EPBC Act: Referrals, Controlled Action Assessments, and Penalties

Under the EPBC Act, the referral and approval process is the mandatory federal pathway you follow when a proposed action could significantly affect one of nine protected matters: you lodge a referral with the Environment Minister before starting work, the Minister decides within 20 business days whether the action is “controlled,” and controlled actions must complete a full environmental assessment before any approval is granted. The Act is administered by the Department of Climate Change, Energy, the Environment and Water, though a new National Environmental Protection Agency is scheduled to take over key regulatory functions from 1 July 2026.

When You Have to Refer a Project

The Act only applies if your action is likely to have a significant impact on a matter of national environmental significance. There are nine of them, and they define the outer edge of federal jurisdiction. If your project touches none of them, the EPBC Act does not apply and you deal with state or territory law alone.

World Heritage properties
National Heritage places
Ramsar wetlands of international importance
Threatened species and ecological communities, from vulnerable through critically endangered
Migratory species protected under international agreements, including bilateral bird treaties with Japan, China, and the Republic of Korea
Commonwealth marine areas, generally beyond three nautical miles from the coast
The Great Barrier Reef Marine Park
Nuclear actions, including uranium mining, reactors, and radioactive waste facilities
Water resources, where the impact comes from unconventional gas or large coal mining projects

The water resource trigger was added after the original Act and is narrow: it targets the intersection of mining and water supply, requiring federal assessment when extraction could affect groundwater or surface water.

Referral is not optional when a protected matter is in play. Proceeding without approval when one was required is an offence with substantial penalties, covered further below.

How to Lodge a Referral

Referrals go through the EPBC Act Business Portal, the department’s online system for environmental applications.¹ A complete referral needs:

Precise geographical data mapping the project footprint, using GPS coordinates or GIS mapping
A full description of every project phase, from construction through operation
Identification of which protected matters could be affected, backed by preliminary environmental surveys and ecological assessments
A description of how the project will avoid or reduce its environmental footprint, such as redesigning infrastructure to steer clear of sensitive habitat or implementing erosion controls

The Fee, Exemptions, and Waivers

The set referral fee is $6,577, charged on a cost-recovery basis to fund the department’s assessment work. Individuals acting in their personal capacity and small businesses that meet the Australian Tax Office’s small business criteria are exempt. If you don’t qualify for an exemption but believe the fee should not apply, you can apply in writing for a waiver at the time you submit the referral. The department decides waiver requests within 20 business days.²

Activities That Don’t Need a Referral

Some actions are exempt from the referral requirement entirely. The most common is agricultural land use that has continued lawfully and without interruption since before the Act commenced on 16 July 2000. The exemption disappears if the use has expanded, intensified, changed location, or changed in nature so that it causes a substantially greater impact than it did before the Act.³ Forestry operations covered by Regional Forest Agreements are currently exempt too, but that carve-out is being removed. From 1 July 2027, forestry operations under those agreements will have to comply with the same rules as every other industry.⁴

How the Minister Decides Your Referral

Once a valid referral is received, the Minister has 20 business days to decide. Within that window, the public gets 10 business days to comment on the proposal.⁵ The Minister must consider all adverse impacts the action could have on protected matters, and is specifically prohibited from weighing any beneficial impacts at this stage.

Three outcomes are possible:⁶

Not a controlled action. The project is unlikely to significantly affect any protected matter and no further federal assessment is needed.
Not a controlled action if done in a particular manner. The project can proceed without a full assessment, but only if the proponent follows specific conditions spelled out in the decision. Deviating from those conditions means the project is treated as having no approval at all.
Controlled action. The project is likely to have a significant impact and must undergo full environmental assessment before any approval can be granted.

The “particular manner” option is worth understanding because it is the middle ground: no lengthy assessment, but binding conditions from day one.

Assessment of a Controlled Action

When a project is declared controlled, the department picks an assessment method matched to the complexity and scale of the environmental risks. Six methods are available:⁷

Assessment on referral information, for small-scale projects with limited, well-understood impacts and low public interest. No new information is gathered beyond the referral itself.
Preliminary documentation, where the department broadly understands the impacts but may request additional detail. Suited to projects with medium, short-term, or recoverable impacts.
Public environment report, required when impacts are complex, information may be incomplete, and public interest is moderate to high. The proponent prepares a detailed report available for public review.
Environmental impact statement, the most demanding proponent-led method. Used for large projects affecting multiple protected matters where impacts need complex analysis and public interest is high.
Public inquiry, where an independent panel examines the proposal.
Bilateral or accredited assessment, where a state or territory conducts the assessment under an agreement with the Commonwealth.

After the chosen assessment, the Minister receives a recommendation report and either approves the project with conditions or refuses it. Approval conditions commonly cover ongoing monitoring, habitat management obligations, and environmental offsets. They are legally binding for the life of the project.

Bilateral Assessments With States and Territories

Since 2015, the Commonwealth has held bilateral agreements with every state and territory allowing shared environmental assessments.⁸ The state or territory conducts a single assessment and provides its findings to the Commonwealth, so proponents avoid running parallel state and federal processes over the same ground. Final approval authority stays with the Commonwealth.

