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2022-2023-2024-2025
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION
AMENDMENT (RECONSIDERATIONS) BILL 2025
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for the Environment and Water,
the Hon. Tanya Plibersek MP)
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION
AMENDMENT (RECONSIDERATIONS) BILL 2025
GENERAL OUTLINE
The 2021 State of the Environment Report made clear that all aspects of the Australian
environment are under stress, and many are declining. Multiple pressures from factors like
climate change, habitat loss, invasive species, and pollution create cumulative impacts that
amplify threats to our environment. Better information, along with the increasingly dynamic
nature of the environment increases the likelihood that actions originally determined to be
unlikely to have a significant impact on a protected matter under the Environment Protection
and Biodiversity Conservation Act 1999 (EPBC Act) could in future meet the threshold for
reconsideration.
Under the EPBC Act, an action can be lawfully taken if the Minister decides that it is not a
controlled action. In contrast, if the Minister decides that the action is a controlled action, the
action is subject to further assessment under the EPBC Act and cannot be taken unless and until
the Minister approves the taking of the action. The EPBC Act requires the Minister to decide
that an action is a controlled action if the Minister is satisfied that the action has, will have, or
is likely to have, a significant impact on a protected matter.
The EPBC Act currently allows reconsideration of decisions regarding whether an action is a
controlled action in specific circumstances. For example, in response to the availability of
substantial new information about the impacts of the action, or a substantial change in
circumstances not foreseen at the time of the original decision.
It is important that the Minister be able to reconsider a decision that an action is, or is not, a
controlled action in response to these kinds of circumstances. However, the operation of the
current provisions of the EPBC Act create significant uncertainty for established industry,
workers and communities. The Minister can reconsider an earlier decision that an action is not
a controlled action, even when the action is already being lawfully undertaken. In this situation
and under current settings, if the Minister decides, as a result of the reconsideration, that the
action is now a controlled action, the proponent must cease operations in relation to the action
until a full assessment is completed and a decision on whether to approve the taking of the
action is made. The economic and social impacts of stopping an action can be severe, creating
uncertainty and putting jobs, businesses, communities and individual livelihoods at risk.
The Environment Protection and Biodiversity Conservation Amendment (Reconsiderations)
Bill 2025 (the Amendment Bill) would amend the EPBC Act to address this issue, balancing
the need for environmental protection with the need to provide certainty and fairness to
industry, workers and communities, where industries have already been operating for a
significant amount of time.
The Amendment Bill would provide this certainty by exempting decisions made under
subsection 75(1), which relate to whether an action needs to be assessed and approved under
the EPBC Act (the first decision), from revocation if the following criteria are met:
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• the first decision was that the action was not a controlled action if undertaken in a
particular manner (also known as an NCA-PM decision); and
• the particular manner required in the first decision included that the action would be
undertaken in accordance with a management arrangement made, approved or
administered by the government of a State or self-governing Territory; and
• the action is being taken; and
• either:
o in the case of where a person (other than a State or Territory Minister) has made
a request for reconsideration - at the time of the request, the action has been
taken in a way that is ongoing or recurring for at least 5 years; or
o in any other case - the action has been taken in a way that is ongoing or recurring
for at least 5 years.
The effect of these amendments would be to provide greater certainty by removing the
Minister's ability to revoke and substitute a past decision relating to whether an action needs
to be assessed and approved under the EPBC Act where the above criteria are met.
The intention is to balance the need to reassess the environmental impacts of the action against
the need for certainty and stability for industry, workers and communities that rely on the
relevant action and would otherwise be greatly impacted should they be required to stop
undertaking the action for an uncertain period of time.
FINANCIAL IMPACT STATEMENT
The Amendment Bill would have no financial impacts on the Australian government.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Amendment Bill is compatible with human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011. The full Statement of Compatibility with Human Rights is included in the Attachment
to this explanatory memorandum.
