EPBC Act: New National Environmental Standards and commencement of further reforms

A further tranche of reforms to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) commenced by proclamation on 24 August 2026. These reforms come days after the Commonwealth Minister for the Environment and Water (Minister) made the following four National Environmental Standards (NES):

1. Matters of National Environmental Significance Standard (MNES Standard);
    
2. Environmental Offsets Standard (Offsets Standard);
    
3. Community Engagement Standard (Engagement Standard); and
    
4. Data and Information Standard (Data Standard).

The federal government has also published the Environment Protection and Biodiversity Conservation Amendment (2026 Measures No. 1) Regulations 2026, which amends the Environment Protection and Biodiversity Conservation Regulations 2025 (EPBC Regulation) to support this new tranche of reforms and to prescribe the ways in which NES will apply to decisions made under the EPBC Act.

We canvas key reforms and the effects and principles of the NES below. 

EPBC Act reforms commencing 24 August 2026

Auditing and enforcement powers

Provisions of the EPBC Act empowering the National Environmental Protection Agency (NEPA) CEO to undertake advisory, compliance, auditing and enforcement activities have now commenced. As of 24 August 2026, the NEPA CEO has the power to: 

• issue environment protection orders (EPO) or ‘stop work orders’;
   
• make rulings setting out its opinion on specified environmental law provisions (the Minister is also so empowered);
   
• advise on the accreditation of management or authorisation frameworks for Ministerial declarations or bilateral agreements;
   
• arrange for a review or assurance review of a Ministerial declaration that excludes certain actions from approval under Part 9 if the action is in accordance with an accredited management or authorisation framework;
   
• require environmental audit and compliance audits; and
   
• establish and maintain the auditor register.

A maximum civil penalty for certain contraventions has been imposed of: 

• up to 5,000 penalty units for individuals or three times the benefit derived and/or the detriment avoided; or
   
• up to 50,000 penalty units for a body corporate or three times the benefit derived and/or the detriment avoided or the lesser of 10% of the annual turnover of 2.5 million penalty units. 

For further details about the impact of these powers see our previous insight, Environmental law reforms: implications of upcoming changes.

Overhaul of the management and authorisation framework

Under the newly commenced reforms, a bilateral agreement or Ministerial declaration can declare that certain actions do not require approval under Part 9 of the EPBC Act. This is the case if the taking of the action has been approved in accordance with a management or authorisation framework that is accredited for the purpose of the bilateral agreement or Ministerial declaration. 

Previously such declarations could only be made if:

1. for bilateral agreements, the action was approved in accordance with a management arrangement or authorisation process that is a bilaterally accredited management arrangement or a bilaterally accredited authorisation process for the purposes of the bilateral agreement; or
    
2. for Ministerial declarations, the action was approved in accordance with an accredited management arrangement or an accredited authorisation for the purposes of the declaration.

The Minister can now accredit management or authorisation frameworks for the purposes of a declaration or bilateral agreement, if the Minister is satisfied of certain pre-requisites, including that: 

• the framework meets requirements prescribed by the EPBC Regulations;
   
• the framework and the approval of the action or class of actions are consistent with prescribed NES;
   
• the approval of the action or class of actions under the framework will not have an unacceptable impact on a declared protected matter;
   
• the approval would pass the net gains test (if applicable) in relation to any residual significant impact;
   
• the framework provides for appropriate disclosure of greenhouse gas emissions information; and
   
• the bilateral agreement or declaration requires that a State or Territory cannot approve actions that are inconsistent with the framework. 

However, for bilateral agreements that include declarations of actions that do not need approval or declarations of actions that do not require further assessment, the reforms now impose mandatory undertakings to give effect to any such agreement. 

If a body administering a management or authorisation framework accredited for the purposes of a declaration or bilateral agreement has not complied with the framework or given it proper effect, the Minister is now able to suspend or cancel/revoke said declaration. The Minister can also amend any declaration or bilateral agreement or determine that a specified action a person is proposing to take is excluded from these instruments. 

Prior to accrediting a management or authorisation framework, the Minister must seek advice from the NEPA CEO and table the accreditation with Parliament. Either House may pass a resolution opposing accreditation within 15 sittings days, in which case the Minister must not accredit the framework.

