EPBC Reform
What the fine print on Australia's environment laws means for nature
Australia has new national environment laws. But what do they mean for nature?
Australia’s new environment laws are now in place – but some of the most important details about how they will work are still taking shape.
What do the new National Environmental Standards actually require? Can irreplaceable habitat still be offset? What powers does the new National EPA have? And what could bilateral agreements mean for decisions currently made by the federal government?
We unpack these questions and more below.
If you're concerned about the answers to these questions, you can send Environment Minister Murray Watt a quick email and encourage him to make sure these key implementation decisions actually protect nature.
You can also watch our recent webinar with legal experts from Environmental Justice Australia and Environmental Defenders Office.
Where are we at with implementing Australia's new nature laws?
Australia’s national environment laws are supposed to provide a safety net for the things Australia has decided matter nationally – like threatened species and their habitat, World Heritage places, internationally important wetlands and migratory species.
After many years of review and campaigning, stops and starts, the reformed Environment Protection and Biodiversity Conservation Act, or EPBC Act, passed last year.
But how this important law works in practice is still taking shape.
So where are things at?
The Albanese Government has now finalised four National Environmental Standards – rules that are meant to set a national benchmark for decisions affecting nationally significant environmental matters. But our assessment is that the new Standards fall short in some important ways. They leave considerable discretion to decision-makers and don’t provide the strong, enforceable environmental outcomes we had hoped to see.
The new National Environmental Protection Agency is now operating, new regulations are being developed, and important decisions are still to come on offsets, bilateral agreements with states and territories, and First Nations engagement and participation.
These are consequential decisions that will make or break Australia's nature laws – and the fine print really matters.
Here are answers to some of the key questions.
National Environmental Standards
What are Standards again?
National Environmental Standards are new rules designed to guide decisions under Australia’s national environment law.
Until now, there has been no clear legal line that says “this is too damaging – it cannot go ahead,” and no strong, enforceable standards for decisions. Too often, the law has permitted destruction instead of preventing it.
The reformed EPBC Act gives the Environment Minister new powers to make national environmental standards – and four Standards have now been made, covering:
- The Standard for Matters of National Environmental Significance – a baseline for protecting nationally significant species, places, heritage and ecosystems under national law
- Environmental offsets – how environmental damage is restored or compensated for
- Community engagement – expectations for involving communities
- Environmental data and information – how environmental information is collected and used
The Albanese Government has also committed to a First Nations Engagement and Participation Standard, which is still being developed.
These Standards matter because they are supposed to address one of the fundamental problems with the old EPBC Act: too much discretion and too little focus on actually achieving outcomes for nature.
Professor Graeme Samuel’s independent review recommended legally enforceable Standards that would set clear boundaries for environmental decisions.
Making the Standards is an important step. But our assessment is that the final Standards still leave too much discretion and don't provide the strong, enforceable environmental guardrails nature needs.
These four Standards have been made, but they don’t automatically apply to every decision under the EPBC Act.
Regulations will specify which Standards apply to which kinds of decisions.
The Standards already apply in some parts of the new system, including in accrediting assessment or decision frameworks of state and territory governments under bilateral agreements.
By the end of 2026, the four Standards are also intended to apply to key decisions about project assessments and approvals, strategic assessments and bioregional plans.
So if you're making a submission now, don't assume that a particular Standard legally applies to the decision. Check which rules currently apply to that particular process.
The Samuel Review recommended a suite of nine Standards. In addition to the Standards already adopted by the government, Professor Samuel also recommended Standards covering topics such as compliance and enforcement, transparent processes and robust decisions, environmental monitoring and evaluation of outcomes, and wildlife permits and trade.
The EPBC Act does not specify that particular Standards must be made – in fact it is entirely at the Minister’s discretion as to whether Standards are made at all.
At this stage, the government has only committed to making five Standards – the four that have been made plus the First Nations Engagement and Participation Standard.
However, it is open to the government to make further Standards in the future.
The new system contains some additional safeguards. But there are important weaknesses in how the Standards have been drafted.
One of our key concerns is that the Standards do not clearly require decision-makers to actually achieve the stated environmental objectives and outcomes. Instead, decision-makers are only required to “have regard to” them in relevant decisions.
For example, the Standard for matters of national environmental significance includes principles requiring decision-makers to apply the mitigation hierarchy.
In simple terms, that means environmental harm should first be avoided, then minimised and repaired, before compensation for remaining impacts is considered.
But it is less clear that the mitigation hierarchy must be applied in a way that leads to the protection and recovery of nature as the final outcome.
Small words can make a big difference in law.
National Environmental Standards were supposed to create clear environmental guardrails. We’re concerned the final Standards still leave too much discretion about what environmental outcomes must actually be delivered.
This is an important issue because the decline of a species or ecosystem is rarely caused by one project alone. A threatened animal might face habitat clearing from one development, another development down the road, invasive species and climate change all at once.
The new Standard for Matters of National Environmental Significance includes a principle requiring the context of an impact to be considered.
That may allow a decision-maker to look beyond the footprint of one proposed project and consider the wider condition of a threatened species, ecosystem or protected place, including other pressures it is already facing.
