of DCCEEW must prepare a report to the Minister recommending whether the action should be approved and any conditions of approval. However, requests for further information from the proponent may still ‘stop the clock’ during this period.

All assessment pathways (now comprising accredited assessment, assessment on preliminary documentation, streamlined assessment, environmental impact statement and public inquiry), require proponents to also provide information about their scope 1 and scope 2 greenhouse gas (GHG) emissions data, either by disclosing a reasonable estimate of emissions, or stating that their emissions are below a prescribed amount. This information will be publicised on the DCCEEW’s website – whether as part of the action’s referral material, or separately. 

New approval tests 

Consistency with draft NES 

The Minister must not approve an action unless satisfied that, taking into account the conditions to be imposed, the approval is consistent with the new national environmental standards (as applicable) (discussed further below). Amendments were introduced to reverse the test so that the Minister must now be satisfied that an approval is ‘consistent’ rather than ‘not inconsistent’, increasing the standard of the test. 

Unacceptable impacts 

The Minister must not approve an action unless satisfied that, taking into account the conditions to be imposed, the action will not have unacceptable impacts on protected matters.  The Reform Act defines what was previously a discretionary consideration, as to what are ‘unacceptable impacts’.  

To respond to concerns from the business community, amendments were introduced in the last round of Bill amendments to clarify the new unacceptable impacts test by removing the reference to ‘likelihood’. In other words, the test no longer considers whether an action is likely to have unacceptable impacts.

The meaning of unacceptable impacts is specific to each particular matter of national environmental significance (MNES) (new section 527F). It includes, for example, a significant impact that seriously impairs the viability of a listed threatened species. The definition of ‘seriously impair’ has also been amended. A significant impact of an action now ‘seriously impairs’ something if, compared to the action not being taken, the impact results in an impairment or alteration of the thing that is of a severe nature or extent. This creates a higher standard (and thus will capture less impacts) than the previously proposed definition, which was where the impact results in the thing being seriously altered for the worse, having regard to the nature, intensity, duration, magnitude, geographic extent and context of the impact. 

Part 7, Division 1A of the EPBC Act already empowers the Minister to decide to refuse an action at the referral stage based on the action having clearly unacceptable impacts. 

Residual significant impact – net gain test 

The Minister must not approve an action that will have or is likely to have a residual significant impact on a MNES unless the Minister is satisfied that, taking into account any conditions to be attached to the approval, the approval passes the net gain test.

New section 527J of the EPBC Act defines ‘residual significant impact’ as a significant impact which cannot be avoided, mitigated or repaired in the course of taking the action or complying with any approval conditions. 

The net gain test is defined in new section 527K of the EPBC Act. An approval will pass the net gain test if: 

• the approval conditions the holder to either compensate for damage to the matter that has been caused by the residual significant impact or pay a restoration contribution charge; and 

• compliance with the condition(s) results in a net gain for the matter that is at least equivalent to the prescribed net gain for that matter, or that the Minister is satisfied is appropriate. 

A draft NES has been released on the topic of offsets which provides a framework for determining the conditions, including to manage residual significant impacts and pass the net gain test (Draft Offsets Standard). Further information about the Draft Offsets Standard is provided below. 

The Restoration Charge Imposition Act provides for the imposing of restoration contribution charges on relevant approvals; however, it does not set out the amounts of the charges. Regulations (not yet released) will set out the charge amounts either by prescribing a flat rate or a method to calculate the amount of the charge. 

National interest exemption 

Pre-reform, the EPBC Act already allowed the Minister to declare that specific actions are exempt from requirements such as assessment or approval if the action is in the national interest (see section 158).

The Reform Act extends the scope of the national interest exemption. The Minister may now: 

• approve actions that do not meet the new approval criteria regarding inconsistency with NES, unacceptable impacts and the net gain test for actions with residual significant impacts;

• require conditions to be attached to an action covered by a national interest exemption and providing for a set period for which such an exemption is granted; and 

• grant national interest exemptions on its own initiative as well as on application. The aim of this is to allow for quicker responses to national emergencies such as bushfires. 

