Commonwealth environmental referrals: significant impact, timing and the 2026 transition

An Australian State or local approval does not answer the Commonwealth environmental question. Under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), a proponent should use a documented self-assessment to decide whether the statutory referral duty in section 68(1) is engaged. Self-assessment is the compliance process; the legal duty comes from the Act.

Project value or footprint is not the test. A small action in sensitive habitat may present greater referral risk than a large action with no relevant protected matter.

The Commonwealth question runs alongside the NSW pathway rather than inside it. For the NSW side, see NSW development approval pathways: a practical map and State significant development in NSW.

The 2026 transition

The Commonwealth reforms are commencing in stages under the Environment Protection Reform Act 2025 (Cth) (Reform Act). The National Environmental Protection Agency (National EPA) was established on 1 July 2026 under the National Environmental Protection Agency Act 2025 (Cth) and now administers EPBC Act referrals and assessments. The controlled-action decision remains a function of the Minister under section 75; it may be exercised by a delegate under an instrument recorded in the register of EPBC delegations, which includes delegations from the Minister to the National EPA. Whether a particular decision was made under delegation is a question for the instrument, not the letterhead.

A further tranche commenced on 24 August 2026 under the Environment Protection Reform Commencement Proclamation (No. 2) 2026 (Cth). Several changes bear directly on referrals:

• Not-controlled-action decisions can now lapse. A decision under section 75 that an action is not a controlled action ceases to be in force on the fifth anniversary of the section 77 notice if the taking of the action has not substantially commenced before then. The action is then taken never to have been referred (section 79F). This includes a particular-manner decision. The Minister must give at least six months’ warning. The person may apply, at least 20 business days before the anniversary, to extend the date to no later than the tenth anniversary (section 79G). The notice of decision must state the lapse date (section 77(3)). The rule applies to decisions made on or after 24 August 2026, whenever the action was referred (Schedule 1, item 682 of the Reform Act); earlier decisions are not affected.
• ‘Unacceptable impacts’ now has a statutory definition, but it does not yet apply at the ‘clearly unacceptable’ stage. Section 527F sets out, in a table, the impacts that are unacceptable for each protected matter. For the ‘clearly unacceptable’ pathway in sections 74B–74D, the Environment Protection Reform (August Commencements) Transitional Rules 2026 (Cth), rule 11, apply sections 527F and 527H to that decision only where the referral is made on or after the day section 136B commences. Section 136B is a new approval test: the Minister must not approve an action unless satisfied that it will not have an unacceptable impact on a matter protected by a controlling provision, subject to a national interest exception. It had not commenced at 30 September 2026. So no referral made to date is assessed against the section 527F table at the ‘clearly unacceptable’ stage.
• Minor or preparatory works may be allowed while a referral is pending. A new defence in section 74AA(2A) covers taking a minor or preparatory component of a larger referred action before the referral is decided. The person must first obtain the Minister’s written agreement, in accordance with any regulations made for that purpose.
• Third-party reconsideration requests now have a deadline. A person other than the designated proponent who asks the Minister to reconsider a controlled-action decision, or the choice of controlling provisions, must do so within 28 business days after notice of the decision is published (section 78A(1A)). A request based on new information about impacts must include substantial new information with a high degree of certainty as to its quality and accuracy (section 78A(2A) and (2C)).

Four National Environmental Standards (Matters of National Environmental Significance, Environmental Offsets, Community Engagement, and Data and Information) were made in August 2026 and registered on 20 and 21 August 2026. The Department states that they will not apply to assessments and approval decisions until the new approval tests start, on or before 1 December 2026.

The next stage: by 1 December 2026

The remaining measures commence on a day or days fixed by proclamation. If no earlier day is fixed, they commence on 1 December 2026 (section 2(1), table item 2 of the Reform Act). As at 30 September 2026, no further commencement proclamation had been registered. The remaining measures include the streamlined assessment pathways, the new approval tests in sections 136A and 136B, and a rewritten section 76. Under the new section 76(1) and (3), the Minister may request further information for the controlled-action or assessment-approach decision only if satisfied it is reasonably necessary. Each of those requests must state the Minister’s reasons and be published. A request about a larger action under section 76(2) is not affected.

