Introduction

This long-awaited next stage in the reforms has now passed, with a package of seven Acts now enacted, implementing the second and final stage of the response to the ‘Final Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999’ (Samuel Review).

The reform package includes: 

• the Environment Protection Reform Act 2025 (Reform Act), which amends the EPBC Act and 11 other Acts to implement the bulk of the reforms;
   
• the National Environmental Protection Agency Act 2025 (NEPA Act), which establishes the new National Environmental Protection Agency (NEPA);
   
• the Environment Information Australia Act 2025 (EIA Act), which establishes the position of Head of Environment Information Australia and sets out the Head’s functions;
   
• the Environment Protection and Biodiversity Conservation (Restoration Charge Imposition) Act2025 (Restoration Charge Imposition Act), which establishes a framework to enable the imposition of restoration charges in lieu of a proponent establishing environmental offsets; and
   
• three additional Acts which provide for regulations to prescribe general charges, customs charges and excise charges as necessary for cost recovery purposes.

This article provides a broad overview of some of the key reforms, with detailed commentary on these topics to be shared in the coming weeks as the reforms take effect.

Assessment and approval pathways 

The assessment pathway remains a two-step process, with the first step being to determine if the action is a 'controlled action' and, if so, the second step is to identify what assessment pathway the controlled action will be subject to. The Minister for Environment and Water (Minister) may choose between: 

• an accredited assessment process (bilateral agreement with a State);
• a new 'streamlined assessment' pathway under proposed Division 5A (replacing the existing ‘assessment on referral information’, ‘assessment on preliminary documentation’ and ‘public environment report’ assessment pathways);
• an environmental impact statement; or
• a public inquiry.

The Minister may only decide on an assessment by the new streamlined pathway if the Minister is satisfied that:

• the approach will allow the Minister to make an informed decision whether or not to approve the controlled action; and
• the greenhouse gas emissions (GHG) information for the action has been provided (this is discussed later in this article).

Changes to Bilateral Agreements 

The EPBC Act currently enables the Commonwealth Minister to enter into bilateral agreements with a State or Territory under which, either environmental assessment processes (s 47) or approval processes (s 46) may be accredited.  An action that is assessed under an accredited assessment process or approved under an accredited approval process does not need to be assessed or approved (respectively) under the EPBC Act.  Presently, each State and Territory has entered into an assessment bilateral agreement but there are no bilateral agreements in force that accredit approval processes.

The reforms introduce changes to the way assessment and approval processes are accredited under bilateral agreements and the way in which bilateral agreements operate.

Notably: 

• to achieve accreditation, the assessment or approval process, and the assessment or approval of an action under that process, must be consistent with the applicable national environmental standards (NES) (discussed below);
• to achieve accreditation of an approval bilateral agreement, the Commonwealth Minister must be satisfied that the approval of an action under the accredited approval process would only occur if it would pass the ‘net gain test’ (discussed below), assuming that test applied;
• before accrediting a process the Commonwealth Minister must seek and have regard to advice from NEPA’s CEO; and
• if the State or Territory law that sets out the accredited assessment or approval process is amended, the Commonwealth Minister is afforded greater flexibility in determining to continue the accreditation without affecting the existing bilateral agreement. 

Bilateral agreements currently require provisions for auditing, monitoring and reporting on the operation and effectiveness of all or part of the agreement, and to recognise the Auditor-General’s audit powers under the Auditor-General Act 1997. The reforms maintain these requirements but also empower NEPA’s CEO to undertake assurance reviews and obtain information regarding the administration of bilateral agreements to maintain compliance and public confidence. 

National Environmental Standards 

The implementation of NES was central to the Samuel Review. The NES will be legislative instruments made by the Minister which must be applied when making decisions under the EPBC Act. 

Before making a NES, the Minister must be satisfied that it promotes the objects of the EPBC Act and is not inconsistent with any relevant international agreements. The NES are also subject to a ‘no regression’ principle. This means the Minister must be satisfied that any variation or revocation of the NES do not reduce: 

• environmental protections;
• consultation rights;
• access to environmental data or information; or
• the likelihood that outcomes or objectives specified in the standard are achieved.

This principle will not apply to a variation or revocation to any NES within the first 18 months of its commencement. This means it will not apply to the first review of the NES which is required to occur within that first 18 month period.

Draft NES for matters of national environmental significance (MNES) and environmental offsets have been released for public consultation. Consultation closes on 30 January 2026.

Unacceptable impacts

A number of EPBC Act provisions refer to the concept of ‘unacceptable impacts’.  For example, the Commonwealth Minister is able to reject a referral where the Minister considers the proposed action would have ‘unacceptable impacts’ on MNES, and cannot accredit an approval process under a bilateral agreement if the Minister considers that actions approved under that process may have unacceptable impacts on MNES.  This concept has been reinforced through the reforms with added clarity through the introduction of a definition for that term.  

