This is the first insight in our series examining the reforms to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). These reforms were introduced through 7 Acts, including the Environment Protection Reform Act 2025 (Reform Act). The Acts passed both Houses of Parliament on 28 November 2025 and received assent on 1 December 2025. 

In this insight, we focus on the changes to the approvals process under the EPBC Act. Many of these changes are expected to commence at a date to be fixed in 2026, once subordinate instruments and guidelines have been developed to support the changes.

The referral and approval framework under the EPBC Act is central to its operation—striking a balance between environmental, social and economic drivers. For this reason, it is also the subject of much of the criticism surrounding the Act, both from business and environmental groups. The Samuel Review criticised the framework as overly complex and time consuming, poorly defined, duplicative of State and Territory processes, while also not fit for purpose in avoiding and minimising environmental decline.

The Reform Act seeks to address these issues by:

• consolidating assessment pathways, with a new streamlined assessment pathway replacing two existing pathways;
• setting new threshold tests which will guide decision-makers; and
• strengthening bilateral agreement processes and other operational fixes.

The key changes in the approval process are summarised below.

National Environmental Standards

A centrepiece of the Reform Act is the ability for the Minister to make National Environmental Standards, which are legislative instruments designed to provide clear and consistent guidance on decision-making under the EPBC Act. The Government has released consultation drafts of the National Environmental Standards for matters of national environmental significance (MNES), with consultation closing on 30 January 2026. The Senate Committee inquiry on the reforms will continue, but will now primarily turn its mind to the drafting of the various National Environmental Standards and other subordinate instruments.

These changes commenced on 2 December 2025. Each of the approvals process changes described below will commence on a date to be fixed by proclamation.

Minister remains decision-maker

While earlier consultation drafts contemplated approval powers moving to a newly established National Environment Protection Agency (NEPA), the Reform Act leaves those powers with the Minister.

The CEO of NEPA may still be appointed as a delegate of the Minister to assess and approve actions, similar to existing delegations to Departmental officers. The CEO can then further delegate those powers to relevant employees of NEPA.

The Reform Act introduces new powers for the Minister to make rulings, setting out the Minister’s opinion on how the EPBC Act and subordinate instruments (e.g. National Environmental Standards) should be applied, including in making approval decisions. These are non-legislative instruments, but would be binding on the Minister and delegates, except in exceptional circumstances. The rulings would be required to be reviewed at least every 5 years.

The explanatory notes state that, for example, the Minister could make a ruling about when an impact on a particular listed threatened species is a significant impact, and therefore required to be referred under the EPBC Act. It remains unclear whether current significant impact guidelines may be replaced over the years by Minister's rulings.

New streamlined assessment pathway

The changes to the assessment process are less radical than previously proposed in earlier consultation drafts. It remains a two-step process, with gateway decisions as to whether the action is a 'controlled action' with significant impacts to MNES, and if so, what assessment pathway it will be subject to.

Under the Reform Act, the Minister must choose one of the following approaches for assessment of a controlled action:

• an accredited assessment process (i.e. a State process under a bilateral agreement);
• a new 'streamlined assessment' pathway (which replaces the current pathways of assessment on referral information and assessment by public environment report), with a recommendation report required to be provided as soon as practicable;
• assessment on preliminary documentation provided by the proponent; 
• an environmental impact statement (EIS); or
• a public inquiry.

Streamlined assessment will not be available for actions involving the production or extraction of coal and gas (referred to as 'fossil fuel actions' under the Reform Act). For all other actions, streamlined assessments will only be available if the Minister is satisfied (after considering relevant matters) that:

• the approach will allow the Minister to make an informed decision whether or not to approve the action; and
• the greenhouse gas emissions (GHG) information for the action has been provided (see further on this below).

See our comments below on how available this avenue might be for most projects.

In theory, the streamlined pathway would require the Minister to decide whether to approve the referred action within 30 business days after deciding that the pathway applies. However, as is currently the case, proponents may still find themselves in lengthy periods of negotiation on information requests and the assessment approach before the clock starts for the Minister.

Unacceptable impacts

The EPBC Act currently allows the Minister to determine that a referred action is 'clearly unacceptable'. This prevents it from proceeding through further assessment and approval. However, the EPBC Act does not prescribe any criteria to guide what is unacceptable.

To clarify this power, the Reform Act introduces new definitions of 'unacceptable impacts' for respective MNES. For example, in relation to listed threatened species and ecological communities, an unacceptable impact is a significant impact that:

• seriously impairs the viability of the species / community (being the ability of the species / community to survive and recover in the wild, either as a whole or in a particular region); or
• causes serious damage to critical habitat of the species / community where the habitat is irreplaceable and necessary for the species / community to remain viable in the wild. Critical habitat is separately defined to include, for example, habitat necessary for breeding or foraging, long-term maintenance of the species / community and maintenance of genetic diversity. Over time, particular defined areas of critical habitat may be added to the existing register of critical habitat for species.

