New National Environmental Standards for Offsets, Community Engagement and Data

The Standards are a very important pillar of the reformed Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), being central to the 'consistent with the Standards' test that must be met for nearly all decisions under the Act. Each of the Standards sets out principles which serve as the method by which the broader objectives and outcomes of each Standard are to be achieved at the level of each individual action or class of actions (Principles).

The importance of the Standards and other key reforms are discussed in more detail in our previous articles, found below.

Most changes to the final Standards focus on clarity, workability and ensuring the drafting aligns with the policy intent, rather than substantive policy changes. However, there are some material differences, including the introduction of additional reasonableness and proportionality considerations and some additional flexibility in the application of certain Principles.

Key Changes to Final Standards

Some amendments are common to all or most of the four Standards:

• Demonstrating compliance with the Standards - A prominent concern raised during the first informal consultation period was the question of how an individual proponent could show positive consistency with some of the more high-level, aspirational objectives and outcomes. The exposure drafts released for consultation earlier this year clarified that proponents only need to show consistency with the Principles to meet the 'consistent with the Standards' test. The final Standards have clarified this further, including a new statement that consistency with the Principles is to be determined “having regard to the objectives and outcomes”, highlighting their importance without requiring strict compliance.

• Accreditation - The test that must be satisfied for the accreditation of management and authorisation frameworks (including State/Territory approval processes) is now more flexible, with requirements that provide an equivalent or higher level of protection with the Principles confirmed to meet the test.

• Heritage - Concepts relevant to heritage matters have been introduced, to ensure the Principles can be applied more broadly than just the most commonly considered protected species MNES.

• Consistency - There has been a significant effort to achieve greater consistency of language within and across the Standards. For example, the phrase 'protection, conservation, restoration and recovery' is now commonly used in place of the range of earlier formulations, sometimes with the addition of 'management'. Similarly, the various references to groups of people in the Community Engagement Standard have been replaced with more consistent references to 'the public'.

• Reasonable and Proportionate Action - Finally, and perhaps most significantly from a substantive change perspective, many of the recent amendments apply concepts of proportionality and reasonableness to the requirements imposed by the Standards, providing for greater flexibility in application of the Principles. We discuss this in the context of individual Standards below.

A range of other amendments have been made to specific Standards. We have summarised the most significant of these below.

MNES Standard

The MNES Standard provides an umbrella framework for decisions under the Act. It sets out objectives for each kind of MNES and requires that proposals apply the mitigation hierarchy (i.e. avoidance, mitigation, repair, then offset), consider the context of impacts, and be supported by appropriate data and information.

In addition to the common amendments mentioned above, the MNES Standard has undergone several important changes since the exposure draft was released for public consultation:

• The 'habitat' sought to be protected, conserved and restored by the MNES objectives in section 5 now has a broader meaning, no longer limited to habitat that is irreplaceable and necessary for the species to remain viable in the wild.

• A reasonableness overlay has been introduced to a number of the Principles. The mitigation hierarchy in Principle 1 (Actions apply the mitigation hierarchy) now requires “all reasonably practicable measures” to avoid, reduce and repair impacts before a proponent can look to offsets. Similarly, Principle 3 (Actions with residual significant impacts to protected matters are compensated) requires the avoidance, mitigation and repair steps to be “reasonably” exhausted first.

• The concept of 'repair' has been clarified. Principle 1 has been amended to clarify that rehabilitation activities can constitute repair but the damage being repaired must be temporary and occur over a short period of time.

• Principle 2 (Actions appropriately consider impacts to protected matters) now refers to impacts (rather than adverse impacts) and redirects the focus onto the consideration of the context of any impact, including any threats relevant to understanding the resilience of the protected matter, the interaction between different stressors, and for landscape assessments, cumulative impacts.

• Earlier drafting of Principle 4 (Actions must be supported by appropriate evidence) referred to engagement with indigenous persons and public consultation in addition to data and information. Express reference to engagement and consultation has been removed from the final draft, leaving the emphasis on appropriate data and information. A note acknowledges that engagement should inform appropriate evidence where relevant.

• References to 'should' have been replaced with 'must' in key provisions, strengthening the mandatory nature of compliance obligations.

Environmental Offsets Standards

The Offsets Standard intends to ensure that any compensation for residual significant impacts results in the required net gain and contributes to the protection, conservation, restoration and recovery of the relevant protected matter. To do this, there are eight Principles for offset activities, including feasibility, security, tangibility, measurable improvements, additionality, like-for-like, relevant area, and commencement prior to impact.

The Offsets Standard has been substantially updated to improve clarity and ensure it can operate across different types of offset arrangements, including advanced offset activities, State and Territory offset fund payments, and bioregional restoration actions.

Some key changes are:

• The kinds of evidence that can be relied on as 'appropriate evidence' for the purposes of many of the principles has been expanded. Additions include data and information provided by the Head of Environment Information Australia and that obtained from the management of another offset activity.

