Environment Protection and Biodiversity Conservation (Restoration Charge Imposition) Act 2025

The Act introduces and defines four key charge concepts, each tied to a specific trigger event under the EPBC Act. The definitions are found in section 7, which cross-references terms to their meanings in the EPBC Act. The first concept is restoration contribution charge, imposed under section 8 on the grant of an approval under Part 9 or Part 10 of the EPBC Act. The critical precondition is that a condition of the approval must require the payment of restoration contribution charge in relation to a residual significant impact of the action. Residual significant impact is defined by cross-reference to the EPBC Act, meaning those impacts that remain after avoidance and mitigation measures have been applied. This charge is not a flat fee; it is a conditional charge that the regulator must explicitly impose as a condition of approval. The second concept is bioregional plan registration charge, imposed on the registration of a priority action under subsection 177BN(7) of the EPBC Act. A bioregional plan is a statutory plan under the EPBC Act for a bioregion, and a priority action is an action identified as a priority under such a plan. Registration under section 177BN(7) is the mechanism by which a person becomes entitled to take a priority action. The charge is imposed on that registration event, not on the ongoing taking of the action. The third concept is national interest exemption charge, imposed on the grant of a national interest exemption for an action. The term national interest exemption is cross-referenced to the EPBC Act. The fourth concept is Part 13 exemption charge, imposed on the grant of a Part 13 exemption for an action. Part 13 of the EPBC Act deals with approvals for actions with a significant impact on the environment, including exemptions from the approval requirement. Both exemption charges arise from the grant of the exemption itself, not from any subsequent activity. A notable structural feature is that the restoration contribution charge is the only charge whose amount must be worked out in accordance with a method prescribed by regulations (section 14). The other three charges may have their amounts either prescribed as a fixed figure in the regulations or worked out in accordance with a method prescribed by the regulations (sections 15 and 16). In all cases the amount must be greater than zero. The Act does not specify any maximum or minimum amount beyond that zero floor, leaving substantial discretion to the executive in designing the charging framework. The concept of who pays differs across the charges. For restoration contribution charge under Part 9 approvals, the charge is payable by the holder of the approval (section 11(1)). For Part 10 approvals (including classes of actions), the charge is payable by the person specified in the approval as the person responsible for paying the charge, which may be the approval holder or another person approved to take the action (section 11(2) and note). The bioregional plan registration charge is payable by the person in relation to whom the priority action is first registered (section 12(1)). The exemption charges are payable by the person to whom the exemption applies (section 13). The Act permits regulations to exempt certain persons or classes of persons from the bioregional plan registration charge and from both exemption charges (sections 12(2) and 13(3)-(4)). No similar exemption power is provided for the restoration contribution charge.

The Act directly affects any person or entity that seeks or holds an approval under Part 9 or Part 10 of the EPBC Act for an action that has a residual significant impact, where the decision-maker attaches a restoration contribution charge condition to the approval. This includes project proponents in sectors such as mining, energy, infrastructure, agriculture and urban development, provided the proposed action triggers the EPBC Act because of a likely significant impact on a matter of national environmental significance. The charge applies to both individual actions approved under subsection 133(1) and actions or classes of actions approved under subsection 146B(1), which covers strategic assessments and approvals of classes of actions under bioregional plans or other strategic frameworks. The Act also affects any person in relation to whom a priority action is first registered under subsection 177BN(7) of the EPBC Act. Registration under that provision occurs in the context of a bioregional plan, so the affected persons are those seeking to rely on a bioregional plan to take an action that would otherwise require a separate approval. The person registered is the entity that steps into the streamlined assessment pathway created by the bioregional plan framework. The exemption charges affect persons who are granted a national interest exemption or a Part 13 exemption. These are narrower categories of persons, typically those who can establish that an action is in the national interest or that a Part 13 exemption applies, which may include government entities or proponents of actions with special status. Because the Act binds the Crown in right of each State, the Australian Capital Territory and the Northern Territory (section 3), State and Territory government entities can be liable for these charges when they are the approval holder, the person specified in the approval, or the person to whom an exemption applies. However, the Commonwealth Crown is not bound, so Commonwealth agencies are not directly liable for these charges under the Act (section 3). The Act also extends to acts, omissions, matters and things outside Australia (section 5), meaning that proponents of actions outside Australian territory that nonetheless trigger the EPBC Act (e.g., actions by Australian citizens or corporations overseas affecting matters of national environmental significance) may also be subject to these charges. The regulations may carve out classes of persons from liability for the bioregional plan registration charge and the exemption charges, which may affect the scope of liability for particular sectors or categories of proponents. The regulations may also make different provision for different actions, classes of actions, residual significant impacts, classes of priority actions, and different bioregional plans (sections 14 and 15). This means the effective incidence of the charges will depend on regulatory design choices that have not yet been made. The Act does not impose any obligation on persons who are not seeking approvals, registrations or exemptions under the EPBC Act. It does not affect the general public, small businesses that do not trigger the EPBC Act, or entities operating wholly within State jurisdictions without a national environmental significance trigger.

