Department of Climate Change, Energy, the Environment and Water

Re. The draft National Environmental Standards for Matters of National Environmental Significance and Environmental Offsets

Friends of Grasslands (FOG) is a community group dedicated to the conservation of grassy ecosystems in south-eastern Australia - natural temperate grasslands and grassy woodlands. FOG advocates, educates and advises on matters to do with the conservation of these ecosystems, and carries out surveys and on-ground work. FOG is based in Canberra and its members include professional scientists, landowners, land managers and interested members of the public.

Natural temperate grasslands (NTG) and Box Gum grassy woodlands (BGW) – together ‘temperate grassy ecosystems’ – are among the most threatened ecological communities in Australia. They are ‘critically endangered’ matters of national environmental significance (MNES) under the Environment Protection and Biodiversity Conservation Act 1999 (Act). They are complex, shaped by millennia of cultural burning practices and ecological processes that cannot be recreated. They have continued to decline despite the protections that have existed to date under the Act.

There is little NTG and BGW left, and that which remains continues to be lost via a wide range of pathways that cause ‘serious damage’.[1] NTG is “subject to ongoing and demonstrable threats, ... which could cause it to be lost in the immediate future.”[2] For BGW, “there are only a small number of areas remaining that retain a highly diverse understorey dominated by native, perennial tussock grasses. These areas are extremely rare, and usually quite small in size.”[3]

The acid test of the amended Act will be whether it and its associated National Environmental Standards (Standards) will conserve NTG and BGW biota in the future; that is because the conservation of temperate grassy ecosystems requires not only the prevention of clearing (Including conversion to exotic pastures) but active management, i.e., they are conservation dependent. Temperate grassy ecosystems need weed control and periodic reduction in grass biomass by fire, sustainable pulse grazing or, in limited cases, slashing. Grass biomass needs to be maintained in a ‘goldilocks’ state of not too much and not too little so that there is adequate foraging habitat for grasslands animals and there are gaps between grass tussocks where a diversity of forb (wildflower) species grow. It is hard to regulate for conservation of these ecosystems.

Both Standards

The draft Standards assume temperate grassy ecosystem loss can be prevented by regulating clearing and remediation, and that compensation can be adequate from offsetting; given all the foregoing, none of these assumptions hold true.

Local examples that demonstrate it is not easy to rehabilitate degraded grassy ecosystems include:

• Jam Land Case, illegal clearing of NTG, subject to a remediation order — 105 ha of NTG required to be remediated, no evidence of recovery.
• Taxiway Bravo Case at Canberra Airport, EPBC 2008/4170 — 6 ha of NTG destroyed, 17 ha required to be rehabilitated to NTG benchmark, little evidence of successful rehabilitation.

The Standards need to make clear remediation and offset proposals that are or prove unrealistic or inadequate will not be accepted. For temperate grassy ecosystems, FOG consider a declaration prohibiting restoration contributions (via s134AA) should accompany the Offset Standard.

The outcomes and objectives in Standards are meant to be clear and enforceable. This is necessary to ensure actions and decisions taken and made under the Act can be relied on to hold approval holders and decision makers to account, respectively. We cite examples below, under the heading Draft MNES Standard, that demonstrate a lack of clarity. To ensure enforceability, Standards need to specify SMART requirements, i.e., requirements that are specific, measurable, actionable, realistic and time-bound.

• The Samuel Review stated (at p. 10) “The ability of the public to hold decision-makers to account is a fundamental foundation of Australia’s democracy.”

The Draft Policy Papers presented indicate further detail will be set out in policies and guidance. To provide clear and enforceable Standards, and to provide the granular detail envisaged by Prof Samuel, all necessary considerations should be included in the Standards themselves rather than in further (and changeable) policies and guidelines. If policies and guidance are required, these should be provided for public consultation with draft Standards so they can be considered together. 

Draft MNES Standard 

pathways to loss and degradation

In Attachment A, FOG explain our view that the MNES Standard should recognise a wide range of pathways that result in ‘serious damage’ to temperate grassy ecosystems – before and after controlled action decisions – and that all such pathways should be treated as “actions”, where the Act allows.

draft outcomes and objectives are not clear and enforceable

The outcomes in the MNES Standard must make clear important habitat must be protected to reduce decline in temperate grassy ecosystems and their constituent biota. Rather than ‘providing for protection of’ and ‘contributing to the promotion and enhancement of the diversity’ etc, Outcomes should be practical and closely align with Samuel’s recommendations, e.g., ““Threatened species and ecological communities are protected, conserved, managed and recovered over time.”[4] Language must be clear, obligatory and directed to practical outcomes on the ground, not process or aspiration.

