DOMESTIC FACILITATION OF AUSTRALIA’S NDC

A Australia’s NDC under the Paris Agreement

Australia’s nationally determined contributions (‘NDC’) under the Paris Agreement commits

to an economy-wide target to reduce greenhouse gas emissions by 26 to 28 per cent on 2005

levels by 20301. The implementation of a 28 per cent target is based on the assumption that

the circumstances would allow them to do so. The current trend at the international level is

generally for agreements only to go as far as stipulating hard law provisions on the emissions

targets themselves but not necessarily the method by which countries are to reach those

targets. Parties to the Paris Agreement are still afforded a large birth of national discretion in

this regard. The Paris Agreement also establishes a number of ‘transparency arrangements’,

which requires Parties to provide ‘national communications, biennial reports ... international

assessment and review and international consultation and analysis’.2 In addition to this, each

country is required to regularly provide a national inventory report of emissions along with

other information necessary for monitoring implementation progress.3 As per the NDC,

Australia must fulfil these arrangements in relation to seven different categories of

greenhouse gas (‘GHG’) emissions, all of which can then be converted to represent a carbon

dioxide equivalent value.4 The Bill also defines GHG emissions in the same the seven

categories stipulated in Australia’s NDC.5

1
Australian Government, Department of Foreign Affairs and Trade, ‘Australia’s Intended Nationally
Determined Contribution to a New Climate Change Agreement’ (August 2015)
<https://www4.unfccc.int/sites/ndcstaging/PublishedDocuments/Australia%20First/Australias
%20Intended%20Nationally%20Determined%20Contribution%20to%20a%20new%20Climate
%20Change%20Agreement%20-%20August%202015.pdf>, archived at <https://perma.cc/3UBP-
865G>.
2
Paris Agreement arts 13(1), 13(4).
3
Paris Agreement art 13(7).
4
NDC above n 1; See also Simon Eggleston, Leandro Buendia, Kyoko Miwa, Todd Ngara and Kiyoto
Tanabe (eds), 2006 IPCC Guidelines for National Greenhouse Gas Inventories (Hayama, Japan:
Institute for Global Environmental Strategies, 2006).
5
Bill s 5; NGER Act s 7(a).
 B Relevant domestic policy via direct action

The Emissions Reduction Fund (‘ERF’) forms the basis of domestic direct-action policy

undertaken by the Australian federal government and is legislated under the Carbon Credits

(Carbon Farming Initiative) Act 2011 (Cth) (‘CFI Act’).6 The ERF is voluntary scheme,

intended to facilitate projects that offset carbon emissions via approved methodologies.

C Significance of statutory emission targets

Policy, although not binding, does guide legal decision making. This has been evident in

climate related litigation where judges generally seek to interpret and apply laws in a way

that is consistent with relevant policy objectives. 7 However, in this regard, statutory targets

such as those in the Bill are not only stipulated in far more precise terms with substantive

outcomes but clearly carry a greater, more direct legal effect. 8 This means that judges,

consent authorities and other legal decision makers would be able to directly apply statutory

provisions instead of indirectly applying, or not applying, environmental values through their

interpretation of those provisions. Not only does this better integrate environmental values

into the Australian legal framework but it also offers greater certainty to stakeholders across a

wide range of sectors and communities in their planning and decision-making processes.

Furthermore, a target of net zero emissions by 2050 in statute would significantly consolidate

Federal and State climate legal frameworks; bringing Australia more in-line with many of its

6
Australian Government, Department of Industry, Science, Energy and Resources, Emissions
Reduction Fund (Accessed 14 October 2020) < https://www.industry.gov.au/funding-and-
incentives/emissions-reduction-fund>.
7
Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7
8
Climate Change (National Framework for Adaptation and Mitigation) Bill 2020 (Cth) s 3(2)(a)
(‘Bill’).
counterparts in the global community such as the U.K and New Zealand. This would allow

Australia to have a clearer path in demonstrating the elements of progression and ambition

that is expected of developed countries when submitting their NDCs.

