This private senator’s bill inserts a new “climate trigger” into the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). It makes it an offence and a civil-penalty contravention to take actions that have, will have or are likely to have “significant” emissions (defined as ≥25 kilotonnes CO2-e in any 12‑month period) unless the action has an approval under Part 9 or another statutory exception.
The bill further declares actions with emissions of ≥100 kilotonnes CO2-e in any 12‑month period to have a “prohibited impact,” which the Minister must not approve.
The bill also requires the Climate Change Authority to determine a national carbon budget for 1 January 2023 to 31 December 2050 and deliver annual assessments of remaining budget to the Minister (publicly published and tabled in Parliament). The Minister must consider the national carbon budget and Australia’s NDC when deciding approvals, conservation agreements and plans and may be required to apply new measurement methods set by legislative instrument.
These changes integrate emissions limits into environmental approvals, create new compliance risks for high-emitting projects, and give the Climate Change Authority a statutory role in setting a nationwide emissions ceiling.
At a Glance
What It Does
The bill adds Subdivision FC to the EPBC Act requiring approval for actions that will cause “significant” emissions (≥25 kt CO2‑e per 12 months) and bars approval for actions with a “prohibited” impact (≥100 kt CO2‑e per 12 months). It creates civil penalties for breaches and criminal offences (including imprisonment) for taking such actions without requisite approval or exemption. The Climate Change Authority must set a national carbon budget (2023–2050) and report annually on remaining budget.
Who It Affects
Major project proponents in sectors such as mining, oil and gas, large-scale land clearing and intensive agriculture; the Department and Minister responsible for EPBC approvals; the Climate Change Authority; and downstream stakeholders including investors and insurers exposed to approval risk. Actions already approved under Part 9 remain an explicit carve-out but future approvals will be assessed against the national carbon budget and Australia’s NDC.
Why It Matters
This bill embeds emissions ceilings into environmental decision-making rather than treating greenhouse gases as one among many impacts. It creates hard numerical gates and criminal exposure for non-compliance, shifts some strategic authority to the Climate Change Authority, and changes how regulators will weigh projects that are high emitters relative to Australia’s national carbon budget and Paris commitments.
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What This Bill Actually Does
The bill creates a discrete “climate trigger” in the EPBC Act. It introduces a Subdivision FC that defines two emissions thresholds: actions emitting 25 kilotonnes CO2‑equivalent or more in any 12‑month period are treated as having a “significant” impact and generally require EPBC approval; actions emitting 100 kilotonnes CO2‑equivalent or more are treated as having a “prohibited” impact that the Minister must not approve.
The trigger covers direct emissions tied to an action, explicitly including preparatory and ancillary activities.
To enforce the new regime, the bill sets civil penalties for taking an action with significant emissions (5,000 penalty units for individuals; 50,000 penalty units for bodies corporate) and creates criminal offences for taking, or likely taking, an action that has significant emissions (up to 7 years’ imprisonment and a fine up to 420 penalty units). The text preserves existing statutory exceptions: actions are exempt where a Part 9 approval is already in force, where other EPBC provisions (e.g., sections 43A/43B) permit the action, or where the Minister has determined the climate provisions are not a controlling provision for that action.The bill gives the Climate Change Authority a statutory task to determine, by legislative instrument, a national carbon budget covering 1 January 2023 to 31 December 2050 and requires annual assessments of remaining budget that the Authority must publish and give to the Minister (with parliamentary tabling).
The Minister’s decision-making duties are expanded: when considering approvals, conservation agreements or plans, the Minister must consider consistency with the national carbon budget and Australia’s nationally determined contribution (NDC). The Minister may also set, by legislative instrument, measurement methods and rating systems for calculating emissions under the Act.Procedurally, the bill inserts several consequential amendments across the EPBC Act so the new climate provisions interoperate with existing referral, assessment and approval processes; it also carves the new offence and approval sections out of certain parts of the Act in ways that affect how existing review or administrative processes apply.
Finally, the bill applies to actions that begin on or after commencement.
The Five Things You Need to Know
The bill defines “significant impact on emissions” as total greenhouse‑gas emissions of 25 kilotonnes CO2‑equivalent or more in any 12‑month period; “prohibited impact” is 100 kilotonnes CO2‑equivalent or more.
