Environmental Law in Australia
Introduction
Australian environmental law is characterised by its federal structure, the primacy of Commonwealth legislation for matters of national significance, and the continued importance of state-based planning and pollution control regimes. Unlike many comparable jurisdictions, Australia lacks a constitutional guarantee of environmental quality or a freestanding statutory right to a healthy environment at the federal level. Environmental protection relies instead on an interlocking system of assessment and approval mechanisms, biodiversity conservation provisions, and the residual operation of the common law. The past decade has witnessed increasing pressure for reform, culminating in the Commonwealth Government’s 2022 commitment to establish Environment Protection Australia and a suite of National Environmental Standards.
The EPBC Act: The Commonwealth’s Primary Environmental Statute
The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) is the foundational Commonwealth environmental statute. It establishes a national assessment and approval process for actions that have a significant impact on any of nine matters of national environmental significance (MNES). These are: (1) world heritage properties; (2) national heritage places; (3) wetlands of international importance (Ramsar wetlands); (4) listed threatened species and ecological communities; (5) listed migratory species; (6) Commonwealth marine areas; (7) the Great Barrier Reef Marine Park; (8) nuclear actions; and (9) water resources in relation to coal seam gas and large coal-mining development.
A person proposing to undertake an action that will have or is likely to have a significant impact on an MNES must refer the action to the Commonwealth Minister for the Environment for a decision on whether it is a controlled action. If so, the action undergoes a rigorous assessment process — which may involve an environmental impact statement or public environment report — culminating in an approval decision that may impose conditions. The Minister must not approve an action that would have unacceptable impacts on an MNES.
The EPBC Act also provides for strategic assessments under Part 10, allowing the Minister to agree with a state, territory, or agency to assess the cumulative impacts of policies, plans, or programs rather than individual projects. This mechanism has been used for major urban growth areas, port developments, and the Great Barrier Reef. The Act further establishes a regime for bioregional plans, conservation agreements, and recovery plans for threatened species.
The Bilateral Agreement System
The EPBC Act contemplates the accreditation of state and territory assessment and approval processes through bilateral agreements. Assessment bilaterals accredit the state process for the assessment stage, while the Commonwealth retains approval. Approval bilaterals accredit the entire state process, effectively substituting state decision-making for Commonwealth approval. These bilaterals are a cornerstone of the cooperative federalism model underpinning the EPBC Act, though they have been criticised for weakening Commonwealth oversight. In Queensland Conservation Council v Minister for the Environment [2020], the Federal Court held that the Minister cannot approve an action under an approval bilateral unless satisfied that the state process includes a decision on whether the action is consistent with the EPBC Act.
The EPBC Act Reform Agenda
The Samuel Review (2020), commissioned by the Commonwealth Government, delivered a comprehensive critique of the EPBC Act’s effectiveness. Professor Graeme Samuel found that the Act was outmoded, that Australia was experiencing ongoing environmental decline, and that the regulatory system was complex and inefficient. He recommended a fundamental restructuring around National Environmental Standards — legally enforceable rules against which actions would be assessed — and the establishment of an independent Environment Protection Australia (EPA) to administer the system. The Commonwealth Government responded in 2022, accepting the majority of recommendations and committing to introduce legislation to create the EPA and National Environmental Standards. As of 2026, the reform legislation has been the subject of protracted parliamentary debate, with disagreement over the scope of ministerial discretion and the treatment of climate change impacts.
State Environmental Legislation
State environmental legislation operates in parallel with the EPBC Act, regulating matters not covered by Commonwealth jurisdiction. In New South Wales, the Environmental Planning and Assessment Act 1979 (NSW) requires environmental impact assessment for development, establishes the land-use planning framework, and provides for public participation. The assessment pathway under the EP&A Act depends on the classification of the development as permitted without consent, complying development, assessable development requiring a development application, or State significant development.
Victoria’s Environment Effects Act 1978 (Vic) provides for the Minister to require an Environment Effects Statement for projects with the potential for significant environmental effects. The Victorian regime is less prescriptive than its NSW counterpart, relying on Ministerial discretion rather than a rigid classification system. Queensland’s Environmental Protection Act 1994 (Qld) establishes a general environmental duty and a system of environmental authorities for environmentally relevant activities, alongside the State Development and Public Works Organisation Act 1971 (Qld) for major projects. Western Australia’s Environmental Protection Act 1986 (WA) requires assessment of proposals likely to have a significant environmental impact, with the Environmental Protection Authority providing advice to the Minister.
The Principle of Ecologically Sustainable Development
Australian environmental law explicitly incorporates the principle of ecologically sustainable development (ESD). The EPBC Act includes ESD as an object (s 3) and requires consideration of ESD principles in decision-making. The ESD concept, as articulated in Australian law, encompasses the precautionary principle (lack of full scientific certainty shall not be used as a reason for postponing measures to prevent environmental degradation), inter-generational equity, biodiversity conservation, and the internalisation of environmental costs. In Leatch v National Parks and Wildlife Service (1993), the Land and Environment Court of NSW applied the precautionary principle to refuse a licence for a road that would affect the endangered yellow-bellied glider. The High Court in Telstra Corporation Ltd v Hornsby Shire Council (2006) held that the precautionary principle is a component of ESD and relevant to administrative decision-making.
The Great Barrier Reef
The Great Barrier Reef Marine Park Act 1975 (Cth) establishes the Great Barrier Reef Marine Park Authority (GBRMPA) and a zoning system for the protection of the Reef. The Act prohibits activities in the Marine Park without a permit and provides for the making of zoning plans that designate areas as preservation zones, national park zones, or general use zones. The Reef is also protected under the EPBC Act as a matter of national environmental significance, and the Reef 2050 Plan sets out a long-term framework for its protection. Climate change poses the most significant threat to the Reef, and the question of whether the Commonwealth is adequately addressing that threat has been the subject of international attention, including the UNESCO World Heritage Committee’s deliberations on listing the Reef as in danger.
Litigation and Standing
Australian environmental law has been shaped by significant litigation on standing — the capacity of a person to bring proceedings. In Australian Conservation Foundation v Commonwealth (1980), the High Court held that a mere intellectual or emotional concern for the environment was insufficient to establish standing; the plaintiff needed a special interest beyond that of the general public. Later decisions, particularly Onus v Alcoa of Australia Ltd (1981), relaxed this test, recognising that special interest could derive from a long-standing and demonstrated commitment to environmental protection. Most environmental legislation now contains statutory standing provisions that confer standing on any person without requiring proof of special interest.
In Bushfire Survivors for Climate Action Inc v Environment Protection Authority (2021), the Land and Environment Court of NSW held that the EPA’s failure to consider the climate change impacts of greenhouse gas emissions from an approved project was a legally relevant consideration. The decision has significant implications for environmental impact assessment practice across Australia, requiring decision-makers to directly address climate change when assessing the potential impacts of projects.
Conclusion
Australian environmental law is at a critical juncture. The EPBC Act has been in place for over 25 years and is widely acknowledged to require substantial reform. The proposed establishment of Environment Protection Australia and National Environmental Standards represents the most significant restructuring of federal environmental regulation since the Act’s enactment. Whether these reforms will deliver improved environmental outcomes, streamline assessment, and restore public confidence in the regulatory system remains to be seen.