D Implications for Adaptation in NSW law and regulation

Section 3(2)(c) of the Bill stipulates one of the objects as being ‘assessing the risk and

preparing for climate change impacts’. As the effects of coastal processes are becoming more

and more impactful, there is growing concern that current State laws fail to offer appropriate

regulatory measures addressing planned retreat. Sections 3(2)(c), 12(b) and 12(c) of the Bill

will likely place more pressure on the Government to begin developing a robust set of

planned retreat mechanisms. The provisions in the Bill indirectly strengthen the onus upon

the State to ‘prepare’ for such impacts; an onus which has been increasingly shifted towards

the insurance sector and private citizens over time. It may also prompt the State government

to revaluate the efficacy of the 10/50 Vegetation Clearing Scheme under the Rural fires Act

1997 (NSW), so as to not only fulfil the obligations reiterated by the Bill, but also to limit the

prospect of any future litigation brought against them in light of the scheme.
 ROLE OF THE BILL IN REGULATION RISKS AND CONSEQUENCES OF

NATURAL DISASTERS

A Legal strategies addressing natural disasters

The Bill does not mandate any legal strategies addressing the risks and consequences of

natural disasters specifically. However, it does provide for a national climate change risk

assessment to be conducted by the Commission and a national adaptation plan prepared by

the Minister in response to that assessment.9 These are to be completed at least every 5

years.10 Broadly speaking, the Bill aims to establish a framework that assesses risk and

prepares for climate change impacts.11 It follows on that the decisions, policies, programs or

processes undertaken by way of the Bill must assess consequences relating to climate change,

explicitly address climate change risks and apply the precautionary principle to prevent loss.12

This may applying more pressure towards amendment of the Environment Protection and

Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’) to include a ‘greenhouse trigger’.

B National climate change risk assessment

The Bill provides that the assessment must: ‘assess the risks to Australia’s economy, society,

agriculture, environment, and ecology from the current and future effects of climate

change’13. In doing so, the Commission must take into account scientific and technical advice

including that of the Commonwealth Scientific and Industrial Research Organisation

9
Bill s 17, 19.
10
Bill s 17(1)(b).
11
Bill s 3(2).
12
Bill s 12(a), 12(b), 12(c).
13
Bill s 17(2)(a).
(CSIRO).14 The CSIRO have published several pieces of research that link a likely future

increase in the occurrence of natural disasters with the impact of climate change.15 It should

therefore be assumed that the Commission would include the risks and consequences of

natural disasters in their assessment.

C National adaptation plan

For each plan prepared by the Minister, the Commission is required to complete an annual

progress report.16 This allows for an evaluation of the implementation and effectiveness of

strategies within the plan, the degree to which the plan has achieved its objectives and how

well the plan responds to the most significant climate change risks.17

In preparing the plan, the Minister must take into account the same set of climate change

risks that the Commission must, as well as the adaptive capacity of communities and

organisations.18 Interestingly however, the Bill does not state that this is to include ‘future

effects’, as it had done in section 17(2)(a). The Minister, like the Commission, must also

consider the advice of the CSIRO when preparing the adaptation plan19. The Bill does bolster

Ministerial discretion in this regard however, allowing them to take into account any other

matter they consider relevant.20 Furthermore, the term ‘including’ in section 19(5)(f) of the

Bill allows the Minister to consider CSIRO advice inter alia.

14
Bill s 18(f).
15
Commonwealth Scientific and Industrial Research Organisation, Extreme Events (2020) <
https://www.csiro.au/en/Research/Environment/Extreme-Events/Bushfire/preparing-for-climate-
change>.
16
Bill s 21(1).
17
Bill s 21(2)(a), 21(2)(b).
18
Bill s 19(5)(a), 19(5)(e).
19
Bill s 19(5)(f).
20
Bill s 19(5)(h).
 D Role of the Bill in regulation

In the lists of factors to be taken into account, the decision to place the terms ‘economy’ and

‘society’ before ‘environment’ and ‘ecology’ could be seen as an attempt to frame climate

change primarily as an economic and security issue. The term ‘natural disaster’ also does not

appear anywhere within the Bill. While inclusion of the term may have fostered swifter

regulatory responses to natural disasters, or even gone as far as to create compensable rights,

to do so would have limited the breadth of interpretive flexibility afforded to the courts when

applying those regulations; now and in the future. While the role of the Bill is not to design

and implement strategies addressing the risks and impacts of natural disasters as such, it has

created an obligation for the Government to do so. This is a role that the Bill allocates to the

Minister and is one that will ultimately be shared with State and local government

counterparts. The government will be able to design and implement these strategies within

the bounds of their own discretion. Importantly however, the Bill has defined the parameters

of, and the standards by which, this discretion is obliged to operate within. There is room for

Ministers to consider factors and create strategies that may be unevenly positioned more in

line with political agenda rather than a climate agenda . However, the annual reports

conducted by the Commission would serve as an effective check and balance mechanism,

applying considerable pressure upon the Government to transparently demonstrate

measurable progress.