Compared to the draft MNES standard included in the Samuel Review, the draft MNES Standard provides a weaker, less clear and much less enforceable benchmark for projects and decisions.

• Prof Samuel’s MNES Standard contains clear, unqualified requirements for actions, decisions, plans and policies, whereas the draft MNES Standard qualifies requirements with phrases like “if possible”.
• In a mitigation hierarchy to be “appropriately consider[ed]”, grassy ecosystems will not enjoy strong protection with a outcome drafted like this “If possible, impacts to protected matters should be avoided by ...” (s 8(2), underline added). This does little if anything to limit decision-makers’ discretion. Elsewhere, the draft MNES Standard is focused on procedural rather than substantive/on ground matters, e.g., in s 8(1), “Actions should be planned and taken having regard to the mitigation hierarchy provided for in this section” (underline added). A strong standard would require the application of the mitigation hierarchy full stop.

monitoring and evaluation

There is nothing in the draft MNES Standard that provides for monitoring and evaluation; this was viewed as essential by Prof Samuel. The lack of monitoring and evaluation compromises the ability of approval holders and decision-makers, and any other stakeholder, to properly demonstrate the achievement of the objectives set out in the Standards. 

Draft Offset Standard 

development and use of an offset calculator

The Department’s Draft Offset Policy Paper suggests that the offset calculator developed and used to date by the Department in implementing the 2012 EPBC Act Environmental Offsets Policy (2012 Offsets Policy) will continue.

Without change to the calculator, any ongoing reliance on it will be a problem. The Department’s Offset Assessment Guide describes the terms included in the Department’s calculator, such as time horizons, risk of loss, changes in habitat or vegetation quality over time, and confidence in input data. Prof Samuel did not discuss the implementation of this Guide, yet it is critical to and looks set to continue to be central to offset decision-making. FOG recommends a review of its use by the Department and industry[5], including the Guide’s approach to habitat quality scoring and its manipulation by consultants through scoring and weighting of inputs in ways that will continue to prejudice net gain outcomes.  

‘like for like’ and timeliness are at risk

The amended Act provides for approval holders who proceed with approved actions that cause residual significant impacts to choose whether to deliver offsets themselves or to register to pay into the Restoration Contributions Fund.

FOG understands approval holders making payments to acquit their offset obligations won’t have to satisfy two principles, the ‘like for like’ and ‘timeliness’ principles, the latter being that the compensation should happen before or at the same time as the impact.

Compromising the ‘like for like’ principle will ensure restoration payment dollars accumulating in the Restoration Fund can be expended quickly; however, it will put at even greater risk the protected matters under the greatest pressure, i.e., that the offset activities delivered will not benefit them.  

Abandoning ‘like for like’ in the name of administrative expediency earns the label ‘pay to destroy’.

an offset should compensate for an impact ‘for the full duration of the impact’

FOG hold very serious concerns with draft Principle 2 concerning ‘security’.

Both the 2012 Offsets Policy and the Draft Offset Policy Paper state the intention that offsets will compensate for an impact ‘for the duration of the impact’.[6] This is consistent with Prof Samuel’s recommendations, i.e., that offset sites must (among other things) “be identified and legally secured prior to commencement of the approved impact” and then be managed to “ensure attainment and maintenance of the required improvement of indicator(s) for the duration that the [matter protected] is affected by the impact.”[7]

From what FOG can see, whenever impacts are determined to be significant and approved anyway, they are rarely if ever temporary impacts. In our view, this begs a simpler principle.

FOG suggest ‘For the benefit of a matter(s) that is to be permanently impacted at an impact site, if the approval holder proceeds with the approved action, then net gains must be delivered through management activities on offset sites that are securely protected in perpetuity.’

Draft Principle 2 in the Draft Offset Standard does nothing of the sort. It states (with all underlining added):

9  Principle 2—Security

(1) Offset activities should be securely protected. 

(2) An offset activity is securely protected where there are, or will be, suitable mechanisms in place to ensure that the offset activity will be delivered and, if relevant, maintained for the duration of the impact.

‘Securely protect’ must be about the formal (legal) protection of an offset site, i.e., the protection of the places on which offset activities occur. It is most unclear what securely protecting any offset activity means. ‘Activities’ are about offset management, not protection. Conflating these two discrete sets of processes does not work. It is confused and very confusing.

As drafted, there exists serious doubt about whether offset sites need to be legally protected from future development, at all. It would be of limited benefit to repair any offset site that has no legal protection, or protection for no more than a short ‘activity period’.