The Act creates a liability to pay a charge, but does not by itself impose extensive duties beyond the payment obligation. The primary duty is to pay the relevant charge when it becomes payable. The Act does not specify when payment is due, how it is to be collected, what happens if payment is late, or whether interest or penalties apply for non-payment. These matters are left to the EPBC Act, to the regulations under this Act, or to separate laws. The Act does not create any offence for non-payment. The duty to pay the restoration contribution charge arises only if two conditions are met: first, an approval is granted under Part 9 or Part 10 of the EPBC Act, and second, a condition of that approval requires payment of the charge in relation to a residual significant impact (section 8). This means that the decision-maker has a power, not a duty, to impose the charge. Proponents have no right to avoid the charge if the decision-maker chooses to impose it as a condition. However, proponents do have procedural rights under the EPBC Act in relation to the approval process, including rights to make submissions and seek review of decisions. Those existing EPBC Act rights are not modified by this Act. For the restoration contribution charge under Part 9 approvals, the duty falls on the approval holder (section 11(1)). For Part 10 approvals, the duty falls on the person specified in the approval as responsible for paying the charge, who may be the approval holder or another person approved to take the action (section 11(2) and note). This gives the decision-maker flexibility to assign liability to the entity best able to pay or the entity that will actually carry out the action. The duty to pay the bioregional plan registration charge falls on the person in relation to whom the priority action is first registered (section 12(1)). The regulations may exempt persons or classes of persons from this duty (section 12(2)). The duty to pay the exemption charges falls on the person to whom the exemption applies (section 13(1)-(2)). Again, regulations may exempt persons or classes of persons (section 13(3)-(4)). The Act confers a right on all persons affected by the regulations to have the operation of the regulations independently reviewed on a regular basis (section 17). The Minister must cause independent reviews to be undertaken, with the first review commencing within 24 months after the Act's commencement, and subsequent reviews at least every five years after the previous report was given to the Minister (section 17(2)-(3)). The reviewers must give a written report to the Minister, and the Minister must publish the report and the government's response on the Department's website (section 17(5)-(6)). This provides a degree of transparency and accountability, though the Act does not specify what action the government must take in response to a review. The regulations may prescribe matters to be covered by the review (section 17(4)). The Act confers no private right of action, no right to a refund if charges are miscalculated, and no right to challenge the amount of the charge except through whatever merits review or judicial review mechanisms exist under the EPBC Act or the Administrative Appeals Tribunal Act 1975. The Act does not incorporate the full machinery of a tax Act, such as assessment, objection, appeal or remission powers. Those would need to be provided elsewhere, most likely in the EPBC Act or in regulations under this Act.

The Act does not itself create any penalties, offences or enforcement mechanisms. It is solely an imposition Act. It identifies who is liable to pay each charge (sections 11 to 13), but it does not state what happens if that person fails to pay. There is no civil penalty provision, no criminal offence for non-payment, and no provision for late-payment interest or administrative penalties within the Act itself. The absence of enforcement provisions is structurally intentional: this Act imposes the charge, and the collection and enforcement mechanisms are expected to be found elsewhere, most likely in the EPBC Act or in any amending legislation that may follow. The EPBC Act contains extensive civil and criminal penalty provisions for breaches of its requirements, including conditions of approvals. If the restoration contribution charge is imposed as a condition of an approval under section 8, then failure to pay the charge could theoretically constitute a breach of that condition, potentially triggering existing EPBC Act enforcement provisions, such as civil penalty orders, injunctions, or remedial directions. However, this is an inference from the structure; the Act does not explicitly state that non-payment of the charge is a breach of a condition of approval. The note to section 11(2) indicates that the person specified in the approval as responsible for paying the charge might be the approval holder or another person approved to take the action. This suggests the charge condition would be enforceable against that person, but the Act does not specify the legal character of that enforcement obligation. The bioregional plan registration charge is imposed on the registration of a priority action (section 9). Registration under subsection 177BN(7) of the EPBC Act is a precondition to taking the priority action without a separate approval. If the charge is not paid, it is unclear whether the registration could be cancelled or whether the person could still take the action. The Act does not condition the validity of the registration on payment of the charge. The exemption charges are imposed on the grant of the exemption (section 10). Again, the Act does not condition the validity of the exemption on payment of the charge. The Act does not create any power for the Minister or the Department to recover unpaid charges as debts due to the Commonwealth, though such a power might exist under other Commonwealth legislation such as the Public Governance, Performance and Accountability Act 2013 or the Financial Management and Accountability Act (now Commonwealth entities legislation). The Act does not provide for review of charge amounts or for appeals against charge assessments. Section 18 confers a broad regulation-making power, and regulations could in theory prescribe enforcement mechanisms, collection procedures or penalty provisions, but any such provisions would be subject to the limits of the regulation-making power under section 18 and the parent Act. The Act does not incorporate by reference any penalty or enforcement provisions from the EPBC Act. The only review mechanism the Act establishes is a general review of the operation of the regulations (section 17), which is a policy review, not a merits review of individual charge determinations.

