Andrew Wilkie (Clark, Independent) Share this | Hansard source

by leave—I move amendments (1) to (20), as circulated in my name, together:

(1) Schedule 2, page 13 (before line 7), before item 1, insert:

1A After Subdivision FB of Division 1 of Part 3

Insert:

Subdivision FC — Protection of the environment from significant emissions

24F Purpose of this Subdivision

The purpose of this Subdivision is:

(a) to contribute to meeting Australia's obligations under the Climate Change Conventions; and

(b) to provide for the protection of the environment from climate change, including from the impacts of climate change on matters of national environmental significance.

24G Requirement for approval of activities with significant emissions

(1) A person who is a constitutional corporation must not take an action that has, will have or is likely to have a significant impact on emissions.

Civil penalty:

(a) for an individual—5,000 penalty units;

(b) for a body corporate—50,000 penalty units.

(2) Subsection (1) does not apply to an action if:

(a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or

(b) section 43A or 43B lets the person take the action without an approval under Part 9 for the purposes of this section; or

(c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or

(d) the action:

(i) is not an action that has, will have or is likely to have a prohibited impact on emissions; and

(ii) is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).

Note: If the Minister decides under Division 2 of Part 7 that this section is not a controlling provision for the action, the Minister may revoke and substitute the decision if satisfied that it is warranted by the availability of substantial new information about the impacts of the action, or by a substantial change in circumstances that relates to the impacts of the action: see section 78. This may include, for example, where the total amount of greenhouse gases emitted in relation to the action is higher than was predicted at the time the proposal to take the action was referred.

24H What is a significant impact on emissions ?

For the purposes of this Act, an action has a significant impact on emissions if the total amount of emissions of greenhouse gases in relation to the action in any 12 month period has a carbon dioxide equivalence of 80 kilotonnes or more.

24J Offence relating to significant emissions

(1) A person commits an offence if:

(a) the person is a constitutional corporation; and

(b) the person takes an action; and

(c) the action:

(i) has or will have a significant impact on emissions; or

(ii) is likely to have a significant impact on emissions.

Note 1: An executive officer of a corporation convicted of an offence against this subsection may also commit an offence against section 495.

Note 2: If a corporation takes an action on land that contravenes this subsection, a landholder may commit an offence against section 496C.

Penalty: Imprisonment for 7 years or 420 penalty units, or both.

(2) Subsection (1) does not apply to an action if:

(a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or

(b) section 43A or 43B lets the person take the action without an approval under Part 9 for the purposes of this section; or

(c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or

(d) the action:

(i) is not an action that has, will have or is likely to have a prohibited impact on emissions; and

(ii) is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).

Note 1: If the Minister decides under Division 2 of Part 7 that this section is not a controlling provision for the action, the Minister may revoke and substitute the decision if satisfied that it is warranted by the availability of substantial new information about the impacts of the action, or by a substantial change in circumstances that relates to the impacts of the action: see section 78. This may include, for example, where the total amount of greenhouse gases emitted in relation to the action is higher than was predicted at the time the proposal to take the action was referred.

Note 2: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.

1B After paragraph 25AA(2)(i)

Insert:

; (j) subsection 24J(1);

1C After paragraph 25AA(3)(gb)

Insert:

(gc) subsection 24G(1);

(2) Schedule 2, page 13 (after line 22), after item 8, insert:

8A Subsection 29(1)

Omit "24D or 24E", substitute "24D, 24E, 24G or 24J".

8B Subsection 33(1)

After "Part 3", insert ", other than section 24G or 24J".

8C Section 34 (after table item 13J)

Insert:

8D Section 37

After "Part 3", insert ", other than section 24G or 24J,".

8E Section 37A

After "Part 3", insert ", other than section 24G or 24J".

8F Section 37M

After "Part 3", insert ", other than section 24G or 24J,".

8G After paragraph 42(b)

Insert:

(ba) actions that have, will have or are likely to have a significant impact on emissions; or

8H Section 43

After "Part 3", insert ", other than section 24G or 24J,".

8J Subsections 46(1), (2) and (2A)

Omit "24D or 24E", substitute "24D, 24E, 24G or 24J".

(3) Schedule 2, page 13 (after line 24), after item 9, insert:

9A At the end of Subdivision B of Division 1 of Part 9

Add:

141 Requirements for decisions about significant emissions

In deciding whether or not to approve for the purposes of section 24G or 24J the taking of an action, and what conditions to attach to such an approval, the Minister must consider whether, if the approval were granted, the action would be consistent with:

(a) the achievement of Australia's greenhouse gas emissions reduction targets (within the meaning of the Climate Change Act 2022); and

(b) the achievement of the greenhouse gas emissions reduction targets included in Australia's nationally determined contribution; and

(c) Australia's international legal obligations relating to climate change.

141A No approval for actions with prohibited impact on emissions

The Minister must not approve an action that has, will have or is likely to have a prohibited impact on emissions.