EFFECT OF BILL UPON GHG GAS EMISSION REPORTING AND RENEWABLE

ENERGY

B Reporting
The Clean Energy Regulator (‘CER’) is responsible for the administration of federal

renewable energy law and policy. Their function extends to several current domestic laws

and regulations.

i) National Greenhouse and Energy Reporting (‘NGER’) Scheme, under the

National Greenhouse and Energy Reporting Act 2007 (Cth) (‘NGER Act’).

The NGER Scheme is a safeguard mechanism requiring businesses with facilities that

produce more than 100, 000 tonnes of CO2 equivalent (t CO2-e) direct emissions, to keep

emissions within ‘baseline’ levels.21 The CER set these baselines using the facilities’ highest

level of historical emissions.22 This has allowed many emitters to be able to increase their

carbon emissions under the scheme and as a result Australia could struggle to deliver the

decarbonisation required to meet Paris Agreement targets.23

Under section 42(1)(g) of the Bill, one of the functions of the Commission is to conduct

reviews under sections 76A and 76B of the NGER Act. The Bill also stipulates the fulfilment

of obligations under international agreements as an object, making specific reference to the

21
NGER Act ss 11,11A, 11B.
NGER Act 22XI and 22XJ; National Greenhouse and Energy Reporting (Safeguard Mechanism)
22

Rule 2015 (Cth) ss 7-13;

23
For criticisms of the current baselines see Neil Gunningham and Megan Bowman, ‘Energy
Regulation for a Low Carbon Economy: Obstacles and Opportunities’ (2013) 33 Environmental and
Planning Law Journal 118, 124; see also Penny van Oosterzee, ‘Australia’s Climate Plan: Are you
Serious? The Conversation (online), 23 January 2014 <https://theconversation.com/australias-climate-
plan-are-you-serious-22170>.; for criticisms of sole reliance on ERF generally see Jacqueline Peel,
‘Climate Law’ (Technical Paper No 5, The Australian Panel of Experts on Environmental Law, April
2017) 7.
Paris Agreement.24 Reviews published by the Commission may be apply pressure on the CER

to reset emission baselines or to lower the coverage threshold of 100, 000 t CO2-e, as has

already been recommended by the Climate Change Authority (‘CCA’).25

Section 29(2) of the Bill also allows room for a potential shift towards consideration of

‘scope 3’ GHG emissions26.

B Renewable Energy

ii) The Renewable Energy Target (‘RET’), under the Renewable Energy (Electricity)

Act 2000 (Cth) (‘REE Act’).

CER has advised that there are now sufficient projects approved to meet and exceed the 2020

target of 33,000 gigawatt hours of additional renewable electricity.27 Under the REE Act, this

target will stay in place until 2030.28 The Bill states that relevant programs and policies, must

take into account opportunities as the world’s largest national generator renewable energy.29

Given that current projects are capable of exceeding the target, the Bill may pressure the

Government to increase the renewable power percentage (‘RPP’) under the RET in order for

it to properly serve as a ‘pull’ mechanism. This is also consistent with the economy centric

stance of the Government as an increase in the RPP would be an especially important market

signal.

24
Bill s 3(2)(f).
25
Climate Change Authority, Towards a Climate Policy Toolkit: Special Review on Australia’s
Climate Goals and Policies (Third and Final Report, August 2016) 70.

26
The current trend in litigation shows that Ministers are not required to consider scope 3 emissions
when making an assessment under the EPBC Act: see Australian Conservation Foundation Inc v
Minister for the Environment [2016] FCA 1042, [136]–[138], [173]–[174].

27
Australian Government, Department of Industry, Science, Energy and Resources, Renewable
Energy Target scheme (Accessed 14 October 2020) < https://www.industry.gov.au/funding-and-
incentives/renewable-energy-target-scheme>.
28
REE Act s 40.
29
Bill s 16(c)(iv).
 HOW THE BILL WILL ASSIST INVESTOR CONFIDENCE

A Standards of transparency

The national climate change risk assessment conducted by the Commission and the

adaptation plan are both explicitly required to thoroughly disclosure risk, impacts, objectives

and strategies on a continual basis.30 This will likely translate in stronger internally based

decision-making processes. Furthermore, under section 82 of the Bill, both the Minister and

the Commission have the power to request a wide range of information from constitutional

corporations. These transparency mechanisms will allow external investors to more

accurately determine risk exposure and the transition strategies of potential investee

companies. The Bill also cites the requirement for emission reduction plans to include how

mitigation actions will be funded.31 This could translate into an increase in funding for the

Australian Renewable Energy Agency (ARENA) and the Clean Energy Finance Corporation

(CEFC).

