EPBC Act Reform - a new era of Commonwealth environmental regulation commencing in 2026

The long-anticipated reforms to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) set out within the Environment Protection Reform Bill 2025 (Reform Bill) were passed by the Australian Parliament on Friday 28 November 2025. The passage followed the Government agreeing changes and targeted concessions to the Reform Bill to secure the support of the Greens in the Senate.   

The reforms package comprises seven bills that will reform Australia’s national environmental law and implement core recommendations from the Samuel Review delivered in 2020.

While the final legislative framework aligns with the broader objectives of the original bill, the agreed changes reshape some elements of the EPBC Act that we will explore in this Alert. Once the remaining parliamentary steps are completed, the Government will begin implementing the new framework, with different elements commencing during 2026.

The passage of the reforms will have broad impacts across the business and environment sectors. After years of calls for change, including for more efficient and robust project assessments, the reforms represent an overdue modernisation of the EPBC Act. For a detailed overview of the substantive reforms, see our Part 1 alert and our Part 2 alert.

This update addresses the key timing and transitional provisions in the Reform Bill, as well as the amendments arising from the Government’s negotiations with the Greens.

Timing for commencement

The reform package contains multiple commencement periods across the seven bills. Most provisions in the Reform Bill are designed to commence either on a day to be fixed by proclamation or 12 months after the Bill receives Royal Assent. This will give the Department of Climate Change, Energy, the Environment and Water (DCCEEW) and the Minister time to finalise the National Environmental Standards (NES) and other instruments which will comprise the framework for decision making under the Reform Bills. The Minister can also defer the operation of certain amendments if the necessary frameworks are not ready when provisions are due to start.

Some parts of the Reform Bill, such as the provisions establishing the framework for NES, will commence earlier and take effect the day after the Bill receives Royal Assent.

Amendments relating to the establishment of the new National Environment Protection Agency (NEPA) will commence in line with the National Environment Protection Agency Bill 2025 (Cth) (NEPA Bill), which is scheduled to take effect on 1 July 2026. Several related bills, including the Environment Information Australia Bill 2025 (Cth), are scheduled to commence at the same time as the NEPA Bill.[1]

The staggered commencement of reforms means proponents should monitor commencement periods to understand how the reforms will apply to live and future projects, as considered below.  

Transitional provisions

The reforms are supported by a suite of transitional provisions to manage the shift to the new framework. Within the reform package, the transitional arrangements are located in Schedule 1, Part 3 and Schedule 2, Part 3 of the Reform Bill. Item 715 in Schedule 1 gives the Minister (or Governor-General) the power to make additional rules or regulations about transitional matters.

The transitional rules are complex and vary depending on the circumstances and the assessment and approval stage of a particular action. Proponents should review these requirements carefully to ensure compliance and the extent to which the reforms will apply to their project.

The key transitional measures include:

• Bilateral agreements - existing bilateral assessment agreements with States and Territories[2] will continue in accordance with their current terms. The Reform Bill requires the NEPA CEO to arrange for a review of the operation of bilateral agreements every 5 years, and to arrange assurance reviews from time to time to monitor compliance with a bilateral agreement. We expect that, as existing bilateral agreements come up for review and the NES are finalised, existing agreements will be updated to reflect new requirements set out in the Reform Bill, including the requirement for consistency with NES, and the requirement that State and Territory assessment and approval processes incorporate the new “net gain test”.
• Referred projects, with assessment decision - where a project has already been referred and both a controlled action and assessment approach decision have been made, the project will continue to be assessed under the current EPBC Act. This includes projects being assessed by States and Territories under bilateral assessment agreements.
• Referred projects, but no assessment decision – where a project has been referred but the assessment approach has not been determined before commencement of the Reform Bill, the project will transition to the new assessment system under the Reforms Bill and must be consistent with the NES. The bioregional planning provisions in the new Part 12A of the Reform Bill will not apply to an action which has been determined to be a controlled action but has not yet been approved.
• Existing approvals - existing approvals remain valid under the reforms. There is no need to re-apply for approval. If a proponent seeks to vary an existing approval, the Minister will apply the new decision-making requirements to its assessment, such as strengthened requirements for decisions about threatened species and ecological communities and Ramsar wetlands (with limited exceptions). However, new tests such as net gain and unacceptable impacts will not apply.
• Following commencement, referral of new projects - once the Reform Bill commences, new projects that have not yet been referred, and are referred after the commencement date, must comply with the new provisions of the Reform Bill including the NES. However, if you refer a project now, it will be assessed entirely under the existing EPBC Act.

We expect there may be a surge in pre-commencement referrals as proponents seek to remain under the existing rules. This could create a backlog and increase the risk that some referrals will not progress to a controlled action and assessment decision (removing the application of the new laws) before commencement.

Amendments following negotiations in the Senate

As noted above, the Government agreed changes to the Reform Bill to secure the support necessary for the Bill to pass the Senate and become law.

