Chapter 1Introduction

1.1On 8 September 2022, the Senate referred the Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2022 [No. 2] (thebill) to the Environment and Communications Legislation Committee (the committee) for inquiry and report by 28 February 2023.[1]

1.2On 7 February 2023, the committee was granted an extension of time to report until 29 March 2023.[2] After several extensions, the final reporting date for the inquiry was 7 February2024.[3]

1.3The bill proposes to amend the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to introduce a new class of a controlled action under the Act relating to emissions of greenhouse gases.[4]

1.4In her second reading speech, the bill’s proponent, SenatorSarahHanson‑Young, outlined:

We have environment laws in this country that can give the tick of approval to any project, regardless of its impact on the climate.

That means we need environment laws in this country that are strong enough to stop them. That is what this bill before us today does. It would ensure that, when any project is being assessed for approval by the nation’s environment minister and being considered for its environmental impact, the minister, the department and the proponent would have to look at what damage this project is actually going to create.[5]

Purpose of the bill

1.5The Explanatory Memorandum (EM) to the bill outlines that the bill intends to address a perceived policy gap ‘where emissions-intensive activities are currently not considered a matter of national environmental significance (MNES) under the EPBC Act. This bill seeks to address this deficiency’.[6]

1.6The bill would establish a new class of a controlled action under the EPBC Act relating to emission of greenhouse gases, called a climate trigger. The climate trigger would include two thresholds that determine the type of action required by the Minister for the Environment in assessing a proposed action under the EPBC Act.[7]

1.7Based on each threshold, the Minister for the Environment would be required to consider the amount of greenhouse gases an action would emit in assessing whether the proposed action can be approved, as outlined in the bill.[8] The thresholds are discussed in more detail below.

1.8The proponent of the bill stated that introducing a climate trigger into the EPBC Act ‘is essential if we are to ensure that any project being assessed by the environment minister does indeed look at the climate damage that it causes’.[9]

Background to the bill

The EPBC Act

1.9The bill aims to amend the EPBC Act which is Australia’s key piece of legislation focused on the protection of the environment, especially on matters of national environmental significance. The EPBC Act establishes the process for national environmental assessment and approvals.[10]

1.10The EM explains that the bill, through adding a climate trigger to the EPBC Act, would ‘contribute to Australia fulfilling its obligations under the United Nations Climate Change Conventions through thorough environmental assessment of emissions-intensive activities’.[11] It also notes that whilst there ‘are nine matters of national environmental significance under the EPBC Act’:

There is a clear policy gap in that emissions-intensive activities are currently not considered a matter of national environmental significance under the EPBC Act. This Bill seeks to address this deficiency.[12]

1.11Further information on the EPBC Act and relevant findings of the second independent review of the EPBC Act are set out in Chapter 2.

EPBC Act Amendment (Climate Trigger) Bill 2020

1.12In the 46th Parliament, a broadly similar private senator’s bill, the EPBC Act Amendment (Climate Trigger) Bill 2020 was referred to the committee for inquiry and report by 14 October 2020. After several extensions, the reporting date was subsequently extended to 2 August 2022.[13]

1.13The committee received 17 submissions during that inquiry. However, the bill lapsed at the conclusion of the 46th Parliament on 25 July 2022.[14]

1.14The 2020 bill proposed to define certain ‘emissions intensive’ actions as a matter of national environmental significance under regulation and apply penalties for an individual or body corporate undertaking such actions without the appropriate authority under the Act.[15] An action is considered an ‘emissions‑intensive’ action if it involves mining operations, drilling exploration, land clearing or is specified in the regulations.[16]

1.15By contrast, the 2022 bill would establish a climate trigger with two thresholds that would require ministerial approval for any new projects that would emit 25,000 to 100,000 tonnes of carbon dioxide equivalent in any year (known as significant impact) and would ban approval of any new project emitting more than 100,000 tonnes in any year (known as prohibited impact).[17]

Key provisions of the bill

1.16The bill contains one schedule which contains a number of proposed amendments to the EPBC Act. These proposed provisions include:

a requirement for ministerial approval of activities that are expected to generate significant emissions;

offences relating to significant emissions;

the setting of a national carbon budget; and

requirements for decisions about significant emissions.

Environmental approvals for projects that would generate significant emissions

1.17The bill proposes a requirement for ministerial approval of planned activities that are expected to generate significant emissions.

