SENATOR DEAN SMITH
SHADOW ASSISTANT MINISTER FOR FOREIGN AFFAIRS AND TRADE
SHADOW ASSISTANT MINISTER FOR ENERGY AND EMISSIONS REDUCTION
LIBERAL SENATOR FOR WESTERN AUSTRALIA
20 November 2025
UNANIMOUS SCRUTINY COMMITTEE REPORT RAISES SIGNIFICANT CONCERNS WITH ENVIRONMENT PROTECTION REFORM BILL
The bipartisan Senate Scrutiny of Bills Committee has tabled a unanimous report raising substantial concerns about the Albanese Government’s Environment Protection Reform Bill 2025, questioning its impact on individual rights, the rule of law and the level of parliamentary oversight applied to major environmental decisions.
Since 1981 the Scrutiny of Bills Committee has assessed every bill before the Senate against long-standing accountability standards.
The Committee operates on a non-partisan basis, and its current membership includes Coalition, Labor and Australian Greens senators, and is chaired by Liberal Senator Dean Smith.
Its latest digest — agreed by all members — identifies seven major areas of concern in relation to the Environment Protection Reform Bill.
The Committee has sought further explanation from the Minister on a range of issues, including the Bill’s broad and layered discretionary powers, the significant matters left to delegated legislation, the limited availability of merits review, the use of notifiable instruments that bypass full parliamentary scrutiny, and the lack of transparency around Commonwealth grants to the States and Territories.
Key excerpts from the report highlight the seriousness of these issues.
The Committee questions why core national environmental standards cannot be included in primary legislation, and why the Bill creates “layered discretionary powers” that shift central policy decisions from Parliament to ministerial regulation.
It also warns that a broad “national interest” exemption power could be applied to “a broader range of contestable interests,” and raises concerns that penalties may be imposed without sufficient justification or consistency with comparable Commonwealth offences.
On grants and spending powers, the Committee notes that delegating the establishment of new Commonwealth programs to the Executive risks undermining Parliament’s constitutional role — particularly in areas governed by section 96 of the Constitution.
These findings — agreed unanimously by Government, Coalition and Greens senators — make clear that the Environment Protection Reform Bill requires significant further justification and amendment before it can meet long-standing parliamentary scrutiny standards.
The Committee will consider the Minister’s responses in due course.
Comments attributable to Senator Dean Smith, Chair of the Senate Scrutiny of Bills Committee
“This is a unanimous report — Coalition, Labor and Greens Senators all share deep concerns about the breadth of ministerial powers and the lack of parliamentary oversight in this Bill.”
“Environmental reform should strengthen accountability, not weaken it. The Parliament cannot be expected to sign off on legislation that shifts core policy decisions into delegated legislation with little explanation or justification.”
“The Committee is particularly concerned by the layers of discretionary power given to the Minister. These are not small administrative matters — they are fundamental decisions that shape national environmental standards.”
“The Government must explain why national environmental standards cannot be set out clearly in the primary legislation. These are enduring issues, and Parliament has a responsibility to ensure they are properly scrutinised.”
“We have also raised serious questions about the use of notifiable instruments, which bypass the usual disallowance processes and leave Parliament with limited capacity for oversight.”
“Delegating broad spending powers to the Executive, including potential grants to States and Territories, requires clear constitutional justification. Section 96 of the Constitution is explicit about the Parliament’s role, and the Committee expects that role to be respected.”
“The Minister now has an obligation to address each of these concerns in detail. Australians deserve clarity, transparency and safeguards — not vague powers and unexplained departures from established scrutiny principles.”
Key quotes from the report:
Broad discretionary powers and matters in delegated legislation
Page 11
1.21 Firstly, it is unclear to the committee why it is not possible for core national environmental standards to be included in the bill, given that environmental concerns are in many (if not all) respects relatively constant over time.
1.22 Secondly, the committee notes that the structure of the decision-making process envisaged in relation the Commonwealth approval process layers ministerial discretion upon ministerial discretion. The minister is given a broad power to fix, by way of regulation, the content of the national environmental standards. Having established the standards, there is a further discretionary power to prescribe which of those standards apply in relation to management or authorisation processes. It remains unclear to the committee why this structure of layered discretionary powers is necessary given the extent to which it transfers central policy matters from the bill to the regulations. In this regard, it is further noted that a rule or standard will only apply to a particular factual situation if they have relevance to that situation. The committee therefore considers that further explanation of the power to prescribe national environmental standards as irrelevant to particular processes is necessary.
