In the final sitting of the 47th parliament, two days before the federal election was called, legislation passed the Australian Parliament that risks locking in the extinction of a threatened species in Tasmania, while potentially weakening environmental protection across a range of different projects.  

Not only is this rushed legislation damaging for our environment, it comes hot on the heels of the Federal Government abandoning planned ‘Nature Positive’ reforms last month. This is a concerning legacy for a parliament that in three years has failed to fix our broken nature laws. 

This legal update explains the Environment Protection and Biodiversity Conservation Amendment (Reconsiderations) Act 2025 (Reconsiderations Act)1 that passed parliament, including its impact on the threatened Maugean skate and its habitat in the World-Heritage listed Macquarie Harbour, as well as the implications of the Act more broadly in reducing federal oversight and protection for certain types of projects. EDO was strongly opposed not only to the passage of the legislation itself, but that it was rushed through parliament with little scrutiny.  

Reconsideration of decisions a crucial mechanism for protecting nature

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is Australia’s national nature law. The objective of the Act is to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance (MNES) – like the Great Barrier Reef, threatened species and ecological communities, or World Heritage sites. The EPBC Act therefore deals with actions that will have a significant impact on MNES, as places, species and ecosystems that warrant national oversight, and national protection. It leaves everything else to the states and territories to manage. 

When a proposed project or “action” first comes across the Federal Environment Minister’s desk, a “controlled action decision” will be made. This determines whether the project will be assessed under the EPBC Act or if it can be assessed and approved wholly under a state or territory regime. Where the minister considers the project won’t have a significant impact on an MNES if the action is carried out in a particular way, a “controlled action – particular manner” decision will be made. The action can go ahead and won’t require full assessment through the EPBC Act process. 

In some cases, this decision will need to be revisited. For example, it may be revisited if new information comes to light that the action is pushing a threatened species to the brink of extinction, or polluting a World Heritage-listed habitat. If this happens, anyone with enough evidence can request the minister reconsider — and potentially overturn — the original controlled action decision and hence require the action to be brought under the EPBC Act. This means the action will have to stop while the proponent goes through the federal assessment and approval process.  

The Reconsiderations Act puts an end to this for certain projects. 

What does the Reconsiderations Act do?

The Reconsiderations Act effectively restricts the Federal Environment Minister from protecting MNES in certain circumstances, even where doing so would prevent environmental pollution, habitat destruction, or the likely extinction of a species.  It does this by preventing the environment minister from overturning a “controlled action – particular manner” decision subject to a reconsideration request if certain criteria are met. Because the decision can no longer be overturned, the project won’t be subject to federal oversight – the original arrangement will remain in place. 

The new provision will apply to a project:  

  • if the Minister has made a controlled action – particular manner decision about the project; 
  • and that decision specifies that the project must be taken in accordance with a “management arrangement” under state or territory laws; and  
  • the project activities are currently being taken and have been “ongoing or recurring” for at least five years;  
  • or, if the project is the subject of a reconsideration request that was made five years after it started being taken, and the project activities are still ongoing or recurring. 

The provisions introduce some uncertain and new concepts. For example, “management arrangement” is defined broadly in the EPBC Act as “including a management plan, and a regime, and a policy”. The Explanatory Memorandum to the Reconsiderations Act states that this criteria would cover projects even if the applicable decision does not describe or name which “management arrangement” is relevant.2 Seemingly, this means a project would be caught by this criteria even if the relevant state law or policy isn’t actually referenced in the original decision – as long as the activities are being undertaken implicitly in accordance with a specific law or policy.  

Further, the terms “ongoing” and “recurring” are not defined in the EPBC Act, nor in the new provisions. They represent new concepts in the national nature laws regime. The Explanatory Memorandum states that this criteria is intended to apply to “actions that are currently operating and have been operating in a regular, routine or consistent way” over at least five years. This creates significant uncertainty in terms of which projects could potentially be captured under the proposed provisions, as this is a new concept and not immediately applicable to how the EPBC Act currently regulates different types of development. 

While the legislation is apparently targeted towards Macquarie Harbour, concerningly the criteria appear to be less stringent than described publicly. Early analysis (and examples included in the Bill’s Explanatory Memorandum) suggest the provisions could capture a range of other actions including, for example, a solar farm, agricultural sheep grazing, an ammonia/renewable hydrogen plant, or an irrigation scheme. It’s unclear if a fossil fuel project could also be captured. The new provisions mean that if evidence emerges that the impacts of these kinds of projects were different or greater than understood at the time of the original decision, after five years of the project operating there would be no ability to go back and undertake a full federal assessment. 

Impact of the Reconsiderations Act on the Maugean skate 

The Reconsiderations Act was apparently targeted towards the salmon industry operations in Macquarie Harbour, Tasmania. The industry was subject to a controlled action – particular manner decision in 2012, and since then has operated without oversight of the Federal Environment Minister. However, the expansion of the salmon industry in Macquarie Harbour, and subsequent detrimental impacts on Tasmanian Wilderness World Heritage Area and the endangered Maugean skate have been well documented. For example, in 2023 the Threatened Species Scientific Committee found there was a “high risk of extinction” for the Maugean skate in the near future, and that the primary threat to the species is degraded water quality in the harbour, which has a “significant correlation” with the increases in salmon aquaculture in the same spot.3 

With the skate “one extreme weather event from extinction”,4 it’s clear the impact of the industry has been inadequately curtailed by the original controlled action decision made under the EPBC Act all the way back in 2012. As such, the original decision was subject to a reconsideration request lodged by EDO on behalf of the Australian Marine Conservation Society and Humane Society International Australia (renamed Humane World for Animals) who asked the minister revoke the original decision so that the significantly expanded salmon farming operations would require EPBC Act assessment.  

In light of the science demonstrating harms to these MNES, the reconsideration request power was an important safeguard that could have prevented what could be the first ray or shark to go extinct in modern times. Instead, the new provisions in the Reconsiderations Act aim to prevent federal oversight of the salmon industry. Additionally, as noted above, we don’t yet know the full extent of the application of the new law, which means other polluting and damaging projects might still be caught up and subsequently exempt from national oversight.  

Conclusion 

In 2022, the Federal Environment Minister committed to nature law reform to protect our environment, strengthen trust in the EPBC Act, and ensure better environmental decision-making. For most of 2024, legislation was before the parliament that addressed well-known problems in our nature laws in relation to better information gathering, protecting against imminent environmental harm, and the lack of a federal environmental protection authority (EPA). These bills have now been withdrawn. 

By contrast, the Reconsiderations Act enables a carve-out for a polluting industry, entrenching habitat destruction and threatened species decline, and severely undermining the already weak community trust in our nature laws. It is a piecemeal amendment that does not address any problems identified in Professor Graeme Samuel’s 2020 independent review of the EPBC Act. In EDO’s view, wholescale environmental law reform is needed, not piecemeal carve-outs for certain industries. 

Moreover, the Reconsiderations Act was introduced on the same day as the federal budget, in the final sitting week of parliament before the election. No committee scrutiny was allowed and there was little time allotted for parliamentary debate. This sets a dangerous precedent for amending environmental laws with little consultation, scrutiny, or accountability. 

With the federal election now called, EDO is hopeful the 48th parliament will be able to achieve more than the last and finally turn the tide on the extinction and climate crises. There is so much that needs to be done to fix our broken nature laws, protect threatened wildlife and prevent further dangerous climate change. EDO will work with members across the new parliament on the laws we urgently need in this critical decade to deliver outcomes for nature, climate and community.  

This briefing paper was prepared by EDO Senior Solicitor Frances Medlock, March 2024