B Policy certainty across changes of government

Under section 17(b) of the Bill, it stipulates that the Commission’s climate change risk

assessment will be conducted on a 5-year reporting cycle. This will likely give the business

community assurances in two respects. Firstly, the provision projects a degree of certainty

30
Bill s 17, 19.
31
Bill s 38(3)(c).
that it has been designed to operate over the long-term and across changes of government.

Secondly, passing of the Bill would mean it has broad-based, bi-partisan support and can

offer a sufficient level of political ‘buy in’ from States and territories. Even if there were a

change of government in the next election cycle, there is little incentive for the current

Opposition to use the scrapping of the Bill or its eventual legislative equivalent in their

campaigning efforts.

The Bill also has a mechanism where by the target of net zero emissions by 2050 cannot be

reduced.32 This prevents future governments from weakening the target and will give the

business community further assurance of a consistent policy direction.

BIBLIOGRAPHY

A. Articles/Books/Reports/Papers

Climate Change Authority, Towards a Climate Policy Toolkit: Special Review on Australia’s
Climate Goals and Policies (Third and Final Report, August 2016)

32
Bill s 24(4).
Eggleston, Simon, Leandro Buendia, Kyoko Miwa, Todd Ngara and Kiyoto Tanabe (eds),
2006 IPCC Guidelines for National Greenhouse Gas Inventories (Hayama, Japan: Institute
for Global Environmental Strategies, 2006).

Gunningham, Neil and Megan Bowman, ‘Energy Regulation for a Low Carbon Economy:
Obstacles and Opportunities’ (2013) 33 Environmental and Planning Law Journal 118

Peel, Jacqueline ‘Climate Law’ (Technical Paper No 5, The Australian Panel of Experts on
Environmental Law, April 2017)

B. Cases

Australian Conservation Foundation Inc v Minister for the Environment [2016] FCA 1042

Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7

C. Legislation

Australian Renewable Energy Agency Act 2011 (Cth)

Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth)

Climate Change (National Framework for Adaptation and Mitigation) Bill 2020 (Cth)

National Greenhouse and Energy Reporting Act 2007 (Cth)

National Greenhouse and Energy Reporting (Safeguard Mechanism) Rule 2015 (Cth)

Renewables Energy (Electricity) Act 2000 (Cth)

D. Treaties

Conference of the Parties, United Nations Framework Convention on Climate Change,

Adoption of the Paris Agreement, 21st sess, UN Doc FCCC/CP/2015/L.9 (12 December
2015) (‘Paris Decision’) Annex (‘Paris Agreement’).
 E. Other

Australian Government, Department of Foreign Affairs and Trade, ‘Australia’s Intended Nationally
Determined Contribution to a New Climate Change Agreement’ (August 2015)
<https://www4.unfccc.int/sites/ndcstaging/PublishedDocuments/Australia%20First/Australias
%20Intended%20Nationally%20Determined%20Contribution%20to%20a%20new%20Climate
%20Change%20Agreement%20-%20August%202015.pdf>, archived at <https://perma.cc/3UBP-
865G>.

Australian Government, Department of Industry, Science, Energy and Resources, Emissions

Reduction Fund (Accessed 14 October 2020) < https://www.industry.gov.au/funding-and-
incentives/emissions-reduction-fund>.

Australian Government, Department of Industry, Science, Energy and Resources, Renewable Energy
Target scheme (Accessed 14 October 2020) < https://www.industry.gov.au/funding-and-
incentives/renewable-energy-target-scheme>.

Commonwealth Scientific and Industrial Research Organisation, Extreme Events (2020) <
https://www.csiro.au/en/Research/Environment/Extreme-Events/Bushfire/preparing-for-climate-
change>.

Penny van Oosterzee, ‘Australia’s Climate Plan: Are you Serious? The Conversation (online), 23
January 2014 <https://theconversation.com/australias-climate-plan-are-you-serious-22170>.