Publication
International arbitration report
In this edition, we focused on the Shanghai International Economic and Trade Arbitration Commission’s (SHIAC) new arbitration rules, which take effect January 1, 2024.
Author:
Australia | Publication | August 2022
This article was co-authored with Sebastian Withers.
On 27 July 2022, the Australian Federal Government introduced the Climate Change Bill 2022 (Climate Change Bill) and the Climate Change (Consequential Amendments) Bill 2022 (Consequential Amendments Bill) into Parliament.
The Climate Change Bill would introduce a new Commonwealth Climate Change Act 2022 (Climate Change Act), which would formally legislate Australia’s emissions reductions targets under the Paris Agreement.
The Consequential Amendments Bill would make changes to existing federal legislation to support the objects of the Climate Change Act, notably by amending the functions of federal government environmental agencies and schemes to make specific reference to Australia’s emissions reductions targets.
An overview of the key elements of the Climate Change Bill and the Consequential Amendments Bill is set out below.
The objects of the Climate Change Act are:
The global temperature goals reflect those contained in the Paris Agreement.
On 16 June 2022, in accordance with obligations under the Paris Agreement, Australia submitted an updated Nationally Determined Contribution (NDC) to the United Nations Framework Convention on Climate Change (UNFCCC) secretariat. The updated NDC comprises:
In practice, the 43% reduction equates to a reduction of around 267 million tonnes of CO2-e.
Part 2 of the Climate Change Act would formally state Australia’s emissions reductions targets as specified in the NDC. The proposed wording of this Part makes clear that:
Part 3 of the Climate Change Act would require an annual climate change statement to be provided to Parliament by the Minister for Climate Change and Energy within 6 months after the end of each financial year (Annual Statement).
The Annual Statement must relate to:
The Climate Change Authority (CCA) is required to provide advice to the Minister on the Annual Statement and the Minister must have regard to that advice when preparing the Annual Statement. The CCA may undertake public consultation to inform its advice.4
There are transparency measures built into the legislation, as any written advice from the CCA regarding the Annual Statement must be published online, and if the Minister does not accept ‘material aspects’ of the advice, the Minister must table a statement in Parliament, advising why the Minister chose not to accept those aspects.5
Part 4 of the Climate Change Act would require the CCA to provide advice to the Minister at least once every 5 years on the greenhouse gas emission reduction targets that the CCA considers should be included in Australia’s NDC.6 The CCA must make provision for public consultation on this advice, and the advice must be published online. Upon receipt of the advice, the Minister has 6 months to provide a written response which incorporates a determination of whether the Minister has accepted the CCA’s advice.7
Part 5 of the Climate Change Act would require periodic, independent reviews of the operation of the Act. It is not clear from the Explanatory Memorandum what kind of body would be appointed to undertake the independent review.
The first review must be undertaken within 5 years of commencement of the Climate Change Act, with each subsequent review to take place within 10 years from the completion of the previous review.8
The Consequential Amendments Bill would amend 14 federal Acts, providing small modifications to the objects and responsibilities of existing climate change related government entities and schemes. However, as the Explanatory Memorandum notes, the “amendments are not intended to limit the exercise of powers or performance of functions of these entities or schemes.”9
The Consequential Amendments Bill would amend the objects of a number of existing government agencies including:
The Consequential Amendments Bill would amend the Clean Energy Regulator Act 2011 (CER Act) so that the CER can in future be given new functions as conferred by regulations.12 According to the Explanatory Statement this is intended to support the CER with the Guarantee of Origin scheme for hydrogen, which will measure the carbon intensity of hydrogen and enable the sale of verified low emissions hydrogen, and the Corporate Emissions Reduction Transparency project, which is a voluntary and standardised reporting system for companies to publicly disclose their climate-related commitments and carbon emissions.13
However, the Explanatory Memorandum makes clear that “the regulation making power does not extend to conferring additional enforcement powers or imposing requirements on third parties relating to such functions.”14
The Consequential Amendments Bill changes the object of the National Greenhouse and Energy Reporting Act 2007 to make clear that the Safeguard Mechanism will “contribute to the achievement” of Australia’s NDC.15
The Explanatory Memorandum notes this is intended to clarify ‘that the safeguard mechanism is intended to be a key policy connected with the achievement of the targets and not just a mechanism to cover exceptional increases in emissions.”16
The Consequential Amendments Bill would amend the Carbon Credits (Carbon Farming Initiative) Act 2011 (CFI Act) by replacing references to the Kyoto Protocol with references to the Paris Agreement.
Further, the Bill would make achievement of Australia’s Paris Agreement targets an object of the CFI Act.17
The intention is for the Climate Change Act to commence this year, with the first Annual Statement to be tabled by 2023. Given that the Coalition is unlikely to support the Bills, it will be necessary for Labor to obtain the support of the Greens in order for the legislation to pass both Houses of Parliament.
However, there has been some support for the legislation from business, investor and environmental groups with a joint statement being released on 1 August 2022 by 8 signatories, welcoming the legislation as a “timely signal to the market… and further encouragement to Australian organisations to progress their own decarbonisation plans.”18
On 28 July 2022 the Senate referred both the Climate Change Bill and Consequential Amendments Bill to the Environment and Communications Legislation Committee for inquiry and report by 31 August 2022. This inquiry is currently accepting submissions, but no details have yet been released on the closing date for these submissions.19
For more information on the Climate Change Bill or Consequential Amendments Bill please contact a member of our climate change and sustainability team.
Joint Media Release 1 August 2022, accessible at: https://www.energycouncil.com.au/media/c2umv21m/220801-joint-media-release-climate-change-bill-2022.pdf
Submissions can be made from this link: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/ClimateChangeBills2022
Publication
In this edition, we focused on the Shanghai International Economic and Trade Arbitration Commission’s (SHIAC) new arbitration rules, which take effect January 1, 2024.
Publication
On September 18, 2024, the "Decree amending the list that sets forth goods whose import and export are subject to regulation by the Ministry of Energy" (the "Decree") was published in the Federal Official Gazette.
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