National Environmental Protection Agency Act 2025

The National Environmental Protection Agency Act 2025 establishes the National Environmental Protection Agency (NEPA) as a new, centralized federal regulatory body, as set out in section 9(1). Under section 9(2), the agency is structured as a listed entity for the purposes of the finance law, specifically the Public Governance, Performance and Accountability Act 2013, with its Chief Executive Officer (CEO) designated as the accountable authority. The primary function of NEPA, as declared under section 11, is to assist the CEO in the performance of their statutory functions.

The Act performs a major structural consolidation of environmental regulatory power. Rather than creating a multi-member commission or board, the Parliament has vested all regulatory functions and powers directly in a single statutory officer: the CEO (section 12). Under section 13(1), the Act transfers and confers functions on the CEO across ten distinct pieces of environmental and product legislation. These laws include the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), the Environment Protection (Sea Dumping) Act 1981, the Hazardous Waste (Regulation of Exports and Imports) Act 1989, the Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995, the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989, the Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Act 1995, the Product Emissions Standards Act 2017, the Recycling and Waste Reduction Act 2020, the Underwater Cultural Heritage Act 2018, and the Regulatory Powers (Standard Provisions) Act 2014 to the extent it applies to these environmental statutes.

While the stated statutory object of the Act is to support the delivery of "accountable, efficient, outcomes-focused and transparent environmental regulatory decision-making" (section 3), its operational mechanics establish an independent administrative framework. Section 14 explicitly provides that the CEO has complete discretion in the performance of their functions and is not subject to direction by any person. This independence is bounded by a formal mechanism of ministerial communication: the Minister may issue a non-binding "statement of expectations" (section 16), to which the CEO must respond with a "statement of intent" (section 17). Additionally, the Act mandates the creation of public electronic registers on NEPA's website to list "registrable decisions" (section 18), establishing a default rule of transparency that can be suspended or restricted by the CEO under specific conditions (sections 22 and 23). Finally, Part 4 of the Act outlines a strict regime for gathering, sharing, and protecting information, backed by civil penalties.

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Commonwealth Coat of Arms of Australia

National Environmental Protection Agency Act 2025

No. 69, 2025

An Act to establish the National Environmental Protection Agency, and for related purposes

Contents

Part 1—Preliminary

1 Short title

2 Commencement

3 Object

4 Simplified outline of this Act

5 Definitions

6 Crown to be bound

7 Extension to external Territories

Part 2—National Environmental Protection Agency

Division 1—Introduction

8 Simplified outline of this Part

Division 2—National Environmental Protection Agency

9 Establishment of National Environmental Protection Agency

10 Constitution of NEPA

11 Function of NEPA

Division 3—The Chief Executive Officer

12 The Chief Executive Officer

13 Functions of the CEO

14 Independence of the CEO

Part 3—Responsibilities in relation to functions

Division 1—Introduction

15 Simplified outline of this Part

Division 2—Statement of expectations and statement of intent

16 Minister’s statement of expectations

17 Statement of intent

Division 3—Registers

18 Registers

19 Definition of registrable decision

20 Register of registrable decisions

21 Registers of prescribed matters

22 Suspension of registers

23 Certain information not required to be published on registers

Part 4—Information and confidentiality

Division 1—Introduction

24 Simplified outline of this Part

Division 2—Information gathering

25 CEO may request information, advice or documents

Division 3—Use and disclosure of relevant information

Subdivision A—Authorised disclosures by the CEO

26 Disclosure of relevant information to Commonwealth entities

27 Disclosure of relevant information to State or Territory government body

28 Disclosure for the purposes of law enforcement

29 Disclosure to reduce serious risk to human health

30 Disclosure to reduce serious risk to the environment

Subdivision B—Authorised use and disclosure by entrusted persons

31 Use and disclosure for the purposes of an Act

32 Use and disclosure for the administration or governance of NEPA

33 Use and disclosure for the purposes of an Act administered by the Minister

34 Use and disclosure for the purposes of assisting the Head of Environment Information Australia

35 Use or disclosure for the purposes of international obligations

36 Publicly available information

37 Person to whom information relates

38 Use and disclosure with consent

39 Person who provided information

40 Summaries or statistics

41 Disclosure to a court, tribunal etc.

Subdivision C—Civil penalties

42 Unauthorised use or disclosure of protected information—entrusted person

43 Unauthorised use or disclosure of protected information—official of a Commonwealth entity

Part 5—Appointment of the CEO and engagement of staff etc.

Division 1—Introduction

44 Simplified outline of this Part

Division 2—Appointment of the CEO etc.

45 Appointment of the CEO

46 Acting appointments

47 Terms and conditions

48 Remuneration

49 Leave of absence

50 Other paid work

51 Resignation

52 Termination of appointment

Division 3—Staff

53 Staff

54 Persons assisting NEPA

Division 4—Advisory group

55 CEO may establish advisory group

56 CEO may publish advice

57 CEO must consider advice

Part 6—Miscellaneous

58 Simplified outline of this Part

59 Delegation by the CEO

60 Annual report

61 Periodic reviews of the administration of NEPA

62 Enforcement of civil penalty provisions

63 Rules

Commonwealth Coat of Arms of Australia

National Environmental Protection Agency Act 2025

No. 69, 2025

An Act to establish the National Environmental Protection Agency, and for related purposes

[Assented to 1 December 2025]

The Parliament of Australia enacts:

Part 1—Preliminary

1 Short title

This Act is the National Environmental Protection Agency Act 2025.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
1. The whole of this Act 1 July 2026. 1 July 2026

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Object

The object of this Act is to establish the National Environmental Protection Agency to support the delivery of accountable, efficient, outcomes‑focused and transparent environmental regulatory decision‑making.

4 Simplified outline of this Act

This Act establishes NEPA, short for the National Environmental Protection Agency, and provides for the appointment of the CEO of NEPA.

The CEO has the functions conferred on the CEO by this Act and a number of other environmental laws mentioned in section 13. The CEO also has functions of advising and assisting the Minister in relation to any of the Minister’s functions and powers under those laws.

The Minister may give the CEO a statement of the Minister’s expectations for the CEO and NEPA. However, the Minister’s statement of expectations cannot affect the CEO’s independence by directing the CEO in the performance or exercise of the CEO’s functions or powers. The CEO must respond to any statement of expectations with a statement of intent.

The CEO may establish an advisory group to advise and assist the CEO in relation to the CEO’s functions and powers. The CEO must consider any advice received but is not bound by the advice.

This Act also contains a regime for the use and disclosure of information obtained under any Act conferring functions on the CEO. There are civil penalties for the use or disclosure of protected information in certain circumstances.