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ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION
AMENDMENT (RECONSIDERATIONS) BILL 2025
NOTES ON CLAUSES
Clause 1 Short title
1. Clause 1 would provide that the Environment Protection and Biodiversity Conservation
Amendment (Reconsiderations) Act 2025 (Amendment Bill), once enacted, may be
cited as the Environment Protection and Biodiversity Conservation Amendment
(Reconsiderations) Act 2025.
Clause 2 Commencement
2. The table under subclause 2(1) sets out the commencement for the Amendment Bill.
The first table item would have the effect that the whole of the Amendment Bill
commences on the day after it receives the Royal Assent.
3. Subclause 2(2) would clarify that any information in column 3 of the table in subclause
2(1) is not part of the Amendment Bill. Information may be inserted in this column, or
edited in this column, in any published version of the Amendment Bill. For example,
the date that the Amendment Bill commenced would be inserted in this column once
that has occurred.
Clause 3 Schedules
4. Clause 3 would provide the legislation that is specified to be amended or repealed as
set out in a Schedule concerned to the Amendment Bill has effect according to the terms
of the relevant Schedule. Each Schedule would amend the relevant legislation in the
manner specified in that Schedule.
5. Schedule 1 to the Amendment Bill would amend the Environment Protection and
Biodiversity Conservation Act 1999 (EPBC Act) in the manner specified in that
Schedule.
Schedule 1 - Amendments
Environment Protection and Biodiversity Conservation Act 1999
Item 1
6. Item 1 would amend the EPBC Act to insert a new subsection 78(3A) after subsection
78(3).
7. Subsection 75(1) of the EPBC Act requires the Minister to decide whether an action
that is the subject of a proposal referred to the Minister is a controlled action and which
provisions of Part 3 (if any) are controlling provisions for the action. The Minister may
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decide that the action is not a controlled action if taken in a particular manner (see
section 77A).
8. Section 67 of the EPBC Act defines a controlled action to be an action that a person
proposes to take if the taking of the action by the person without approval under Part 9
for the purposes of a provision of Part 3 would be (or would, but for section 25AA or
28AB, be) prohibited by the provision. The provision is a controlling provision for the
action.
9. In practice, an action is a controlled action if it has, will have, or is likely to have, a
significant impact on a matter protected by a provision of Part 3. These include matters
such as a listed threatened species or ecological community or the world heritage values
of a declared World Heritage property.
10. Where the Minister decides, under subsection 75(1), that an action is not a controlled
action, the effect is that the person can take the action without breaching Part 3 of the
EPBC Act; no further approval is required. In contrast, where the Minister decides,
under subsection 75(1), that an action is a controlled action, the action is required to be
assessed under the EPBC Act. An action that is being assessed cannot be taken unless
and until the action is approved under Part 9 of the EPBC Act.
11. Subsection 78(1) of the EPBC Act allows the Minister to revoke a decision made under
subsection 75(1) about an action and substitute a new decision in certain circumstances.
12. Sections 78A to 78C set out the process for a person (other than a Minister of a State or
self-governing Territory) to request the Minister to reconsider a decision under
subsection 75(1) about an action and the process for the Minister to deal with such a
request. Similarly, section 79 sets out the process for a Minister of a State or self-
governing Territory to request a reconsideration of a decision.
13. A reconsideration may, for example, result in the controlling provisions for an action
being changed on the basis of new information about the likely impacts of the action.
14. A reconsideration could also result in a decision that an action was not a controlled
action being revoked and a decision that the action is a controlled action being
substituted. In such circumstances, the action would be prohibited from continuing to
be taken unless and until it was approved under Part 9 of the EPBC Act. The practical
effect would be that the proponent must cease operations in relation to the action until
an assessment is completed and a decision on whether to approve the taking of the
action is made. This could occur even if the referred action had lawfully commenced
years earlier, following the original decision that it was not a controlled action.