The new definition in s 527F sets out 37 impacts which are ‘unacceptable impacts’. We observe that they are generally those impacts which will or are likely to ‘seriously impair the viability’ of the relevant protected matter. ‘Seriously impair’ is then defined to mean ‘seriously altered for the worse’ having regard to the nature, intensity, duration, magnitude and geographic extent and context of the impact. 

New approval tests

The Reform Act introduces new tests for controlled action approvals. They stipulate that the Minister can only approve a controlled action if the Minister is satisfied that: 

• it is consistent (originally introduced as ‘not inconsistent’) with the relevant NES;
• it will not have an unacceptable impact on MNES (this already applied at the referral stage, but is more explicitly extended to the approval stage); and
• any ‘residual significant impacts’ of the proposal pass the ‘net gain test’.

Importantly, the ‘net gain’ test implements a key recommendation of the Samuel review to move away from the concept of ‘no net loss’ under the previous regime. Proponents will be able to pass the ‘net gain’ test by either delivering their own land-based offsets for residual significant impacts or by making an upfront payment into the government’s restoration fund, which would be allocated toward conservation and regeneration initiatives. The Minister is able to make restoration contribution charges unavailable where a listed species is in danger of extinction. 

The new approval test is modified for an action that is a ‘national interest proposal’. Amendments have also been made to the ‘national interest exemption’ provisions.

The NEPA, compliance, enforcement and penalties 

There are two new compliance and enforcement options, together with new compliance audits and environmental protection orders. Penalties for breaches have been significantly increased. NEPA’s CEO is responsible for compliance and enforcement and has broad powers to require a compliance audit or issue an environment protection order. 

These reforms are consistent with the Samuel Review, which was critical of the current compliance and enforcement regime, and recommended that penalties be increased to a sufficient level so as to be an active deterrent rather than a ‘cost of doing business’. 

GHG emission information 

A ‘climate trigger’ to require the assessment of emissions-intensive activities under the EPBC Act has not been included in the reform package. 

However, mandatory requirements for providing information relating to GHG emissions have been included. This requires a proponent to provide information on scope 1 (direct) and scope 2 (indirect) emissions. Companies do not need to provide information regarding scope 3 emissions, which are downstream and upstream supply chain emissions that a company produces (this includes downstream emissions such as emissions produced by fossil fuels that have been exported by a company). 

Bioregional plans 

The bioregional planning process is also being reformed with the intention being that bioregional plans identify and designate development and conservation zones. The development zones will include identification of ‘priority actions’ which may be undertaken in development zones without controlled action approval. Conservation zones will include identification of ‘restricted actions’ which must not be undertaken in conservation zones unless in the national interest. Priority actions will not be prohibited in conservation zones but will not be exempt like in the development zones. 

Ministerial 'Rulings' 

Part 19C introduces the concept of ‘rulings’ under which the Minister (or the CEO of NEPA in relation to the CEO’s powers), can set out circumstances or factors that in the Minister’s opinion are relevant to the exercise of a particular decision in applying the EPBC Act and other subordinate legislation (including the NES). Once made, the relevant decision-maker must not act inconsistently with the ruling, unless the decision-maker considers it would be inappropriate to follow the ruling having regard to the particular circumstances. 

Transitional provisions 

The Reform Act contains detailed transitional provisions, which we will address in later articles. For example, the new streamlined assessment approach could apply (in the Minister’s discretion) if: 

• an action has been referred before or after the commencement of the Reform Act; and
• an assessment approach has not yet been selected, but the new requirements to include GHG information will only apply to actions referred on or after the commencement day.    

Additional amendments

On 27 November 2025, Parliament passed all seven Bills in the reform package, following a deal between the Government that resulted in several additional amendments, including: 

• Regional Forestry Exemption Removed – The exemption for native forestry operations covered by Regional Forestry Agreements will be phased out by 1 July 2027. This means such forestry operations will no longer be exempt and must comply with the EBPC Act and be consistent with the NES.
• Fossil Fuel Actions – the amendments have clarified that fossil fuel actions (coal and gas projects) cannot access the new streamlined assessment pathway, or be declared a ‘national interest proposal’. These projects will be subject to the full suite of decision-making criteria, including consistency with the NES.
• Ministerial Discretion Tightened – The legal test for approvals has been strengthened. While the original reforms required the Minister to be satisfied that a decision is ‘not inconsistent with’ the NES, this has now been amended to require the Minister be satisfied that decisions are ‘consistent with’ the standards.

Next steps 

The reform package is intended to strengthen the protection and restoration of Australia’s environment, while simultaneously providing a clearer, more consistent and faster assessment process for controlled action proposals.  

Attention will now turn to implementation, including finalising and publishing the NES and establishing the NEPA as an independent regulator.