5 Definitions

In this Act:

advisory group means the group established by the CEO under subsection 55(1).

CEO: see section 12.

civil penalty provision has the same meaning as in the Regulatory Powers Act.

Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013.

Commonwealth reserve has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.

conservation zone has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.

entrusted person means:

(a) the CEO; or

(b) a member of the staff referred to in section 53; or

(d) a person engaged under section 23 of the Public Governance, Performance and Accountability Act 2013 by the CEO under a written agreement to assist in, or advise in relation to, the performance of the CEO’s functions; or

(e) a person employed or engaged by a person mentioned in paragraph (d) of this definition to assist in, or advise in relation to, the performance of the CEO’s functions; or

(f) any other person prescribed by the rules.

environment has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.

matter protected by a provision of Part 3 of the Environment Protection and Biodiversity Conservation Act 1999 has the same meaning as in that Act.

NEPA: see subsection 9(1).

official has the same meaning as in the Public Governance, Performance and Accountability Act 2013.

paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).

protected information: relevant information obtained by an entrusted person is protected information if disclosure of the information could reasonably be expected to:

(a) if the disclosure is by the entrusted person—found an action by a person (other than the Commonwealth) for breach of a duty of confidence; or

(b) prejudice the effective working of government; or

(d) endanger a person’s life or physical safety; or

(e) prejudice the protection of public safety or the environment.

registrable decision: see section 19.

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.

relevant information means information obtained or generated by an entrusted person under, or in accordance with:

(a) this Act or an instrument made under this Act; or

(b) an Act or an instrument that confers functions on the CEO; or

rules means rules made under section 63.

statement of expectations means the statement issued by the Minister under section 16.

State or Territory government body means:

(a) a Department of State of a State or Territory; or

(b) an agency of a State or Territory; or

6 Crown to be bound

This Act binds the Crown in each of its capacities.

7 Extension to external Territories

This Act extends to every external Territory.

Part 2—National Environmental Protection Agency

Division 1—Introduction

8 Simplified outline of this Part

This Part establishes the office of the CEO of NEPA. It also establishes NEPA for the purposes of assisting the CEO in the performance of the CEO’s functions. The CEO is the accountable authority of NEPA.

Division 2—National Environmental Protection Agency

9 Establishment of National Environmental Protection Agency

(1) The National Environmental Protection Agency (NEPA) is established by this section.

(2) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):

(a) NEPA is a listed entity; and

(b) the CEO is the accountable authority of NEPA; and

(i) the CEO;

(ii) the staff referred to in section 53;

(iii) persons whose services are made available to NEPA under section 54; and

(d) the purposes of NEPA include:

(i) the function of NEPA referred to in section 11; and

(ii) the functions of the CEO referred to in section 13.

10 Constitution of NEPA

NEPA consists of:

(a) the CEO; and

(b) the staff referred to in section 53; and

11 Function of NEPA

The function of NEPA is to assist the CEO in the performance of the CEO’s functions.

Division 3—The Chief Executive Officer

12 The Chief Executive Officer

There is to be a Chief Executive Officer (CEO) of NEPA.

13 Functions of the CEO

(1) The CEO has the functions conferred on the CEO by the following laws:

(a) this Act;

(b) the Environment Protection and Biodiversity Conservation Act 1999;

(d) the Hazardous Waste (Regulation of Exports and Imports) Act 1989;

(e) the Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995;

(f) the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989;

(g) the Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Act 1995;

(h) the Product Emissions Standards Act 2017;

(i) the Recycling and Waste Reduction Act 2020;

(j) the Underwater Cultural Heritage Act 2018;

(k) the Regulatory Powers Act to the extent that it applies in relation to an Act mentioned in any of paragraphs (a) to (j);

(l) a legislative instrument made under an Act, or under provisions of an Act, mentioned in any of paragraphs (a) to (k).

(2) The CEO also has the following functions:

(a) to advise and assist the Minister in relation to the exercise of any powers, or the performance of any functions, of the Minister under laws that confer functions on the CEO;

(b) to monitor and audit the operation of the following instruments made under or entered into in accordance with the Environment Protection and Biodiversity Conservation Act 1999:

(i) declarations made under section 33 of that Act;

(ii) declarations made under section 36H of that Act;

(iii) bilateral agreements;

(iv) bioregional plans;

(c) to make recommendations to the Minister in relation to opportunities to improve regulation under laws that confer functions on the CEO;

(d) any other functions that are conferred on the CEO by:

(i) the rules; or

(ii) any other law of the Commonwealth;

(e) to do anything incidental or conducive to the performance of the above functions.

(3) The CEO has power to do all things necessary or convenient to be done for or in connection with the performance of the CEO’s functions.

14 Independence of the CEO

Subject to this Act and any other Act, the CEO has discretion in the performance or exercise of the CEO’s functions or powers and is not subject to direction by any person in relation to the performance or exercise of those functions or powers.

Part 3—Responsibilities in relation to functions

Division 1—Introduction

15 Simplified outline of this Part

The Minister may give the CEO a statement of the Minister’s expectations for the CEO and NEPA. The CEO must respond to any such statement of expectations with a statement of intent.

The CEO must establish and maintain on NEPA’s website registers containing information in relation to certain decisions of the CEO (called registrable decisions) and any other matters prescribed by the rules that relate to a law mentioned in section 13.

Division 2—Statement of expectations and statement of intent

16 Minister’s statement of expectations

(1) The Minister may, at any time, prepare and give a written statement (a statement of expectations) to the CEO that sets out the Minister’s expectations for the CEO and NEPA.

(2) A statement of expectations cannot direct the CEO in the performance or exercise of the CEO’s functions or powers.

(3) In preparing a statement of expectations, the Minister must:

(a) have regard to any matters prescribed by the rules; and

(b) prepare the statement in accordance with any requirements prescribed by the rules.

(4) As soon as practicable after giving a statement of expectations to the CEO, the Minister must arrange for it to be published on the Department’s website.

(5) A statement of expectations replaces any previous statement of expectations.

(6) A statement of expectations is not a legislative instrument.

17 Statement of intent

(1) If the Minister issues a statement of expectations, the CEO must prepare and give the Minister a written response (a statement of intent).

(2) In preparing a statement of intent, the CEO must:

(a) have regard to any matters prescribed by the rules; and

(b) prepare the statement in accordance with any requirements prescribed by the rules.

(3) The CEO must publish a statement of intent on NEPA’s website as soon as practicable after it is given to the Minister.

(4) A statement of intent is not a legislative instrument.

Division 3—Registers

18 Registers

(1) The CEO must establish and maintain the following registers:

(a) a register of registrable decisions;

(b) a register of any other matters prescribed by the rules that relate to a law mentioned in section 13.

