Is a Climate Change Act on the cards?

By Jerome Doraisamy|12 January 2020

As catastrophic bushfires continue to ravage the east coast of Australia, causing irreparable damage to our natural environment, one senior associate told Lawyers Weekly how legislation purporting to combat climate change could happen and how the legal profession can exert influence.

Independent MP Zali Steggall, who last year unseated former prime minister Tony Abbott in Warringah, is putting forward a private member’s bill, titled the Climate Change (National Framework for Adaptation and Action) Bill 2020.

In a statement posted on her website, Ms Steggall, who is a barrister, said: “Climate change is real for Australia, with immediate and deepening risks to our natural environment, economy and way of life. Our unprecedented early summer bushfires are a clear indication of the worst of those risks, and how they will affect some communities more than others. But there are also opportunities for our economy, given our enormous natural, human and financial wealth.

“To manage our economy and environment sensibly and responsibly, Australia must have strong national plans to adapt to increasing impacts of climate change, to reduce and mitigate its risks and to leverage its opportunities,” the independent MP posited.

The key terms of the proposed legislation would include the setting of statutory targets of net zero emissions by 2050, five-year economy-wide carbon budgets to meet that 2050 goal, climate change risk assessments for all sectors, as well as the establishment of an independent and non-partisan expert body to advise on climate policy and assess government proposals, including the transition to a decarbonised economy and long-term adaptation measures.

According to Marque Lawyers senior associate Kiera Peacock, Australia can seek guidance from 2008 legislation passed in the United Kingdom.

The UK Climate Change Act, she said, imposed a long-term objective of an 80 per cent reduction in greenhouse gas emissions by 2050 and set processes for multi-year targets to meet that objective, without dictating how the government was to meet that target.

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“The act led to significant changes in government policy, including the implementation of minimum pricing on carbon, reverse auction schemes and government-determined renewable energy targets,” she explained.

“If passed in Australia, a climate change act would impact on government procurement, funding and likely become a key consideration in its administrative decision-making process. For businesses, the flow-on effects will undoubtedly stimulate renewable energy markets, carbon offset programs and transition assistance.”

Speaking to Lawyers Weekly, Ms Peacock said there were lessons from the UK legislation for lawmakers in Australia.

“The UK act ultimately received bipartisan support. Industry could be reasonably certain that the statutory targets (and the law itself) would remain irrespective of the reigning political party,” she said.

“The setting of statutory targets appears to have been key to the UK succeeding in reducing emissions without negatively affecting economic growth. A strong independent commission to guide policy and ensure continuity in approach has also been key.”

There are myriad reasons why Australia must pass such legislation, Ms Peacock noted, including the notable incentive of economic certainty.

“Apart from creating a clear, central and enforceable legal position on climate change (as opposed to policy statements), overseas experience shows that climate change acts help to create economic certainty. Businesses can plan and develop according to the roadmap established under the act or by the relevant commission, knowing that a change in government will not result in a totally new policy,” she argued.

There is, however, no guarantee that Ms Steggall’s private member’s bill will succeed, she added.

“Private members’ bills can be difficult to get through Parliament when the government has a clear majority, as the LNP presently does. Kerryn Phelps’ medevac legislation passed when the LNP formed a minority government (so couldn’t vote it down) and Phelps was able to rally cross-bench and Labor support,” she recounted.

“Those circumstances don’t exist now, but the shift in the national psyche following the catastrophic bushfires means the LNP’s response to such a bill will come under significant moral and political scrutiny. That may just help get some form of the bill through.”

There are ways that individuals and institutions across the legal profession can influence the debate, Ms Peacock outlined, remarking there are professional and regulatory reasons to care about the outcome of such legislation.

Zali Steggall has confirmed she will be running a campaign (akin to the marriage equality campaign) to generate support for the bill. There will likely be opportunities for lawyers to get involved in the campaign as well as to provide feedback on the terms of the bill,” she said.

“Lawyers – particularly those with clients who may be affected by the bill – are well placed to provide input based on legal expertise and practical knowledge.”

She concluded: “A bill could have a significant impact on the government’s requirements of private enterprise, the funding it might offer and projects it approves.  Apart from the increasingly personal impact of climate change, understanding these possibilities will be necessary to properly advise clients on governance, risk and the regulatory landscape.”

Is a Climate Change Act on the cards?
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