Can the new national environment laws be effective in halting the loss of biodiversity?

: 26 November 2025

Graeme Samuel’s independent review of the Environment Protection and Biodiversity Act (EPBC Act) published in 2020 made the fundamental conclusion that:

Australia’s natural environment and iconic places are in an overall state of decline and facing increasing threat. They are not sufficiently resilient to withstand current, emerging or future threats, including climate change.

The Act is a barrier to holistic environmental management which, given the nature of Australia’s federation, is essential for success.

The review also recognised that the EPBC Act is not delivering for business with decisions on projects such as windfarms taking an inordinate length of time.

The fractured process of creating new federal legislation to preserve Australia’s unique biodiversity is still staggering along. Prior to the May 2025 election, the government tried to introduce legislation to implement some of the review’s recommendations but gave in to resistance from the WA government and mining industry.

The Labor government has been returned with a strong majority but this situation does not seem to be giving the new Environment Minister, Murray Watt, enough fortitude to stare down the powers of resistance and implement laws that will turn around the trends of decline in our environments.

The latest news is that the government has done a deal with the Greens and agreed to some amendments so the bill can be passed. We hope the summary below is up-to-date.

The main bills are the core Environment Protection Reform Bill 2025 plus bills to establish the National Environment Protection Agency and Environment Information Australia. The essential part of the legislation, the National Environmental Standards are still being drafted but two have been released for comment.

The bills meet several of the recommendations of the Samuel Review but there are too many discretions and unclear wording that risk making implementation ineffective. If the legislation does not have sufficient powers to turn around the loss of species ultimately the nation will lose out economically as well as environmentally.

Background – jurisdiction of the EPBC Act

The Commonwealth only has powers to act on environmental issues that are covered by international conventions such as biodiversity, significant wetlands and world heritage areas. The EPBC Act applies to matters of national environmental significance (MNES) that come under these conventions.

The most broad-ranging is the biodiversity convention that brings in nationally threatened species and ecological communities. A species is eligible for listing as threatened in one of the categories under the EPBC Act after a rigorous scientific assessment of the species’ threat status is undertaken. Once a species is listed under the EPBC Act its recovery is promoted using conservation advice and recovery plans. However, the reality is that recovery plans have been developed for only about 40% of nationally threatened species but most have a conservation advice. This article doesn’t cover the biodiversity management aspects of the legislation.

Any development/activity that may impact a threatened species or other MNES is subject to the Act’s assessment and approval provisions. Hence the Act can apply to developments like mines, renewable energy projects and larger scale urban land clearing.

Development approval process

Under the new legislation, three basic tests for development approval will be:

consistency with the relevant national environment standard;
cannot have an unacceptable impact on a MNES; and
any residual significant impact after any offsets are applied must pass the net gain test.

1. National environment standards

The minister will have power to make standards that aim to create certainty for business and ensure quality and consistency. They should lead to recommendations of clear, enforceable outcomes that will lead to environmental protection. They will be subject to consultation before they are implemented. There are two drafts already completed but not publicly available; applicable to environmental offsets and MNES.

2. Unacceptable impact

This is a welcome new definition that will determine upfront if a development cannot go ahead. An unacceptable impact is that a project will result in seriously altering a species ability to survive or recover in the wild or will seriously damage the species’ critical habitat. This needs clearer explanation. For example, what amount of clearing of critically endangered STIF and BGHF would be unacceptable when the ecological community is already highly fragmented? Developments such as housing that involve a small area of clearing are being approved all the time under NSW planning processes that ignore cumulative impacts.

Expert groups like the EDO question whether the intent will be overruled by the application of discretion.

3. Offsets

The offsets framework will interact with new provisions in the EPBC Act that require:

consideration of the mitigation hierarchy, which states offsets are a last resort after action to avoid, mitigate and repair impacts;
that offsets cannot be used to overcome unacceptable impacts; and
that offsets adequately compensate for ‘residual significant impacts’ to deliver a net gain.

The net gain can be achieved by an offset that results in a net gain for the MNES in question. One of the last minute changes agreed with the Greens was to remove the option to pay a restoration contribution charge into a separately managed fund that would buy offset credits.

There is a lot of criticism of the current offset system. The standard being developed needs to ensure genuine positive long term compensation for the residual impact.

National Environment Protection Agency (NEPA)

NEPA will be established to undertake regulatory and implementation functions under a range of Commonwealth environmental laws. Its primary roles will be to undertake regulatory, compliance, implementation and enforcement actions.

While the ultimate decision-making power for approvals will remain vested with the environment minister, they will be able to delegate powers to NEPA to (among other matters) undertake environmental assessment and recommendations to the minister.

The bills also provide two new compliance and enforcement options in the EPBC Act – compliance audits and environmental protection orders – and significantly increase maximum penalties the court can impose for breaking the law.

Environment Information Australia will be established to improve the availability and accessibility of high-quality information and data and to provide regular, comprehensive and transparent reporting, including on the state of the environment.

Another last minute change is that native forest logging and land clearing will now come under the national environment laws. However, several states still support native forest logging that is a key cause of environmental degradation. Queensland continues to allow large-scale land clearing that creates runoff that pollutes the waters of the Great Barrier Reef. It is not clear how state operations will interact with the federal law.

Significant omission – a climate trigger

The lack of a climate trigger is the most criticised part of the legislation. Carbon emission levels cannot be a factor in approval decisions. Proponents only need to disclose estimated scope 1 and 2 emissions and proposed mitigation measures that would assist with assessment under the separate Safeguard Mechanism. This would only apply once the project is up and running so there no power to limit emissions at the outset.

It is a huge shortcoming to be ignoring scope 3 emissions from the burning of fossil fuels extracted from Australia but exported. In this case the Act will be ignoring one of the major sources of environmental degradation in Australia and overseas.

Native forest logging continues to be permitted under Regional Forest Agreements and a ‘continuation of use’ clause. It is time that all states decided to cease this key cause of environmental degradation. Queensland continues to allow large scale land clearing that creates runoff that is polluting the waters of the Great Barrier Reef.

Criticisms of the bills

The basic structure of the legislation has been compromised by allowing discretions that will reduce their effectiveness. NEPA falls short of being an independent decision-maker as was recommended by the Samuel Review. The minister will still have broad powers to override or direct the agency.
Use of unclear language, e.g. most provisions involve a weaker test of ‘not inconsistent with’ criteria, rather than a positive test such as ‘in accordance with’ or ‘complies with’.
The minister will be able to declare certain projects to be in the national interest so that they do not have to satisfy the basic three tests and could be inconsistent with standards or have an unacceptable impact. This could apply to defence or strategic interest such as critical minerals. The Samuel Review envisaged that this situation would be rare but the bills place no limit on things the minister can designate as being in the national interest. The government has stated that coal and gas mining would not be included.
The bills fail to take broader steps to improve the conservation planning framework. The bills do not mandate requirements to make conservation planning documents and monitor progress. The implications provide a whole separate topic to understand.

Opportunity to comment on the bills

An inquiry is currently being undertaken into the draft provisions of the legislation by the Environment and Communications Legislation Committee. Submissions can be made by up to 5 December. Even if the legislation is passed prior to 5 December it is worthwhile telling the government what you think..

There will be a lot of commentary to come as the legislation’s details become clearer.