Reconsidering reconsiderations – changes to the EPBC Act narrow the scope of merit review

On 26 March 2025, the Parliament of Australia passed the Environment Protection and Biodiversity Conservation Amendment (Reconsiderations) Bill 2025 (Bill). The Bill amends the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) by restricting the power of the Minister for the Environment (Minister) to reconsider certain past decisions.

The Bill is intended to provide “certainty and fairness to industry, workers and communities, where industries have already been operating for a significant amount of time”. It follows requests made to the Minister to reconsider decisions on salmon farming in Macquarie Harbour, Tasmania, particularly in relation to the potential impact of this ongoing action on the Maugean skate, an endangered species listed under the EPBC Act.

The amendments are controversial, and already relevant to proceedings that have been commenced in the Federal Court, in which the Bob Brown Foundation is seeking orders requiring the Minister to determine the above requests notwithstanding the amendments introduced by the Bill.

Reconsideration framework

Under the EPBC Act, the Minister must decide whether a proposed action requires approval because it is a controlled action. A controlled action is one that would be prohibited under Part 3 of the EPBC Act (which concerns matters of national environmental significance) if carried out without a controlled action approval issued under Part 9 of the EPBC Act. 

When deciding whether a proposed action requires such approval, the Minister may decide that the activity is not a controlled action if it is carried out in a particular manner. In other words, a ‘not a controlled action – particular manner’ decision (NCA-PM decision).

Under section 78 of the EPBC Act, the Minister can revoke certain decisions made about an action and substitute a new decision if they are satisfied that it is warranted by matters including:

• the availability of substantial new information or a change in circumstances (not foreseen at the time of the first decision) about the impacts that the action has, will have, or is likely to have on a matter of national environmental significance
• the initial decision determined the action was a NCA-PM, but the action is not being undertaken or will not be undertaken in the manner identified in that decision.

Where a NCA-PM decision is revoked and substituted with a decision that the action is a controlled action, the action needs to stop until a controlled action approval is sought and obtained.

The Bill seeks to restrict the Minister’s power to revoke and substitute a NCA-PM decision where:

1. the identified manner included that the action would be taken in accordance with a management arrangement made, approved or administered by the government of a State or Territory
2. the action is being taken
3. the action has been ongoing or recurring for at least 5 years.

In effect, this puts a limitation period on the review of NCA-PM decisions.

As noted in the second reading speech for the Bill, while the salmon farming example is driving the Bill, it is “potentially not an isolated event”.

Scope for further reforms to the EPBC Act

In October 2020, Professor Graeme Samuel AC completed the second independent review of the EPBC Act and published a final report (Samuel Report), which concluded that the EPBC Act is “outdated and requires fundamental reform”.

Relevantly, the Samuel Report stated:

"The current approach lacks a clear articulation of environmental outcomes and a mechanism for evaluating and reporting on the effectiveness of the EPBC Act. The lack of an overarching framework to support evidenced-based and adaptive management, and to optimise monitoring and reporting effort remains a key shortcoming that needs to be addressed."

The changes made by the Bill do not seek to address these observations. Rather, by narrowing the scope for reconsidering NCA-PM decisions, the Bill limits the opportunity for adaptive management of longer-term impacts and the consideration of emerging information around cumulative impacts of ongoing activities.

The explanatory memorandum to the Bill acknowledges that “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 EPBC Act could in future meet the threshold for reconsideration.”

While the government’s Nature Positive Plan, published in December 2022, sets out a pathway to amend the EPBC Act in light of the Samuel Report, progress on proposed reforms has been deferred.

Implications for proponents and state government with an interest in actions with a NCA-PM decision

For ongoing actions under a NCA-PM decision, the passing of the Bill may mean that the decision is no longer challengeable. For anyone with an interest in an ongoing action that has commenced within the last 5 years under a NCA-PM decision, the passing of the Bill puts a deadline on requests to reconsider the NCA-PM decision, including requests made by state government.

If you would like more information or have questions about how the Bill may impact you, please get in touch with our team below or contact us here.

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Katharine Huxley

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