As at 30 September 2026, the Department was consulting on the regulations for that stage, with submissions closing at 9 pm AEDT on 13 October 2026. Because the commencement day is not yet fixed, a referral prepared in late 2026 requires a fresh commencement check.

NSW projects and the bilateral agreement

The existing NSW assessment bilateral agreement, made in 2015 and amended in 2020, can let a NSW assessment inform the Commonwealth decision. It does not remove the need to refer. The Department’s NSW guidance says a referral should be made early in the NSW assessment process, well before the project’s assessment documents are exhibited. On 18 September 2026, Commonwealth and NSW ministers signed a memorandum of understanding to develop a new assessment bilateral agreement and a pilot approval bilateral agreement. The Department’s page, last updated on 24 September 2026, describes both as still to be developed. Until a new agreement is in force, the existing arrangements and the referral duty continue to apply.

Protected matters and the significant-impact question

The National EPA’s current protected-matters summary identifies nine matters of national environmental significance. Its water-resource entry still refers to coal seam gas and large coal mining development. The current section 24D, however, uses the broader words “unconventional gas development”. The statutory text controls. The Act also protects specified Commonwealth land, actions and overseas heritage.

Part 3 contains distinct civil-penalty and criminal provisions. For listed threatened species and ecological communities, section 18 creates civil prohibitions framed by the statutory impact elements.

Section 18A creates offences and expressly says that Chapter 2 of the Criminal Code supplies the general principles of criminal responsibility. Strict liability is confined to the listing-status element in section 18A(1)(c) or (2)(c); criminal liability is not wholly objective. Referral is not itself an element of either provision. The civil and criminal routes must be analysed separately.

“Likely” and “significant” are separate questions. Horan J discussed both expressions in Save Our Strathbogie Forest Inc v Secretary to the Department of Energy, Environment and Climate Action [2024] FCA 317 at [331]–[353]. On appeal, the Full Court (Moshinsky, Charlesworth and Kennett JJ) recorded at [62] that no issue was taken with that discussion, and dismissed the appeal: Save Our Strathbogie Forest Inc v Secretary to the Department of Energy, Environment and Climate Action [2024] FCAFC 134. At [116] the Full Court said that the primary judge had correctly stated the applicable principles and that no criticism was made of that statement on appeal, so the principles were accepted on appeal rather than contested.

For “likely”, Horan J at [343] adopted the construction reached by Rangiah J in Polaris Coomera Pty Ltd v Minister for the Environment [2021] FCA 254 at [226], after a review of the authorities beginning at [212]: a real or not remote chance or possibility, rather than a probability greater than 50 per cent. Horan J described this at [338] as the weight of first-instance authority.

For “significant”, Horan J at [335] recorded that the parties accepted a significant impact is one that is “important, notable or of consequence having regard to its context or intensity”. Horan J cited the Full Court in VicForests v Friends of Leadbeater’s Possum Inc (2021) 285 FCR 70 at [62] for it. The formulation traces to Booth v Bosworth (2001) 114 FCR 39; [2001] FCA 1453 at [99], where Branson J recorded that the parties were in broad agreement on it.

The assessment must apply each expression to the protected matter’s values and the evidence about context, duration, extent, cumulative effects, avoidance and mitigation.

Assess the whole action

Define the action before assessing impacts. Include construction, operation, access, utilities, enabling works, staging and consequences that are sufficiently connected.

Section 527E provides that an event or circumstance is an impact if it is a direct consequence or, for an indirect consequence, the action is “a substantial cause”, subject to section 527E(2). Section 74A(1) does not use an appearance test: the Minister may decide not to accept the referral only if “the Minister is satisfied” that the referred action is a component of a larger action the person proposes to take.

A project-description boundary is therefore a legal and evidentiary issue, not just a drafting choice.

Build a documented self-assessment

The Protected Matters Search Tool (PMST) is a screening input, not a site survey or an exhaustive statement of protected matters. The National EPA’s survey and data guidance should be used with current listing instruments, Species Profile and Threats Database (SPRAT) material, species guidelines, State records, habitat evidence and appropriately timed field surveys.

For each protected matter, record:

1. source and date of desktop records;
2. survey method, timing, limitations and seasonal adequacy;
3. habitat or value present, absent or uncertain;
4. direct, indirect, facilitated and cumulative impact pathways;
5. avoidance embedded in project design;
6. mitigation that is certain, enforceable and evidence-based;
7. residual impact against the relevant significant-impact guidance; and
8. conclusion, uncertainty and referral recommendation.