The Act operates as a supplement to the EPBC Act, imposing charges on events and decisions that occur under that Act. It does not amend the EPBC Act directly, but it relies on EPBC Act definitions for key terms: bioregional plan, national interest exemption, Part 13 exemption, registration (in relation to a priority action), and residual significant impact are all defined by reference to their meanings in the EPBC Act (section 7). This means any future amendments to those definitions in the EPBC Act will automatically flow through to this Act, unless the Act is separately amended to provide otherwise. The restoration contribution charge is imposed on approvals granted under specific provisions of the EPBC Act: subsection 133(1) for Part 9 approvals and subsection 146B(1) for Part 10 approvals (section 8). These are the provisions under which the Minister or delegate approves actions after environmental assessment. The charge is triggered only if a condition of the approval requires payment. This interacts with the EPBC Act's existing condition-setting power. The EPBC Act already permits the Minister to impose conditions on approvals. This Act adds a new type of condition that the Minister may impose, namely a condition requiring payment of a restoration contribution charge. It does not require the Minister to impose such a condition; it simply provides that if the Minister does so, a charge is imposed by this Act. The bioregional plan registration charge interacts with Part 7 of the EPBC Act, which deals with bioregional plans and priority actions. Registration under subsection 177BN(7) is the step at which a person becomes entitled to take a priority action under a bioregional plan. The charge is imposed on that registration. This means that the charge becomes payable at the point of entry into the streamlined assessment pathway, potentially before any action is taken or any environmental impact occurs. The exemption charges interact with the exemption provisions in the EPBC Act. National interest exemptions and Part 13 exemptions are mechanisms that allow an action to proceed without full approval. The charge is imposed on the grant of the exemption, not on the action itself. This Act does not interact with State and Territory environmental laws unless a particular action triggers both Commonwealth and State jurisdiction. If an action subject to a bilateral agreement under the EPBC Act is assessed and approved under State processes, the restoration contribution charge may still apply if the EPBC Act approval condition requires it, depending on how the bilateral agreement allocates condition-setting powers. The Act's constitutional interaction is limited. Section 6 states that the Act does not impose a tax on property of any kind belonging to a State, reflecting section 114 of the Constitution. This does not prevent the Act from imposing charges on State government entities as approval holders or exemption holders; it only prevents the charge from being characterised as a tax on State property. The Act extends to acts, matters and things outside Australia (section 5), which may interact with the laws of foreign countries if the action in question has effects within Australian jurisdiction or is taken by an Australian entity overseas. The Act does not have any direct interaction with taxation laws, as it is not a taxation Act (it imposes charges, not taxes). The distinction between a charge and a tax may be relevant for characterisation under the Constitution, but the Act does not address this. The Acts Interpretation Act 1901 is referenced in sections 14(3) and 15(3) solely to confirm that the regulation-making powers are not limited by that Act's subsection 33(3A), which deals with matters that may be prescribed in regulations. This is a standard drafting provision.