(2) A register is to be maintained by electronic means.

(3) A register is to be made available for inspection on NEPA’s website.

(4) A register is not a legislative instrument.

19 Definition of registrable decision

A decision of the CEO is a registrable decision if the decision is prescribed as a registrable decision by:

(a) for a decision under an Act—that Act or the rules; or

(b) for a decision under a legislative instrument—the rules.

20 Register of registrable decisions

The rules may make provision in relation to the register of registrable decisions, including (without limitation) the information in relation to registrable decisions that the CEO must publish on the register.

Note 1: The rules may, for example, prescribe that the CEO must publish the name of any person in relation to whom a registrable decision is made.

Note 2: The CEO is not required to publish certain sensitive information: see section 23.

21 Registers of prescribed matters

The rules may make provision in relation to a register of any matter prescribed as mentioned in paragraph 18(1)(b), including (without limitation) the information in relation to the matter that the CEO must publish on the register.

Note 1: The rules may, for example, prescribe that the CEO must publish the name of a person with a particular connection to the prescribed matter.

Note 2: The CEO is not required to publish certain sensitive information: see section 23.

22 Suspension of registers

(1) The CEO may suspend the operation of a register if the CEO is satisfied:

(a) the suspension is required so that maintenance can be carried out; or

(b) it is prudent to suspend the operation of the register in order to:

(i) ensure the integrity of the register; or

(ii) prevent, mitigate or minimise abuse of the register; or

(iii) prevent, mitigate or minimise criminal activity involving the register.

(2) If the CEO suspends the operation of a register:

(a) the CEO must publish a notice on NEPA’s website informing the public of the suspension; and

(b) the CEO may defer taking action in relation to the register until the suspension ends.

23 Certain information not required to be published on registers

The CEO is not required to publish information on a register if the CEO considers that publishing the information would, or could be reasonably expected to:

(a) endanger public safety; or

(b) cause damage to a matter protected by a provision of Part 3 of the Environment Protection and Biodiversity Conservation Act 1999; or

Part 4—Information and confidentiality

Division 1—Introduction

24 Simplified outline of this Part

Entrusted persons can use or disclose certain information (called relevant information) in accordance with this Part.

Entrusted persons and certain other persons may be liable to a civil penalty if they use or disclose protected information other than in accordance with this Part.

Division 2—Information gathering

25 CEO may request information, advice or documents

The CEO may, in writing, request information, advice or documents that relate to the performance of the CEO’s functions, or the exercise of the CEO’s powers, from any person or body.

Division 3—Use and disclosure of relevant information

Subdivision A—Authorised disclosures by the CEO

26 Disclosure of relevant information to Commonwealth entities

The CEO may disclose relevant information to a Commonwealth entity if the CEO is satisfied the disclosure is for the purposes of assisting the entity to perform its functions or exercise its powers.

27 Disclosure of relevant information to State or Territory government body

The CEO may disclose relevant information to a State or Territory government body if:

(a) the CEO reasonably believes that the disclosure of the information is necessary for the purposes of:

(i) performing functions or exercising powers of the CEO; or

(ii) the administration of a State or Territory law; and

(b) the State or Territory government body has undertaken not to use or disclose the information except in accordance with an agreement that:

(i) is in force between the Commonwealth and the State or Territory; and

(ii) applies in relation to the information; and

28 Disclosure for the purposes of law enforcement

(1) The CEO may disclose relevant information to a body mentioned in subsection (2) if:

(a) the CEO reasonably believes that the disclosure of the information is necessary for:

(i) the enforcement of the criminal law; or

(ii) the enforcement of a law imposing a pecuniary penalty; or

(iii) the protection of public revenue; and

(b) the functions of the body include that enforcement or protection.

(2) The bodies are the following:

(a) a Commonwealth entity;

(b) a State or Territory government body;

(d) the police force or police service of a State or Territory.

29 Disclosure to reduce serious risk to human health

The CEO may disclose relevant information if the CEO reasonably believes that the disclosure is necessary to prevent or lessen a serious risk to human health.

30 Disclosure to reduce serious risk to the environment

The CEO may disclose relevant information if the CEO reasonably believes that the disclosure is necessary to prevent or lessen a serious risk to the environment.

Subdivision B—Authorised use and disclosure by entrusted persons

31 Use and disclosure for the purposes of an Act

An entrusted person may use or disclose relevant information if the use or disclosure is for the purposes of this Act or another Act that confers functions on the CEO.

32 Use and disclosure for the administration or governance of NEPA

An entrusted person may use or disclose relevant information if the use or disclosure is for the purposes of the administration or governance of NEPA.

33 Use and disclosure for the purposes of an Act administered by the Minister

An entrusted person may:

(a) use relevant information; or

(b) disclose relevant information to the Minister or the Department;

if the use or disclosure is for the purposes of an Act administered by the Minister.

34 Use and disclosure for the purposes of assisting the Head of Environment Information Australia

An entrusted person may:

(a) use relevant information; or

(b) disclose relevant information to the Head of Environment Information Australia;

if the use or disclosure is for the purposes of assisting the Head of Environment Information Australia perform their functions or exercise their powers.

Note: Relevant information may also be disclosed to the Head of Environment Information Australia under other sections of this Act: see, for example, section 31 or 33.

35 Use or disclosure for the purposes of international obligations

An entrusted person may use or disclose relevant information if the use or disclosure is for the purposes of Australia meeting its international obligations.

36 Publicly available information

An entrusted person may use or disclose relevant information if the information has already been lawfully made available to the public.

37 Person to whom information relates

An entrusted person may disclose relevant information to the person to whom the information relates.

38 Use and disclosure with consent

An entrusted person may use or disclose relevant information that relates to a person if:

(a) the person has consented to the use or disclosure; and

(b) the use or disclosure is in accordance with that consent.

39 Person who provided information

An entrusted person may disclose relevant information to the person who provided the information.

40 Summaries or statistics

An entrusted person may disclose:

(a) summaries of relevant information; or

(b) statistics derived from relevant information;

if those summaries or statistics do not enable the identification of a person.

41 Disclosure to a court, tribunal etc.

(1) An entrusted person may disclose relevant information to a court exercising federal jurisdiction.

(2) An entrusted person may disclose relevant information to:

(a) a court; or

(b) a tribunal, authority or person that has the power to require the answering of questions or the production of documents;

for the purposes of the enforcement of a law of the Commonwealth or to assist the court, tribunal, authority or person to make or review an administrative decision that is required or authorised to be made or reviewed under a law of the Commonwealth.