EJA and EDO advocated for an explicit requirement to consider cumulative impacts – the combined effect of multiple projects and pressures over time. The final Standard does not use those words.
So an important test of the new system will be how broadly the requirement to consider “context” is interpreted and applied in real decisions.
Offsets
What are offsets?
Australia’s new environment laws create a new offsets scheme that allows projects that significantly damage nationally protected nature to use environmental offsets to compensate for that harm.
The reforms give the Minister the power to declare species or ecological communities that cannot be offset. However, these non-offsetable matters have not yet been identified.
Some environmental values are too important, or irreplaceable, to be traded away.
The new system also allows “restoration contributions” that would allow projects to be approved even when genuine offsets are not available. Instead of restoring or protecting equivalent habitat, companies could pay these “restoration contributions” into an offsets fund.
One particular issue is that, at the moment, the government agency responsible for spending the money (the restoration contribution holder) is not bound by the principles in the Offsets Standard. The principles won’t be off much use if money doesn’t need to be spent in line with them.
That creates a serious risk if there are not clear limits on when payments can be used.
In NSW, a similar fund has been criticised for collecting money that cannot be spent because no suitable replacement habitat exists. Without strong safeguards, this could function as a pay-to-destroy scheme.
Sometimes, you can’t.
Some species, habitats, rivers and ecosystems simply can't be recreated somewhere else. And even where restoration is possible, it may take decades – far longer than the affected species or ecosystem can afford.
The new system requires proponents to apply the mitigation hierarchy: first avoid harm, then minimise and repair it, before considering compensation for remaining impacts as a last resort.
There are also mechanisms that could restrict when offsets can be used. For example, protection statements for particular threatened species or ecological communities could limit when a financial restoration contribution is an appropriate response to damage. Regulations could also specify that offsets cannot be used for certain matters.
These important details are still being developed.
One critical question is where the line will be drawn between environmental damage that can genuinely be compensated for and damage that should simply not be allowed.
Instead of finding and delivering their own environmental offset, proponents may in some circumstances be able to pay money into a fund towards environmental restoration.
That's known as a restoration contribution.
However there are concerns around whether a payment actually compensates for the environmental damage caused.
EJA and EDO are advocating for strong rules about when restoration contributions can be used, what the money can be spent on and how closely restoration must relate to the species, habitat or other protected matter that was damaged.
It’s also important that, in practice, the price of the offset is sufficiently high to adequately compensate for impact.
Without strong guardrails, there is a risk that paying into a fund becomes easier than actually compensating for environmental harm.
This is where monitoring, transparency and enforcement become crucial.
Project approvals can include legally enforceable conditions, and the National EPA now has significant compliance and enforcement functions under the EPBC Act.
Communities and environment groups also retain existing third-party civil enforcement rights.
But what can be done about a particular failed offset will depend on what the approval required, whether those requirements have been breached and which enforcement provisions apply.
That makes public access to information important.
Communities need to be able to find out what was promised, what has actually happened on the ground and whether approval conditions are being met.
The National Environmental Protection Agency
What is the National EPA?
The new EPBC Act creates a National Environment Protection Agency (NEPA) to oversee compliance and enforcement.
NEPA has the power to:
- issue environment protection orders
- enforce penalties for environmental breaches
- conduct environmental assessments and audits to ensure compliance
NEPA can also make project approval decisions, but only as a delegate of the Environment Minister – not as an independent decision-maker with its own authority. The Minister retains ultimate responsibility for project approval decisions.
NEPA is led by a CEO with relevant experience, but it does not report to a board and operates under the direction of the Environment Minister.
The reforms also established a Head of Environment Information Australia to lead improvements to environmental data and State of the Environment reporting.
The reforms for NEPA and Environment Information Australia commenced on 1 July 2026.
It has important new powers, but the real test will be how those powers are used.
The National Environmental Protection Agency began operating on 1 July 2026 and now holds many of the Commonwealth’s compliance and enforcement functions under the EPBC Act.
The reforms also introduced higher penalties, new Environmental Protection Orders and expanded audit powers.
The Environment Minister has also delegated various assessment and approval functions to the NEPA.
These changes have the potential to strengthen environmental regulation.
But establishing a new regulator is only the beginning. Its effectiveness will depend on how the NEPA exercises its powers and carries out its functions in practice, and on its independence, capability, resources and willingness to enforce the law.
It’s worth noting that on 3 September 2026, the newly formed NEPA approved its first coal project, the extension of the Saraji mine, allowing a Queensland open-cut mine to keep digging until 2055 while clearing threatened woodland and koala habitat.
Not simply because it disagrees with a state decision under state laws.
The NEPA’s powers come from Commonwealth environment law. Whether it can act in relation to a particular project will depend on whether the EPBC Act applies and the particular legal arrangements in place.
That distinction becomes especially important as the Commonwealth considers new bilateral agreements with states and territories.
The National EPA won’t be able to consider whether project assessment was appropriately undertaken by the federal government prior to coming into effect off its own initiative.
