PART II National laws A s i a a n d P a c i f c 5 A u s t r a l i a Ross Abbs , Peter Cashman and Tim Stephens (A) Introduction T e Australian legal system 5 . 0 1 T e Commonwealth of Australia is a federal State with three levels of government comprising a national government, the governments of six states and two territories, and local gov- ernment. T e federal government, the Commonwealth, has no direct constitutional power to legislate with respect to environ- mental matters. Nevertheless, several heads of power contained in section 51 of the Commonwealth Constitution provide a basis for wide-ranging climate change legislation. T ese include the corporations power and the external af airs power, the latter of which enables the Commonwealth Parliament to pass laws implementing treaties to which Australia is a Party.1 As Australia is a Party to the United Nations Framework Convention on Climate Change (‘ FCCC’)2 and its Kyoto Protocol,3 the Commonwealth may legislate to meet its obliga- tions under these agreements. 5.02 T e states and territories also have the constitutional capacity to pass laws with respect to climate change and have done so as the Commonwealth has been unwilling or unable to regulate green- house gas (‘GHG’) emissions. However, to the extent that state laws are inconsistent with federal legislation addressing the same 1 See especially Commonwealth v. Tasmania (1983) 158 CLR 1. 2 New York, 9 May 1992, in force 21 March 1994, 1771 UNTS 165. 3 Kyoto Protocol to the United Nations Framework Convention on Climate Change, Kyoto, 11 December 1997, in force 16 February 2005, (1998) 37 ILM 22. 67 68 Ross Abbs, Peter Cashman and Tim Stephens subject matter they are invalid. 4 T e Commonwealth’s ef orts to establish a comprehensive emissions trading scheme (‘ETS’) were thwarted in 2010 when the upper house of the Commonwealth Parliament, the Senate, voted against a package of eleven Bills that would have established the Carbon Pollution Reduction Scheme (‘CPRS’). 5 5.03 Environmental matters, including climate change cases, are adjudicated in federal, state and territory courts and adminis- trative tribunals, with most cases being brought before specialist environmental courts or tribunals at state level. 6 T e governmental stance on climate change 5.04 Australia’s per capita GHG emissions are among the highest in the world, with only Bahrain, Bolivia, Brunei, Kuwait and Qatar ranking higher.7 Around half of Australia’s emissions are produced by the stationary energy sector, which is heavily reli- ant on coal-f red power plants. Emissions from agriculture and transport comprise the other main sources of Australia’s carbon footprint. 5.05 Australia signed the Kyoto Protocol in 1998 af er winning sig- nif cant concessions in the negotiation of the Protocol text. It was permitted an emissions increase (to 108 per cent of 1990 levels) rather than bound to a reduction like most other States, and the so-called ‘Australia clause’ allowed countries with net emissions from land use change and forestry to include such emissions in their 1990 baseline. Because land clearing was being brought under control in Australia in the 1990s, this meant that Australia could meet its Kyoto target relatively easily, with major smoke- stack industries such as power generation and aluminium and cement production given room to increase their emissions. 4 Australian Constitution, s. 109. 5 T ese included the Carbon Pollution Reduction Scheme Bill 2010 (Cth) and the Australian Climate Change Regulatory Authority Bill 2010 (Cth). 6 See L. Pearson, ‘Australia’ in L. Kotzé and A. Paterson (eds.), T e Role of the Judiciary in Environmental Governance: Comparative Perspectives (Kluwer Law International, 2009), p. 321. 7 R . G a r n a u t , T e Garnaut Climate Change Review: Final Report (Cambridge University Press, 2008), p. 153. Australia 69 Despite this preferential treatment, the Australian government decided in 2002 not to ratify the Kyoto Protocol. T is decision was overturned following the election of the Labor government in 2007. 5.06 Australia’s Fif h National Communication on Climate Change, submitted to the FCCC Secretariat in March 2010, indicated that Australia was on track to meet its Kyoto target without relying on the Protocol’s f exibility mechanisms, with emissions projected to reach 106 per cent of 1990 levels over the f rst commitment period (2008–12). 