Subdivision C—Civil penalties

42 Unauthorised use or disclosure of protected information—entrusted person

Unauthorised use or disclosure

(1) A person is liable to a civil penalty if:

(a) the person is, or has been, an entrusted person; and

(b) the person has obtained relevant information in the person’s capacity as an entrusted person; and

(d) the person uses or discloses the information.

Civil penalty: 200 penalty units.

Exceptions

(2) Subsection (1) does not apply if the use or disclosure is authorised or required by:

(a) this Act; or

(b) any other law of the Commonwealth; or

Note: A defendant bears an evidential burden in relation to the matters in this subsection: see section 96 of the Regulatory Powers Act.

43 Unauthorised use or disclosure of protected information—official of a Commonwealth entity

A person is liable to a civil penalty if:

(a) the person is, or has been, an official of a Commonwealth entity that is not NEPA; and

(b) the person has obtained relevant information in the person’s capacity as an official of the entity; and

(d) the person uses or discloses the information other than for the purpose for which it was disclosed to the entity.

Civil penalty: 200 penalty units.

Part 5—Appointment of the CEO and engagement of staff etc.

Division 1—Introduction

44 Simplified outline of this Part

This Part provides for the appointment of the CEO of NEPA and deals with the terms and conditions of the appointment. It contains provisions concerning the staff of NEPA and certain other persons whose services can be made available to assist NEPA.

This Part also gives the CEO the power to establish an advisory group to advise and assist the CEO in relation to the CEO’s functions and powers. The CEO must consider any advice received but is not bound by the advice.

Division 2—Appointment of the CEO etc.

45 Appointment of the CEO

Appointment by the Governor‑General

(1) The CEO is to be appointed by the Governor‑General by written instrument.

Qualifications for appointment

(2) A person must not be appointed as the CEO unless the Minister is satisfied that:

(a) the person has knowledge of, or experience in, both of the following matters:

(i) public sector administration or governance;

(ii) regulation; and

(b) the person has knowledge of, or experience in, one or more of the following:

(i) conservation of biodiversity;

(ii) ecologically sustainable development;

(iii) heritage;

(iv) Indigenous affairs;

(v) law;

(vi) law enforcement;

(vii) natural resource management;

(viii) any other matters prescribed by the rules; and

(c) the person does not have any interests, pecuniary or otherwise, that conflict or could conflict with the proper performance of the CEO’s functions.

Period and basis of appointment

(3) The CEO is to be appointed on a full‑time basis.

(4) The CEO must not be reappointed more than once.

(5) The CEO holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

46 Acting appointments

(1) The Minister may, by written instrument, appoint a person to act as the CEO:

(a) during a vacancy in the office of CEO (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the CEO:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

(2) A person is not eligible for appointment to act as the CEO unless the person is eligible for appointment as the CEO under section 45.

47 Terms and conditions

The CEO holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

48 Remuneration

(1) The CEO is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the CEO is to be paid the remuneration that is prescribed under subsection (4).

(2) The CEO is to be paid the allowances that are prescribed under subsection (4).

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

(4) The Minister may, by legislative instrument, prescribe:

(a) remuneration for the purposes of subsection (1); and

(b) allowances for the purposes of subsection (2).

49 Leave of absence

(1) The CEO has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2) The Minister may grant the CEO leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

50 Other paid work

The CEO must not engage in paid work outside the duties of the CEO’s office without the Minister’s approval.

51 Resignation

(1) The CEO may resign the CEO’s appointment by giving the Governor‑General a written resignation.

(2) The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.

52 Termination of appointment

The Governor‑General may terminate the appointment of the CEO:

(a) for misbehaviour; or

(b) if the CEO is unable to perform the duties of the CEO’s office because of physical or mental incapacity; or

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with the CEO’s creditors; or

(iv) makes an assignment of the CEO’s remuneration for the benefit of the CEO’s creditors; or

(d) if the CEO is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(e) if the CEO engages, except with the Minister’s approval, in paid work outside the duties of the CEO’s office (see section 50); or

(f) if the CEO fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.

Division 3—Staff

53 Staff

(1) The staff of NEPA must be persons engaged under the Public Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

(a) the CEO and the APS employees assisting the CEO together constitute a Statutory Agency; and

(b) the CEO is the Head of that Statutory Agency.

54 Persons assisting NEPA

NEPA may be assisted by:

(a) officers and employees of Agencies (within the meaning of the Public Service Act 1999); or

(b) officers and employees of authorities of the Commonwealth; or

(d) officers and employees of authorities of a State or Territory;

whose services are made available to NEPA in connection with the performance of any of its functions.

Division 4—Advisory group

55 CEO may establish advisory group

CEO may establish advisory group

(1) The CEO may, by written instrument, establish an advisory group to provide the CEO, at the CEO’s request, advice or assistance in relation to the performance of the CEO’s functions and the exercise of the CEO’s powers.

(2) The advice or assistance may be provided by:

(a) any single member of the group; or

(b) any combination of members of the group; or

Members of the group

(3) The members of the group are to be appointed by the CEO by written instrument.

Note: Members may be reappointed: see section 33AA of the Acts Interpretation Act 1901.

(4) The CEO may appoint as many members as the CEO considers appropriate.

(5) The CEO must not appoint a person under subsection (3) unless the CEO is satisfied that the person has the relevant skills, expertise or Indigenous cultural knowledge.

Other matters

(6) The CEO must determine the terms and conditions of appointment of the members.

(7) The CEO may determine:

(a) the group’s terms of reference; and

(b) the procedures to be followed by the group or its members in providing advice or assistance.

(8) If the CEO determines terms of reference under paragraph (7)(a), the CEO must publish the terms of reference on NEPA’s website as soon as practicable afterwards.

(9) An instrument made under subsection (1) or (3) is not a legislative instrument.

56 CEO may publish advice

If the advisory group or any one or more of its members provides advice to the CEO in relation to the performance of the CEO’s functions or the exercise of the CEO’s powers, the CEO may publish the advice on NEPA’s website if the CEO considers it appropriate to do so.

57 CEO must consider advice

If the advisory group or any one or more of its members provides advice to the CEO in relation to a decision to be made by the CEO:

(a) the CEO must consider the advice when making the decision; but

(b) the CEO is not bound by the advice.

Part 6—Miscellaneous

58 Simplified outline of this Part

This Part deals with miscellaneous matters.