Similar powers have been conferred on the Minister to make declarations that certain actions do not require approval under Part 9 because the taking of the action has been approved in accordance with a NOPSEMA management or authorisation framework. This framework is one that is set out in the Offshore Petroleum and Greenhouse Gas Storage Act 2006 or its regulations.

Sunset of the Regional Forestry Agreement exemption

The broad exemption from Part 3 of the EPBC Act that currently applies to forestry operations undertaken in accordance with Regional Forest Agreements (RFAs) is now being phased out. 

Any new RFA forestry operations starting after the sunset day, being 12 months beginning on 1 July 2026, will need to comply with the environmental protection provisions under Part 3, including potentially requiring approval under Part 9 (approvals of actions).

Provision of Greenhouse Gas Information for assessment of controlled actions

New section 84A establishes what constitutes ‘greenhouse gas emissions information’ for an action, including:

• a reasonable estimate of the likely amount of scope 1 or 2 greenhouse gas emissions of the action, or a statement that the emissions are below the prescribed amount; and
   
• strategies and measures that will be implemented to manage emissions (if applicable) and how they will be consistent with laws and relevant government policies of the Commonwealth.

Scope 1 emissions are defined as the direct result of taking the action and scope 2 emissions are the indirect, from generated electricity, heating, cooling or steam used by the action. 

Although the definition has now been included, the requirement for proponents to provide this information in the referral, assessment or approval process has not yet commenced. It is, however, a pre-requisite to the Minister accrediting management or authorisation frameworks for the purposes of a declaration or bilateral agreement.

Unacceptable impacts

Under section 527F, the EPBC Act now prescribes specific unacceptable impacts for each matter under Part 3 of the Act. For example, an action which ‘seriously impairs the ecological character of a declared Ramsar wetland’ has an unacceptable impact. 

These definitions currently apply to decisions to accredit management or authorisation frameworks. When the next tranche of reforms commences, these definitions will also apply to decisions on whether to approve a controlled action, and the kinds of conditions that can be attached to an approval.

Lapsing of a decision that an action is not a controlled action

A decision that an action is not a controlled action will now cease to be in force five years after the decision, if the action has not substantially commenced beforehand. If any such decision ceases to be in force, the action is taken to never have been referred to the Minister. In this instance, the Minister will provide written notice at least six months beforehand that the decision will cease to be in force. 

However, an extension for the date of the decision lapsing can be requested at least 20 business days before the date of lapsing. If satisfied that it is appropriate to do so, the Minister can extend the date up to a maximum of another five years. 

National Environmental Standards

What is the significance of the new NES?

The NES will guide decision making under the EPBC Act, in the way specified in the Act and prescribed by the EPBC Regulation. This can require the decision-maker to be satisfied that the decision is consistent (or in some cases, not inconsistent) with the NES, or to have regard to the NES. 

For example, proposed section 136A of the EPBC Act (which is yet to commence) will prohibit the Minister from approving the taking of an action under the EPBC Act unless the Minister is satisfied that, taking into account any conditions to be attached to the approval, the approval is consistent with any NES prescribed by the regulations. Exceptions can apply where the action is a national interest proposal. 

The same NES consistency requirement will also apply to decisions to revoke, vary or add to any conditions attached to an approval of the taking of an action, or to extend the approval period.

What do the new NES require?

Matters of National Environmental Significance Standard

The MNES Standard is the NES governing how decisions under the EPBC Act must address impacts on matters of national environmental significance. 

The following four principles are established under the MNES Standard: 

1. Actions apply the mitigation hierarchy: actions must be designed having regard to a four-step mitigation hierarchy (avoid, mitigate, repair, offset);
    
2. Actions appropriately consider impacts to protected matters: the context in which an impact may occur must be appropriately considered;
    
3. Actions with residual significant impacts to protected matters are compensated: compensation for residual significant impacts must be provided only after the mitigation hierarchy steps have been reasonably exhausted; and
    
4. Actions must be supported by appropriate evidence on impacts to protected matters: data and information regarding the nature and scope of potential impacts, which where relevant, must be informed by engagement with the public and with Indigenous persons. 

A decision-maker may be satisfied that a decision to approve an action (taking into account any conditions to be attached) is consistent with the MNES Standard if the action is consistent with the above principles. The principles apply only to the extent that the impact is on a matter protected by a controlling provision for the action. 