1.18According to the bill, the following proposed sections would be inserted into the EPBC Act to contribute to Australia meeting its obligations under the United Nations Climate Change Conventions and to ‘protect the environment from actions with a significant impact on emissions’.[18]

1.19The bill would establish a climate trigger for assessing proposed actions, consisting of two thresholds: a significant impact on emissions and a prohibited impact on emissions:

Significant Impact on Emissions: For actions that would emit between 25,000 to 100,000 tonnes of carbon dioxide equivalent scope 1 emissions in any one year, including in pre-construction stage, the Minister must consider the project through Part 9 of the Act [approval of actions], as the Minister currently does with matters of national environmental significance;

In deciding whether to approve the proposal, the Minister must consider whether the project will be consistent with the national carbon budget (see below) and achievement of emissions reduction targets.

Prohibited Impact on Emissions: For projects that would emit above 100,000 tonnes of carbon dioxide equivalent scope 1 emissions [in any one year], these projects would be treated similarly to nuclear projects under the Act, where the Minister is forced to reject the project’s approval.[19]

1.20The bill defines an ‘emission of greenhouse gas’ in relation to an action to mean:

…the release of greenhouse gas into the atmosphere as a direct result of the action, including:

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

(b)any activities ancillary to the action.[20]

1.21However, the bill proposes that the Minister may determine the method by which the amounts of emissions of greenhouse gases are to be measured for the purposes of the bill.[21]

1.22The bill makes clear that exemptions from approval requirements for forestry operations or actions taken in the Great Barrier Reef Marine Park do not apply to projects that have, will have or are likely to have a significant impact on emissions.[22]

Offences relating to significant emissions

1.23The bill proposes that penalties for individuals and body corporates who take an action that has, or will have or is likely to have a significant impact on emissions will apply, unless the action was approved by the Minister. This replicates the offence provisions of other classes of breached controlled actions within the EPBC Act.[23]

1.24The EM explains that in proceedings for a contravention of a civil penalty provision, or in proceedings for an offence, the individual:

…bears an evidential burden in relation to the matters in that subsection. That is, the person must raise evidence, for example, that they have approval for the action, or that the Minister has made a decision that the action does not need approval provided it is taken in a particular manner.[24]

1.25The EM outlines that ‘given that the relevant decisions and notices [within the bill] are readily available, this does not place an undue burden on that person’.[25]

Setting of a national carbon budget

1.26The bill proposes to set a national carbon budget that would be ‘the total amount of greenhouse gases Australia can emit until the year 2050’. The carbon budget would be updated annually to show how much of the carbon budget remains each year.[26]

1.27The bill proposes that, by legislative instrument, the Climate Change Authority (CCA) must:

…determine a recommended budget for Australia in relation to emissions of greenhouse gases for the period beginning on 1 January 2023 and ending on 31 December 2050, expressed as a gross amount of carbon dioxide equivalence.[27]

1.28In doing so, the CCA must have regard to:

(a)Australia’s obligations under the Climate Change Conventions; and

(b)the global goals of:

(i)holding the increase in the global average temperature to well below 2°C above pre-industrial levels; and

(ii)pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels.[28]

1.29The bill also proposes that the CCA must provide the Minister with an annual assessment of the remaining budget and publish the report on its website. The Minister must also table the report in each House of Parliament within 15 sitting days after receiving the report.[29]

Requirements for decisions about significant emissions

1.30The bill proposes a number of requirements for making decisions about actions involving significant emissions. The Minister would need to consider the following when deciding whether or not to approve a proposed action and what conditions to attach to such an approval, including:

(a)the national carbon budget, taking into account the most recent assessment report (if any) given to the Minister by the CCA; and

(b)the achievement of the greenhouse gas emissions reduction targets included in Australia’s nationally determined contribution.[30]

1.31These considerations would also apply when the Minister is deciding whether to enter into a bilateral agreement, bioregional plan or conservation agreement under the EPBC Act. The EM states this ‘is designed to provide for the impacts of greenhouse gas emissions to be factored into planning considerations more broadly’.[31]

1.32As such, the bill proposes that the Minister would be prohibited ‘from using alternative approval processes (bilateral agreements, bioregional plans, conservation agreements) for actions involving a significant impact on emissions’.[32]

1.33Finally, the Minister would not be able to ‘approve an action that has, will have or is likely to have a prohibited impact on emissions’.[33] This would include projects that, if approved, would emit above the threshold of 100,000 tonnes of carbon dioxide equivalent scope 1 emissions in any one year.

Financial impact statement

1.34No financial impact statement is included in the EM to the bill.