1.23 Thirdly, the committee is concerned about the requirement that the minister must be satisfied that a management or authorisation framework is not inconsistent with applicable national environmental standards. This drafting seems to suggest that there is space between a framework complying with a standard and a framework not complying with the standard (i.e the framework may be not inconsistent with a standard even though it neither complies nor conflicts with the standard). The committee considers that exactly how this criterion conditioning the minister’s powers would function in practice has not been adequately explained in the explanatory memorandum and, as such, that this lack of clarity may operate to expand the scope of discretionary power available to the minister.
1.28 It is unclear to the committee why declarations or accreditations are not considered legislative in character but are nonetheless subject to a bespoke disallowance process. This approach, which appears to be novel in Commonwealth legislation, may operate to lessen the level of parliamentary scrutiny to which these matters are subjected.
Broad discretionary powers
Page 19
1.53 The committee notes that the national interest exemption power in proposed section 157H provides a broad ministerial discretion to exempt certain actions from the controlling provisions in Part 3 of the EPBC Act and, accordingly, environmental assessment and approval processes that might otherwise apply at a later stage.
1.54 The committee has a long-standing scrutiny concern with provisions that give administrators seemingly ill-defined and wide-ranging powers. The committee expects that the inclusion of broad discretionary powers should be justified in the explanatory memorandum. The committee recognises that a broad ministerial discretion may be justifiable in situations of genuine emergency, including situations of natural disaster or threats to Australia’s national security or defence. In this instance, however, the power granted to the minister is not confined in this way and, as such, there is a risk it may be applied to a broader range of contestable interests said to be of national import.
1.55 The committee notes that, as similar references to ‘national interest’ underpin a range of other processes under the bill discussed above, this potential scrutiny concern would not be limited to the operation of section 157L alone.
1.60 The committee’s expectation is that the rationale for the imposition of significant penalties will be fully outlined in the explanatory memorandum. In particular, penalties should be justified by reference to similar offences in Commonwealth legislation. This not only promotes consistency, but guards against the risk that the liberty of a person is unduly limited through the application of disproportionate penalties. In this regard, the committee notes that the Guide to Framing Commonwealth Offences states that a penalty ‘should be consistent with penalties for existing offences of a similar kind or of similar seriousness. This should include a consideration of … other comparable offences in Commonwealth legislation’.
Availability of merits review
1.75 As an overarching matter of scrutiny concern, the committee notes that the EPBC Act makes only limited provision for external merits review of administrative decisions made under that legislation.
1.76 The committee notes that a wide range of decisions under the EPBC Act, including those altered or modified sin some way by the bill, are not subject to independent merits review by the Administrative Review Tribunal. In this regard, it is noted that the Second Independent Review of the EPBC Act, undertaken by Professor Graeme Samuel AC and supported by an expert panel, recommended that the EPBC Act be amended to provide for limited merits review for development approval decisions.
Commonwealth grants to States and Territories
Page 29
1.83 Item 583 of Schedule 1 to the bill would insert Part 21A into the EPBC Act, to provide a statutory framework by which Commonwealth funding arrangements for environmental protection and conservation programs may be authorised. Proposed section 516C seeks to provide for the minister to prescribe, by legislative instrument, one or more programs relating to the protection, conservation, restoration or recovery of the environment, including in relation to the expenditure of Commonwealth money under such programs.
1.88 In relation to the authorisation of spending initiatives by delegated legislation, the committee has consistently expressed its preference that important matters be included in primary legislation, and for the explanatory memorandum to outline a clear justification when the use of delegated legislation is proposed. In light of this, and the High Court’s reasoning in the Williams cases, the committee expects a detailed justification in the explanatory memorandum in relation to the rationale for delegating to the executive (through the use of legislative instruments) the authorisation and establishment of new spending initiatives and programs.
1.89 Additionally, the committee notes that the power to make grants to the states and to determine the terms and conditions attaching to them is conferred on the Parliament by section 96 of the Constitution. While the Parliament has, in the past, delegated this power to the Executive, the committee considers that it is appropriate that the exercise of this power be subject to effective parliamentary scrutiny, particularly noting the terms of section 96 and the role of senators in representing the people of their state or territory.
1.90 Finally, the committee is concerned that the bill contains little guidance on its face as to how the broad power to make spending arrangements is to be exercised, nor any information as to the terms and conditions of these arrangements, other than that they must be set out in a written agreement.
