Environment Protection and Biodiversity Conservation Act 1999

Executive summary of update

Effective date: 20 February 2026 This update, primarily driven by Act No. 68, 2025, introduces significant procedural and substantive changes to the Environment Protection and Biodiversity Conservation Act 1999. Key amendments include new mechanisms for reconsideration of environmental approval decisions, the establishment of a framework for National Environmental Standards, and a comprehensive overhaul of Ministerial declarations and accreditation processes for environmental approvals. The primary intent is to enhance regulatory clarity, streamline certain assessment pathways, and strengthen environmental protection through new compliance benchmarks. The most significant practical consequence is the need for all regulated entities to review and adapt their project planning and compliance strategies to align with these new standards and processes.

Impacted parties

Commonwealth agencies, project proponents, landholders, environmental consultants, and legal counsel are most significantly impacted by this specific update.

Change Analysis

1. New Reconsideration Processes for Environmental Decisions

• What is the new requirement? Act No. 18, 2025, introduces new sections 79A to 79E, establishing a formal process for the reconsideration of a Minister’s decision that an action is not a controlled action because it will be taken in a particular manner. This includes provisions for applying for reconsideration, inviting public comments, the Minister’s decision-making process, and a determination that certain reconsidered actions may continue to be taken under specified conditions.
• What was the old rule? (New Obligation) Previously, reconsideration of decisions under section 75 was primarily governed by section 78, which allowed the Minister to revoke and substitute decisions based on new information, changed circumstances, or non-compliance with specified manners of action. The new sections introduce a more detailed and formal application-based process for specific types of reconsideration.
• Why does this matter? This provides a structured pathway for project proponents to seek adjustments to their approved actions if the initially identified manner of taking the action becomes inappropriate. It also introduces a “determination” mechanism (s.79E) allowing actions to continue under conditions, providing regulatory certainty during the reconsideration process. However, it also adds new procedural steps and public consultation requirements that must be navigated carefully.

2. Establishment of National Environmental Standards Framework

• What is the new requirement? Act No. 68, 2025, introduces a new Part 19B (sections 514YC-514YK) which empowers the Minister to make legislative instruments for National Environmental Standards. These standards must specify outcomes or objectives and may include parameters, principles, processes, or actions. They are mandatory for prescribed decisions under the Act and must comply with a “no regression principle” when varied or revoked.
• What was the old rule? (New Obligation) There was no explicit framework for National Environmental Standards under the previous version of the Act. Environmental decisions were guided by the Act’s objects, principles of ecologically sustainable development, and various management plans or policies.
• Why does this matter? This is a fundamental shift in the regulatory landscape. National Environmental Standards will set clear, legally binding benchmarks for environmental outcomes, potentially streamlining assessment processes by providing explicit criteria. However, it also introduces a new layer of compliance complexity, requiring careful interpretation and integration into project planning and execution. The “no regression principle” ensures that future changes to standards cannot weaken environmental protections, providing long-term certainty but potentially limiting flexibility.

3. Revised Framework for Ministerial Declarations and Accreditation

• What is the new requirement? Act No. 68, 2025, significantly revises the process for Ministerial declarations that actions do not need approval under Part 9 (sections 33, 35, 36, 36A). This includes new mandatory provisions for declarations, prerequisites for making declarations (e.g., meeting prescribed criteria, consistency with management principles for World Heritage, National Heritage, Ramsar wetlands, threatened/migratory species, Commonwealth Heritage places), and rules for minor amendments.
• What was the old rule? The previous framework for Ministerial declarations (s.33, s.35, s.36, s.36A) was less prescriptive regarding mandatory provisions and prerequisites, particularly concerning specific heritage and biodiversity matters. The new version consolidates and strengthens these requirements.
• Why does this matter? This impacts how projects can seek exemptions or streamlined assessments through Ministerial declarations. The increased prerequisites and mandatory provisions mean that achieving accreditation will require more rigorous demonstration of environmental protection and consistency with various management principles. This could lead to longer lead times for obtaining declarations but may also result in more robust environmental outcomes.

4. New and Amended Civil Penalty and Offence Provisions

• What is the new requirement? Act No. 68, 2025, introduces or amends several civil penalty and offence provisions, particularly concerning compliance with conditions and the new reconsideration processes. For example, section 12(2)(ba), 15A(4)(ba), 15B(8)(ba), 15C(16)(ba), 16(2)(ba), 17B(4)(ba), 19(3)(aa), 20(2)(ba), 20A(4)(ba), 21(4)(ba), 22A(8)(ba), 23(4)(ba), 24B(3)(ba), 24C(9)(ba), 24D(4)(ba), 24E(4)(ba), 25(2)(ba), 26(3)(c), 27A(6)(ba), 27B(2)(ba), 27C(5)(ba), 28(2)(ba) all refer to the new s.79E determination. This means that failure to comply with conditions specified in a s.79E determination can lead to civil penalties or offences.
• What was the old rule? The previous version did not include references to section 79E determinations in these exemption clauses, as section 79E itself is new. The existing civil penalty and offence provisions applied to contraventions of approvals or conditions, but not specifically to the new “determination” mechanism.
• Why does this matter? The integration of the new s.79E determination into existing penalty provisions means that any action continuing under such a determination is subject to strict compliance with its conditions. Failure to adhere to these conditions can now directly trigger significant civil penalties or criminal offences, increasing the legal risk for proponents operating under these new arrangements.