59 Delegation by the CEO

(1) The CEO may, in writing, delegate all or any of the CEO’s functions or powers under any of the laws mentioned in subsection 13(1) to:

(a) a member of the staff referred to in section 53 who meets the requirements in subsection (3); or

(b) a person whose services are made available to NEPA under section 54 and who meets the requirements in subsection (3); or

(c) an individual who is engaged, or employed or engaged by a person engaged, under section 23 of the Public Governance, Performance and Accountability Act 2013 by the CEO under a written agreement to assist in, or advise in relation to, the performance of the CEO’s functions, and who meets the requirements in subsection (3); or

(d) for a function or power the performance or exercise of which directly or indirectly relates (including in a way described in subsection 7(1A) of the Great Barrier Reef Marine Park Act 1975) to the Great Barrier Reef Marine Park—any of the following:

(i) the Great Barrier Reef Marine Park Authority;

(ii) the Chief Executive Officer of the Great Barrier Reef Marine Park Authority;

(iii) a member of the staff of the Great Barrier Reef Marine Park Authority who meets the requirements in subsection (3); or

(e) for a function or power the performance or exercise of which directly or indirectly relates to a Commonwealth reserve or a conservation zone—either of the following:

(i) the Director of National Parks;

(ii) an APS employee in the Department who meets the requirements in subsection (3).

Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.

(2) Despite subsection (1), the CEO must not delegate a function or power of the CEO under Part 19C (rulings) of the Environment Protection and Biodiversity Conservation Act 1999.

(3) A person meets the requirements in this subsection if the person:

(a) is an SES employee or acting SES employee; or

(b) holds, or is acting in, a position that is equivalent to a position occupied by an SES employee; or

Note: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

(4) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the CEO.

(5) Subsection (4) does not apply in relation to a delegate to whom a function or power is delegated as mentioned in paragraph (1)(e).

60 Annual report

The annual report prepared by the CEO and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must be published on NEPA’s website as soon as practicable after the report is first tabled in a House of the Parliament.

61 Periodic reviews of the administration of NEPA

Requirement to conduct reviews

(1) The Minister must cause independent reviews of the administration of NEPA to be conducted in accordance with this section.

Matters review must consider

(2) Without limiting subsection (1), a review must consider, in relation to the period since the previous review was completed under this section:

(a) whether, and to what extent, NEPA has supported the delivery of accountable, efficient, outcomes‑focused and transparent environmental regulatory decision‑making; and

(b) whether, and to what extent, the CEO and NEPA have met the expectations set out in any statements of expectations given by the Minister in the period; and

Frequency of reviews

(3) The first review must be completed within 5 years after the commencement of this section.

(4) Each subsequent review must be completed within 5 years after the completion of the previous review.

(5) For the purposes of subsections (3) and (4), a review is completed on the day after the day the report of the review is given to the Minister.

Report of review

(6) The person or persons who conduct a review must give the Minister a written report of the review.

(7) As soon as practicable after the Minister receives the report, the Minister must arrange for:

(a) a copy to be given to the CEO; and

(b) a copy to be published on the Department’s website.

(8) The Minister must also arrange for a copy of the report to be tabled in each House of the Parliament, within 15 sitting days of that House after the Minister receives the report.

Response to recommendations

(9) If the report includes recommendations, the CEO must:

(a) prepare a response to each recommendation, as soon as practicable after receiving a copy of the report from the Minister; and

(b) arrange for the response to be tabled in each House of the Parliament, within 6 months of the day a copy of the report is tabled in that House; and

(c) publish the response on NEPA’s website, as soon as practicable after a copy of the report is first tabled in a House of the Parliament.

62 Enforcement of civil penalty provisions

Enforcement of civil penalty provisions

(1) Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.

Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

Authorised applicant

(2) For the purposes of Part 4 of the Regulatory Powers Act, the CEO is an authorised applicant in relation to the civil penalty provisions of this Act.

Relevant court

(3) For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:

(a) the Federal Court of Australia;

(b) the Federal Circuit and Family Court of Australia (Division 2);

Extension to external Territories

(4) Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, extends to every external Territory.

63 Rules

(1) The Minister may, by legislative instrument, make rules prescribing matters:

(a) required or permitted by this Act to be prescribed by the rules; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) To avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

(e) directly amend the text of this Act.

[Minister’s second reading speech made in—

House of Representatives on 30 October 2025

Senate on 24 November 2025]

(94/25)

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National Environmental Protection Agency Act 2025

No. 69, 2025

An Act to establish the National Environmental Protection Agency, and for related purposes

Contents

Part 1—Preliminary

1 Short title

2 Commencement

3 Object

4 Simplified outline of this Act

5 Definitions

6 Crown to be bound

7 Extension to external Territories

Part 2—National Environmental Protection Agency

Division 1—Introduction

8 Simplified outline of this Part

Division 2—National Environmental Protection Agency

9 Establishment of National Environmental Protection Agency

10 Constitution of NEPA

11 Function of NEPA

Division 3—The Chief Executive Officer

12 The Chief Executive Officer

13 Functions of the CEO

14 Independence of the CEO

Part 3—Responsibilities in relation to functions

Division 1—Introduction

15 Simplified outline of this Part

Division 2—Statement of expectations and statement of intent

16 Minister’s statement of expectations

17 Statement of intent

Division 3—Registers

18 Registers

19 Definition of registrable decision

20 Register of registrable decisions

21 Registers of prescribed matters

22 Suspension of registers

23 Certain information not required to be published on registers

Part 4—Information and confidentiality

Division 1—Introduction

24 Simplified outline of this Part

Division 2—Information gathering

25 CEO may request information, advice or documents

Division 3—Use and disclosure of relevant information

Subdivision A—Authorised disclosures by the CEO

Understanding the operation of this Act requires a precise analysis of its core statutory definitions and administrative concepts.

The first key concept is that of the "entrusted person", defined broadly under section 5. This class includes the CEO, APS staff engaged under the Public Service Act 1999, persons whose services are made available to NEPA under section 54 (such as state or territory public servants), and private consultants or contractors engaged under section 23 of the Public Governance, Performance and Accountability Act 2013. Crucially, the definition extends to any employee of these private contractors and any other person prescribed by the rules. This expansive definition ensures that anyone who touches NEPA's regulatory machinery is brought within the scope of the Act's statutory duties and liabilities.

The second core concept is "relevant information" (section 5), which encompasses any information obtained or generated by an entrusted person under the Act, its rules, any of the core environmental Acts listed under section 13(1), or the Regulatory Powers Act. This is an exceptionally wide category. It is not limited to sensitive trade secrets; it captures all operational, environmental, and financial data collected during regulatory processes, including informal correspondence, draft applications, and site monitoring data.

A critical subset of this data is "protected information" (section 5). Relevant information becomes protected information if its disclosure could reasonably be expected to found an action for breach of a duty of confidence by a third party, prejudice the effective working of government, prejudice law enforcement activities, endanger physical safety, or prejudice the protection of public safety or the environment. This definition triggers the strict civil penalty provisions in Part 4 Division 3 Subdivision C, shifting the compliance risk to any individual who handles NEPA-related data.