• In a similar vein, the definition of 'suitably qualified expert' has been broadened to include not just those with professional qualifications and knowledge, but also persons with “specialist” knowledge, training, skills and relevant experience. This may include Indigenous knowledge holders.

• A broader definition of 'conservation planning document' now includes "a relevant State or Territory conservation document (however described)". This broadening of the definition could be concerning for proponents in other contexts, expanding further the number of documents that proponents must consider when preparing referral documentation. However, the use of the term in the Offsets Standard means that the amendments provide increased flexibility for two important tests:

  o   Principle 3 (Tangible) and the limitation on when an indirect offset can be relied on; and

  o   Principle 6 (Like-for-like) and the circumstances in an offset activity not delivering a like-for-like result is permitted.

• New definitions for ' advanced offset activity', 'relevant impact site baseline' and 'relevant offset site baseline' recognise that the Principles will apply differently depending on whether an impact or offset site is being assessed, and that relevant timing for assessment of a baseline may differ for different kinds of offsets (for example, for advanced offsets and State offset funds).

• A number of substantive amendments have been made to Principle 2 (Security):

o   Section 9(2) now provides that the process for putting a mechanism in place to ensure secure protection need only be “demonstrably underway”, rather than fully in place. This change should assist proponents dealing with slow bureaucratic processes associated with some legal mechanisms like conservation covenants or biodiversity stewardship agreements. The same amendment is made to Principle 8 (Offset commenced prior to impact).

o   Legal protection mechanisms (such as covenants on land) should be used when “available and feasible” rather than “available and appropriate”.

o   Greater detail is provided about alternative protection mechanisms, including voluntary property registration, long-term land management contracts, and stewardship agreements.  Alternative protection mechanisms may be used where legal protection mechanisms are not available or feasible but only if there is a low risk that other activities will prevent or compromise the offset activity being delivered or maintained for the applicable maintenance period and if the mechanism identifies protection, conservation, restoration or recovery of the affected protected matter as a management objective.

o   Principle 2 provides for maintenance periods for offsets. The previous concept of 'self-sustaining' has been replaced by 'durable'. The new term is now defined – as “capable of withstanding pressure to last a long time” – however it is not clear that there is a significantly different substantive meaning as the term is otherwise simply swapped in wherever 'self-sustaining' was previously used. Section 9(7) still states that an offset is durable "at the point at which maintenance activities are no longer needed to maintain that result".

• Earlier drafts of the Standard led to some confusion about the distinction between the similar terms, 'measurable improvement' and 'net gain'. Relying on the new definition for relevant offset site baseline, amendments to Principle 4 (Measurable improvements) clarify that 'measurable improvement' is the outcome sought from an offset activity compared to the offset site baseline, whereas 'net gain' is what must be achieved compared to the impact site baseline. The total measurable improvement across a number of offset activities can be added together to provide sufficient compensation to meet the required net gain.

• In Principle 5 (Additionality), amendments confirm that a piece of land can have more than one offset on it. Land already being managed for an environmental benefit is not precluded from delivering an additional benefit.

• Principle 6 (Like-for-like) includes a new exception for Ramsar wetlands, providing greater flexibility so that offsets do not have to be directed at a particular component of the wetland's ecological character.

• Principle 7 (Relevant area) has been amended to replace the requirement that an offset activity be located “in the same area” as the residual significant impact with “near to the area”, providing more flexibility for offset location. Additional flexibility is also provided for bioregional restoration actions.

Data & Information Standard

According to its Explanatory Statement, the purpose of the Data and Information Standard is to ensure decisions are made using data and information that is representative, transparent, comparable, reusable and ethical.

Many of the amendments made to the final Data and Information Standard reflect an intent to broaden the nature and source of relevant data and information, particularly regarding heritage matters and Indigenous knowledge.

• Many of the amendments to Principle 1 (Representative) replace existing words and phrases with slightly different ones:

o   “adequately and accurately” is replaced with “adequately and with suitable accuracy”;

o   "scientifically robust" is replaced with "robust";

o   “appropriate scientific or technical processes” with “appropriate scientific or other suitable processes”; and

o   "environmental conditions" is replaced with "the context".

Most of these changes broaden the type of information to encompass non-scientific data collection relevant to MNES like heritage. A similar change to Principle 3 (Comparable) refers now not just to "consistent taxonomic and ecological classifications" but also "other relevant classifications".

• Changes to section 8(2)(a)(iv) of Principle 1 also broaden the nature of "authoritative sources" that can be relied on, including reference not only to published datasets, but also peer-reviewed information and information from a suitably qualified expert (relying on the broader definition discussed above).

• Section 8(2)(a)(iii) of Principle 1 has been amended to narrow the uncertainties and gaps for which an explanation must be given to only "identified uncertainties and gaps".

• Principle 2 (Transparency) includes a new reference to AI use in the explanatory note when describing what is adequate metadata.

• Principle 3 (Comparable) uses the new definition for 'conservation planning document', with the additional reference to State and Territory conservation documents. Its application in section 10(2) of the Standard requires data and information to be consistent with references and definitions made in conservation planning documents. Given the breadth of the documents included in the definition, there is a high risk of inconsistent content.