15. The cessation of the action may cause uncertainty and disruption for industry, workers
and communities. It is the intention of this amendment to find a balance between
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preventing environmental harm, and the disruption to communities and the economy
that may arise from the cessation of an action that has already commenced and is
ongoing.
16. New subsection 78(3A) would prevent the Minister from revoking a decision (the first
decision) made under subsection 75(1) about an action if:
a. the first decision was that the action was not a controlled action because the
Minister believed the action would be taken in a particular manner (also known
as an NCA-PM decision) (new paragraph 78(3A)(a)); and
b. the particular manner included that the action would be taken in accordance with
a management arrangement made, approved or administered by a government
of a State or self-governing Territory (new paragraph 78(3A)(b)); and
c. the action is being taken (new paragraph 78(3A)(c)); and
d. either:
i. if the Minister is requested under subsection 78A(1) to reconsider the
decision - at the time the request is made, the way in which the action
is being taken has been ongoing or recurring for at least 5 years (new
subparagraph 78(3A)(d)(i)); or
ii. otherwise - the way in which the action is being taken has been ongoing
or recurring for at least 5 years (new subparagraph 78(3A)(d)(ii)).
17. The effect of this new subsection would be to provide greater certainty to industry,
workers and communities by removing the Minister's ability to revoke and substitute a
past decision relating to whether an action needs to be assessed and approved under the
EPBC Act where the above criteria are met.
18. The first criterion limits the exemption to NCA-PM decisions. It refers to where the
Minister makes the first decision, under subsection 75(1), whether the action that is the
subject of a proposal referred is a controlled action and which provisions of Part 3 (if
any) are controlled provisions for the action. If the Minister decides that a particular
provision of Part 3 is not a controlling provision for the action because the Minister
believes it will be taken in a particular manner (a component decision), the Minister
must set out the component decision, identifying the relevant Part 3 provision and the
particular manner (see subsection 77A(1)) in a notice provided under section 77 of the
EPBC Act. A decision of this kind is commonly known as an NCA-PM decision.
19. The second criterion would be met if a particular manner specified in the relevant
section 77 notice included that the action would be undertaken in accordance with a
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management arrangement made, approved or administered by a State or self-governing
Territory government. The term management arrangement is broadly defined by
section 528 to include a management plan, regime and policy.
20. For example, this criterion could cover a management arrangement:
a. provided in relation to an action that will be undertaken in accordance with a
management plan, regime or policy that is administered or approved by a State
or self-governing Territory;
b. prepared by a State or self-governing Territory for an action to manage an action
where the State or Territory is proposing to take the action itself; or
c. made by a State or self-governing Territory to manage environmental impacts
in relation to a particular region, location or industry.
21. This criterion would also cover management arrangements even if the relevant
document did not describe or name itself as such.
22. It follows that this criterion would cover situations where a particular manner requires
a person to take an action in accordance with, for example:
a. a policy made by a State or Territory; or
b. a management plan approved by a State or Territory as part of a State or
Territory approval for the action.
23. The purpose of the third and fourth criterion is to provide certainty and fairness to those
who have invested time, resources and capital into actions and developed them to a
point where the action is being taken, and has been taken on an ongoing or recurring
basis for a well-established period of time (5 years). It would allow those businesses to
continue their operations without disruption, while still providing a reasonable
timeframe for the Minister to reconsider decisions.
24. An action that is being taken and has been taken in a way that is ongoing or recurring
for at least 5 years is intended to cover actions that are currently operating and have
been operating in a regular, routine or consistent way over that period.
25. For the purposes of the fourth criterion (new paragraph 78(3A)(d)), it is intended that
where there has been a request made under subsection 78A(1), subparagraph
78(3A)(d)(i) would apply and the 5-year period would be measured backwards from
the date of the receipt of each request, on a case-by-case basis. In contrast, subparagraph
78(3A)(d)(ii) would apply where no request for reconsideration is before the Minister
and the 5-year period would be measured from the date on which the action became
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ongoing or recurring, rather than merely preparatory. Subparagraph 78(3A)(d)(ii)
would operate continuously at any point at which the Minister turns their mind as to
whether to make a revocation decision.