In the case of temperate grassy ecosystems, offset solutions must be accompanied by requirements to actively manage weeds and biomass on an ongoing basis (as set out in the fourth paragraph).

what data will be published about offsets

Prof Samuel recommended “A public register of offsets should also be established for all Commonwealth, State and Territory offset sites. This register should be designated as a National Environmental Information Asset.”[8]

The Draft Offset Standard makes no provision at all for the publication of any data about offsets. An absence of evidence of attainment of net gain would be a serious transparency and accountability problem. The problem will be exacerbated if disparate state and territory databases are taken as presenting sufficient information.

In FOG’s view, a centralised Offset Register is essential to reveal:

• the basis on which any offset was assessed suitable and adequate by whoever made the decision;
• the outcome required, e.g., the form of protection to be relied upon for the offset site, and the extent of condition improvement to be delivered;
• how the outcome is to be delivered - in the case of grassy ecosystems, this might be via weed control and/or biomass management;
• which government entity is to oversee, monitor and report on that delivery.

Yours sincerely,

 

SIGNED

 

Matt Whitting

Vice President
Friends of Grasslands 

30 January 2026 

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Attachment A: The Standards must recognise all pathways of protected matter loss and treat them as “actions”, where the Act allows.

The Standards must be drafted considering the widest range of “actions” that can cause impacts. This will ensure as many harmful behaviours as possible fall within enforcement reach, both before and after controlled action decisions.

The Act defines an “action” broadly to include:

• acts – including any “series of activities” [9] – which we understand means cumulative impacts are relevant and subject to regulation under the Act
• omissions – it is well‑established in case law that a failure to act can be an “action” where it causes or allows a significant impact[10]
• changes to ecological processes – the EPBC Act Significant Impact Guidelines 1.1 explain a significant impact may include: a change in the composition, structure or function of an ecological community; a substantial change in the natural environment; and/or a reduction in the extent or integrity of an ecological community – “acts” and “omissions” that cause “impacts” to grassy ecosystems include inappropriate fire regimes, nutrient enrichment, hydrological changes, invasive species facilitation and alteration of ecological processes
• foreseeable degradation – the EPBC Act Significant Impact Guidelines 1.1 states an impact is significant if it is likely to be important, notable or of consequence, and we consider “likely” implies foreseeability.
• For temperate grassy ecosystems, pathways the Standards must explicitly recognise as potential “actions” include:
• wilful neglect — failure to manage weeds, biomass, nutrient inputs or invasive species, where degradation is foreseeable and avoidable, e.g., the perceived failure, by the Defence portfolio, to “maximise the protection” of NTG on the former Belconnen Naval Transmission Station[11]
• deliberate destruction — poisoning, ploughing, mechanical disturbance, e.g., Jam Land being found to have deliberately and illegally poisoned NTG on its Corrowong property
• inappropriate fire regimes — too frequent, too infrequent, or deliberately harmful fire
• incremental and cumulative impacts — repeated small disturbances that foreseeably degrade condition
• nutrient drift and pasture improvement — uncontrolled fertiliser drift, over sowing and soil alteration,

each of which have destroyed temperate grassy ecosystem values.

The Standards cannot expand the Act’s jurisdiction, but they should confirm:

• confirm all these types of acts and omissions will be regulated
• confirm acts and omissions like these can constitute “significant impacts” that will be recognised as causing “serious damage”
• these types of acts and omissions will be regulated.

This is how the Standards can achieve maximum reach within the Act.

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[1] If satisfied specific circumstances exist, the Minister will be able to prevent ‘serious damage’ to critically endangered threatened ecological communities on the basis the impacts expected will be unacceptable (ss 18(5)).

[2] Threatened Species Scientific Committee (2016). Approved Conservation Advice for Natural Temperate Grassland of the South Eastern Highlands, p. 18

[3] Threatened Species Scientific Committee (2006) Commonwealth Listing Advice on White Box-Yellow Box-Blakely's Red Gum Grassy Woodland and Derived Native Grassland, p. 2

[4] Samuel, G. (2020) Independent Review of the EPBC Act – Final Report, , p. 211

[5] DCCEEW (2012) EPBC Act Environmental Offsets Policy states (at p. 4) that “The Offsets assessment guide is a tool that has been developed for expert users in the department to assess the suitability of offset proposals. The guide is also available to proponents to assist with planning and estimating future offset requirements, www.dcceew.gov.au/sites/default/files/documents/offsets-policy_2.pdf

[6] DCCEEW n 5, p. 8; Draft Offsets Policy Paper, p. 13

[7] Samuel n 4, p. 140, underline added

[8] Samuel n 4, p. 141

[9] Act, s 523

[10] In Minister for the Environment v Sharma (2022) FCAFC 35, the Full Court accepted an “action” can include a failure to take steps, where that omission forms part of the conduct that causes the impact.

[11] approval of EPBC 2008/4367, conditions 1-2