For a quarter century, Australia’s environment laws were widely regarded as not fit for purpose. In 2020, a scathing review by Professor Graeme Samuel found the Environment Protection and Biodiversity (EPBC) Act was ineffective and unfit for future environmental challenges.
On the last Parliamentary sitting day of 2025, Labor passed its long-awaited reforms to Australia’s nature laws following a deal with the Greens. According to Environment Minister Murray Watt, these reforms would deliver tangible benefits for the environment and “protect what is precious”.
Now the dust has settled on getting the legislation passed, conservationists want to know if they will work.
The big questions is whether two proposed “environmental standards”, a centrepiece in the new laws, are up to the task.
What are environmental standards?
Previously, the EPBC Act required the decision-maker to tick procedural boxes, but this did not necessarily result in an outcome that protected the environment.
For example, while the Department of Environment could access information about the impacts of development on the black-throated finch, it merely needs to “have regard” to this. There was no obligation to reject a project, or impose conditions, even if the projected impacts on the finch would be severe.
To address this, Professor Samuel called for new national environmental standards. These universal requirements would guide the outcomes of environmental decision-making across the country.
For example, his suggested standard for threatened species included the outcome that they would be “protected, managed and recovered over time”. Decisions would have to be consistent with these standards with rare exception, only justifiable in the public interest. Rather than box-ticking, this would require decisions to promote good outcomes for nature.
Although Labor committed to environmental standards in 2022, passing the reforms proved challenging. It took three years, an election, a new Environment Minister, and a slew of compromises, to secure the deal.
What is the government proposing?
Two draft standards have released, and are open for consultation. One is for Matters of National Environmental Significance (MNES), a term in the EPBC Act that includes World Heritage areas, migratory species and the Great Barrier Reef National Park.
The other is for environmental offsets – actions taken to counterbalance the unavoidable negative impacts of a project on the environment.
At first blush, the draft standards contain the components urged by Professor Samuel, including objectives and outcomes. For example, the MNES Standard has an objective that habitat be protected, conserved, and restored.
However, clauses buried in both of the standards render these outcomes and objectives effectively useless. These clauses state that as long as the minister makes a decision consistent with another part of the standard (called the “principles”), the outcomes and objectives are deemed to be met.
These legal technicalities can be confusing. But the reality is that if the standards are signed off in their current form, we will be back to box-ticking as the key focus of environmental decision-making.
These new standards also include a narrow focus on “irreplaceable” habitat. For species that are recognised as threatened, habitat that is “irreplaceable” and necessary for them to remain “viable in the wild” should be protected.
While this framing sounds like what Professor Samuel envisaged, the narrow definition of “irreplaceable” means only the rarest and most fragile habitats will be covered.
This is at odds with the federal government’s previous commitment to “no new extinctions”. Avoiding a species becoming extinct requires habitat to be protected before things get to breaking point.
Weak constraints on state power
The weak standards are especially concerning given the federal government is steaming ahead with plans to pass approval powers to the states and territories. The Commonwealth has an important oversight role in environmental regulation and, although rare, it has stepped in on occasion to stop the most destructive projects, like the proposed Toondah Harbour development.
Under the reformed laws, the standards are supposed to act as a crucial guardrail on state power. The minister cannot devolve powers to a state unless satisfied that its environmental approval frameworks are consistent with federal standards. Unless robust environmental standards are developed, this constraint on state power will be fairly weak.
Environment Minister Murray Watt promised the EPBC reforms would deliver tangible benefits for the environment. Unfortunately, the draft standards offer little guarantee.
Justine Bell-James is a Professor at the TC Beirne School of Law at The University of Queensland, with expertise in environmental and climate change law.
This article is republished from The Conversation under a Creative Commons license. Read the original article.