The statutory interface between the Minister and the independent CEO is governed by the twin concepts of the "statement of expectations" (section 16) and the "statement of intent" (section 17). These documents are designed to align administrative action with government policy without compromising the CEO's legal independence. Under section 16(2), the statement of expectations cannot direct the CEO in their functions. It functions as a public positioning tool, which the CEO must formally answer on NEPA's website via a statement of intent (section 17(3)). Notably, neither document is a legislative instrument (sections 16(6) and 17(4)), meaning they are shielded from parliamentary disallowance.

Finally, "registrable decisions" (section 19) represent the primary vehicle for public transparency. Rather than specifying these decisions in the primary text of the Act, the Parliament has left the definition to be determined by the rules or the specific underlying Acts. This means the scope of what the public has a right to see remains flexible and subject to administrative adjustment.

The National Environmental Protection Agency Act 2025 directly affects several distinct groups across the public and private sectors, rearranging their regulatory risks, administrative obligations, and operational strategies.

First, it profoundly affects private developers, resource companies, industrial operators, and agricultural enterprises. Any business whose operations require approvals or licensing under the EPBC Act, waste management laws, hazardous chemical import/export regimes, or product emission standards must now deal with a centralized, independent regulator rather than a government department. While this may reduce political interference in assessments, it concentrated decision-making in a single statutory officer, altering traditional avenues of political and administrative recourse. The absolute independence of the CEO under section 14 means that lobbying the Minister on specific project approvals is no longer an direct avenue for regulatory relief.

Second, the Act affects private environmental consultants, scientific advisors, and commercial contractors. Because any individual or firm engaged to assist or advise the CEO under a written agreement is classed as an "entrusted person" under section 5, these private entities are immediately exposed to federal standards of administrative conduct. They and their employees are personally subject to the civil penalty provisions under section 42 if they mishandle or unauthorisedly disclose protected information. This significantly raises the compliance, insurance, and operational costs for external firms bidding for NEPA work.

Third, the Act affects the public sector, specifically the CEO and the staff of NEPA. The CEO face significant personal and administrative pressure. They must possess a sophisticated mix of public administration, regulatory, and environmental skills (section 45(2)), work full-time (section 45(3)), and can only serve a maximum of two terms (section 45(4)). They are also subject to termination for misbehaviour, bankruptcy, or failure to disclose conflicts of interest (section 52). NEPA's staff, being public service employees (section 53), must adapt to a new statutory culture designed around strict compliance with information silos.

Fourth, State and Territory government bodies are affected. Under section 13(2)(b), the CEO is empowered to monitor and audit bilateral agreements and bioregional plans. This gives the federal agency direct oversight over state-administered environmental programs, potentially increasing inter-jurisdictional friction.

Fifth, members of the public, environmental non-governmental organisations (NGOs), and community groups are affected. Their access to information is mediated by the electronic registers established under section 18. However, their ability to scrutinise decisions is subject to the CEO's power to withhold sensitive data under section 23 or suspend the register under section 22.

The Act establishes a complex web of statutory duties, powers, and qualified rights that govern the interactions between the executive, the regulator, and private citizens.

The primary duty of the CEO is to maintain complete administrative independence. Section 14 establishes a statutory duty to resist any external direction regarding the performance or exercise of their functions or powers. This is a formidable legal shield, protecting the decision-making process from political pressure. However, the CEO does have a duty to "consider" any advice received from the advisory group established under section 55 when making decisions, although they are explicitly not bound by that advice (section 57).

The Minister has the statutory right to issue a statement of expectations under section 16(1). If the Minister exercises this right, the CEO is under a corresponding statutory duty to prepare and deliver a statement of intent in response (section 17(1)). Both parties must publish these documents on their respective websites (sections 16(4) and 17(3)), establishing a public record of the policy tension, if any, between the government's political agenda and the regulator's statutory duties.

Under section 18, the CEO is under a positive statutory duty to establish and maintain electronic registers on NEPA's website. This duty is designed to facilitate public transparency regarding "registrable decisions" and other prescribed matters. However, this duty is heavily qualified. Under section 23, the CEO is granted the right to withhold information from the register if they consider that publication would, or could reasonably be expected to, endanger public safety, cause damage to a national security asset, or cause damage to a matter protected by Part 3 of the EPBC Act. Furthermore, section 22 grants the CEO the right to suspend the register entirely to perform maintenance, preserve register integrity, or prevent criminal abuse.

In terms of information gathering, section 25 grants the CEO the right to request information, advice, or documents from any person or body in writing. While the Act does not frame this as a coercive power carrying immediate criminal penalties for non-compliance, it functions as a powerful administrative tool that operates alongside the coercive investigative powers contained within the underlying environmental Acts and the Regulatory Powers Act.

Conversely, entrusted persons are subject to a strict statutory duty of confidentiality. Under section 42, current and former entrusted persons must not use or disclose protected information unless an explicit statutory authorization applies. The Act details several authorized disclosure pathways, creating statutory rights to share information with Commonwealth entities (section 26), State and Territory bodies (section 27), law enforcement agencies (section 28), and international bodies to meet treaty obligations (section 35). Crucially, sections 29 and 30 grant the CEO the right to disclose relevant information if they reasonably believe it is necessary to prevent or lessen a serious risk to human health or the environment, overriding standard confidentiality protections.

The enforcement framework of the Act is structured around civil penalties, shifting away from traditional criminal offences for administrative misconduct. This aligns the Act with contemporary federal regulatory enforcement strategies, utilizing the standardised powers of the Regulatory Powers (Standard Provisions) Act 2014.

The core penalty provisions are found in Part 4 Division 3 Subdivision C. Section 42(1) creates a civil penalty for any person who is, or has been, an entrusted person, who obtains protected information in that capacity, and who uses or discloses that information without authorisation. The maximum penalty is set at 200 penalty units. Section 43 creates an identical civil penalty of 200 penalty units for any official of a Commonwealth entity (other than NEPA) who receives protected information under the inter-agency sharing provision in section 26 and uses or discloses it for an unauthorised purpose. Because penalty units are calculated in accordance with the Crimes Act 1914 and are subject to periodic indexation, these provisions represent a substantial financial risk for individual public servants and private contractors.

Under section 42(2), a defendant is exempt from liability if they can establish that the use or disclosure was authorised or required by a law of the Commonwealth or a prescribed law of a State or Territory. However, the Act places a significant procedural burden on the defendant. The note to section 42(2) explicitly states that the defendant bears an evidential burden in relation to these exempting matters, cross-referencing section 96 of the Regulatory Powers Act. This means that if the regulator establishes that a disclosure occurred, the individual must actively produce evidence showing their legal authority to disclose the data, rather than the prosecution having to prove a lack of authority as part of its prima facie case.

