Monique Ryan (Kooyong, Independent) Share this | Hansard source

by leave—I move amendments (1) and (2), as circulated in my name, together:

(1) Schedule 4, page 49 (after line 27), at the end of the Schedule, add:

6 Subsection 125(3)

Before "the Regulator", insert "the Minister determines, under section 127A, or".

7 Subsection 126(3)

Before "the Regulator", insert "the Minister determines, under section 127A, or".

8 Subsection 127(3)

Before "the Regulator", insert "the Minister determines, under section 127A, or".

9 After section 127

Insert:

127A Minister may determine application of methodology determination to a project

(1) The Minister may, by legislative instrument, determine that a specified methodology determination, or a specified methodology determination as varied under section 114, (the new methodology determination) applies to an eligible offsets project with effect from a specified time.

(2) The Minister must not make a determination under subsection (1) unless:

(a) the Minister has requested, and received, advice from the Emissions Reduction Assurance Committee about whether the Minister should make the determination; and

(b) the Minister is satisfied that:

(i) the methodology determination that currently applies to the project is ineffective or inadequate; and

(ii) the project is covered by the new methodology determination.

(3) The time specified in a determination under subsection (1) must be no later than 2 years after the time the determination is made.

(4) As soon as practicable after making a determination under subsection (1) in relation to a project, the Minister must notify the following, in writing, of the making of the determination:

(a) the Regulator;

(b) the project proponent for the project.

(5) As soon as practicable after being notified of the making of a determination under subsection (1) in relation to a project, the Regulator must:

(a) annotate the relevant section 27 declaration to include a reference to the application of the new methodology determination to the project from the specified time; and

(b) give a copy of the annotated declaration to the project proponent for the project.

(2) Schedule 4, page 49 (after line 27), at the end of the Schedule, add:

10 After Part 23

Insert:

Part 23A — Injunctions and judicial review

238A Injunctions to restrain contra ventions

(1) If a person has engaged, engages, or proposes to engage in conduct consisting of an act or omission that constitutes an offence or other contravention of:

(a) this Act; or

(b) a legislative instrument under this Act;

any person may apply to the Federal Court for an injunction restraining the first-mentioned person from engaging in the conduct.

(2) If a person has engaged, is engaging, or is proposing to engage in conduct constituting an offence or other contravention of:

(a) this Act; or

(b) a legislative instrument under this Act;

the Court may grant an injunction restraining the person from engaging in the conduct.

238B Extended standing for judicial review

(1) This section extends (and does not limit) the meaning of the term person aggrieved in the Administrative Decisions (Judicial Review) Act 1977 for the purposes of the application of that Act in relation to:

(a) a decision made under this Act or a legislative instrument under this Act; or

(b) a failure to make a decision under this Act or a legislative instrument under this Act; or

(c) conduct engaged in for the purpose of making a decision under this Act or a legislative instrument under this Act.

(2) An individual is taken to be a person aggrieved by the decision, failure or conduct if the individual is an Australian citizen or ordinarily resident in Australia or an external Territory.

(3) An organisation or association (whether incorporated or not) is taken to be a person aggrieved by the decision, failure or conduct if the organisation or association is incorporated, or was otherwise established, in Australia or an external Territory.

(4) A term (except person aggrieved) used in this section and in the Administrative Decisions (Judicial Review) Act 1977 has the same meaning in this section as it has in that Act.

I move these two amendments in the hope of improving this critical piece of legislation. I thank the minister for his constructive discussions in recent months but I believe this bill could be further improved in order to improve its methodology and its integrity. As we saw this week in the IPCC synthesis report, to avoid a climate catastrophe every country has to fast-track its climate efforts in every sector and on every time frame. In Australia, we must make our safeguard mechanism as good as it can possibly be as soon as possible.

My first amendment deals with changes in methodology determinations for offset projects. At present, under the carbon farming initiative act, a given method is applied to an offset project for the life of the crediting period. It's generally seven years under the Emissions Reduction Fund but that period can be extended. The original reason for setting the method for the life of the project was to give certainty to scheme participants, but the inflexibility of this arrangement has now been recognised as a risk to the integrity of the market by both the Climate Change Authority and the King review. Offsetting methods need to be able to change and to evolve over time. They need to reflect changes in estimation techniques, changes in technology and practices and developments in the science underpinning abatement. A solution that strikes a balance between certainty for scheme participants and flexibility for the government is needed.

To that end, I have based this amendment on a recommendation in the King review. My amendment confirms the minister's power to make a methodology determination in relation to a particular project if the Emissions Reduction Assurance Committee, upon the minister's request, has advised the minister to do so, and if the minister is satisfied that a new methodology should be used. It then requires participants to transition onto a new method within two years of a method being varied. I urge the minister to assume this important responsibility, to assume the ability to intervene if it is sufficiently justified, to improve the integrity of this system.

My second amendment gives power to a third party to apply for an injunction if a party engages in a contravention of the act. In the past, these actions have been brought by individuals seeking to enforce, say, the due diligence of financial disclosure of requirements, but they have often failed, in part because of the lack of standing of the applicant. Open standing is an important concept. It should be made explicit in this act, such that, rather than an applicant having to establish a particular or a special interest in a matter, applicants are given standing to pursue an action. My amendment seeks to assure that standing. My amendment also extends the definition of a person aggrieved by any decisions or failures under the act, so as to include Australian citizens or those ordinarily resident in Australia or an external territory, such that those persons can seek to have judicial review of administrative decisions made under the act.

We know that this litigation alone doesn't provide an adequate basis for bringing about broad policy change. It is a suboptimal tool, but it is a tool which can be useful in bringing about changes in decision-making processes for industry and individuals. It could help in the push for major emitters to reduce their emissions. It could push this government to exercise its oversight functions. How we set-up the safeguard mechanism will determine the success or failure of our efforts to reach our 2030 and 2035 targets. Getting the safeguard mechanism right and robust is crucial for this country. We need to effect the changes that we need to see.

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