While the Government has maintained that this concept is intended to be limited to impacts which would essentially push species into extinction or seriously undermine the values of a World or National heritage place, the definitions remain vague in some cases. Amendments to the Reform Act passed by the Senate raised the threshold for unacceptable impacts, such that the definition would only apply where those impacts are certain. This is different to the standard threshold for impacts in the EPBC Act, which also considers impacts which are 'likely to' occur. However, the definition of unacceptable impacts for some MNES may still set a relatively low bar. We expect these definitions will be tested by proponents and Courts over time, and could eventually be the subject of Minister's rulings.  

New assessment tests for approvals

If an action has passed the initial gateway and is to be assessed as a controlled action, new tests will then guide what may be approved. Generally, the Minister will only be able approve an action if satisfied (taking into account any conditions to be imposed) that:

• the action is consistent with relevant National Environmental Standards;
• the action will not give rise to unacceptable impacts; and
• any residual significant impacts of the action will be compensated to a net gain. The net gain test will be further explored in later insights in this series.

These tests would also apply to decisions to vary the conditions of an approval or to extend the effect of an approval.

The Minister may declare a project, other than a fossil fuel action, to be a 'national interest proposal', in which case it could be approved even if it does not meet the above tests. See our further comments on this below.

New GHG emissions information requirements

While the Government did not yield to calls for a 'climate trigger', the Reform Act requires proponents to disclose estimates of scope 1 and 2 greenhouse gas (GHG) emissions as part of the assessment of a controlled action (through any of the pathways). Proponents may also elect to include this information in referral material. The required GHG emissions information would include: 

• a reasonable estimate of the likely amount of scope 1 and scope 2 greenhouse gas emissions of the action;
• the strategies and measures the proponent will implement to manage those emissions; and
• how those strategies and emissions are consistent with the laws and relevant government policies of the Commonwealth.

Of particular relevance here:

• the Reform Act does not require the Minister to specifically have regard to or apply this information in any way. In his National Press Club address, Minister Watt indicated that this information would not form part of the 'balancing' exercise in approving actions under the EPBC Act, and that the Safeguard Mechanism remains the Commonwealth's key regulatory hook in relation to the lowering of emissions. See our further comments on this below; and
• regulations would be able to prescribe a threshold for reporting, such that low emissions projects may be exempt from this information requirement.

Higher thresholds for information requests

The EPBC Act reforms attempt to clarify the threshold for when requests for further information may be made by the Minister, both when deciding on the assessment approach and through the assessment processes. These information requests 'stop the clock' on statutory timeframes, which can significantly delay approvals. 
Under the amendments, to request a proponent to provide further information, the Minister must: 

• be satisfied that the information is reasonably necessary for the Minister to make an informed decision; and
• provide written reasons why the information is reasonably necessary. 

Changes to accreditation of State frameworks 

The EPBC Act currently allows the Minister to sign bilateral agreements with States and Territories to accredit their assessment and approval processes for the EPBC Act, so that relevant actions either do not require approval or assessment under the EPBC Act. 

Six bilateral agreements have been signed, which only accredit certain assessment processes. No State or Territory approval process has been accredited to date. The process to change bilateral agreements is unwieldy and there is limited flexibility in their application.

The Reform Act:

• introduces new requirements that accredited frameworks must be consistent with any National Environmental Standard or allow for approval of unacceptable impacts, and must apply the net gain test and provide for the appropriate disclosure of the GHG emissions information;
• increases flexibility in accreditation, including by clarifying that part of a State or Territory framework might be accredited, and that non-statutory information such as guidelines may be incorporated by reference as part of the accredited framework.

Amendments agreed by the Senate would retain the current restriction on approval bilateral agreements from covering the 'water trigger'. 

Reconsideration requests of controlled action decisions

In response to a suite of reconsideration requests made years after relevant decisions (including as part of the 'Living Wonders' cases in the Federal Court), the Reform Act sets a 28 business day time limit on third parties seeking reconsideration of controlled action decisions. 

This time limit would not apply to the proponent. A new provision would allow the proponent for a not controlled action (particular manner) decision to request a reconsideration of the requirements set out in the decision, essentially allowing the particular manner conditions to be varied. This offers additional flexibility which is not currently available.

Early works may commence before approval

The Reform Act introduces a carve-out from offence provisions relating to commencing any part of a referred action before an approval decision is made. Prior to approval, proponents would now be able to take minor or preparatory actions that fall within the scope of a referred action, provided they are carried out with the Minister's written agreement. For example, this would allow commencement of certain activities on site to prepare the relevant environmental assessment information (e.g. minor clearing to access or make safe the land, or disturbance from geotechnical surveys). However, if these actions are themselves likely to have a significant impact, they remain subject to the referral and offence provisions.