Civil penalties for taking an action with significant emissions are set at 5,000 penalty units for individuals and 50,000 penalty units for corporations; criminal penalties include up to 7 years’ imprisonment and a fine up to 420 penalty units.
The Climate Change Authority must determine a national carbon budget by legislative instrument covering 1 January 2023 to 31 December 2050 and must provide annual published assessments of remaining budget to the Minister, who must table them in Parliament.
The Minister is required to refuse approval for actions with a prohibited impact and must weigh consistency with the national carbon budget and Australia’s NDC when granting approvals, entering conservation agreements, or endorsing plans and programs.
The Minister may set methods, criteria and rating systems (by legislative instrument) for how emissions are measured for purposes of the EPBC Act; the bill defines emissions to include preparatory and ancillary activities but does not explicitly extend to downstream combustion of exported fossil fuels.
Section-by-Section Breakdown
Every bill we cover gets an analysis of its key sections.
New climate trigger: scope, thresholds and penalties
This Subdivision is the heart of the amendment. Section 24F states the purpose (aligning EPBC decisions with Australia’s climate obligations). Section 24G makes it unlawful to take an action that has, will have or is likely to have a significant impact on emissions (subject to existing Part 9 approvals and other statutory carve-outs). Section 24H sets the significant-impact threshold at 25 kt CO2‑e per 12 months. Section 24J establishes criminal offences for taking actions that have, or are likely to have, significant emissions and sets maximum penalties (up to 7 years’ imprisonment and fines up to 420 penalty units). The provision links to existing corporate and landholder offence provisions, so executive officers and landholders can face secondary liability.
Integrating the climate trigger into EPBC processes
The bill inserts references to the new sections throughout the EPBC Act so the climate trigger is considered during referrals, assessments and approvals. Several existing provisions are amended to exclude sections 24G and 24J from certain parts of the Act; practically, this changes which administrative pathways and review mechanisms apply to climate-triggered actions. That drafting indicates the Parliament intends the climate provisions to sit alongside, but operate somewhat differently from, other controlling provisions — affecting how and when an action is referred, assessed and reviewed.
Minister must consider the national carbon budget and refuse prohibited impacts
The bill adds explicit decision‑making duties for the Minister in Part 9. Section 141 requires the Minister, when considering approval under the new climate provisions, to assess consistency with the national carbon budget and Australia’s NDC. Section 141A is a hard constraint: the Minister must not approve any action that has, will have or is likely to have a prohibited impact (≥100 kt CO2‑e per 12 months). This elevates emissions to a threshold-based, effectively non‑approvable category rather than a discretionary factor.
No program‑level or policy approvals for prohibited impacts; budget consistency required
The bill tightens approvals made under endorsed policies, plans and programs. Section 146N mirrors 141’s duty at the program/class level, requiring assessment against the national carbon budget and NDCs. Section 146P prevents the Minister from approving an action or class of actions under an endorsed program if any action in that class would have a prohibited impact. That prevents administrative workarounds where a policy framework could otherwise greenlight high‑emitting activities en masse.
Statutory national carbon budget and annual reporting to Parliament
The Climate Change Authority must determine, by legislative instrument, a recommended national carbon budget covering 2023–2050, expressed as gross CO2‑e. The Authority must make annual assessments of remaining budget and publish reports for the Minister and Parliament. The instrument route gives the Authority technical discretion in setting the budget but makes the budget a formalised statutory input to EPBC decision‑making.
How emissions are measured and what counts as an emission
The bill defines an emission of greenhouse gas in relation to an action to include direct releases into the atmosphere, including preparatory and ancillary activities (for example, land clearing to enable a project). It empowers the Minister to determine measurement methods, criteria, rating systems and conditions by legislative instrument so that the department can prescribe how proponents calculate CO2‑equivalent emissions. Section 527G sets the prohibited-impact threshold at 100 kt CO2‑e per 12 months. The definitions also import terms from the National Greenhouse and Energy Reporting Act so there is alignment with existing greenhouse reporting terminology.
