Legal development

Australia's new environmental laws to commence in 2026

By Michael Voros, Paul Wilson, Tony Hill and Jeff Lynn

28 November 2025

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    What you need to know

    • On 27 November 2025, the Senate passed seven bills to implement the Government's long-awaited reform of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
    • The Government made a number of changes to the 30 October version of the Environment Protection Reform Bill 2025 in order to reach agreement with the Greens to pass the Bills in the Senate.
    • Key changes relate to:
      • the definition of "unacceptable impact";
      • available assessment approaches;
      • decision-making criteria;
      • limits on how "fossil fuel actions" (coal and petroleum) can be approved;
      • limits on the NEPA CEO's power to issue environment protection orders;
      • limits on section 43B grandfathering for actions lawfully commenced before the EPBC Act; and
      • amendments related to land clearing and native forests.
    • The reforms will commence on a rolling basis from 2026.

    What you need to do

    • Much is still to come, including the release of all draft National Environmental Standards, the preparation of bioregional plans and the negotiation of bilateral agreements with the States and Territories.
    • Proponents should carefully consider the impact of the reforms on their existing operations and future projects.

    Senate passes EBPC Act reforms after Government reaches deal with the Greens

    On 27 November 2025, the Senate passed seven bills to implement the Government's long-awaited reform of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). They are:

    Our 6 November 2025 alert, Ten things you should know about Australia's proposed new environmental laws, provides a high level overview of the main features of the proposed new laws as introduced on 30 October 2025.

    The Government made a number of changes to the 30 October version of the Environment Protection Reform Bill 2025 in order to reach agreement with the Greens to pass the Bills in the Senate.

    We provide a high level overview of the recent changes below, with reference to our earlier alert. We refer to these changes as the "updated amendments".

    Amended definition of "unacceptable impact"

    A key concern with the Reforms Bills as originally introduced to Parliament was with the definition of "unacceptable impact". This included its inconsistency, circular references and potentially very low thresholds.

    This definition is relevant to when an action can receive a quick no, and to when it can be approved.

    The updated amendments revise the "unacceptable impact" criteria, including to:

    • focus on actions causing serious loss, damage, alteration, impairment or undermining of relevant matters and remove various references to likelihood; and
    • add new definitions of "serious damage" and "seriously impair", and amend the definition of "viability" in relation to a species or ecological community.

    Broadly the amendments look to address the concerns with the definition and improve its operation. While the amendments mitigate some of the risks arising from the definition of "unacceptable impact", the practical and legal application of the no "unacceptable impact" provision is likely to be a contentious and litigated issue in approval determinations for new projects under the EPBC Act.

    Assessment on preliminary documentation returns

    The Reform Bills proposed the deletion of three existing assessment pathways (assessment on referral information, assessment on preliminary documentation and assessment by public environment report), replacing them with a single "streamlined assessment" pathway. The loss of the flexibility in these three assessment pathways, and the limitations of the new streamlined assessment, were identified by industry as key concerns.

    Under the updated amendments, assessment on preliminary documentation will be retained. Given the potential challenges in accessing the streamlined pathway – especially for coal and gas projects – continued access to the assessment on preliminary documentation pathway provides additional assessment flexibility and is a welcome amendment for industry.

    Changes to new decision-making criteria

    The Reform Bills originally proposed the insertion of three key additional criteria for approving an action. Under these new provisions, the Minister must not approve the taking of an action unless satisfied the action:

    • is "not inconsistent" with any prescribed national environmental standards;
    • will not have or be likely to have an "unacceptable impact" on a protected matter; and
    • passes the "net gain" test.

    Importantly, actions that are determined to be a "national interest proposal" would not be subject to these criteria.

    The updated amendments tighten the first of these criteria, requiring the Minister to be satisfied that the taking of the action is consistent with prescribed national environmental standards in order to grant approval. This is a higher bar than not inconsistent with and presents an additional challenge for project approvals.

    The updated amendments have also adjusted the second criterion, which will now require the Minister to be satisfied the taking of the action will not have an unacceptable impact on a protected matter (that is, the reference to "be likely to have" has been omitted).

    Updated amendments relevant to "fossil fuel actions"

    The updated amendments will limit available approval pathways for "fossil fuel actions". These are defined as the production or extraction of coal or "petroleum". The "petroleum" definition links to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) and includes naturally occurring hydrocarbons and mixtures of hydrocarbon whether in a gaseous, liquid or solid state.

    As a result of the updated amendments, fossil fuel actions will be excluded from:

    • being determined a "national interest" proposal (see section 2 of our alert) – this means that coal and petroleum projects will always be subject to the new decision-making criteria described above;
    • the new streamlined assessment pathway (see section 7 of our alert); and
    • classes of actions that can be undertaken in a development zone of a bioregional plan (see section 10 of our alert).

    The updated amendments also retain the current EPBC Act requirement for large coal and unconventional gas projects to obtain EPBC Act approval from the Commonwealth Minister for their water use - the Reform Bills originally allowed this to be covered in a State/Territory bilateral agreement to remove duplication (see section 6 of our alert).

    Limits on the new power to issue Environment Protection Orders

    The Environment Protection Reform Act 2025 introduces a new power for the NEPA CEO to issue an environment protection order to address, prevent, treat and mitigate imminent significant environmental risks and harm in urgent circumstances. See section 4 of our alert for more information about this new enforcement power.