9B At the end of Subdivision C of Division 1 of Part 10

Add:

146N Approvals relating to significant emissions

If the approval relates to section 24G or 24J, the Minister must consider whether, if the approval were granted, the action or actions in the class of actions would be consistent with:

(a) the achievement of Australia's greenhouse gas emissions reduction targets (within the meaning of the Climate Change Act 2022); and

(b) the achievement of the greenhouse gas emissions reduction targets included in Australia's nationally determined contribution; and

(c) Australia's international legal obligations relating to climate change.

146P No approvals relating to actions with prohibited impact on emissions

The Minister must not approve the taking of an action or a class of actions in accordance with an endorsed policy, plan or program if the action, or an action in the class of actions, has, will have or is likely to have a prohibited impact on emissions.

9C After subsection 163(1)

Insert:

(1A) If the Minister is satisfied that the action has, will have or is likely to have a prohibited impact on emissions, the advice must state that:

(a) the person who takes the action may commit an offence or be liable to a civil penalty under this Act; and

(b) the agency or employee should not give the authorisation.

9D After paragraph 176(4)(d)

Insert:

(da) priorities and strategies to ensure that any action taken in accordance with the plan is consistent with:

(i) the achievement of Australia's greenhouse gas emissions reduction targets (within the meaning of the Climate Change Act 2022); and

(ii) the achievement of the greenhouse gas emissions reduction targets included in Australia's nationally determined contribution; and

(iii) Australia's international legal obligations relating to climate change;

(db) mechanisms for monitoring the impacts of emissions of greenhouse gases on biodiversity, heritage values and other values;

(4) Schedule 2, page 20 (after line 11), after item 82, insert:

82A After subsection 305(3A)

Insert:

(3B) In deciding whether to enter into a proposed conservation agreement, the Minister must consider whether the agreement is consistent with:

(a) the achievement of Australia's greenhouse gas emissions reduction targets (within the meaning of the Climate Change Act 2022); and

(b) the achievement of the greenhouse gas emissions reduction targets included in Australia's nationally determined contribution; and

(c) Australia's international legal obligations relating to climate change.

82B Subsection 306A(1)

After "Part 3", insert ", other than section 24G or 24J".

(5) Schedule 2, item 146, page 27 (line 1), omit paragraph 486E(2)(b), substitute:

(b) a Deputy CEO (within the meaning of the Nature Positive (Environment Protection Australia) Act 2024);

(ba) a member of the staff of EPA;

(6) Schedule 2, item 151, page 27 (lines 13 to 16), omit subparagraphs 491(1)(b)(vi) and (vii), substitute:

(vi) a Deputy CEO (within the meaning of the Nature Positive (Environment Protection Australia) Act 2024); or

(vii) a member of the staff of EPA;

(7) Schedule 2, page 27 (after line 16), after item 151, insert:

151A After subparagraph 495(2)(a)(via)

Insert:

(via) section 24J (offence relating to significant emissions); or

151B After subparagraph 496C(1)(a)(viia)

Insert:

(viib) section 24J (offence relating to significant emissions); or

(8) Schedule 2, item 165, page 29 (line 20), after "CEO", insert "or a Deputy CEO (within the meaning of the Nature Positive (Environment Protection Australia) Act 2024)".

(9) Schedule 2, item 170, page 30 (line 6), after "CEO", insert ", Deputy CEO".

(10) Schedule 2, item 170, page 30 (line 9), after "CEO", insert "or a Deputy CEO (within the meaning of the Nature Positive (Environment Protection Australia) Act 2024)".

(11) Schedule 2, item 170, page 30 (lines 11 and 12), omit the note, substitute:

Note: A power or function delegated to the CEO, Deputy CEO or a member of staff cannot be subdelegated by the CEO, Deputy CEO or staff member.

(12) Schedule 2, item 170, page 30 (line 15), after "CEO", insert "or a Deputy CEO (within the meaning of the Nature Positive (Environment Protection Australia) Act 2024)".

(13) Schedule 2, item 170, page 30 (lines 17 and 18), omit the note, substitute:

Note: A power or function delegated to the CEO, Deputy CEO or a member of staff cannot be subdelegated by the CEO, Deputy CEO or staff member.

(14) Schedule 2, page 31 (after line 29), after item 180, insert:

180A At the end of Division 1 of Part 23

Add:

Subdivision G — Emissions

527F Emissions

(1) For the purposes of this Act, an emission of greenhouse gas, in relation to an action, means the release of greenhouse gas into the atmosphere as a direct or indirect result of the action, including as a result of:

(a) any activities (such as land clearing) preparatory to the action; and

(b) any activities ancillary to the action, irrespective of:

(i) who owns or controls any facility from which the greenhouse gas is released; and

(ii) whether the greenhouse gas is released within or outside of Australia.

Note: This definition covers upstream emissions, downstream emissions, end-use consumption emissions as well as exported emissions occurring outside of Australia. For example:

(a) the release of greenhouse gas resulting from the action of extracting or producing materials at a facility;

(b) the release of greenhouse gas from the transportation of fuels purchased by the facility;

(c) the release of greenhouse gas from the use of products and services sold by the facility.