Human rights compatibility

1.35The EM to the bill outlines that the bill is compatible with human rights as it does not engage any of the applicable rights or freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.[34] The Parliamentary Joint Committee on Human Rights made no comment on the bill.[35]

Scrutiny of Bills Committee consideration

1.36The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills committee) reviewed the bill noting that it may raise scrutiny concerns. The Scrutiny of Bills committee outlined that proposed subsection 24J(4) relating to offences relating to significant emissions may raise scrutiny concerns about the reversal of the evidential burden of proof.

1.37It noted that should this bill proceed to further stages of debate, the Scrutiny of Bills committee may request further information from the bill’s proponent.[36]

Scope and structure of the report

1.38This report comprises two chapters:

Chapter 1 provides background to the bill, the bill’s purpose and key provisions.

Chapter 2 provides contextual information relevant to the bill, the key issues raised in submissions, and concludes with the committee’s view and recommendation.

Conduct of the inquiry

1.39The EPBC Act Amendment (Climate Trigger) Bill 2020 was referred to the committee for inquiry and report by 14 October 2020. The reporting date was subsequently extended to 2 August 2022.[37]

1.40The committee received 17 submissions during that inquiry, which are listed in Appendix 2. However, the bill lapsed at the conclusion of the 46th Parliament on 25 July 2022.[38] Where relevant, evidence received as part of that inquiry has informed the findings and recommendations of this report.[39]

1.41An updated climate trigger bill was introduced in the 47th Parliament and referred to the committee on 8 September 2022. Details of this inquiry were advertised on the committee’s website, including a call for submissions by 13October 2022. The committee also wrote directly to various stakeholders to invite them to make submissions.

1.42The committee received 30 submissions, which are listed at Appendix 1 and are available on the committee’s website. The committee agreed to conduct the inquiry on the written evidence and did not hold a public hearing.

Acknowledgements

1.43The committee thanks the organisations and individuals that made written submissions.

Footnotes

[1]Journals of the Senate, No. 18, 18 September 2023, pp. 266–267.

[2]Journals of the Senate, No. 30, 7 February 2023, p. 911.

[3]On 28 March 2023, the Senate granted the committee an extension of time to report until 30 June 2023 (Journals of the Senate, No. 43, 28 March 2023, p. 1226). On 16 June 2023, the committee was granted a further extension of time for the report until 6 December 2023 (Journals of the Senate, No. 52, 16 June 2023, p. 1499). On 6 December 2023, the Senate granted a further extension until 7February 2024 (Journals of the Senate, No. 93, 6 December 2023, p. 2711).

[4]Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2022 [No. 2], Explanatory Memorandum (EM), p. 2.

[5]Senator Sarah Hanson-Young, Senate Hansard, 2 August 2023, p. 2.

[6]EM, p. 2.

[7]EM, p. 2.

[8]EM, p. 2.

[9] Senator Sarah Hanson-Young, Senate Hansard, 5 September 2022, p. 31.

[10] Department of Climate Change, Energy, the Environment and Water (DCCEEW), EPBC Act, (accessed 13 September 2022).

[11] EM, p. 2.

[12]EM, p. 2.

[13]Senate Environment and Communications Legislation Committee, Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2020, (accessed 29 January 2024).

[14]Senate bills list, Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2020, (accessed 29 September 2022).

[15]Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2020, Explanatory Memorandum, p. 2.

[16]Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2020, Explanatory Memorandum, p. 3.

[17]EM, p. 2.

[18]EM, p. 4. See: Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2022 (Bill), proposed sections 24F, 24G, 24H, and 24J.

[19]EM, p. 2.

[20]Bill, proposed section 527F.

[21]Bill, proposed subsection 527F(2).

[22]EM, p. 5.

[23]EM, p. 4. See: Bill, proposed section 24G and 24J.

[24]EM, p .4.

[25]EM, p. 4. See: Bill, proposed subsections 24G(2) and 24J(4).

[26]EM, p. 6.

[27]Bill, proposed subsection 517B(1).

[28]Bill, proposed subsection 517B(3).

[29]Bill, proposed subsection 517B(6)(7)(8).

[30]Bill, proposed section 141.

[31]EM, p. 3.

[32]EM, p. 3.

[33]Bill, proposed section 141A.

[34]EM, p. 8.

[35] Parliamentary Joint Committee on Human Rights, Human rights scrutiny report: Report 4 of 2022, p.2.

[36]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 5 of 2022, 28 September 2022, p.38.

[37]Senate Environment and Communications Legislation Committee, Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2020, (accessed 29 January 2024).

[38]Senate bills list, Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2020, (accessed 29 September 2022).

[39]Submissions from the 46th Parliamentary inquiry have been referenced as ‘2020 evidence’ in this report.