    The updated amendments insert some limits on that power, as follows:

    • limits on the term of environment protection orders to a maximum of 14 days, with the power to grant only one further 14 day period (delivering a 28-day maximum term for an environment protection order);
    • requirements for the NEPA CEO to provide the recipient of an environment protection order with documents that support the CEO's reasonable belief as to the matters triggering the exercise of the power to issue the order; and
    • provisions for the recipient of an environment protection order to make written representations to the NEPA CEO about the steps taken in relation to the purpose of the order and the reason why the person considers that the order should be revoked.

    Limits on section 43B grandfathering for actions lawfully commenced before the EPBC Act

    A late amendment included by the Greens is to limit one of the two existing grandfathering provisions.

    The updated amendments will mean that section 43B – which currently allows actions to that were lawful immediately before commencement of the EPBC Act to continue – no longer applies for clearing of land that has not been cleared for a period of at least 15 years and is not a forestry operation, and for clearing within 50m of certain features in a catchment area of the Great Barrier Reef Marine Park.

    This may be of significant importance for operations that commenced before 1999 and do not have a specific environmental authorisation. However, the section 43A grandfathering exemption for actions with prior authorisation has not been amended.

    New power to extend a "not a controlled action" decision beyond the current 5 year term

    The updated amendments to the Environment Protection Reform Act 2025 will allow the Minister to approve an extension to the date on which a "not a controlled action" decision lapses, for up to an additional five years in total. The amendments require the Minister to notify the proponent at least six months prior to the end of the initial five year period, and allow the proponent to request an extension.

    This addresses feedback from industry that the originally proposed five-year timeframe was not sufficiently flexible.

    Land clearing and protection of native forests

    Under the Regional Forest Agreements Act 2002 (Cth), forestry operations conducted in accordance with a Regional Forestry Agreement are currently exempt from Part 3 of the EPBC Act, meaning they can essentially proceed without requiring EPBC Act approval.

    The updated amendments sunset the current exemption 12 months after 1 July 2026, meaning from 1 July 2027 such clearing will need to comply with the same EPBC Act requirements as other industries.

    Senate Inquiry to continue

    The Senate referred the Reform Bills to the Environment and Communications Legislation Committee when they were introduced on 30 October 2025. The Committee is due to report by 24 March 2026. Submissions to the Committee are due by 5 December 2025.

    We understand that, notwithstanding the passing of the updated Reform Bills on 27 November 2025, the Committee's Inquiry will continue in order to consider regulations and draft national environment standards (see Senate Hansard, 27 November 2025 per Senator Hanson-Young).

    Commencement – late 2026 and beyond

    The bulk of the provisions in the Environment Protection Reform Act 2025 will commence either on a day to be fixed by proclamation or 12 months after the Act receives royal assent. However, the Act also gives the Minister the power to delay the application of particular amendments in relation to different matters and things – which may be necessary if any relevant frameworks are not in place by the date on which the provisions are to commence.

    Two of the main exceptions to this regime are:

    • National Environmental Standards: the provisions which establish the framework for making National Environmental Standards are to commence the day after that Act receives royal assent – giving the Minister some time to prepare these standards before the remaining provisions commence; and
    • Certain consequential amendments to the establishment of the NEPA: The Environment Protection Reform Act 2025 includes several amendments which relate to the NEPA, many of which transfer powers and responsibilities currently held by either the Minister or the Secretary of the Department to the NEPA CEO. These amendments will commence when the National Environmental Protection Agency Act 2025 commences, which is currently proposed to occur on 1 July 2026.

    Given the potential variance in commencement for each of the provisions, proponents should be careful to monitor the progress of these Bills both before and after passage to ensure they are prepared for changes as and when they occur.

    Transitional provisions

    The extensive amendments in the Environment Protection Reform Act 2025 are accompanied by a raft of complex transitional provisions, some of which have now been amended in the Senate. The key aspects of the transitional provisions are as follows:

    • Existing approvals will be unaffected. Similarly, the five-year lapsing period for "not a controlled action" decisions will only apply to decisions made on or after commencement (but regardless of when the action was referred).
    • The "prior authorisation" grandfathering provision under section 43A will be unaffected, but section 43B – which relates to lawful continuation of use of land – will change (see above).
    • The changes to assessment approaches for referrals – namely the removal of some existing assessment approaches and the addition of streamlined assessment – will only apply to referrals that do not already have a decision on assessment approach at commencement.
    • The new decision-making criteria, including requirements for an action to be consistent with national environmental standards, not have an unacceptable impact, and pass the net gain test, will only apply to actions referred on or after commencement.
    • New enforcement powers will apply to all actions from commencement.

    What should proponents do now?

    These reforms comprise the most significant change to Australia's environmental approvals process in over 20 years. They will particularly impact major project approvals, environmental compliance for existing projects, management of environmental incidents and engagement with stakeholders (including First Nations groups). They will also change the way that environmental decision-making occurs at both a State and Federal level.

    Much is still to come, including the release of all draft National Environmental Standards, the preparation of bioregional plans and the negotiation of bilateral agreements with the States and Territories.

    Proponents should carefully consider the impact of the reforms on their existing operations and future projects.

    We will publish more detailed alerts about the reforms.

    Want to know more?

    Other authors: Leonie Flynn, Expertise Counsel; Shayne Solin, Lawyer

    The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
    Readers should take legal advice before applying it to specific issues or transactions.

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