The Act is No. 67 of 2025 and was assented to on 1 December 2025. It is a newly enacted Act with no amendment history at the time of writing. The Act does not amend any other legislation; it is a standalone imposition Act. The Act contains no provisions dealing with its own amendment or repeal, nor does it include transitional provisions or savings provisions. The Act was passed with a Minister's second reading speech made in the House of Representatives on 30 October 2025 and in the Senate on 24 November 2025. The second reading speech may provide extrinsic material that could be used in interpretation under section 15AB of the Acts Interpretation Act 1901, but it does not form part of the Act itself. The Act's commencement provisions (section 2) include a staggered commencement table. Sections 1 and 2 commenced on 2 December 2025, the day after Royal Assent. Sections 3 to 18, which contain all operative provisions including the imposition of charges, the payment obligations, the amount-setting provisions and the review mechanism, commence on a day or days to be fixed by Proclamation, or if not proclaimed within 12 months of Royal Assent (i.e., by 2 December 2026), they commence automatically on the day after that period ends. The Minister may, by notifiable instrument, provide that a provision covered by item 2 applies in relation to different matters or things on and after different days for one or more of those matters or things (section 2(2)). This means that the operative provisions could be commenced in stages: for example, the restoration contribution charge might commence for approvals under Part 9 on one date and for approvals under Part 10 on a later date, or for certain actions or industries on different dates. The Act has not yet been amended. Any future amendment would require amending legislation passed by the Parliament. The Act's amendment history will only accrue over time after its operative provisions have commenced and the regulations have been made. The Act contains no sunset clause, no automatic repeal date, and no provision for its own expiration. It will remain in force indefinitely unless repealed by a later Act. The Act also contains no provision requiring the Minister to review the Act itself (section 17 only requires review of the regulations, not the Act). This means the legislative framework may continue without systematic parliamentary scrutiny of its effectiveness or impact unless the Parliament chooses to conduct its own inquiry.

At the time of writing, the Act has been enacted but its operative provisions (sections 3 to 18) have not yet commenced. No litigation has arisen under the Act because no charges can be imposed until the operative provisions commence. No challenges to the Act's constitutional validity have been brought in the High Court, and no cases have been decided interpreting its provisions. The Act has no litigation history. Before any litigation can arise, regulations must be made under section 18 setting the amounts of the charges or the methods for calculating them. Only then will actual charges be imposed on actual persons, creating a justiciable controversy. Potential grounds for future constitutional challenge include characterisation as a tax rather than a charge, which would raise issues under section 55 of the Constitution (taxation laws must deal with one subject of taxation only). However, the Act is framed as a charge imposed on certain decisions, not a tax on income, goods or services. The Act may also face challenge under section 114 of the Constitution (the Commonwealth not imposing a tax on State property), but section 6 of the Act expressly disclaims any intention to do so, though such a disclaimer is not determinative of constitutional characterisation. The Act's extra-territorial application (section 5) could be challenged as exceeding the Commonwealth's legislative power if applied to actions with no sufficient connection to Australia, though the High Court has given the Commonwealth broad scope in extraterritorial application. The delegation to regulations of the power to set charge amounts (sections 14 to 16) may be challenged as an impermissible delegation of legislative power, but the High Court has generally accepted that Parliament may leave details of taxation and charges to the executive, provided the Act provides a framework. The Act provides a framework by specifying the charge amounts must be greater than zero, by linking the charges to specific EPBC Act events, and by providing a review mechanism. Potential litigation could also arise from disputes about the calculation of the restoration contribution charge under section 14, particularly if the prescribed method is complex or involves discretionary judgments about residual significant impacts. Challenges could also arise from disputes about whether a condition of an approval requiring payment of the charge was validly imposed under the EPBC Act. The Act itself provides no merits review mechanism for charge determinations, which may push disputes towards judicial review under the Administrative Decisions (Judicial Review) Act 1977 or the Constitution. The Act's litigation history will develop only after the regulations are made and charges are imposed. At present, the litigation history is a blank slate.

