Law Council of Australia warns of major gaps in draft National Environmental Standards

Overview

On 11 June 2024, the Law Council of Australia released a formal policy warning identifying critical legal and operational gaps in the federal government’s proposed National Environmental Standards (NES). The warning accompanies the Law Council’s submissions to the Department of Climate Change, Energy, the Environment and Water (DCCEEW) on two exposure drafts: the National Environmental Standard for Matters of National Environmental Significance (MNES) and the National Environmental Standard for Environmental Offsets. The Law Council, as Australia’s peak legal body, has identified deficiencies serious enough to threaten the approval pathways of major infrastructure, resources, and renewable energy projects across the country.

The timing of this warning is significant. Australia is mid-transition from the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) framework toward a reformed system anchored by a new National EPA and mandatory National Environmental Standards. These standards are intended to operationalise the federal government’s commitment to a “Nature Positive” regulatory trajectory, a commitment that places the concept of “net gain” at the centre of every major project assessment and offset calculation. The Law Council’s position is that without a legally sound and objectively defined meaning for “net gain”, the entire framework risks becoming unenforceable in any consistent way, and that this exposes proponents, decision-makers, and third parties to substantial legal uncertainty.

For environmental consultants, planning lawyers, developers, and councils engaging with federal approvals processes, this is not a peripheral legal debate. It directly affects whether offset obligations can be quantified, whether mitigation hierarchies can be audited, and whether investment decisions can be made with any degree of regulatory certainty. The Law Council’s intervention puts DCCEEW on notice that the current exposure drafts require material amendment before they can function as a workable legal framework.

Key details of the Law Council’s submissions on the draft National Environmental Standards

The Law Council’s submissions address four distinct technical and structural problems with the exposure drafts. The first and most fundamental concern is the absence of an objective definition for “net gain” in the draft Environmental Offsets Standard. Net gain is the threshold condition that a project’s offset package must satisfy before approval can be granted under the proposed framework. Without a defined metric or methodology for measuring net gain, project proponents cannot conduct reliable pre-application assessments, and decision-makers are left with effectively unconstrained discretion to accept or reject offset proposals. This discretion, in the absence of defined criteria, is precisely the kind of administrative gap that invites judicial review and third-party litigation.

The second concern targets the structural design of the draft MNES Standard. The Law Council found that the standard is currently weighted toward procedural compliance with broad environmental principles rather than toward the achievement of measurable environmental outcomes. This distinction matters enormously in practice. A standard that requires a proponent to demonstrate that it has followed a prescribed process offers a weaker level of environmental protection than one that requires a proponent to demonstrate that a specific ecological outcome has been achieved or will be achieved. The Law Council’s submission signals that, as currently drafted, the MNES Standard could allow projects to satisfy the letter of the standard without delivering meaningful ecological benefit, which undermines the Nature Positive policy intent.

The third issue involves the use of ambiguous qualifying language throughout the draft standards. The Law Council identified that such language weakens the practical application of the mitigation hierarchy, the sequential framework requiring proponents to first avoid environmental impacts, then minimise unavoidable impacts, and only then offset residual impacts. If the language governing each step of that hierarchy is qualified by phrases that introduce interpretive flexibility, the hierarchy loses its prescriptive force. Environmental consultants advising on avoidance and minimisation measures rely on the hierarchy being clearly defined, because the credibility of a mitigation pathway depends on it being demonstrably mandatory rather than aspirational.

The fourth area of concern relates to advanced restoration offsets. The Law Council called for a stronger and more clearly articulated framework to support these instruments, specifically recommending the inclusion of structured risk-sharing and benefit-sharing mechanisms. Advanced restoration offsets involve investment in ecological restoration before a development project proceeds, and they carry inherent uncertainty about whether the ecological outcomes will be delivered on the timeline the offset is intended to match. Without mechanisms that allocate ecological and financial risk between proponents, offset providers, and regulators, the market for these instruments remains thin and pricing remains volatile. The Law Council’s submission links this directly to the stability of the broader offsets market, which underpins approval feasibility for projects across the resources, infrastructure, and renewable energy sectors.

Australian context: how the NES exposure drafts fit within the EPBC Act reform and Nature Positive transition

The National Environmental Standards being developed by DCCEEW are the legislative instruments intended to replace the project-by-project decision-making approach that has characterised the EPBC Act since its commencement in 1999. The Samuel Review, led by Professor Graeme Samuel AC and completed in 2020, recommended wholesale reform of the EPBC Act, finding that the existing framework was not fit for purpose and was failing to prevent the ongoing decline of Australia’s biodiversity. Among its central recommendations was the development of enforceable National Environmental Standards that would provide clear, consistent benchmarks for environmental decision-making and shift the system toward genuinely outcome-based regulation. The NES exposure drafts now under consultation represent the federal government’s attempt to translate those recommendations into operative legal instruments, making the Law Council’s identification of their current shortcomings directly relevant to whether the reform agenda can deliver on its stated objectives.

References and related sources

• Primary source: lawcouncil.au
• sers.net.au
• dcceew.gov.au
• lawcouncil.au

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This is an iEnvi Machete news summary. Prepared by iEnvi to summarise the source article for contaminated land, groundwater, remediation, approvals and site risk professionals.

Published: 13 Jun 2026

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