• The obligation in Principle 4 (Reusable) to ensure that data and information can be collected, managed and provided for reuse with minimal effort has been limited to what "promotes reuse…where practicable". A note setting out the relevant considerations when determining whether information is suitable for reuse has also been included (such as cultural governance arrangements, national interest protections and confidentiality requirements).

• Principle 5 (Ethical) has removed express references to the FAIR and CARE principles, which were previously defined by reference to web addresses. There is still a broad reference to "relevant ethical data principles", and additional Indigenous rights and cultural governance examples are included in the notes.

Community Engagement Standard

The stated purpose of the Community Engagement Standard is to ensure decisions are made with the appropriate level of community engagement. According to the Explanatory Statement, the Standard "aims to set legally enforceable requirements to ensure that engagement with the public is meaningful, inclusive and conducted with transparency, responsiveness and respect for privacy".

One of the issues raised during consultation was the subjective nature of what is "appropriate" and the importance of ensuring that the Standard does not impose binding open-ended obligations with no way for proponents to verify that they are satisfied.

The Community Engagement Standard has been updated with a significant focus on adding proportionality and reasonableness qualifications to engagement obligations, while also broadening the definition of who is considered an affected person.

• The definition of 'affected persons' has been broadened beyond physical proximity. It now includes persons who are likely to be “directly affected” by the proposal in addition to persons whose activities, functions or usage rights are within or adjacent to the site of the proposal. This could have significant implications for the scope of engagement obligations because most of the binding obligations in the Community Engagement Standard rely on this term.

• Amendments clarify that the requirements apply to varying an approval or bioregional plan, not just the initial approval.

• A note in Principle 1 (Engagement is planned, considerate, clear and adaptable) clarifies that consistency with Principle 1 will generally require consultation during the planning and design phase, as far as reasonably practicable.

• A number of reasonableness qualifications have been added throughout:

o   The Principle 1 obligation to monitor the effectiveness of engagement and adapt as needed is now subject to “so far as reasonably practicable”.

o   In Principle 2 (Engagement is transparent, accountable and responsive), engagement supporting a two-way dialogue with affected persons is now required “as far as reasonably practicable”, necessary sharing of environmental performance information is “as often as is reasonable to the proposal”, and instead of requiring all queries from affected persons to be responded to "promptly", this must occur “without unreasonable delay”.

o    Principle 4 (Engagement is accessible and supports inclusivity) now requires engagement to provide "a reasonable opportunity for the public to provide comment”, in place of the previous obligation to "allow all interested persons to provide comment". The exposure draft of the Standard included an obligation to ensure engagement is accessible to the public and allows people from culturally and linguistically diverse backgrounds to understand the proposal and impacts. This has been amended so that a proponent must "reasonably" allow such persons to understand, noting that an absolute requirement to allow all persons to understand is a high bar, particularly when the requirement relates to persons from culturally and linguistically diverse backgrounds from "the public" at large and not just affected persons.

• Some other amendments have been made in response to concerns that a proponent could not positively evidence consistency. For example, in Principle 2, engagement must now “support” understanding, in place of the previous obligation to "allow" the public to understand the proposal.

• Some amendments are to ensure consistency of language. A range of different references to the subject of engagement (e.g. “government, community, landholders, Indigenous persons” and "interested persons") have been replaced with "the public".

Next steps

These first four Standards were registered on the Federal Register of Legislation on 20 and 21 August 2026. Upon commencement of the final tranche of the reforms to the EPBC Act, which is likely to be on 1 December 2026, the Minister will not be able to approve an action unless satisfied that it is consistent with the prescribed Standards.

We recommend that clients familiarise themselves with these final versions and consider how the obligations in the Standards may affect their projects, particularly projects which are currently being developed or will be developed over the next few years.

Although proponents may have seen some of the requirements in the Standards applied as policy in recent years, the binding nature of the requirements in the Standards is important. We should eventually see greater certainty and consistency, however in the short term divergent views on the meaning of specific words and requirements are inevitable and likely to lead to delays. We may also see regulator concerns around an increased potential for judicial review of decisions if binding requirements are not appropriately applied impact assessment timeframes.

The Standards already apply to any future accreditation decisions with the passage of the tranche 2 reforms on 24 August 2026, including the Environment Protection and Biodiversity Conservation Amendment (2026 Measures No 1) Regulations 2026. We will speak more about these reforms in a separate article.

The tranche 3 Regulations required for the reforms still awaiting implementation are currently subject to targeted consultation. We expect that they will be released for more extensive public consultation over coming months.

The First Nations Engagement Standard was originally supposed to be part of this first group of Standards. However, it was decided to delay its consultation and to progress its development in parallel with the ongoing Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) reforms. Timing for finalising the First Nations Standard remains unclear.

If you would like to speak to someone from our team about the Standards or any other aspect of the EPBC Act reform process, our details are below.