26. An example of how the third and fourth criterion would apply can be illustrated in the
case where an action was to construct and operate a solar farm. The third and fourth
criterion would apply in the following circumstances:
a. A request for reconsideration under section 78A was received on 1 January
2025. This means the relevant 5-year period to consider is 1 January 2020 to 31
December 2024.
b. Construction of the solar farm infrastructure was completed in early 2018. This
included land clearing to build access roads and associated infrastructure, such
as solar panels, energy storage systems and connections to the energy grid.
c. The solar farm started operating and generating electricity on 1 July 2018.
27. In this example, the operation of the solar farm, and the generation of electricity would
be considered to have been being taken in an ongoing or recurring way for more than 5
years preceding the date of the request for reconsideration.
28. It is reasonable to expect in operating a business or undertaking a development, there
may be short breaks in operation to deal with matters such as undertaking maintenance,
repairing infrastructure or to comply with regulatory requirements such as monitoring
health and safety, or exclusion periods.
29. Using the above solar farm example, an example of a short break may include if there
was a technical issue that required the solar farm to be closed for maintenance for a 20-
day period. During this time, the solar farm may not be generating electricity.
30. This example illustrates that despite the break for maintenance, the action could still be
considered 'ongoing or recurring'. This is because routine, operational activities were
still happening in relation to the action itself (being the maintenance work in this
example), despite the break in production of solar-generated electricity.
31. This criterion is not intended to cover circumstances where preliminary or preparatory
works have begun but no other works were done. For example, if a proponent had
broken ground on an action or only begun land clearing in preparation for the action,
but then the site of the action was idle for a significant amount of time, including when
a request for reconsideration is made, the action would not be considered 'being taken'
nor 'ongoing or recurring' for the purposes of this criterion.
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32. The intention is that if an action has been ongoing and recurring over 5 years or more
before the request for reconsideration, or the Minister's decision where no request is
made, this would provide time for the impacts associated with the relevant action, as
they were known at the time of the NCA-PM decision, to have stabilised and become
consistent. By having reached this point, this criterion would provide an appropriate
balance between protecting the environment, and providing certainty and fairness to
businesses, workers and their communities.
33. The 5-year timeframe is intended to relate expressly to the action, or components of the
action, that were subject of the initial referral decision.
34. The overall intended operation of new subsection 78(3A) can be illustrated in the
example of an action to undertake sheep grazing for agricultural purposes:
a. The referral identified that the proposed action was to expand sheep grazing at
a large existing agricultural property, including increasing both the intensity and
geographic extent of the grazing.
b. The Minister made an NCA-PM decision in relation to this referral on 1 January
2015.
c. The Minister provided a notice in accordance with section 77 stating the
relevant particular manners that the action must be taken in accordance with.
One of those manners is that the action must be undertaken in accordance with
the Grassland Management Plan for Region X, which is a management plan
made under an environmental law of the state in which the action is being taken.
d. The action commenced on 1 July 2015, when grazing at new locations on the
property began. Grazing is undertaken routinely and in accordance with the
Grassland Management Plan for Region X, with stock density and grazing
location rotated across areas periodically and in response to climatic and
vegetation conditions.
e. On 1 July 2025, the Minister receives a request to reconsider the NCA-PM
decision of 1 January 2015.
35. In this example, each of the criteria exempting an action from reconsideration would
be met, including that:
a. The decision (the first decision) was that the action was not a controlled action
because the Minister believed the action would be taken in a particular manner.
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b. One of the identified manners in the decision notice was that the action would
be taken in accordance with the Grassland Management Plan for Region X,
which is a management arrangement made under a state environmental law.
c. At the time the request was made, the action, being sheep grazing at the
expanded intensity or location, was being taken.
d. Despite fluctuations in density and location, the action as identified in the
referral document, being the expansion of sheep grazing, was being taken in a
way that has been ongoing or recurring for 10 years at the time the request for
reconsideration was made.
