A recent amendment to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) that limits the environment minister’s power to review past decisions on land use has predictably brought the issue into the spotlight, with discussions centred on the implications for industries, businesses, and communities that are impacted by the Act as well as concerns about environmental conservation.

Holding Redlich Special Counsel and environmental law expert Katharine Huxley weighs in on what the Environment Protection and Biodiversity Conservation Amendment Reconsiderations Bill 2025 passed by the Australian Parliament means for industries, environmental groups, and the future of Australia’s land use policies.

How the Maugean skate became the trigger point
“The change to the EPBC Act came into effect largely because of some controversy around salmon farming in Macquarie Harbour in Tasmania,” says Huxley. The harbour is home to the Maugean skate, a species of fish listed as endangered under the EPBC Act. A few years ago, research revealed that the species’ population had declined, which was attributed to intensive salmon aquaculture activity in the area.

In 2023, requests were made to the then Minister for the Environment Tanya Plibersek to reconsider the decision made more than a decade ago to allow salmon farming in the harbour.

According to Huxley, under the EPBC Act, the Minister for the Environment has to decide whether a proposed action, usually a project, requires approval because it's a controlled action—an action that would be prohibited under Part 3 of the Act, which concerns matters of national environmental significance if it was carried out without a controlled action approval. Some projects need to go through this extra level of rigour because they're likely to have a significant effect on one of these areas of national environmental significance, such as a potential impact on a listed threatened species, e.g., the endangered Maugean skate in Tasmania.

“When deciding whether a proposed action requires one of these approvals, the Minister might decide that it wouldn't be something that would be prohibited if it's carried out in a particular way, and that's where these NCA/PM decisions come from. In other words, you don't have to go through the extra level of approval, but only if you carry out your activity in a prescribed manner,” Huxley explains.

The approval for salmon farming in the Macquarie Harbour was an NCA/PM decision, or a non-controlled activity if carried out in a prescribed manner. The EPBC Act allowed NCA/PM decisions to be challenged based on new information that the activity was impacting a matter of national environmental significance or the activity was not adhering to the prescribed operational conditions.

The regulatory uncertainty for Tasmania’s salmon industry
According to Huxley, the request to review the decision raised a lot of concerns in the salmon farming industry.
If the Minister were to make the decision that it was a controlled activity, the business would have to stop the activity and wouldn’t be able to continue until a controlled activity approval is obtained, allowing the activity to recommence.

“If you're working in a community that is really tied to one of these industries, it can have some big implications in terms of whether or not that industry can continue in the short term,” she adds.

Above: Katharine Huxley (supplied).

For Tasmania’s salmon industry—and the communities it supports—this kind of regulatory uncertainty poses serious risks for projects that have high levels of investment. The amendment effectively limits this uncertainty by preventing reconsideration of NCA/PM decisions in some situations, particularly where the activity has been ongoing for more than five years under an approved state or territory management arrangement. The review opportunity is no longer available in certain circumstances, effectively closing the door on reconsidering or revoking NCA/PM decisions.

“There is always going to be a tension between wanting to have certainty for industry and also wanting to be adaptive and malleable to new environmental information, particularly scientific information as it evolves,” observes Huxley. “There’s always going to be a struggle of policies to try and keep up with balancing those two objectives.”

However, the amendment does not provide blanket protection for all projects. Describing the change to the EPBC Act as “narrow,” she says that while it’s not going to affect every approval that's been granted under the Act, it will still allow for reviews up to that five-year mark.

This change supports long-term investment confidence by addressing the risk of regulatory reversal after years of operation.
“It creates an opportunity for review of decisions in the short term but gives a little bit more certainty in the medium and long term to investors, businesses, and industries.”

The Samuel Review
“The broader question for future land use and environmental management is really going to be dependent on what the government does next in response to the Samuel Review,” says Huxley.

The Samuel Review, conducted by Professor Graham Samuel, was the second statutory review of the EPBC Act. In the report released in January 2021, Professor Samuel made a number of recommendations for amending the EPBC Act to make it more fit-for-purpose in terms of meeting its objectives and how effectively Australia was delivering on environment protection and biodiversity conservation at the Commonwealth level.

While the 2025 amendment is limited in scope, it could signal broader changes to come even as the Commonwealth’s response to the Samuel Review is still awaited.

The 1999 Act is relatively old, with not much change effected over the years. “Is it time for a broader reform to direct the EPBC Act into something that is a little bit more nature positive, a little bit more driven to improving environmental outcomes rather than restricting negative impacts?” Huxley asks.

So who stands to benefit most from the 2025 amendment?
The industries that came through NCA/PM decisions and have been operating for more than five years in accordance with those decisions, as well as the communities and economies dependent on these industries, are the biggest beneficiaries of the amended Act, says Huxley.

At the other end of the spectrum are the public interest environmental groups who seek intervention when new information is available or there are concerns about the activity’s compliance with the prescribed manner but will now find it harder to request reviews of NCA/PM decisions.
The amendment highlights the ongoing tension between economic development and ecological sustainability, “...really anyone who has an interest in either the activity itself or the environment in which it operates,” concludes Huxley.

Katharine Huxley is an environment and planning lawyer with experience in development, compliance, local government, and administrative law. Katharine acts for both public and private sector clients, including the State Government, Local Councils, developers, and individuals. Katharine was recognised for planning and environmental law in the 2025 edition of Best Lawyers: Ones to Watch and sits on the Law Society of New South Wales’ Environmental Planning and Development Committee.

You can listen to our podcast with Katherine Huxley here.

Image: The Maugean Skate https://nre.tas.gov.au/conservation/threatened-species-and-communities/lists-of-threatened-species/threatened-species-vertebrates/maugean-skate/conservation-action-plan-for-the-maugean-skate

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