Under section 62(1), these civil penalty provisions are enforceable under Part 4 of the Regulatory Powers Act. This standardises the litigation process, allowing the regulator to seek a pecuniary penalty order in a court of competent jurisdiction. Under section 62(2), the CEO is designated as the "authorised applicant" who can initiate these enforcement proceedings.

The Act provides broad jurisdictional coverage for these enforcement actions. Under section 62(3), the relevant courts include the Federal Court of Australia, the Federal Circuit and Family Court of Australia (Division 2), and any State or Territory court that has jurisdiction in relation to the matter. This allows the CEO to select the most strategically advantageous forum for enforcement. Furthermore, under section 62(4), this enforcement framework extends to every external Territory of Australia, ensuring that offshore operations (such as activities in conservation zones or external territories) remain fully subject to the penalty regime.

The National Environmental Protection Agency Act 2025 does not operate in isolation; it serves as an administrative overlay that integrates with a wide array of existing Commonwealth statutes.

The most critical interaction is with the ten environmental and regulatory Acts listed in section 13(1). The Act does not repeal these statutes; instead, it intercepts them, transferring the regulatory powers and functions previously held by departmental officers or the Minister directly to the CEO of NEPA. For example, when evaluating an action under the EPBC Act, the CEO must apply the substantive assessment criteria, timeframes, and statutory thresholds contained within that Act, but they do so utilizing the administrative machinery and staff of NEPA.

A vital structural boundary is established by section 59(2), which prohibits the CEO from delegating any function or power under Part 19C of the EPBC Act. Part 19C governs the making of environmental rulings. By carving this out from the general delegation power, the Act ensures that the CEO remains the sole decision-maker for these high-level rulings, preventing the decentralization of this specific class of regulatory power.

The Act also interacts heavily with the Public Governance, Performance and Accountability Act 2013 (PGPA Act). Under section 9(2), NEPA is defined as a "listed entity" and the CEO as the "accountable authority" for the purposes of the finance law. This status isolates NEPA's budget, financial reporting, and governance from the Department. It also triggers strict duties under the PGPA Act, such as the duty to disclose conflict-of-interest matters under section 29 of the PGPA Act. Indeed, section 52(f) of the NEPA Act links any failure by the CEO to comply with these PGPA disclosure obligations directly to the Governor-General’s power to terminate their appointment.

In terms of staffing and agency structure, the Act interacts with the Public Service Act 1999. Under section 53, NEPA's staff must be engaged under the Public Service Act, and the CEO and these employees together constitute a Statutory Agency, with the CEO serving as the Head of that Agency. This ensures that standard public service employment conditions, code of conduct requirements, and merit-based hiring practices apply.

For offshore and specialized conservation areas, the Act establishes clear administrative links with other authorities. Section 59(1)(d) allows the CEO to delegate their functions or powers to the Great Barrier Reef Marine Park Authority or its CEO, provided the function relates directly or indirectly to the Great Barrier Reef Marine Park. Similarly, section 59(1)(e) permits the delegation of powers relating to Commonwealth reserves or conservation zones to the Director of National Parks or an APS employee within the Department. This prevents administrative duplication in highly sensitive, pre-existing management zones.

Finally, the Act interacts with the Regulatory Powers (Standard Provisions) Act 2014. Under section 13(1)(k), the Regulatory Powers Act is adopted to the extent that it applies to the core environmental Acts, and under section 62, Part 4 of that Act is directly imported to govern the enforcement of NEPA's civil penalties.

The National Environmental Protection Agency Act 2025 (No. 69, 2025) is a newly enacted piece of primary legislation. It was passed by the Parliament and received Royal Assent on 1 December 2025, as indicated by its enactment details.

According to the commencement table in section 2(1), the entire Act is scheduled to commence on 1 July 2026. Because this is the original, baseline version of the statute, there is no history of subsequent legislative amendments, minor repeals, or statutory restructures recorded in the text.

Any future structural modifications to the agency’s powers or the inclusion of additional environmental Acts under the CEO’s jurisdiction will require amending Acts passed by the federal Parliament. However, the Act contains an built-in mechanism for administrative and regulatory evolution. Under section 63(1), the Minister is granted a broad power to make rules by legislative instrument to prescribe matters required, permitted, necessary, or convenient for carrying out or giving effect to the Act. This includes the power to prescribe "registrable decisions" under section 19 and "other matters" to be registered under section 18(1)(b).

This rule-making power is subject to strict constitutional and statutory limits. Under section 63(2), the rules cannot create offences or civil penalties, provide powers of arrest, detention, search, or seizure, impose taxes, set appropriation amounts, or directly amend the text of the primary Act. Consequently, any expansion of NEPA's punitive powers or fundamental structural changes must be achieved through primary legislative amendment rather than executive rule-making.

Furthermore, section 61 establishes a statutory mandate for "periodic reviews of the administration of NEPA." The Minister must cause independent reviews to be conducted, with the first review completed within 5 years of the commencement of section 61 (by 1 July 2031) and subsequent reviews every 5 years thereafter (sections 61(3) and 61(4)). These reviews must evaluate whether NEPA has supported accountable, efficient, outcomes-focused, and transparent environmental decision-making, and whether it has met ministerial expectations (section 61(2)). The requirement for the CEO to formally respond to these reviews and table recommendations in Parliament (section 61(9)) is highly likely to serve as the primary driver for future legislative amendments.

As the National Environmental Protection Agency Act 2025 is scheduled to commence on 1 July 2026, there is no active or historical litigation arising directly from its provisions. No court has yet interpreted the scope of the CEO's independence under section 14, the boundaries of the information-sharing powers in Part 4, or the civil penalty provisions under sections 42 and 43.

However, looking at the structural design of the Act, we can identify several high-risk areas that are likely to become the focus of future administrative law and civil litigation.

The first major litigation risk lies in the interaction between the CEO's broad power to disclose "relevant information" to prevent environmental or health risks (sections 29 and 30) and private commercial interests. If the CEO discloses proprietary corporate data to a third party or the public under the belief that it is "necessary to prevent or lessen a serious risk to the environment," the affected commercial entity is highly likely to challenge this decision. Litigants will seek judicial review under the Administrative Decisions (Judicial Review) Act 1977 or section 39B of the Judiciary Act 1903, arguing that the CEO’s belief was not objectively reasonable, or that the disclosure exceeded the statutory necessity. Such cases will test the limits of what constitutes a "serious risk" and how courts balance commercial confidentiality against environmental safety.