Item 2
36. Item 2 would amend section 78C of the EPBC Act to insert new subsection 78C(1A)
after subsection 78C(1).
37. Section 78A sets out the process for a person (other than a Minister of a State or self-
governing Territory) to request the Minister to reconsider a decision under subsection
75(1) about an action. Section 78B sets out the notification and consultation
requirements that the Minister must comply with if a request under section 78A is
received.
38. Existing subsection 78C(1) requires the Minister to reconsider a decision about an
action and either confirm the decision, or revoke that decision in accordance with
subsection 78(1) and substitute a new decision for it. This must occur as soon as
practicable after the end of the time within which information or comments may be
given under section 78B in relation to a request for reconsideration.
39. New subsection 78C(1A) would clarify that the Minister must not revoke a decision if
existing subsection 78(3) or new subsection 78(3A) applies.
40. The effect of the proposed amendment would be to clarify the requirement to make a
decision under section 78C would be subject to the same limitations (as set out under
proposed subsection 78(3A) and existing subsection 78(3)), as if the Minister were
making a decision under subsection 78(1). The proposed amendment would also reflect
the current operation of existing subsection 78(3) and provide greater clarity on the face
of the legislation.
Item 3
41. Item 3 contains application provisions which would clarify the operation of the
proposed amendments to be inserted into the EPBC Act by items 1 and 2.
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42. Subitem 3(1) would provide that the proposed amendments would apply in relation to
the first decision made under subsection 75(1) of the EPBC Act about an action,
regardless of whether the first decision was made before or after commencement.
43. Subitem 3(2) would provide that the proposed amendments would apply in relation to
the first decision regardless of whether a request for reconsideration (under subsection
78A(1)) was made in relation to the first decision before commencement, unless the
Minister has already made the reconsideration decision (under subsection 78(1)) before
commencement in relation to such a request. This means that upon commencement, if
the criteria set out in new subsection 78(3A) are met, the Minister would not be able to
revoke the first decision in relation to any requests for reconsideration made by a person
under subsection 78A(1) that are both on foot and unresolved (that is, for which the
Minister has not yet made a decision under subsection 78(1)).
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ATTACHMENT
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Environment Protection and Biodiversity Conservation Amendment (Reconsiderations)
Bill 2025
This bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Amendments
The Environment Protection and Biodiversity Conservation Amendment (Reconsiderations)
Bill 2025 (Amendment Bill) would amend the Environment Protection and Biodiversity
Conservation Act 1999 (EPBC Act) to exempt decisions made under subsection 75(1), which
relate to whether an action needs to be assessed and approved under the EPBC Act (the first
decision), from revocation if the following criteria are met:
• the first decision was that the action was not a controlled action if undertaken in a
particular manner (known as an NCA-PM); and
• the particular manner required in the first decision included that the action would be
undertaken in accordance with a State or Territory government management
arrangement; and
• the action is being taken; and
• either:
o in the case of where a person (other than a State or Territory Minister) has made
a request for reconsideration - at the time of the request, the action has been
taken in a way that is ongoing or recurring for at least 5 years; or
o in any other case - the action has been taken in a way that is ongoing or recurring
for at least 5 years.
The effect of these amendments would be to provide greater certainty to industry, workers and
communities by removing the Minister's ability to revoke and substitute a past decision relating
to whether an action needs to be assessed and approved under the EPBC Act where the above
criteria are met.
Human Rights Implications
The amendments proposed by the Amendment Bill do not engage any of the applicable human
rights and freedoms.
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Conclusion
The Amendment Bill is compatible with human rights as it does not raise any human rights
issues.
(Circulated by authority of the Minister for the Environment and Water,
the Hon. Tanya Plibersek MP)
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