Environmental Offsets Standard

The Offsets Standard governs offset activities used to compensate for residual significant impacts on protected matters. It applies only to matters protected by a controlling provision for the relevant action, where an offset activity will be used to compensate for damage that will or may cause residual significant impact on an affected protected matter. The standard is effectively engaged where the fourth step in the mitigation hierarchy in the MNES Standard is reached.

The following eight principles are established under the Offsets Standard: 

1. Feasibility: there must be a high level of confidence that the offset activity will contribute to the protection, conservation, restoration or recovery of an affected protected matter, achieve the required net gain, and do so in an appropriate timeframe;
    
2. Security: an offset activity must be securely protected, with appropriate protection mechanisms in place or being obtained;
    
3. Tangible: an offset activity must deliver a quantifiable or qualitative benefit (with indirect offsets permitted only where a conservation planning document identifies them as a higher priority);
    
4. Measurable improvements: an offset activity must measurably improve the affected protected matter relative to the offset site baseline;
    
5. Additionality: the offset activity should deliver an additional benefit to what would otherwise have occurred;
    
6. Like-for-like: compensation for the damage caused by a residual significant impact should be on a like-for-like basis, unless a greater benefit for the affected matter can be demonstrated;
    
7. Relevant area: an offset activity must be located in a relevant area near the impact site where practicable; and
    
8. Offset commenced prior to impact: an offset activity must be secured, registered and commenced before the residual significant impact occurs. 

A decision-maker may be satisfied that an approval (taking into account any conditions) is consistent with the Offsets Standard if the damage that will or may be caused by a residual significant impact will be compensated by either an offset activity consistent with the above eight principles or the payment of a restoration contribution charge. 

Community Engagement Standard

The Engagement Standard applies to community engagement undertaken in connection with decisions under the EPBC Act relating to the protection, conservation, restoration, recovery or management of protected matters. 

The following four principles are established under the Engagement Standard: 

1. Engagement is planned, considerate, clear and adaptable: including a publicly accessible invitation to comment on the proposal, with ongoing monitoring and adaptation of the engagement;
    
2. Engagement is transparent, accountable and responsive: requiring disclosure of how public input has or will influence the proposal, and two-way dialogue with affected persons so far as reasonably practicable;
    
3. Engagement is ethical and protects privacy: requiring informed consent, de-identification of published input, and secure data storage; and
    
4. Engagement is accessible and supports inclusivity: including for people from culturally and linguistically diverse backgrounds, with active measures to overcome barriers to participation.

A decision-maker may be satisfied that an approval of an action (taking into account any conditions) is consistent with the Engagement Standard if engagement has been undertaken on the proposed action and that engagement is consistent with the four principles.

Data and Information Standard

The Data Standard applies to data and information used in, or for the purposes of, decisions made under the EPBC Act or an accredited management or authorisation framework. 

The following five principles are established under the Data Standard: 

1. Representative data and information: data must be collected by robust methods, analysed using appropriate scientific or other suitable processes (including academic or cultural processes), and drawn from authoritative sources;
    
2. Transparent data and information: data must be accompanied by adequate metadata and contextual information on quality assurance, methods, provenance and version control;
    
3. Comparable data and information: data must be internally consistent in formats, structures, measurements, taxonomic classifications and references to conservation planning documents;
    
4. Reusable data and information: data must be collected and provided in formats that promote reuse with minimal additional effort; and
    
5. Ethical data and information: data must be collected and managed responsibly to minimise harm, protect rights and privacy, respect Indigenous Cultural and Intellectual Property and (where possible) incorporate cultural values. 

A decision-maker may be satisfied that an approval of an action (taking into account any conditions) is consistent with the Data Standard if the data and information provided in, or in relation to, the referral or assessment of the action is consistent with all five principles. 

Implementation and next steps

The EPBC Regulation now prescribes which NES are relevant to certain decision types, specifically:

• accreditation of management or authorisation frameworks;
   
• National Offshore Petroleum Safety and Environmental Management Authority framework declarations (except for the Offsets Standard);
   
• bilateral agreement accreditation; and
   
• decisions to enter a bilateral agreement declaring that actions assessed in a specified manner do not need to be assessed under Part 8 of the Act.  

Further amendments can be anticipated as the broader reforms to the EPBC Act commence. For example, the NES prescribed for the purposes of proposed section 136A can be expected to align with commencement of the new approval tests, which is set to happen on or before 1 December 2026. 

A NES for First Nations engagement is still being progressed.