The Business Council of Australia (BCA) counts more than 120 chief executives from leading companies across the Australian economy as members. The BCA has been engaged with government and stakeholders on the reform of the Environment Protection and Biodiversity Conservation (EPBC) Act since prior to the Samuel Review in 2020. Our membership includes companies that are directly engaged in EPBC Act assessments and approvals, including in the mining and resources, energy, property, infrastructure, and legal sectors. Our membership also has a strong interest in achieving positive environmental outcomes for the nation.
It is the BCA’s view that reform to the EPBC Act should deliver measurable improvement in environmental outcomes, while supporting the efficient delivery of ecologically sustainable development. These objectives should be pursued together, with efficient processes supporting better environmental decision-making, rather than coming at the expense of environmental protection. As we move closer to implementation, each piece of regulation should be considered with these dual goals in mind.
We appreciate the opportunity to provide feedback on the package of subordinate legislation that is proposed to be implemented by 1 July 2026. The BCA will separately provide submissions on the other items open for consultation in parallel, such as the draft national environmental standards.
Key recommendations
Recommendation 1
- The establishment of the new National EPA should be accompanied by transitional guidance and implementation arrangements to support both effective environmental protection and regulated entities’ understanding of the new regulatory settings.
Recommendation 2
- Align audit processes with state regimes where they meet required standards, to reduce cost and administrative burden without compromising environmental benefit.
Recommendation 3
- There should be a clear functional separation between compliance and approval roles within the EPA, supported by adequate resourcing to promote both regulatory integrity and effective administration.
Recommendation 4
- Public registers that replicate existing publication requirements should be consistent with the publication requirements already in place.
- For Environmental Protection Orders, there should be clear rules on publication and expiry from the register to ensure the register remains accurate, current and fair, updated as those orders themselves are updated, to remove orders no longer in effect.
- There should be provisions for the appropriate redaction of confidential information.
Recommendation 5
- Update the policy document with a clear hierarchy of the various guidance documents and plans, clarify the handling and status of older (pre-reform) documents, and align conservation documents with state and territory guidance where appropriate.
Recommendation 6
- Update the regulations relating to protection statements to make clear that descriptions of significant impacts are intended to guide assessment of the nature and scale of impacts, rather than predetermining an impact prior to assessment.
Recommendation 7
- Update the regulations to address the transition requirements if a protection statement is updated post approval or during assessment.
Recommendation 8
- As part of the regular review of rulings, both ‘environmental outcomes’ and ‘administrative effectiveness’ should be required considerations.
Recommendation 9
- Transitional arrangements should be developed for rulings that apply to projects that have already been referred. This could include the option for proponents to adopt a ruling or continue under the regulatory interpretation at the time of referral.
Recommendation 10
- The application process for minor or preparatory works should be commensurate with the minor nature of the work, which should clearly not have any significant impact on a protected matter. Guidance should be developed to support applicants in determining whether a proposal fits within the requirements of the minor or preparatory works provision, and clarify the expectation of the application of the Standards in respect of this work.
Recommendation 11
- Provide guidance on the requirements for a reconsideration request in respect of the evidentiary standard and applicability, for consultation with stakeholders.
Recommendation 12
- Provide guidance on the ‘substantially commenced’ test, for consultation with stakeholders, and on the practical implementation of the test.
Recommendation 13
- Develop detailed guidance on the application of the unacceptable impacts test for consultation with stakeholders.
Recommendation 14
- Clear guidance on the treatment of critical habitat and related terms should be developed for decision makers and proponents, including their interaction with unacceptable impacts, and in relation to existing documents produced prior to the passage of the Environmental Protection Reform Act 2025.
Recommendation 15
- Consultation requirements should be added to the regulations for the listing of critical habitat.
Recommendation 16
- Clarify through regulation that the test of ‘likely residual significant impact’, as it applies to the NOPSEMA framework, can be satisfied through the ‘as low as reasonably practicable’ and acceptable level assessment undertaken by NOPSEMA, to ensure a new accredited framework can function as intended, while still delivering strong environment assessment checks.
- Update policy and regulatory settings to make clear that offset requirements are not relevant to actions approved under a NOPSEMA accredited framework, as they will have no residual significant impact or likely residual significant impact.
Recommendation 17
- Provide detail on the mechanics and practicalities for proponents of changes to accreditation agreements they are being assessed under.
Read our full submission here.
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