Calls Grow to Scrap Legacy Loopholes in Environment Law Reform

Australia’s environment law, the Environment Protection and Biodiversity Conservation (EPBC) Act, is heading for its most significant overhaul in a generation. Environment Minister Murray Watt has confirmed that a bill introducing national environmental standards and a new federal Environment Protection Agency will likely be tabled in Parliament later this year. 

Whilst the Albanese Labor Government had promised this would happen last term, and failed to deliver, the new environment minister seems confident that it can occur this term.

As the legislative push accelerates, attention is falling on one little-known feature of the existing law: so-called “continuation of use” exemptions, which allow activities that pre-date the Act to carry on without ever being assessed under modern environmental standards.

The Legacy Loophole

The “continuation of use” rule means that industries and programs already in place when the Act came into force two and a half decades ago can continue indefinitely, provided they don’t expand, intensify or enlarge and their impact does not markedly increase. In practice, that has created a blind spot. Projects or practices that may no longer align with contemporary expectations of environmental protection remain shielded from scrutiny.

One example frequently raised by conservationists is Queensland and New South Wales’ shark culling programs, which have operated for decades. While never subject to a formal EPBC assessment, the NSW nets routinely catch threatened and protected species, from turtles to grey nurse sharks, and the Queensland program has even expanded, intensified and enlarged its catch of protected species. Yet because the program is considered an existing activity, it avoids the kind of oversight newer proposals would face.

Why It Matters

With Australia facing record biodiversity decline, critics say exemptions of this kind risk hollowing out the very reforms now being championed. If older activities can bypass new national standards, the legal system effectively applies on a two-tier basis: rigorous for new developments, permissive for legacy ones.

That creates not only environmental risks but also questions of fairness and accountability. Mining projects, infrastructure schemes and fisheries all operate in landscapes and seascapes that have shifted dramatically since the EPBC Act was first drafted in 1999. Allowing yesterday’s approvals to operate forever under outdated rules risks undermining confidence in the new system before it even begins.

What Reform Could Look Like

Lawyers and policy specialists watching the process suggest several options are available to government:

• Time limits on exemptions: Long-standing activities could be required to come back into the system for reassessment after a fixed period.

• Case-by-case review: Legacy operations with demonstrable environmental impacts could be compelled to seek fresh approval under the new standards.

• Tiered risk approach: High-impact industries or programs could face priority reassessment, while genuinely low-risk activities remain exempt.

• EPA oversight: The proposed federal agency could be tasked with auditing exemptions and recommending when they should be wound back.

Such measures, observers note, would bring Australia closer to international best practice, where environmental laws apply consistently regardless of when an activity commenced.

Reform on the Clock

Minister Watt has framed the coming package as a once-in-a-generation opportunity to restore trust in environmental decision-making, following years of criticism that the system is too slow, too opaque, and too weak to halt biodiversity decline. But the question of exemptions looms as a critical test.

If continuation of use remains untouched, long-running activities will still sit outside the reach of the new standards. For many, that would leave the reform effort looking strong on paper but fragile in practice.

As the bill possibly heads to Parliament in the final sitting weeks of 2025, the government faces a choice: write the next chapter of environmental law with a clean slate, or allow past practices to continue shaping the future.