Following concessions, the national interest exemption will not apply to ‘fossil fuel actions’, being actions involving the production or extraction of petroleum or coal. 

• the Minister must not accredit a framework without being satisfied that it provides for appropriate disclosure of greenhouse gas emissions information (section 46(3)(j)). 

• the Minister may exclude an action from a bilateral agreement (essentially, having a ‘call-in’ power for actions); and 

• approval processes for coal seam gas and large coal mining projects that will or are likely to have a significant impact on water resources (known as the ‘water trigger’) will remain with the Commonwealth (sections 29 and 46(1)). 

There is a general rule that the amendments made to Part 5 of the EPBC Act in relation to bilateral agreements only apply to bilateral agreements entered into or varied after the commencement of the Reform Act (Reform Act, section 677(1)). 

Under the new Part 19B, the Minister has the power to create NES by legislative instrument. Before making an NES, the Minister must be satisfied that the standard will promote the objects of the EPBC Act and align with Australia’s obligations under international agreements specified in the EPBC Act.

DCCEEW has released two draft NES for public consultation until 5pm AEDT on 30 January 2026. 

Draft Matters of National Environmental Significance Standard (MNES Standard)

The MNES Standard Policy Position and Legislative Instrument were released for consultation on 5 November 2025. If legislated, the Minister must be satisfied that for actions under Part 9, any decision on whether to approve an action and the conditions to attach to an approval are consistent with the MNES Standard. Principles that apply to the Minister’s decision under the MNES Standards are: 

• Actions appropriately consider the application of the mitigation hierarchy: a four-step hierarchy to limit the adverse impact of a development on protected matters, being avoidance, mitigation, repair and offsets, in that order;
   
• Actions appropriately consider impacts to protected matters: including direct and indirect impacts to matters of national significance, ‘landscape scale’ impacts and the ‘broader context’ of past, present and reasonably foreseeable events, circumstances or threats affecting a protected matter;
   
• Actions with residual significant impacts to protected matters are compensated: a last resort in the mitigation hierarchy, with requirements further expanded on by the Offsets Standard (see below); and
   
• Actions are supported by evidence.

Draft Environmental Offsets Standard (Offsets Standard)

The Offsets Standard Policy Position and Legislative Instrument were released for consultation on 10 November 2025. The Offsets Standard is intended to be used in determining what conditions to impose on an approval under Part 9 of the EPBC Act where there is a residual significant impact to protected matters. 

The Offsets Standard can only be considered by the Minister where the impact to a protected matter is not unacceptable and can be compensated for under the EPBC Act. In this case, the following eight principles would be applied collectively to the Minister’s decision: 

• Feasibility: the delivery of offset activities should be feasible and based on appropriate and suitable data and information that show the activity will likely contribute to recovery or conservation;
   
• Security: offset activities are securely protected and the site of the offset activity is managed to prevent its loss and degradation (such as by legal mechanisms like covenants on land titles);
   
• Direct and tangible: offset activities should provide a direct, tangible and quantifiable benefit by contribution to the overall recovery and conservation of the affected protected matter; 
   
• Measurable improvements: offset activities should deliver measurable improvements relative to a baseline;
   
• Additionality: offset activities should deliver benefits that are additional to any existing conversation activities, investment and regulatory obligations;
   
• Like-for-like: offset activities should provide a like-for-like outcome for the affected protected matter (meaning the offset replaces, restores or protects the same kind of environmental feature or habitat that was impacted);
   
• Relevant area: offset activities should be delivered in an area that is ecologically relevant to the affected protected matter and will enhance the effectiveness of conservation and recovery efforts; and
   
• Offsets commenced prior to impact: offsets should be secured and should commence at the offset site prior to the relevant impact starting at the impact site.