5. New Schedule 2: Catchment area of the Great Barrier Reef Marine Park

• What is the new requirement? Act No. 68, 2025, adds Schedule 2, which provides a map delineating the “Catchment area of the Great Barrier Reef Marine Park.” This map visually defines the area referred to in subsection 43B(2A) and (2C), which imposes restrictions on clearing vegetation within 50 metres of watercourses, wetlands, or drainage lines in this catchment area.
• What was the old rule? The previous version of the Act did not include this specific map in a Schedule. While the concept of a catchment area might have been referenced, the precise geographical definition was not explicitly legislated in this manner.
• Why does this matter? This provides clear geographical certainty for the application of specific environmental protection measures related to the Great Barrier Reef Marine Park. Projects involving land clearing activities in Queensland, particularly near water bodies, must now consult this map to ensure compliance with the new restrictions, impacting land use planning and operational procedures in the defined catchment area.

Corrective and preventive actions

Health Safety and Environment

• Section 43B & Schedule 2: Review all current and planned land clearing activities in Queensland to identify if they fall within the Great Barrier Reef Marine Park Catchment Area as defined in the new Schedule 2. Update environmental impact assessments and management plans to ensure compliance with restrictions on clearing vegetation within 50 metres of watercourses, wetlands, or drainage lines.
• Section 134: Update internal environmental management systems and project-specific conditions to reflect the expanded scope of conditions that may be attached to approvals, particularly those requiring specified activities, financial contributions, or compliance with industry standards.
• Part 19B: Develop internal guidelines and training on the new National Environmental Standards, focusing on how they apply to environmental impact assessments, approvals, and ongoing compliance.

Legal

• Section 79A-79E: Develop a legal strategy and internal procedures for navigating the new reconsideration process for “action taken in a particular manner” decisions, including application requirements, public consultation, and managing conditions for continued action.
• Part 19B: Review all existing and upcoming environmental decisions to identify those prescribed by regulations for mandatory application of National Environmental Standards. Provide legal interpretation of the “no regression principle” (s.514YG) for future standard variations.
• Section 33, 35, 46: Review and update internal legal advice and templates for bilateral agreements and Ministerial declarations to align with the revised prerequisites, mandatory provisions, and accreditation processes.
• Section 12, 15A, 15B, 15C, 16, 17B, 18, 18A, 20, 20A, 21, 22A, 23, 24A, 24B, 24C, 24D, 24E, 25, 26, 27A, 27B, 27C, 28, 142, 142A, 142B, 390SA, 390SB, 494, 495, 496B, 496C: Update legal risk assessments and compliance frameworks to incorporate the new and amended civil penalty and offence provisions, particularly those linked to the new s.79E determinations and landholder liability.

Project Management

• Section 79A-79E: Integrate the new reconsideration process into project planning and risk management, ensuring that potential changes to approved actions can be formally managed.
• Part 19B: Incorporate National Environmental Standards into project design, planning, and approval strategies, ensuring that projects are designed to meet these new benchmarks from the outset.
• Section 33, 35, 46: Adjust project timelines and resource allocation for obtaining environmental approvals, considering the potentially more rigorous requirements for Ministerial declarations and accreditation.

Operations

• Section 43B & Schedule 2: Implement immediate operational changes for land clearing activities in the Great Barrier Reef Marine Park Catchment Area to ensure strict adherence to the new 50-meter buffer zone and other restrictions.
• Section 134: Ensure operational teams are aware of and trained on any new or varied conditions attached to environmental approvals, especially those related to specific activities, financial contributions, or monitoring.
• Section 79E: Establish clear operational protocols for actions continuing under a s.79E determination, ensuring strict compliance with all specified conditions to avoid penalties.

Commercial and Procurement

• Section 496B, 496C: Review and update contractor and supplier agreements to include clauses that ensure compliance with EPBC Act provisions and mitigate landholder liability risks, especially for activities on land.
• Section 134: Incorporate potential new financial contributions or insurance requirements (as per s.134(3)(ab) and (b)) into project budgeting and contract negotiations.

Government & Regulatory Affairs

• Part 19B: Monitor the development and prescription of new National Environmental Standards and associated regulations to anticipate future compliance requirements.
• Section 33, 35, 46: Engage with relevant government bodies to understand the practical implementation of the revised Ministerial declaration and accreditation framework.
• Section 79A-79E: Prepare for increased engagement with the Minister’s office regarding reconsideration applications and determinations.

Risks & opportunities assessment

Risks:

• Increased Compliance Burden: The introduction of National Environmental Standards and more rigorous declaration/accreditation processes will require significant investment in understanding, implementing, and monitoring compliance, potentially increasing operational costs and project timelines.
• Enhanced Legal and Financial Penalties: New and clarified civil penalty and offence provisions, particularly for landholders and for non-compliance with s.79E determinations, expose projects and individuals to higher legal and financial risks.
• Project Delays/Uncertainty: More stringent prerequisites for approvals and declarations, coupled with new reconsideration processes, could lead to delays in project initiation or modifications if not proactively managed.
• Reputational Damage: Non-compliance with the new standards and processes, especially those related to high-profile areas like the Great Barrier Reef Marine Park, could result in significant reputational harm.

Opportunities:

• Improved Environmental Outcomes: Clearer standards and robust assessment processes can lead to more sustainable project designs and better environmental performance, enhancing social license to operate.
• Streamlined Approvals (Long-term): Once the National Environmental Standards are established and understood, they may provide greater certainty and potentially faster approval pathways for projects that clearly demonstrate alignment.
• Advisory Services Expansion: The increased complexity creates opportunities for internal legal and environmental teams to provide enhanced advisory services to project teams, ensuring proactive compliance and risk mitigation.
• Innovation in Environmental Management: The “no regression principle” and focus on outcomes may drive innovation in environmental protection and mitigation technologies and practices.
• Enhanced Stakeholder Engagement: The formalised public consultation processes (e.g., for reconsiderations and declarations) offer opportunities for more transparent and effective engagement with communities and Indigenous groups, building stronger relationships.