Environmental Offsets

Where a project causes environmental harm that cannot be avoided or reduced through design changes and mitigation, the proponent is typically required to deliver offsets to compensate for the residual damage. Harm you cannot prevent must be balanced by conservation gains elsewhere.⁹ At least 90% of the offset must be delivered directly, such as protecting and managing land, with the remaining portion available through financial contributions.¹⁰ Under recent reforms, offsets can be delivered through direct management, advanced delivery, the Nature Repair Market using biodiversity certificates, a restoration contribution payment to the government, or a combination. Some impacts are classified as unacceptable and cannot be offset at all unless the project is declared to be in the national interest.

Strategic Assessments as an Alternative

For large-scale planning, the Act allows strategic assessments in place of referring each project separately. A strategic assessment is a landscape-level evaluation conducted in partnership between the Commonwealth and a state government, industry body, or land council. Once the Minister endorses the resulting plan, individual actions covered by that approval can proceed without separate referrals.¹¹ Strategic assessments address cumulative impacts across a whole region, reduce duplication, and give developers long-term certainty. Compliance is monitored through annual audits.

Penalties for Acting Without Approval

Proceeding with an action that affects a protected matter without federal approval carries serious civil and criminal consequences. Each Commonwealth penalty unit is currently valued at $330.¹²

Civil penalties for individuals reach up to 5,000 penalty units, or $1,650,000.¹³
Civil penalties for corporations reach up to 50,000 penalty units ($16,500,000), or the greater of three times the benefit gained from the breach, or 10% of the corporation’s annual turnover.¹⁴
Criminal penalties reach up to 7 years imprisonment and a fine of up to 420 penalty units ($138,600) for individuals convicted of reckless or intentional breaches.¹³

The penalty unit value is indexed and the next adjustment is scheduled for 1 July 2026, so these dollar figures may rise later in the year.¹²

Fines are not the only tool. The department can seek remediation orders forcing responsible parties to repair environmental damage at their own cost, injunctions to halt an activity threatening a protected matter, enforceable undertakings committing a party to corrective action, and directed environmental audits to investigate suspected breaches.¹⁵

Challenging a Decision

Approval decisions can be challenged in court through judicial review. The Act broadens who can bring these challenges: individuals and organisations with objectives relating to environmental conservation or research have standing, provided they have been actively engaged in conservation or research activities within the two years before the challenge. This extended standing provision was specifically enacted to let environmental groups hold the government accountable, and it has underpinned many of the most significant environmental law cases in Australia.

Judicial review examines whether the decision-maker followed the correct legal process, considered the required factors, and acted within their authority. It does not substitute the court’s judgment for the Minister’s on the merits. A successful challenge typically sends the decision back for reconsideration rather than resulting in the court approving or refusing the project.

What’s Changing in 2026

The EPBC Act is undergoing its most significant overhaul since it was enacted. Following a 2020 independent review that found the Act was not effectively protecting the environment, Parliament passed a package of reform bills on 28 November 2025.¹⁶ Transitional changes started immediately, including a new power for the Minister to create National Environmental Standards and tighter rules for certain land clearing. Clearer and more flexible assessment processes commence on 20 February 2026. From 1 July 2026, a new National Environmental Protection Agency takes over regulatory functions from the department, and a head of Environment Information Australia is appointed. Remaining reforms commence by 1 December 2026.

The standalone regulatory agency is the most structural change. Policy development and approvals administration, currently both in the department, are being split to create a more independent regulator.¹⁷ The nine protected matters and the core referral, assessment, and approval framework stay in place, but by the end of 2026 the agency you deal with, and some of the process detail, will look different.

1
Department of Climate Change, Energy, the Environment and Water. Referral Applications and Proposals
2
Department of Climate Change, Energy, the Environment and Water. Fees, Exemptions and Waivers Under the EPBC Act
3
Department of Climate Change, Energy, the Environment and Water. Updates to Agricultural Action Exemptions Under the EPBC Act
4
Department of Agriculture, Fisheries and Forestry. Regional Forest Agreements
5
Department of Climate Change, Energy, the Environment and Water. EPBC Act – Environment Assessment Process
6
Department of Climate Change, Energy, the Environment and Water. Particular Manner Decisions – Section 77A
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Department of Climate Change, Energy, the Environment and Water. Controlled Action Assessment Methods Under the EPBC Act
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Department of Climate Change, Energy, the Environment and Water. Shared Environmental Assessments With States and Territories
9
Department of Climate Change, Energy, the Environment and Water. Stronger Environmental Protection and Restoration
10
Department of Climate Change, Energy, the Environment and Water. Offsets Assessment Guide
11
Department of Climate Change, Energy, the Environment and Water. Strategic Assessments of an Endorsed Policy, Plan or Program
12
Parliament of Australia. Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2024
13
Department of Climate Change, Energy, the Environment and Water. Actions Without an Approval Under the EPBC Act
14
Parliament of Australia. Chapter 2 – Key Provisions of the Bills
15
Department of Climate Change, Energy, the Environment and Water. Compliance and Enforcement
16
Department of Climate Change, Energy, the Environment and Water. Environment Protection Reforms
17
Parliament of Australia. National Environmental Protection Agency Bill 2025