09 March 2022
5 min read
#Planning, Environment & Sustainability, #Renewable Energy
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Australia is the only country in the world to dismantle a national emissions trading scheme. However, last year in what seemed to be the beginning of the end of the “climate wars”, the federal government published Australia’s Long-Term Emissions Reduction Plan (Plan), a policy document which sets a net zero emissions by 2050 target (see our earlier article here). However, there are concerns that the Plan and its targets are not binding and are subject to amendment or revocation at any time by the executive government.
Currently, the Climate Action Tracker has classified Australia’s policy settings as “Highly Insufficient” to meet the Paris Agreement goal of limiting global warming to 1.5°C. As Australia heads to a federal election this year, climate action has again ignited heated political discussion.
The Climate Change Bill 2020, introduced as a private member’s bill by independent MP Zali Steggal, would create a federally legislated climate target and form Australia’s first framework climate legislation if passed. This raises a question – is a national climate target enacted in legislation necessary to cut emissions deep and fast enough to be consistent with the Paris Agreement? We look at both sides of the argument.
In 2007, South Australia was the first jurisdiction in the world to legislate a 2050 emissions reduction target. The Climate Change and Greenhouse Emissions Reduction Act 2007 (SA) (SA Act) pioneered what is now considered best practice climate legislation, with legislated climate targets, the creation of an independent body to advise government on climate change, publish regular progress reports and review mitigation efforts. Legislated climate targets are now also found in Victoria, the ACT and Tasmania, as well as overseas in the UK and many European countries.
The SA Act is a prime example of framework climate legislation. It provides for a process to set climate targets that is based on the most recent science, transparent decision making on emissions reductions and subjects climate decisions to parliamentary mechanisms that ensure government is accountable to the public for any failures to meet targets.
Since the enactment of their climate legislation, South Australia’s electricity grid has gone from being powered almost exclusively by fossil fuels to running on 100 per cent renewable energy in the last week of 2021 – a world record for a grid supporting an advanced economy. Not without controversy, this renewables transition continued through energy price increases, power outages and political change. But without the framework climate legislation (that provided the certainty for investment in clean energy in South Australia), it is unlikely this rate of change would have occurred. We can also see emissions reductions at the national level in Australia, while the Clean Energy Act 2011 (Cth) was enacted. With its repeal Australia lost its legislated economy-wide target as well as institutional infrastructure to support decarbonisation, for example, the Climate Change Authority lost its role in advising on emissions targets.
There is a clear connection between legislated climate targets and long term decarbonisation. This is unsurprising as legislated targets preserve targets through changes of government, foster certainty to support private sector investment in low emissions technology, create political costs for failing targets and integrate climate policy broadly across government. Federal legislation also exists to tackle other environmental issues, such as the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth).
On the flip side, there have been various concerns about why a legislated climate target may not be a good idea. The essential concern is that, by setting a binding target, you undermine parliamentary sovereignty and hand power to independent advisory bodies that are not democratically elected. This argument taps into the increasing shift of government power to unelected regulatory bodies that derive their legitimacy from their technocratic skills.
However, a legislated climate target could be considered inherently democratic. A recent poll found a majority of voters in all 151 federal electorates believe the federal government should be doing more to stop climate damage. Therefore, climate mitigation efforts would be supported by a majority of Australians.
Framework climate legislation subjects the overarching policy goal of reaching net zero to parliamentary scrutiny and requires a majority vote to become binding. After enactment, regular reviews ensure Parliament is accountable to Australians with their decisions on climate targets transparently discussed in light of advice from an independent advisory body and regular reviews confirming whether progress is being made.
Moreover, any concerns that a legislated climate target would lock out the chance for amendment and input from democratically elected members of Parliament are unfounded as future parliaments have the power to amend climate policy, and any guidance provided by an independent advisory body would need to be passed by a parliamentary vote to become law.
Legislated climate targets may also provide an avenue for judicial review to ensure that government decisions are consistent with emissions reductions. Such reviews are contemplated by the Climate Change Act 2008 (UK). Judicial review of failures to meet climate targets do raise questions on what remedy a successful applicant would be awarded, and a court may consider judicial review of a climate target inconsistent with the role of the judiciary as it would require enforcement of a complex policy solution. In any event, the risk of judicial review being available is likely to influence government decisions in practice.
A federally legislated climate target alone may not be necessary to decarbonise. However, a long term policy enacted by legislation would likely be a key tool in driving down emissions, particularly to support any market-led decarbonisation. Legislated climate targets have a proven track record in state and overseas jurisdictions at ensuring enduring commitment to reducing emissions, certainty for investors and an accountability mechanism for the wider community.
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The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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