Addressing key issues in draft National Environmental Standards
11 June 2026
The Law Council has recently made two submissions on updated draft National Environmental Standards (NES) as part of the reforms to the Environmental Protection Biodiversity and Conservation Act 1999 (EPBC Act), building on an earlier submission provided on 30 January 2026.
On 28 May 2026, the Law Council made a submission to the Department of Climate Change, Energy, Environment and Water (DCCEEW) on the updated draft NES for Matters of National Environmental Significance. While the submission welcomed several improvements reflecting the Law Council's earlier feedback, it made further observations to clarify and strengthen the draft Standard and better align it with the Professor Samuel's review of the EPBC Act, including with respect to:
- the relationship between outcomes/objectives and principles in the Standard, noting that the current drafting risks privileging compliance with principles over achievement of outcomes;
- the use of qualifying language in the mitigation hierarchy, which risks weakening its application; and
- cumulative impacts, including the need for clearer definitions and broader application beyond strategic assessments.
The submission also addressed the need to provide sufficient protection for habitat and reiterated earlier recommendations to remove ambiguous drafting and to ensure consistency with the EPBC Act, including express reference to ecologically sustainable development principles.
Separately, on 5 June 2026, the Law Council made a submission to DCCEEW on the updated exposure draft NES for Environmental Offsets. The submission highlighted:
- concerns that “net gain” is inadequately defined, limiting proponents’ ability to assess compliance and leaving broad discretion to decision-makers;
- similar concerns about the relationship between outcomes/objectives and principles to the NES for Matters of National Environmental Significance; and
- calls for stronger support for advanced restoration offsets, including clear principles and mechanisms.
The Law Council is grateful for the input of the Australian Environment and Planning Law Group, Law Institute of Victoria, Law Society of Western Australia, Queensland Law Society across these submissions.
Last Updated on 10/06/2026