The Climate Change Act 2022: Australia’s emissions target becomes law

Breellen Warry, Partner at Maddocks share their insights regarding Australia’s emissions target becoming a law. Hear more from Breellen as she joins the panel of experts at the upcoming Environment Law: Climate Change Bill, Australia’s State of Environment and Other Issues webinar on Wednesday 16 November 2022.

One of Labor’s commitments was that if elected in the 2022 federal election, it would commit to a target of reducing greenhouse gas (GHG) emissions by 43% by 2030.  This was clearly higher than the Morrison Government’s long standing target of 26% – 28% by 2030.

This higher target is also consistent with the Australian Government’s commitment made at COP26 Glasgow to deliver “a higher level of ambition” before the end of 2022 (a commitment the Morrison Government subsequently moved away from). [1]

Labor also launched a suite of policies aimed at helping to achieve these targets, including “Powering Australia” and “Rewiring the Nation”.

So what has occurred since Labor’s election win?

On 16 June 2022, the Albanese Government lodged an updated Nationally Determined Contribution (NDC) with the United Nations Framework Convention on Climate Change secretariat as part of Australia’s obligations under the Paris Agreement.

The updated NDC commits Australia to the higher 2030 target of 43% below 2005 levels by 2030 and reaffirms the commitment of net zero by 2050.

Also, in July 2022, being the first parliamentary week of the Albanese Government, the Climate Change Bill and the Climate Change (Consequential Amendments) Bill 2022 were introduced by the Albanese Government.

These Bills finally passed both Houses on 8 September 2022 and received assent on 13 September 2022.

What does the Climate Change Act 2022 do?

Essentially, the Climate Change Act 2022 (CC Act) enshrines Australia’s emissions reduction targets in Australian domestic law.

There are 3 key aspects to the CC Act.

Emissions reduction targets

Firstly, the CC Act outlines Australia’s GHG emissions reduction targets, of course being a 43% reduction from 2005 levels by 2030 and net zero by 2050 (see section 10).

These are expressed both as both a “point target” and an emissions budget covering the period 2021 – 2030.

Of note, section 10 provides that the target is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with the CC Act.

Annual climate change statement

Secondly, the CCA requires the Minister to prepare and table an annual climate change statement (Annual Statement) within 6 months after the end of each financial year.

The Annual Statement will relate to, for example:

• the progress made during the year towards achieving Australia’s GHG emissions reduction targets
• international developments during the year that are relevant to addressing climate change
• the effectiveness of the Commonwealth’s policies in contributing to the achievement of Australia’s GHG emissions reduction targets and reducing emissions in the sectors covered by those policies
• the impact of the Commonwealth’s climate change policies to achieve Australia’s GHG emissions reduction targets on rural and regional Australia, including the social, employment and economic benefits being delivered by those policies in rural and regional Australia
• risks to Australia from climate change impacts, such as those relating to Australia’s environment, biodiversity, health, infrastructure, agriculture, investment, economy or national security.

Expanded role of the Climate Change Authority

Under the CC Act, the role of the Climate Change Authority (Authority) has expanded.  The Authority will now be required to give the Minister advice in relation to the Annual Statement and future GHG emissions reduction targets.

In particular:

• the Authority must give the Minister advice that relates to the preparation of the Annual Statement
• in considering advice to be given to the Minister, there is a requirement for the Authority to make provision for public consultation (which will be compulsory for 2^nd and subsequent Annual Statements)
• a copy of the advice is required to be published on the Authority’s website and tabled in Parliament.

The Minister is required to have regard to the advice when preparing the Annual Statement (but can also consider other advice).  If the Minister decides not to accept one or more “material aspects” of the advice, the Minister must prepare and table a statement of reasons for that decision.

Climate Change (Consequential Amendments ) Bill Act

The CC Act is complemented by the Climate Change (Consequential Amendments) Act 2022 (CCCA Act), which amends the objects of several critical pieces of legislation to align with the goals of the CC Act.

Essentially, the CCCA Act makes consequential amendments to 14 Acts to incorporate Australia’s GHG emissions reduction targets into legislation for relevant Commonwealth entities and schemes.

This includes agencies such as the Australian Renewable Energy Agency and the Clean Energy Finance Corporation.  Amendments have also been made to the Carbon Credits (Carbon Farming Initiative) Act 2011 and Building Energy Efficiency Disclosure Act 2010, for example.

Conclusion

The CC Act is not a detailed plan to reduce emissions and there is no mechanism to cut emissions in Australia under the CC Act. This task will be left to relevant policies and programs to drive emissions reduction.

It is encouraging that Australia now has a legislated emissions target. However, there are significant challenges ahead in seeking to achieve these targets and for the Government to develop an effective framework to achieve the target and stay on budget.

Reference:
[1] https://www.hawkerbritton.com/blog/2021/12/04/the-alps-powering-australia-plan/

Breellen Warry is a Partner within the Public Law team at Maddocks. Breellen advises both private and public sector clients across various industries on a wide range of planning, environment and government matters. Breellen also has extensive experience advising NSW State government and local councils on planning and environmental law and has worked both within and for government agencies in NSW and in the UK. Breellen has also lectured at Western Sydney University, teaching planning and environmental law and has authored Thomson Reuters’ Planning and Development Law Service. Breellen has been recognised in the Doyle’s Guide as a Leading Planning & Development Lawyer – New South Wales since 2020 and in the 2021 and 2022 Editions of Best Lawyers for Planning and Environmental Law. Connect with Breellen via LinkedIn