However the EPBC Act has been amended to give the new National EPA direct compliance and enforcement powers.
That means that where there are potential breaches of project approvals, even when those approvals were issued before the National EPA commenced, the National EPA is responsible for investigating those breaches and taking appropriate enforcement action.
Bilateral agreements
What are bilateral agreements – and why are people concerned about them?
Bilateral agreements are agreements between the federal government and a state or territory that can allow federal environmental assessment or approval functions to be carried out by states or territories.
Assessment bilateral agreements have existed for many years. But there has not previously been an approval bilateral agreement handing over federal approval functions.
There are concerns whether nationally important environmental matters will receive the strong, consistent protection they need if federal functions are handed to state or territory systems. This approach risks exposing decisions to political pressure and weaker protections.
The new National Environmental Standards were intended to provide safeguards around bilateral agreements.
But if the Standards themselves are weak, there is a serious question about whether they provide strong enough national guardrails for devolving federal environmental functions for nationally significant environmental matters.
This will be an important early test of the new laws.
One of the significant changes secured through the reforms is that, from 1 July 2027, forestry operations covered by Regional Forest Agreements will no longer have their longstanding exemption from key parts of the EPBC Act.
But governments are now considering what regulatory arrangements will apply after that exemption ends. In addition to bilateral agreements, we understand governments are considering strategic assessments or bioregional plans to assess and approve logging.
In Tasmania, for example, a bilateral agreement could potentially allow the federal government to hand over environmental assessment and approval decisions around logging plans that impact nationally significant environmental matters like threatened species.
How those arrangements are designed will help determine whether ending the RFA exemption delivers stronger protection for nationally important forests and wildlife in practice.
The National Environmental Standards apply to the decision to accredit state or territory frameworks. Before accrediting a state or territory framework, the Minister must be satisfied that the framework and decisions under it will be consistent with the prescribed Standards.
An accredited framework should deliver the objects and outcomes of the Standards – so the state might not have to apply the Standards to its own individual decisions, but must make decisions in accordance with a framework that is consistent with the Standards.
Assessment and approval agreements also need to contain a mandatory undertaking that an approval or assessment decision is consistent with any prescribed national environmental standard.
A potential conflict of interest does not, by itself, trigger referral under the EPBC Act. A project must otherwise meet the legal test for referral – for example, because it is likely to have a significant impact on a matter protected under the Act.
If an approval bilateral applies to that type of project, this could mean a state or territory government assessing or approving a project in which it also has an interest.
It’s important to note that this does not necessarily make the assessment or approval invalid or unlawful. In practice, it is common for governments to assess or approve projects for which they are the proponent. If you have questions about a specific issue, you can contact the EDO or EJA.
In terms of challenges to projects assessed or approved under a bilateral agreement, how this will work in practice will depend on the particular bilateral agreement.
If a state takes over an approval function, challenges to that approval may operate through the relevant state legal system.
But the Commonwealth can still retain enforcement functions under the EPBC Act. For example, if a proponent undertakes activities outside what has been accredited under the bilateral arrangement, federal enforcement powers may still be relevant.
This is a new area in practice: Australia has had assessment bilateral agreements before, but not approval bilateral agreements.
That makes the design of the first agreements – and the scrutiny around them – particularly important.
Streamlined assessments
What are streamlined assessments?
The new streamlined assessment pathway is intended to allow some environmental assessments and decisions to happen within 30 business days of the assessment pathway being decided.
The big unresolved question is which projects should be allowed to use it.
Without appropriate limits, large or environmentally risky projects with complex environmental impact assessments could potentially be pushed through a process designed to be completed very quickly, and with no time for community or First Nations consultation.
The upcoming regulations are a potential opportunity to ask for limits to be set for streamlined assessments, including limits to the size, risk or complexity of a project.
NOPSEMA and offshore gas
What is NOPSEMA?
NOPSEMA is the National Offshore Petroleum Safety and Environmental Management Authority. It is the federal government's regulator for offshore energy operations.
By law, offshore petroleum activities cannot commence before
NOPSEMA has assessed and accepted detailed risk management
plans
The EPBC Act reforms introduce a new accreditation framework for offshore gas and petroleum activities to be assessed by NOPSEMA under. We understand this framework is currently being developed.
It is likely that the instruments under this framework, including the consultation guidelines, will need to be reconsidered in alignment with the reforms, including the National Environmental Standards (except the Environmental Offsets Standard which will not apply to NOPSEMA accreditation), as well as the unacceptable impact criteria.
Hopefully the First Nations Engagement Standard will commence shortly, after adequate consultation has taken place, and will be prescribed for the development of any new consultation and engagement requirements needing to be undertaken under the new NOPSEMA accredited framework.
However there are concerns about the new EPBC Act power for the Environment Minister to switch off important safeguards for offshore gas and petroleum projects assessed by NOPSEMA (the National Offshore Petroleum Safety and Environmental Management Authority).
This could have a significant impact on requirements for consultation with First Nations communities
Take action
If you're concerned about the answers to these questions, you can send Environment Minister Murray Watt a quick email and encourage him to make sure these key implementation decisions actually protect nature.
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