Further draft NES

A draft First Nations Standard is set to be released separately, relating to specific engagement with First Nations people. Minister Murray Watt indicated in Parliament that this standard may be released by the end of the year, or in early 2026. He also stated that he expects to create each of the NES recommended by the Samuel Review, with a Community Consultation Standard and Data and Information Standard currently being drafted.

The EPBC Act contains two regional planning mechanisms that facilitate consideration of cumulative impacts at a landscape scale: bioregional plans and strategic assessment. Following the 2021 Samuel Review’s recommendations, the reforms expand the scope for making bioregional plans and enable environmental management at a landscape scale. 

Most of the existing provisions pertaining to bioregional plans have been repealed, and a new Part 12A has been introduced. Section 177AA now allows the Minister to make bioregional plans that apply not only to a Commonwealth area (as was historically the case), but also to a State or Territory area. The plans will apply from the date they commence until they are revoked (new section 177AC), must be consistent with any applicable NES, and will map:

• Development Zones, or ‘go zones’ in which priority actions that are registered with the Minister can be undertaken without referral or approval under Part 9, and

• Conservation Zones, or ‘no go zones’ in which restricted actions will be prohibited unless proponents have obtained an exemption.

Priority actions in development zones

The bioregional plans will specify, for each development zone, a ‘priority class of actions’ that may have a significant impact on a MNES but will not require approval under Part 9 of the EPBC Act (new sections 37 and 177AC). Bioregional plans may attach conditions to undertaking a priority action in a development zone (new section 177AG). Fossil fuel actions (that involve the production or extraction of petroleum or coal) cannot be a priority class of actions. 

Proponents seeking to take a priority action in a development zone must have their priority action registered by the Minister before undertaking it to avoid committing an offence (new sections 177BN and 177CB). They will not be required to make a referral or seek further approval under the EPBC Act. Proponents must, however, take the priority action in accordance with any relevant conditions imposed by the bioregional plan (new sections 37 and 177BB).

A bioregional plan must specify restoration measures for the region that the Minister is satisfied are necessary or convenient to mitigate, repair or compensate for the impact priority actions cause to protected matters (new section 177AH). This could include a measure requiring the payment of a specified amount (a ‘bioregional plan restoration contribution‘). The new Part 12B establishes a Restoration Contributions Holder, a DCCEEW employee that will be charged with delivering restoration actions and investing funds on behalf of the Commonwealth.

Restricted actions in conservation zones 

Conservation zones would prohibit restricted actions, creating ‘no-go’ zones of environmental protection unless the proponent obtains an exemption from the Minister (new section 177AK). To grant an exemption, the Minister must be satisfied that exceptional circumstances exist, or that the national interest exemption applies (see new section 177BV). No exemptions can be granted for ‘fossil fuel actions’. 

Changes have also been made to the provisions regulating how land clearing has historically been dealt with under the EPBC Act, specifically: 

• The Regional Forest Agreements (RFAs) exemption will be phased out: RFAs have historically been exempt from the application of Part 3 of the EPBC Act, under section 38. Following negotiations between the government and the Greens, the Reform Act was amended to remove the exemption for high-risk land clearing and RFAs with a sunset period of 12 months beginning on 1 July 2026; and

• The ‘continuous use’ exception is removed the day after the Reform Act receives Assent for land clearing located within 50 metres of a watercourse, wetland or drainage lines in a catchment area of the Great Barrier Reef Marine Park, and for land that has not been cleared for 15 years (provided the action is not a forestry operation).
   

The recent reforms to the EPBC Act represent a comprehensive overhaul of Australia’s environmental regulatory framework, introducing new agencies, higher standards, and more robust mechanisms for assessment, approval, and enforcement. These changes are set to have far-reaching implications for proponents, regulators, and the broader community, particularly in relation to project approvals, environmental offsets, and the management of MNES. As the new regime comes into effect, it is essential for all stakeholders to familiarise themselves with the amended requirements, monitor the development of NES, and actively participate in ongoing consultations. Now is the time for organisations to review their current and proposed activities and assess compliance with the new provisions.