Keep the self-assessment even if the decision is not to refer. The National EPA’s current guidance expressly asks proponents to retain those documents.

Mandatory and voluntary referral are distinct

Section 68 contains two different rules:

“A person proposing to take an action that the person thinks may be or is a controlled action must refer the proposal to the Minister” (emphasis added) (section 68(1)).

By contrast, a person who thinks the action is not controlled “may refer the proposal” (emphasis added) under section 68(2). The mandatory information requirements are supported by Schedule 2 to the Environment Protection and Biodiversity Conservation Regulations 2025.

Avoid three recurring traps:

• Portal date: submission through the business portal is followed by administrative validation, fee steps and publication. It is not necessarily the statutory receipt date.
• Thin surveys: a PMST report without fit-for-purpose habitat and survey evidence can leave the decision-maker unable to evaluate impact.
• Split description: excluding necessary infrastructure or downstream consequences can engage section 74A or leave material impacts unassessed.

Section 74 provides for public comment on the referral. The decision-maker considers the referral and comments under the statutory framework.

Timing is 20 business days, subject to excluded days and written non-counting agreements

The National EPA’s current process guide gives the section 75 decision period as 20 business days, plus any ‘stop the clock’ time. Section 75(5) says the Minister “must make the decisions … within 20 business days after the Minister receives the referral”. Administrative validation and fee or waiver processing can occur before statutory receipt and add time.

Section 76 governs requests for specified information. The clock consequences are in section 75 itself:

Section 75(6) provides:

“If the Minister has requested more information under subsection 76(1) or subsection 76(2) for the purposes of making a decision, a day is not to be counted as a business day for the purposes of subsection (5) if it is:

(a) on or after the day the Minister requested the information; and

(b) on or before the day on which the Minister receives the last of the information requested.”

Section 75(7) separately provides:

“The Minister and the person proposing to take the action may agree in writing that days within a period worked out in accordance with the agreement are not to be counted as business days for the purposes of subsection (5). If the agreement is made, those days are not to be counted for the purposes of that subsection.”

Section 77 concerns notice and reasons after the controlled-action decision. For a not-controlled-action decision made on or after 24 August 2026, the notice must also state the date on which the decision will lapse under section 79F. Section 77 is not an extension power.

Build a chronology showing:

• portal submission;
• fee or waiver step;
• validation and statutory receipt;
• publication and public comment;
• each information request and response; and
• excluded days and any written non-counting agreement.

Do not promise a decision 20 business days after the first upload.

Five possible referral decisions

The National EPA’s decision guide identifies five kinds of decision. Each is summarised below with the statutory points that bear on it:

1. clearly unacceptable: within 20 business days after receiving the referral, the Minister considers on the referral information that it is clear the action would have unacceptable impacts on a protected matter, and decides that Division 1A applies (the section 527F definition does not yet apply at this stage, as explained above); the action cannot proceed as referred, although the proponent may withdraw and refer a modified action or seek reconsideration;
2. controlled action: assessment and a Part 9 approval decision are required;
3. not a controlled action – particular manner (NCA-PM): no further assessment if the action is carried out exactly in the specified manner; a decision made on or after 24 August 2026 can lapse under section 79F, as explained above; if the specified manner is no longer appropriate, the person may apply for reconsideration under section 79A;
4. not a controlled action: no further Part 9 assessment for the action as referred; a decision made on or after 24 August 2026 lapses under section 79F if the action has not substantially commenced within five years of the notice, unless the date is extended under section 79G; and
5. section 74A refusal: the referral is not accepted because it is a component of a larger action.

An NCA-PM decision is not an approval. A controlled-action decision is also not approval; it identifies controlling provisions and leads to assessment and then a separate Part 9 approve/refuse decision.

Settle the action boundary while the project can still respond to the evidence. The self-assessment should record seasonally adequate survey work and keep the referral decision distinct from the later assessment and approval stages.

An EPBC Act approval also matters when a project changes hands; see Share or asset sale? Planning and environmental due diligence in NSW. For how we approach approval questions, see Approval for a project and our project approvals and licensing practice.