The Business Council of Australia (BCA) appreciates the opportunity to make a submission to this Senate Committee Inquiry into the proposed Bills reforming the Environment Protection and Biodiversity Conservation (EPBC) Act, and establishing the National Environment Protection Agency (NEPA) and Environment Information Australia (EIA). The BCA’s membership covers a broad range of sectors across the economy, including many that have a direct involvement in EPBC assessment and approvals processes. This includes mining and resources, energy and electricity, housing, construction and construction materials, technology and telecommunications, infrastructure, and consulting and law.
The EPBC Act is one of the principal pieces of environmental protection legislation in Australia, along with state and territory environment and planning acts, and national greenhouse gas emissions legislation and frameworks. The Act must operate in a way that delivers strong environmental protection, while facilitating timely and efficient assessment and decision-making processes, allowing appropriate ecological sustainable development to progress. It is widely agreed that the current EPBC Act is failing to achieve this.
In reforming the EPBC Act to address these failings, the BCA is seeking a reform program that delivers efficiency and certainty benefits for business proponents, provides better outcomes for the environment, while facilitating national priorities like the energy transition, digital infrastructure, mining of critical minerals, and delivery of more homes. It is welcome that these are also the outcomes the Government is seeking.
We also acknowledge that the Government has now taken an approach more aligned to the recommendations of the Samuel Review than the previous Nature Positive (Stage 2) bills that were introduced into Parliament in 2024, and the BCA endorses the desire to make more comprehensive amendments to the EPBC Act as a cohesive package.
The submission outlines our following key recommendations:
- Provided the amendments proposed in the submission are made, the bills should be passed.
- Replace the complex unacceptable impacts table construct in the bill with a single clear criterion for unacceptable impacts. This should set the threshold at a level allowing potential significant impacts to protected matters to be assessed, while ruling out clearly unacceptable impacts as intended. At a bare minimum, the current criteria requires redrafting to address the concerns raised.
- Appropriate guardrails placed on environment protection orders, including administrative appeals provisions, clear time limits with extension available via court injunction processes, and retention of natural justice provisions.
- The new maximum civil penalty provisions in the bill should be gradated, so they are proportionate, considering technical and administrative breaches, accidental and unintentional breaches, and wilful and egregious breaches, commensurate with the level of environmental harm.
- Clear guidance that projects which currently use the ‘preliminary documentation’ or ‘public environment report’ assessment pathways would have access to the new streamlined assessment. The explanatory memorandum to the bill however does not support this. If that cannot be provided, those assessment types should be retained, so that there are pathways to deal with medium complexity projects, particularly where bilateral assessment and approval pathway are not available.
- The new 5-year time limit for non-controlled actions that have not substantively commenced should be able to be extended on application without requiring a new referral. The 5-year timeframe should also be increased.
- Acknowledging the Government’s mandate to establish an NEPA, the body should be focused on strengthened compliance, enforcement, and assurance. The functions related to decision making (including assessments, variations of actions, and condition setting) should remain with the Department. Failure of the CEO to comply with the Statement of Expectations should allow for their removal.
- Disclosure of scope 1 and 2 greenhouse gas information and related content should be for the purposes of transparency and informing other Commonwealth regulatory processes, not to form part of assessment or conditions under the EPBC Act, to avoid conflicting policy outcomes as these matters are considered under other government mechanisms.
- The requirement to achieve a net gain for projects with a residual significant impact should be set in the Offset Standard, not in legislation, while the detail of what constitutes net gain should be set in regulation. This should be consulted on as a package together with the updated offset calculator.
- The commencement of the new net gain requirements, national environmental standards test, and unacceptable impact test should be contingent on at least one state or territory being accredited for approvals. The Government should aim to have accreditation in place for all the major states within six months of the legislation coming into effect.
- Add modification processes to the EPBC Act, to allow proponents to apply to modify the scope of a project under both a non-controlled action decision, and a controlled action approval.
The reform of the EPBC Act is a critical task for both the effective protection of the environment and to deliver efficient assessment and permitting processes for businesses. The BCA supports the passing of legislation that will deliver these improvements for both the environment and business, as is the Government’s stated intent with the laws. The bills as drafted however do not achieve that objective, and overall as a package they will be a net-negative for business if they are not amended.
As we have outlined in this submission however, there are fixes that address each of the issues identified. We believe these amendments will retain the improved environmental outcomes sought to be achieved from the reforms, whilst also delivering on the promised business improvements.