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:
- 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
- the action is being taken
- 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 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.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