Advice, conservation agreements, penalties and application timing
The bill amends advice and procedural provisions to ensure agencies flag prohibited impacts (section 163 advice obligations) and requires the Minister to consider the national carbon budget when entering conservation agreements and developing plans. It adds the new climate offences to the list of offences that attract particular sanctions for executives and landholders. Finally, the application provision makes the regime prospective: amendments apply to actions that begin on or after commencement, which focuses liability on post‑commencement decisions and starts the compliance clock for new projects.
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Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Environmental and climate advocacy groups — the bill creates a statutory mechanism to block very high‑emitting projects and forces decision‑makers to apply a national carbon budget, strengthening the legal tools those groups use in litigation and advocacy.
- Communities and landholders affected by high‑emitting projects — by elevating emissions as a controlling consideration and creating a prohibited threshold, the bill reduces the risk of new high‑emitting developments being approved near communities and sensitive ecosystems.
- Low‑emissions project proponents and renewables developers — clearer emissions gates and an official carbon budget improve policy predictability for projects that fall well below thresholds and may fast‑track low‑carbon alternatives when high‑emitting options are legally constrained.
- The Climate Change Authority — the bill formalises the Authority’s role in setting a national carbon budget and increases the influence of its technical work on environmental approvals.
- Investors and insurers focused on transition risk — by codifying emissions thresholds and a national budget, the bill sharpens the signal on stranded‑asset risk and helps markets price climate policy exposure.
Who Bears the Cost
- Major project proponents in fossil fuels, large‑scale agriculture, and mining — projects that emit above the thresholds face denial risk, heightened approval costs, measurement burdens, or criminal exposure for non‑compliance.
- Departmental resources — the Department of Climate Change/Environment will need capacity to implement measurement instruments, assess consistency with a national carbon budget and manage increased technical dispute and legal challenge workload.
- Regional economies and workers tied to high‑emitting industries — refusal or delay of approvals could depress investment and employment where alternatives are not immediately viable.
- Project financiers and insurers — lenders and underwriters face increased due diligence, longer timelines and potential sudden devaluation of assets if approvals are refused due to prohibited impacts.
- Proponents of existing projects lacking retrospective carve‑outs — while the bill applies prospectively, related administrative changes and the Minister’s ability to revoke non‑controlling decisions if new information emerges raise legal and compliance exposures for ongoing proposals.
Key Issues
The Core Tension
The bill confronts a classic trade‑off: it forces the EPBC Act to limit greenhouse‑gas emissions by hard numeric gates and a national carbon budget, which advances climate accountability, but it does so at the expense of procedural certainty and economic flexibility — raising measurement, enforcement and distributive challenges that policy‑makers and the department must resolve before the regime produces predictable, legally sustainable outcomes.
The bill ties two numeric thresholds to approval, enforcement and prohibition, but it leaves key technical questions unresolved. The Minister is empowered to set emissions measurement methods and ratings by legislative instrument, which is practical but shifts major technical choices into delegated rulemaking; the quality and acceptance of those measurement rules will determine how thresholds operate in practice.
The bill defines emissions to include preparatory and ancillary activities, but it does not explicitly address downstream emissions from combustion of an exported fossil fuel product — a major omission that could allow high lifecycle emissions to escape EPBC review while still causing sizable climate impact.
The enforcement regime creates both civil penalties and criminal offences with heavy sanctions. That combination raises prosecutorial and evidentiary questions: the bill places an evidential burden on defendants for certain exemptions and links executive‑officer and landholder liability to corporate breaches.
Regulators will need robust measurement, auditing and investigatory capacity to sustain prosecutions or civil actions. The Minister retains discretionary power to declare the climate provisions are not a controlling provision for particular actions, and to revoke such decisions later if new information emerges — this centralises power and creates legal uncertainty for proponents about whether a referral will be treated as climate‑controlling.
Finally, the statute’s prospective application and the Authority’s statutory budget period (2023–2050) give the framework temporal force, but the political and administrative path to updating the national carbon budget or resolving conflicts between short‑term economic objectives and long‑run emissions ceilings is unclear. The risk of project displacement, jurisdictional gaming, or litigation over how emissions are counted is high unless measurement instruments and interagency processes are resourced and tightly specified.
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