Not controlled actions must substantially commence within 5 years 

The Reform Act imposes a time limit on not controlled action (NCA) decisions. Under the reforms, a decision that an action is not a controlled action, including not a controlled action if undertaken in a particular manner (NCA-PM), will cease to have effect if the action has not 'substantially commenced' within 5 years of the date of the decision.  

The Explanatory Memorandum states that this amendment is designed to avoid 'land banking', whereby proponents refer a project well before commencement to be shielded from any changes in environmental conditions, including newly listed threatened species. 
Relevantly: 

• the Reform Act does not provide a universal definition for 'substantial commencement'. The explanatory memorandum for the Act indicates that this depends on whether the action has begun 'by the performance of some substantial part of it'. Case law indicates that whether an action has 'substantially commenced' is a test of whether work has been performed, not whether it is continuing or completed (e.g. that the project has commenced productive operations). The amendments may have unintended consequences of proponents rushing to 'substantially commence' an action prior to the 5-year expiry date, then ceasing work on the action until it proves economic to continue; and
• there are no requirements for proponents to notify of the commencement of actions subject to a NCA decision. This may encourage the Minister to rely on NCA-PM decisions, which could specify a reporting requirement as a 'particular manner' in the way an action is carried out. 

The Reform Act permits the Minister to extend the currency of a NCA decision past 5 years and up to a maximum of 10 years if satisfied that it is appropriate to do so, including where requested by the proponent. 

Transitional provisions

Later insights from will examine the transitional provisions of the Reform Act in greater detail. 
However, relevant to approvals processes:

• the new approval tests around National Environmental Standards, unacceptable impacts and net gain will only apply where a referral is made after commencement;
• the changed assessment pathway provisions will only apply if a decision on the assessment approach for an action has not been made prior to commencement;
• the lapsing provisions for NCA decisions will only apply where those decisions are made after commencement.

Watch this space: 

• Timing of referrals for new projects – better the devil you know? As is often the case with such changes, we expect there to be a rush of referrals made before the approvals process amendments commence (likely in 2026), so that proponents can continue to operate under known parameters. This will bring with it a backlog and risk that the referral gateway will not be passed by commencement. Proponents should assess the pros and cons of the current and amended frameworks on a project-by-project basis and make calls on the timing for referrals.
• How available is streamlined assessment? As is currently the case with the more confined assessment pathways under the EPBC Act, we expect this streamlined avenue will only be available to projects with well understood and defined impacts and mitigation strategies, and where limited further information is required to make a defensible decision. Proponents will need to 'front load' assessments and be capable of clearly demonstrating in the referral that the action is consistent with National Environmental Standards, passes the net gain test and avoids unacceptable impacts. We do not anticipate that this would generally be made available to complex projects with variability in footprints and material offset requirements.  
• Mixed bag for approval timeframes? Currently, the public environmental report assessment pathway can provide a valuable middle-ground option for actions which require detailed assessment but do not warrant the full rigour of an EIS. The removal of this pathway may push many developments into the EIS pathway, which (despite some of the improvements around limiting information requests) may in practice result in even greater assessment timeframes and costs compared to the current position.
• Self-assessments – what is the increased risk? The EPBC Act remains a 'self-reporting' system. Proponents may still use self-assessments to reach a decision that an action is not likely to have a significant impact on MNES and does not require referral. The reforms will materially increase the focus on self-assessments conducted prior to commencement of the Reform Act, but where the action has not started by the commencement day. Proponents will need to be prepared to justify that their actions are clearly not controlled actions, even having regard to clarified concepts around impacts, including through possible Ministerial rulings and further guidance material.
• Greater clarity but increased judicial review risk? The use of National Environmental Standards will no doubt increase consistency in approval decision-making under the EPBC Act. However, with increased standardisation in what is required to be considered comes a heightened risk of successful administrative law challenge due to a failure to take into account relevant considerations. The balance that needs to be walked in the drafting the National Environmental Standards is to provide the framework to increase consistency in decision-making, but also ensure unsubstantiated judicial reviews do not become a bottleneck to approvals decisions that are in fact better for the environment and better for business. 
• GHG emissions information – Pandora's box or business as usual? The approach to climate impacts in decision-making under the EPBC Act will remain a focus of judicial challenge. In the absence of further guidance, we expect that the new GHG emissions information requirements may be used as further fuel for challenges. New State regimes for GHG disclosures have proved at times helpful for decision-makers to 'review proof' their decisions, but on the other hand have stalled proponents who find it difficult to apply emissions laws and policies at a project level. 
• What is in the national interest? While the Government has given examples of defence, security and national emergencies as examples of national interest proposals, the outer bounds of the concept are uncertain. For example, could a State-supported critical mineral project ever be deemed so significant as to be in the national interest, and override the need to meet net gain tests? Until further guidance is released (including through Minister's rulings) we expect that the application of this exemption will be tested on a case-by-case basis by the private sector, and in time possibly interpreted by the Courts.