The Federal Government has moved to incorporate the increased national greenhouse gas emission reduction targets of 43% against 2005 levels by 2030 and net zero by 2050 into Australian law by recently progressing the Climate Change Bill through the House of Representatives. If the Bill is passed by the Senate, the targets will not only become enshrined, but new transparency measures will also be introduced to monitor Australia’s progress against the targets. Nevertheless, many would say that the Climate Change Bill does not go far enough to drive Australia’s emissions down as far as they need to go.
The Climate Change Bill
Since the recent Federal Election, the new Prime Minister has written to the U.N. Framework Convention on Climate Change’s executive secretary to inform them of Australia’s new 2030 target, but until the passing of this bill, the targets will have no legal effect and Australia would not be legally bound to achieve them.
The Climate Change Bill is a brief 16-page affair. In addition to expressly setting out the emission reduction targets so that they are enshrined into Australian law, the Bill also promotes transparency by requiring the Minister of Climate Change and Energy to prepare and present an “annual climate change statement” every year before the end of the calendar year. Amongst other things, the statement must publicise Australia’s progress in achieving the emission reduction targets as well as discuss the effectiveness of the Commonwealth’s climate change policies in contributing to the achievement of those emission reduction targets.
Furthermore, the Climate Change Bill imposes upon the Climate Change Authority the responsibility to advise the Minister concerning Australia’s emission reduction targets. For example, the Bill provides that it will be mandatory for the Climate Change Authority to provide the Minister with advice whilst the Minister prepares the annual climate change statement. When requested by the Minister, the Climate Change Authority must also provide the Minister with advice concerning Australia’s emission reduction targets, and the Minister must publicly provide a written response to the advice within 6 months of receipt. The Minister is required to seek such advice at least once every five years.
Each piece of written advice given by the Climate Change Authority must be published online for public viewing and the Minister must consider the advice. If the Minister decides not to accept the Climate Change Authority’s advice, the Minister is also required provide a written explanation outlining the Minister’s reasons. These provisions, however, do not prevent the Minister from requesting and receiving advice from other parties at any time.
If passed, the legislation will be reviewed for the first time within 5 years of commencement. Subsequent reviews of the legislation must then be completed within 10 years of the previous review.
The Bill is complemented by a second bill titled the Climate Change (Consequential Amendments) Bill which amends multiple existing statutes which have established many statutory bodies and national schemes. The amendments predominantly serve the purpose of including references to the Paris Agreement and introducing the achievement of Australia’s greenhouse gas emission reduction targets as a new objective of each statute as well as requiring some of the bodies to consider the target and Australia’s obligations under the Paris Agreement when exercising their powers and functions.
Where to from here
The Bills have recently passed the House of Representatives and now await passage through the Senate. Both Bills are also currently subject to a senate inquiry by the Environment and Communications Legislation Committee which will present its report by 31 August 2022. Hence, it is possible that the Bills could be subject to re-drafting before they become law.
As currently drafted, the Bills provide the foundation of Australia’s progress towards fulfilling its obligations under the Paris Agreement. However, no clear pathway to achieving these targets has been provided for in the Bills. Arguably, legislation that merely has the objective of facilitating the achievement of Australia’s greenhouse gas emission reduction targets without mandating any particular steps to achieve them will not adequately contribute to reducing Australia’s emissions. Further, what will be deemed to be sufficient “consideration” of such matters under the other legislation will be subject to interpretation.
In that regard, it is worth noting that the courts are not a stranger to reviewing decisions made without consideration of climate change. Recently, Environment Victoria (a not-for-profit environmental organisation) lodged proceedings against the Environment Protection Authority of Victoria, alleging that the regulator failed to properly consider climate change when reviewing the coal power station licences of Victoria’s three remaining coal-burning power stations as required under the Climate Change Act 2017 (Vic). The case is awaiting trial in the Victorian Supreme Court. It will be interesting to see its outcome as this will give us some strong guidance as to what a court would interpret to be “sufficient consideration” at a Commonwealth level for the purposes of the consequential amendments being made in association with the Climate Change Bill.
If you have any questions concerning any of the proposed Bills and how the emission reduction target will affect your business or your projects, please do not hesitate to contact our Energy team.