8 However, emissions are projected to increase sharply, to 121 per cent of 2000 levels by 2020, unless abatement measures are taken.9 5.07 In January 2010, Australia submitted emissions reduc- tion targets to the FCCC Secretariat in connection with the Copenhagen Accord. T ese involved an unconditional pledge to cut emissions by 5 per cent on 2000 levels by 2020, with add- itional reductions of up to 15 per cent and 25 per cent contin- gent upon the level of action taken by other States. T e 25 per cent reduction will apply if there is ‘an ambitious global deal capable of stabilising levels of [GHGs] in the atmosphere at 450 10 ppm CO2 - e q o r l o w e r ’ . T e government has also committed to an emissions reduction target of at least 60 per cent below 2000 levels by 2050. Although the upper-range mid-term 2020 target follows the recommendation of the Garnaut Review,11 the long-term target falls well short of the 90 per cent reduction that Professor Garnaut found was consistent with a global con- traction and convergence approach. 12 8 D e p a r t m e n t o f C l i m a t e C h a n g e , Australia’s Fif h National Communication on Climate Change (2010), p. 86. 9 Ibid ., p. 87. 10 Letter from P. Wong (Minister for Climate Change and Water) to Y. de Boer, 27 January 2010, available at http://unfccc.int/f les/meetings/application/pdf/australiacphaccord _ app1.pdf. 11 T e Garnaut Review was commissioned in 2007 by then Leader of the Federal Opposition Kevin Rudd along with the governments of the Australian states and ter- ritories. It was required to ‘examine the impacts of climate change on the Australian economy, and … recommend medium- to long-term policies and policy frameworks to improve the prospects of sustainable prosperity’ (see Garnaut, Garnaut Climate Change Review , p. xiii). 12 Ibid ., p. 209. 70 Ross Abbs, Peter Cashman and Tim Stephens National climate change risks 5.08 Australia is one of the developed countries most vulnerable to the impacts of climate change. As the driest inhabited continent on earth, with already high levels of climate variability, Australia can expect a range of severe impacts if there is no mitigation of global emissions. Under a business-as-usual scenario it is expected that by 2100 drought will be increasingly frequent; there will be severe stress on urban water supplies; irrigated agricultural produc- tion in the Murray Darling Basin, Australia’s main ‘food bowl’, will have declined by more than 90 per cent; the Great Barrier Reef will ef ectively have been destroyed; and many coastal areas including the Kakadu wetlands will have been transformed by rising sea levels.13 T e CPRS 5.09 T e Commonwealth, state and territory governments have imple- mented a range of initiatives to address climate change, but to date these have fallen short of a comprehensive regime to reduce Australia’s GHG emissions. 5.10 T e National Greenhouse and Energy Reporting Act 2007 (Cth) established a mandatory system for the reporting by corpora- tions of their GHG emissions and energy consumption, and the Labor government elected in 2007 pledged to introduce a cap-and-trade ETS by 2010. Following an extensive process of consultation, which involved the release of Green and White Papers, and exposure draf s of legislation, Bills to establish the CPRS were introduced into Parliament in 2009. 5 . 1 1 T ese Bills were rejected by the Senate, where the government did not command a majority. In April 2010, the government announced that it would delay the implementation of the CPRS until the end of the f rst commitment period of the Kyoto Protocol. T e 2010 election then saw the Labor Party form gov- ernment with the support of a number of independents and a Greens member of the House of Representatives. T e govern- ment established a Multi-Party Climate Change Committee 13 Ibid ., Ch. 6. Australia 71 to explore options for the development of a national carbon price. 5.12 In December 2010, the Committee released a communiqué outlining eleven policy principles to ‘guide’ deliberations on a carbon price mechanism.14 T ese principles are: environmen- tal ef ectiveness; economic ef ciency; budget neutrality; com- petitiveness of Australian industry; energy security; investment certainty; fairness; f exibility; administrative simplicity; clear accountability; and fair contribution to global ef orts. In February 2011, it released a ‘proposal’ setting out the ‘broad architecture’ for a potential carbon pricing scheme.15 T e proposal envisages the initial imposition of a carbon tax, with provision being made for ‘conversion’ to a cap-and-trade ETS af er a set period of time. However, two members of the Committee reserved their position on the proposal, and signif cant details were lef at large. Carbon pricing is currently the subject of intense political controversy. However, it remains likely that many elements of the CPRS will feature in whatever regulatory scheme is ultimately adopted. 16 5.13 Had it been implemented, the CPRS would have constituted one of the world’s broadest emissions trading schemes.