(2) The Minister may determine, by legislative instrument, methods, or criteria for methods, by which the amounts of emissions of greenhouse gases are to be measured for the purposes of this Act and may specify:

(a) different methods or criteria for emissions from different sources; and

(b) different methods or criteria depending on the circumstances in which the emissions occurred; and

(c) conditions relating to the use of methods determined by the Minister or of methods which meet criteria determined by the Minister; and

(d) rating systems for those methods (including different rating systems for different circumstances); and

(e) the particular rating given to each of those methods.

527G Prohibited impact on emissions

For the purposes of this Act, an action has a prohibited impact on emissions if the total amount of emissions of greenhouse gases in relation to the action in any 12 month period has a carbon dioxide equivalence of 100 kilotonnes or more.

(15) Schedule 2, item 181, page 32 (before line 3), before the definition of CEO, insert:

Australia's nationally determined contribution means:

(a) Australia's current nationally determined contribution communicated in accordance with Article 4 of the Paris Agreement; or

(b) if that nationally determined contribution has been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement—that nationally determined contribution, as adjusted and in force from time to time.

carbon dioxide equivalence of an amount of greenhouse gas has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

(16) Schedule 2, item 181, page 32 (after line 5), after the definition of CEO, insert:

Climate Change Conventions has the same meaning as in the Product Emissions Standards Act 2017.

emission of greenhouse gas, in relation to an action, has the meaning given by subsection 527F(1).

(17) Schedule 2, item 181, page 32 (after line 8), after the definition of EPA, insert:

greenhouse gas has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

Paris Agreement means the Paris Agreement, done at Paris on 12 December 2015, as amended and in force for Australia from time to time.

Note: The Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24) and could in 2024 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

prohibited impact on emissions has the meaning given by section 527G.

significant impact on emissions has the meaning given by section 24H.

(18) Schedule 2, item 181, page 32 (lines 9 and 10), omit the definition of staff of EPA, substitute:

staff of EPA has the same meaning as in the Nature Positive (Environment Protection Australia) Act 2024.

(19) Schedule 2, page 32 (after line 10), after item 181, insert:

181A Application provision — climate trigger

The amendments made by items 1A to 1C, 8A to 8J, 9A to 9D, 82A, 82B, 151A, 151B and 180A of this Schedule apply in relation to actions that begin on or after the day this item commences.

(20) Schedule 9, item 203, page 79 (lines 21 to 23), omit paragraph 180(3)(f), substitute:

(f) a Deputy CEO (within the meaning of the Nature Positive (Environment Protection Australia) Act 2024);

(g) a member of the staff of EPA (within the meaning of that Act).

The Prime Minister noted in 2005 when introducing his own climate change trigger bill in parliament that our environmental laws currently ignore the glaring gap of climate change. Isn't it a sad indictment then that the same thing remains true 20 years later? I've taken inspiration from the Prime Minister's proposal in the drafting of these amendments to the bill to introduce a climate trigger to the Environment Protection and Biodiversity Conservation Act.

My amendments would require projects that would directly or indirectly emit more than 80,000 tons of carbon dioxide per year to be assessed for approval under the EPBC Act. This includes scope 3 emissions so that exported emissions are factored into decision-making on projects. These amendments also require the newly established EPA to ensure decisions on projects are consistent with Australia's greenhouse gas emissions target as set out in the Climate Change Act as well as our Paris targets and other international legal obligations relating to climate change.

What's more, these amendments will also prohibit the approval of any action that would emit 100,000 tonnes of CO2 or more. This is important because we are running out of time to address the climate crisis and we need urgent action to turn things around. My amendments also introduce new offences relating to undertaking unapproved actions that will have a significant impact on emissions and include consequential amendments to the EPBC Act necessary for the implementation of the climate trigger and my amendments to the EPA bill.

It is obvious to anyone who has paid even the slightest attention that our environment laws should aim to protect our precious natural world from climate change because it is clearly one of the most significant threats. Australians know this, the department knows this and certainly the Prime Minister knows this. This begs the question: Why are we still waiting for a climate trigger? Why have we had to sit through review after review, with committee report after committee report, and endless briefings from experts all telling us the same thing? What it comes down to is the inaction and inertia of successive governments on both sides of politics who buried their heads in the sand and kicked the can down the road at every opportunity.

When this government was elected promising to end the climate wars by taking credible action on climate change, many were heartened. Some hope was kindled that it might be this government that finally recognises that climate change must be included when making decisions about matters of national environmental significance. But instead, when it comes to including it in their reforms, they have ducked, diverted and delayed, and they have treated the parliament and the community as mugs in the process, telling us not to worry because this whole climate change thing has been solved by the safeguard mechanism and there is no need to think about it anymore.

But people in my community and across the country are worried, and rightly so. Since 2005, excluding the dodgy inclusion of land use changes, Australia has only reduced our actual emissions by about 1½ per cent, and we have seen recent reports that, even on the government's own numbers, we are currently in danger of falling short of our 2030 target. However, now is not the time to abandon our ambition and our targets, as some in this place would suggest, but, instead, to redouble our efforts.

To close, I will again quote the Prime Minister from his speech 20 years ago. He said, 'It is time to act; it is time for procrastination to end.' I urge the government and all members to do so now and support these amendments.

Question negatived.

Bill agreed to.

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