Key changes relate to:

• "Unacceptable impact" requirements – the changes removed references to a “likely” unacceptable impact. This means that an unacceptable impact decision may only be made if the action will have an unacceptable impact (and not if the action is likely to have an unacceptable impact). The amendments also included a new definition of “seriously impair” and amended the definition of “viability” relevant to the unacceptable impacts test;
• National environmental standards test - the original Reform Bill required that actions be "not inconsistent" with the NES. The changes have reversed this onus, so that actions must now be “consistent” with the NES. This creates a positive onus on the decision-maker to be satisfied of an action's consistency with the NES, which is materially different to the exercise of identifying inconsistencies with the NES;
• "Not a controlled action" decisions – the Reform Bill proposed that decisions that an action is "not a controlled action" would automatically lapse after five years if not substantially commenced. This provision remains, but the changes introduced a new extension option, which means the project proponent may request an extension of the five year "not a controlled action" decision, so it can lapse on a date up to 10 years from the original decision. Similar provision was made for priority actions registered within a development zone identified in a bioregional plan. A decision to register a “priority action” will lapse after five years if not substantially commenced, subject to a new power to request an extension;
• Limits on how "fossil fuel actions" (coal and petroleum) can be approved – one of the key concessions made under the changes is that fossil fuel actions (i.e. the production or extraction of coal or petroleum) cannot:
  • be classified as a “national interest proposal” and utilise the new streamlined assessment pathway;
  • be granted an exemption from being a “restricted action” in a conservation zone; or
  • be a “priority action” for the purpose of a bioregional plan.

This change effectively excludes fossil fuel projects from utilising new streamlined assessment pathways. The changes also extended the “water trigger”, so that coal seam gas projects and large coal mining projects that are likely to have a significant impact on water resources must be assessed by the Commonwealth Minister and cannot be approved under a bilateral agreement;

• Limits on the NEPA CEO's power to issue environment protection orders (EPOs) – the Reforms Bill provides the NEPA CEO with the power to issue an EPO where they reasonably believe that a breach of the EPBC Act, regulations, or conditions of an environmental authority presents an imminent risk of serious damage. An EPO allows for a broad range of orders to be made, including "stop work". Initially, the Reform Bill did not set out a prescribed maximum duration for an EPO. The Government made changes to the EPO framework so that an EPO can only remain in force for up to 14 days unless extended for a maximum additional 14 days. The changes also require the NEPA CEO to provide the recipient with supporting documents that substantiate their reasonable belief as to the alleged breach;
• Limits on section 43B grandfathering for actions lawfully commenced before the EPBC Act - section 43A remains unchanged, meaning that actions with prior authorisation will continue to be exempt from requiring EPBC approval. Changes have been made to the grandfathering provision in section 43B, which applies to the lawful continuation of a use of land. This grandfathering exemption can no longer be relied upon where the action involves clearing vegetation within 50 metres of a watercourse, wetland, or drainage line in a catchment area of the Great Barrier Reef Marine Park, or where the action involves clearing vegetation from land that has not been cleared in the past 15 years (if the action is not a forestry operation); and
• Amendments related to forestry - 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 new changes under the Reform Bill will sunset the current exemption 12 months after 1 July 2026, meaning that from 1 July 2027 such clearing must comply with EPBC Act requirements. This change means that more forestry projects will require assessment under the EPBC Act.

No change to “net gain”

The new “net gain” requirements under the Reform Bill did not change before passing the Senate. As background, under the new “net gain” test, the Minister must not approve an action that will have or is likely to have a residual significant impact on a matter of national environmental significance (MNES) unless the Minister is satisfied that, taking into account the offsets conditions attached to the approval, the approval “passes the net gain” test in relation to the residual siginifant impact on the MNES.

Practically, this means that proponents must avoid, mitigate and repair harm, and fully offset any residual significant impacts to pass the “net gain” test and secure an approval, which is a significant shift from the current standard of “no net loss”.

The Reform Bill allows proponents to deliver a “net gain” via direct offsets or an upfront restoration fund contribution administered by an independent statutory officer within DCCEEW. Regulations may prescribe the quantum of offset required (for example, 10%), or otherwise the Minister will set the threshold.

Interestingly, the Reform Bill does not set out a definition of what constitutes a “net gain”, rather it provides that amounts to a “net gain” will either be prescribed in regulations or otherwise be what the Minister is satisfied is appropriate. This means that important details about “net gain” requirements will be set out in future regulations.

The Reform Bill passing is just the beginning – new instruments still to be made

As we have outlined in our latest update, there are a number of important supporting instruments and standards yet to be made which are required to operationalise the reforms and achieve the benefits of more streamlined decision making. These include the following:

• NES;
• Regulations;
• Ministerial and CEO rulings;
• Protection statements for listed threatened species and listed threatened ecological communities;
• Bioregional plans;
• Strategic assessments; and
• Bilateral agreements.

These are significant reforms which will significantly change the assessment and approval of projects at Commonwealth level under the EPBC Act. Much of the operational detail is to follow in the instruments listed above, which have the potential to provide the benefits in streamlining assessment and approval of new projects.

Leading up to the commencement of the Reform Bill, proponents should carefully consider the impact of the reforms on existing projects (including the new compliance and enforcement powers of the NEPA), the application of transitional provisions to existing referrals and controlled actions, and the implications of the new assessment and approval provisions on new projects that are likely to trigger the EPBC Act.

We will continue to follow these developments.