The most significant trap in the Act is the sheer amount of detail left to regulations. Sections 14 to 16 provide that the amounts of all four charges are to be either prescribed by regulations or worked out in accordance with a method prescribed by regulations. At the time of enactment, no regulations exist. Anyone assessing their liability under the Act is assessing an empty framework. The amount of each charge could range from one dollar to any positive figure the regulation-maker chooses. The Act imposes no upper limit, no indexation requirement, and no requirement that the charge be proportionate to the environmental impact or the cost of restoration. A second trap is the deferred and staggered commencement under section 2(2). The operative provisions may commence on different days for different matters or things. A person might assume that because the Act has been passed, the charges are in effect, but they are not. Conversely, a person might assume that because sections 1 and 2 have commenced, the charges are not imminent, but the Minister could commence the operative provisions at any time by Proclamation, with no minimum notice period. A third trap is the restoration contribution charge's dependence on a condition of the approval. Section 8(1), (2) and (3) each state that the charge is imposed if a condition of the approval requires payment of the charge. This means the charge is not a foregone conclusion at the time of applying for approval. However, it also means that applicants cannot know in advance whether the charge will be imposed, or in what amount, because the decision-maker decides the condition at the time of granting approval. This creates uncertainty for project budgeting and financial planning. A fourth trap is the distinction between who pays for Part 9 approvals versus Part 10 approvals. For Part 9 approvals, the charge is payable by the approval holder (section 11(1)). For Part 10 approvals (including classes of actions), the person responsible is specified in the approval itself (section 11(2)). This means that in the Part 10 context, liability could fall on a person who is not the approval holder, such as a contractor or joint venture partner. The approval document must be scrutinised carefully to identify who is named as the person responsible. A fifth trap is that the bioregional plan registration charge is imposed on the registration of a priority action (section 9), not on the taking of the action. This means the charge is payable at the point of entering the streamlined framework, before any action occurs and before any revenue is generated from the project. The Act provides no deferral or instalment mechanism. A sixth trap is the exemption charges being imposed on the grant of the exemption (section 10), which could be simultaneous with the exemption decision, leaving no time to arrange payment. A seventh trap is the lack of any provision for refund, remission or waiver. If a charge is paid but the approval is later varied or revoked, or if the action does not proceed, the Act provides no mechanism to recover the charge. The regulations could in theory provide for such a mechanism, but they are not required to. An eighth trap is that the Act does not specify what constitutes compliance with a charge condition. If the charge is not paid, the Act does not say whether the approval, registration or exemption remains valid. This could lead to situations where a person has paid the charge but cannot prove it, or has not paid it but continues to act under an approval that the regulator considers to be conditional on payment. A ninth trap is the interaction with the EPBC Act's existing condition-setting powers. The EPBC Act may already allow conditions requiring financial contributions. This Act may duplicate or overlap with those existing powers, creating confusion about which framework applies.

Because the Act's operative provisions have not yet commenced and no regulations have been made under section 18, there is no current compliance obligation for any person. The guidance below addresses what compliance will require once the Act is in force and regulations are made. First, identify whether your action triggers any of the four charge events. The restoration contribution charge applies if you hold an approval under Part 9 or Part 10 of the EPBC Act, and that approval includes a condition requiring payment of the charge in relation to a residual significant impact (section 8). If you are applying for such an approval, you must consider whether the decision-maker is likely to impose such a condition. Factors may include the nature and extent of the residual significant impact, the existence of a prescribed method for calculating the charge under regulations, and any policy statements from the Department. If the condition is imposed, you must pay the charge in the amount worked out in accordance with the prescribed method (section 14). The approval holder is liable for Part 9 approvals (section 11(1)). For Part 10 approvals, the person specified in the approval as responsible is liable (section 11(2)). Check the approval document carefully to confirm which entity is named. Second, if you are seeking registration of a priority action under subsection 177BN(7) of the EPBC Act in relation to a bioregional plan, you must pay the bioregional plan registration charge (section 9). The amount will be either a fixed figure prescribed by regulations or an amount worked out in accordance with a method prescribed by regulations (section 15). The charge is payable by the person in relation to whom the priority action is first registered (section 12(1)). Check whether you fall within any class of persons exempted by regulations (section 12(2)). The charge is payable on registration, so arrange payment before or at the time of registration to avoid any uncertainty about the validity of the registration. Third, if you are granted a national interest exemption or a Part 13 exemption under the EPBC Act, you must pay the relevant exemption charge (section 10). The amount will be prescribed by regulations or worked out in accordance with a method (section 16). The charge is payable by the person to whom the exemption applies (section 13(1)-(2)). Check for any regulatory exemptions (section 13(3)-(4)). The charge is payable on the grant of the exemption, so ensure that payment arrangements are in place before the exemption is formally granted. Fourth, monitor the regulations. The Act delegates the critical details of amount, method and exemptions to regulations. Check the Federal Register of Legislation regularly for any regulations made under section 18. The regulations may also prescribe matters relating to the timing of payment, the method of payment, and any documentation required. Fifth, keep records of all payments of charges. Although the Act does not require specific record-keeping, the associated approval, registration or exemption under the EPBC Act may require evidence of compliance with conditions. A payment receipt may be relevant in any future audit or enforcement action. Sixth, participate in the review process. Section 17 requires independent reviews of the regulations, with the first review commencing within 24 months after the Act's commencement. Make submissions to the reviewers if you have experience with the operation of the charges, whether positive or negative. The Minister must publish the review report and the government's response. Seventh, consider the constitutional and jurisdictional issues. The Act extends to the external Territories and to acts outside Australia (sections 4 and 5). If your action is outside Australia but triggers the EPBC Act, you may still be liable for charges. Seek legal advice on the application of the Act to your specific circumstances, particularly if you are a State government entity, as the Act binds State Crowns but not the Commonwealth Crown (section 3).