The second area of potential litigation relates to the public registers. Under section 23, the CEO can withhold information if publication could "reasonably be expected to" cause damage to a matter protected under Part 3 of the EPBC Act or endanger public safety. Environmental NGOs seeking access to regulatory data may litigate the refusal of the CEO to publish specific project details. Conversely, developers may seek injunctions to prevent the publication of their operational details on the section 18 registers, arguing that the information is protected and that its publication would found an action for breach of confidence, thereby triggering the section 5 definition of "protected information."

Finally, the civil penalty provisions in sections 42 and 43 are ripe for litigation, particularly regarding the scope of the "entrusted person" definition. If a sub-contractor of a consulting firm is prosecuted for a disclosure, the courts will need to determine the precise boundaries of paragraph (e) of the definition of "entrusted person" in section 5, which covers persons employed or engaged to assist in the performance of the CEO’s functions.

The National Environmental Protection Agency Act 2025 contains several structural "gotchas" that present significant risks for regulated entities, legal practitioners, and contractors.

       [Minister]
           │
           │ s 16 Statement of Expectations (Cannot direct)
           ▼
        [CEO] ─── s 59(2) CANNOT delegate EPBC Act Pt 19C Environmental Rulings
           │
           ├─ s 59(1) Can delegate other powers to SES/EL1/EL2 staff
           │
           ▼
   [Delegated Officers] (Must follow written directions s 59(4))

The first, and most significant, administrative gotcha is the statutory bottleneck created by the delegation provisions. Under section 59(1), the CEO has a broad power to delegate their functions or powers to senior staff or assisting officers. However, section 59(2) explicitly states that the CEO must not delegate a function or power under Part 19C of the EPBC Act. Part 19C deals with formal environmental rulings. This means that every single environmental ruling under the EPBC Act must be personally reviewed and signed off by the CEO. For large-scale infrastructure, mining, or agricultural developers, this restriction is highly likely to create a severe administrative bottleneck, resulting in project delays and increased holding costs, as no regional office or senior delegate can legally sign off on a Part 19C ruling.

The second gotcha is the expansive scope of the "entrusted person" definition under section 5. It is common for private environmental scientists, engineers, and legal advisors to be contracted by government agencies to provide independent reviews of complex development proposals. Under this Act, any person engaged under section 23 of the PGPA Act to assist the CEO, and crucially, any employee of that person, becomes an "entrusted person." Consequently, junior staff at private consulting firms who assist in drafting assessment reports are legally classified as entrusted persons. If they accidentally share draft reports or proprietary data with colleagues who are not authorized to receive it, they are personally liable for a civil penalty of up to 200 penalty units under section 42, with no corporate shield to protect them.

The third gotcha relates to the burden of proof under the civil penalty provisions. If an entrusted person is accused of unauthorisedly disclosing protected information under section 42(1), and they seek to rely on the exception in section 42(2) (that the disclosure was authorised or required by another law), they bear the evidential burden of proof. This reversal of the standard procedural baseline means the individual must actively produce records and prove the legal authorization of their disclosure, rather than the regulator having to prove that the disclosure was unauthorised.

The fourth gotcha is the "integrity" suspension power under section 22. The CEO has the unilateral power to suspend the operation of a public register if they are satisfied it is prudent to do so to prevent abuse, ensure integrity, or prevent criminal activity. During a suspension, the CEO may defer taking action on the register (section 22(2)(b)). Because there are no statutory limits on the duration of a suspension, this power could be used to shield controversial regulatory decisions from public scrutiny during sensitive periods, such as federal election campaigns, by simply keeping the register offline.

Finally, the Act allows the definition of "registrable decisions" to be set entirely by the rules (section 19). This means that a developer who enters a regulatory process expecting confidentiality may suddenly find their details made public because the Minister has updated the rules under section 63 to make their specific class of application a "registrable decision" that must be published under section 20.

Achieving and maintaining compliance under the National Environmental Protection Agency Act 2025 requires distinct operational strategies depending on whether an organisation is a private regulated entity, a government contractor, or a public officer within NEPA itself.

For Private Regulated Entities and Developers

Audit Information Assets: Before submitting any project designs, environmental impact statements, or operational data to NEPA under any of the ten core Acts, run a comprehensive information audit. Clearly identify and mark any commercially sensitive information as "Commercial-in-Confidence." This is critical to establishing that the data fits paragraph (a) of the definition of "protected information" under section 5, which covers disclosures that could found an action for breach of a duty of confidence.
Assess Information Interception Risks: Be aware that once information is provided to NEPA, it can be shared across government boundaries. Under section 26, the CEO can disclose this information to other Commonwealth entities, and under section 27, to State or Territory bodies, without your consent, provided an inter-governmental agreement is in place. Ensure your corporate compliance framework maps these potential data pathways, particularly when dealing with competitive or market-sensitive information.
Factor in Delegation Bottlenecks: When planning project timelines that require a formal environmental ruling under Part 19C of the EPBC Act, project managers must allocate extra time to account for the section 59(2) non-delegation bottleneck. Do not assume that local or regional NEPA officers can expedite these decisions; they must go directly to the CEO's desk.

For Private Consultants and Contractors (Entrusted Persons)

Establish Information Barriers: If your consulting firm or scientific advisory body is engaged under section 23 of the PGPA Act to assist the CEO of NEPA, implement strict physical and digital data silos. Ensure that only staff members directly assigned to the NEPA project have access to "relevant information" (section 5).
Conduct Mandatory Training: Run targeted compliance sessions for all employees, explaining that they are classified as "entrusted persons" under section 5 and face personal civil liability of up to 200 penalty units under section 42 for unauthorised disclosures.
Document Authorisations: Keep a detailed, contemporaneous register of every single information transfer. If any relevant information is disclosed, the file must contain a written record linking the disclosure directly to one of the authorized statutory pathways (such as section 31 for the purposes of an Act, or section 38 with explicit consent). This documentation is essential to meet the evidential burden of proof under section 42(2) if an investigation occurs.

For NEPA Officers and Delegates

Verify Delegation Instruments: Before exercising any statutory power or signing any regulatory instrument, verify that the delegation is in writing under section 59(1) and that you meet the seniority requirements under section 59(3) (SES, acting SES, or Executive Level 1 or 2).
Maintain Separation of Powers: Ensure that any instructions or policies issued via a ministerial statement of expectations (section 16) are treated as policy guidance only. Do not allow these expectations to dictate or directly influence individual regulatory decisions, as this would violate the statutory duty of independence established under section 14. Keep clear records of decision-making rationales, showing that they were based solely on the criteria in the primary environmental legislation.

National Environmental Protection Agency Act 2025

Plain English Summary

Deep Dive

What it does

Current sections