Posted on January 12, 2026 by Taylor Finnegan and Stuart Simington 4

Draft National Environmental Standards out for public consultation

The passing of the Environment Protection Reform Bill by the Commonwealth has introduced major changes to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). As discussed in our earlier post here, these reforms include a new power for the Commonwealth Environment Minister to make National Environmental Standards (NES) to be applied in decision-making under the EPBC Act. Proponents will be required to have regard to these new NES when designing and planning actions to meet EPBC Act requirements.

There are several steps that still need to be taken by the Federal Government to establish the complete framework of federal environmental laws envisioned under the new reforms. Relevantly, the next steps include developing the suite of NES and introducing regulations to prescribe the NES for each of the decisions under the EPBC Act.

The first two draft NES have been released by the Government and are considered below.

Background to the NES 

The 2020 Second Independent Review of the EPBC Act (Samuel Review) found that the EPBC Act had no comprehensive mechanism to define the environmental outcomes that underpin the operation of the Act and ensure decisions are made to achieve those outcomes. The Samuel Review recommended that NES be the ‘centerpiece’ of national environmental law to ensure that there are clear outcomes for decision making under the EPBC Act that directly track towards improved environmental and heritage outcomes.

The new Part 19B of the EPBC Act introduces the framework for the Minister to make, vary and revoke NES. Each NES is a legislative instrument that must specify objectives or outcomes and the parameters, principles, processes or actions for achieving the outcomes or objectives. The circumstances where the NES must be applied in decision-making are indicated by the provisions of the EPBC Act or by the regulations. A person making such a decision may be required to be:

• satisfied that the decision is not inconsistent with the NES,
• have regard to the NES, or
• any other ways in which the regulations state that the NES is to be applied.

Draft Matters of National Environmental Significance Standard 

The draft Matters of National Environmental Significance Standard (MNES Standard) applies to decisions regarding matters of national environmental significance, as well as protected matters under the EPBC Act such as threatened species and World Heritage areas.

The principles outlined under the draft MNES Standard include that:

• actions appropriately consider the application of the mitigation hierarchy,
• actions appropriately consider impacts of protected matters,
• actions with residual significant impacts to protected matters are compensated, and
• appropriate evidence, first nations engagement and consultation.

The mitigation hierarchy is a key feature of the draft MNES Standard, by which proponents are required to limit, as far as reasonably possible, the adverse impacts of development. It is a four-step framework with the sequential steps being to avoid, mitigate, repair and offset. Repair activities are proposed to only generally be a viable option where the repair can be done in a timely manner and is feasible and sustainable in the long term. Offset activities are proposed to compensate for residual significant impacts (that is, significant impacts that will not be avoided, mitigated or repaired in the course of taking the action or by complying with conditions).

Draft Environmental Offset Standard 

The object of the draft Environmental Offset Standard is “to provide a framework in which offsets (where permitted) adequately compensate for residual significant impacts to deliver a net gain and contribute to the protection and enhancement of protected matters“. A ‘net gain’ is defined as a measurable improvement in the condition of a protected matter relative to an evidence-based estimate of the likely condition at the point of approval in the absence of the action or offset being proposed.

Some of the key principles under the draft Environmental Offset Standard require:

• mechanisms to be put in place to ensure the offset activity will be maintained for a specified period (up to 100 years),
• offsets to address residual significant impacts in a ‘like-for-like outcome’ relating to the same specific attribute of the affected protected matter impacted by the action,
• offsets to be delivered in an area relevant to the affected protected matter and to enhance the effectiveness of conservation efforts,
• offsets to deliver a benefit to the affected protected matter that would not have occurred without the offset, and
• offsets to commence prior to the relevant impact.

Accordingly, under the draft NES, proponents will face stricter and more defined front-end requirements and ongoing obligations in an effort to create more measurable and enforceable environmental outcomes.

The policy papers and legislative instruments for the draft MNES Standard and Environmental Offsets Standard are open for public consultation until 30 January 2026.

You can access the Draft Standards and accompanying policy papers here.

Our overview of the reforms under the Environment Protection Reform Bill as passed by Parliament can be read here.

If you have any questions regarding this article, please leave a comment below or contact Stuart Simington on 02 8235 9704.