Chapter 2Key provisions of the bill
Overview
2.1The Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 (the bill) seeks to insert a new object into the Climate Change Act2022 (Climate Change Act) to promote intergenerational equity ‘by requiring the health and wellbeing of current and future children in Australia to be considered’ by decision makers when the decision is likely to contribute to climate change.
2.2The bill proposes to add two statutory duties on Commonwealth decision makers for significant decisions under six Federal Acts. The two duties would require:
(a)decision makers to consider the health and wellbeing of current and future children when making certain decisions that are likely to contribute to climate change, including decisions that will increase scope 1, 2 or 3 emissions; and
(b)the prevention of a decision to approve the exploration or extraction of coal, oil or gas, where the resulting greenhouse gas emissions are likely to pose a material risk of harm to the health and wellbeing of current and future children.
2.3The bill seeks to embed intergenerational equity into the Climate Change Act. Intergenerational equity is part of Australian environmental protection law, and is one of the principles of ecologically sustainable development in the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act).
2.4Intergenerational equity is also recognised by the Commonwealth, states and territories as one of the principles of a cooperative national approach to the environment in the Intergovernmental Agreement on the Environment (1992).
2.5Children’s rights are protected in Australia through the ratification of the Convention on the Rights of the Child (CRC) and other human rights treaties. Key rights in the CRC which relate to the bill include:
every child has the inherent right to life, and ‘states parties shall ensure to the maximum extent possible the survival and development of the child’;
children who are capable of forming their own views have the right to express those views, and be provided the opportunity to be heard in judicial or administrative proceedings affecting the child;
recognition of the right of a child to the enjoyment of the highest attainable standard of health…[through states]:
- [taking] measures to diminish infant and child mortality, combat disease and malnutrition taking into consideration the dangers and risks of environmental pollution;
- [ensuring] appropriate pre- and post-natal care for mothers; and
recognition of the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.
2.6The position of the National Children’s Commissioner was created in 2013 to advocate for the rights and interests of children and young people. Other duties of the Commissioner include:
promoting children’s participation in decisions that impact on them
providing national leadership and coordination on child rights issues
promoting awareness of and respect for the rights of children and young people…
examining laws, policies and programs to ensure they protect and uphold the rights of children and young people.
2.7The Australian Government’s current legislative and policy settings to drive down Australia’s emissions, including the Safeguard Mechanism and electricity sector emissions reduction policies, are ‘part of the recognition that climate change has significant impacts, including on children and the future’. These settings, including the National Climate Risk Assessment, are discussed throughout this chapter.
2.8Alternative approaches to ensuring the protection of children and young people, and assessing the impacts of climate change on human health, are also noted throughout the chapter.
2.9While there was strong support for the intent of the bill, there were a range of concerns about its operation. Some inquiry participants suggested that certain provisions, as well the bill’s purpose, be clarified or otherwise amended (discussed further below). These include views on the following matters which are discussed below:
the key definitions proposed in the bill;
the proposed requirements on decision-makers to consider the health and well being of children and future generations in environmental legislation;
the proposed duty not to make a significant decision; and
other provisions of the bill including the judicial review provisions.
Key definitions
2.10The bill seeks to introduce, align and extend a number of definitions. Certain definitions are proposed to be inserted into the Climate Change Act, including:
child – to mean an individual under the age of 18 years;
health and wellbeing – clarifies that the meaning of health and wellbeing includes emotional, cultural and spiritual health and wellbeing;
scope 3 emission – seeks to introduce a new definition of scope 3 emission of greenhouse gas into Commonwealth legislation ‘to capture exported emissions, which includes coal, oil and gas extracted from onshore or offshore facilities’;
scope 2 emission – the bill proposes that this should be consistent with the National Greenhouse and Energy Reporting Act 2007 (NGER Act);
significant decision – to mean a decision of an administrative nature that is likely to result in the emission of scope 1, 2 or 3 emissions of carbon dioxide equivalence of least 100,000 tonnes.
2.11Officials from the Department of Climate Change, Energy, the Environment and Water (DCCEEW) raised concerns over the broad definitions provided for in the bill, and noted that measuring wellbeing, and intergenerational wellbeing, would be challenging. Further, officials set out that terms such as ‘material risks’ and ‘likely impact’ have implications which would require expert advice before operationalising the bill.
2.12Suggestions for expansion or clarification of the bill’s definitions were made by stakeholders from a variety of industry sectors.
Definition of child
2.13The bill seeks to define ‘child’ as a person under the age of 18 years. Engineers Australia raised concerns that the definition may be interpreted narrowly as applying to the paediatric health of a person until they are an adult, rather than the perceived intention of the bill to include current and future children and consider their health when they are adults.
2.14Melbourne Climate Futures noted that, in relation to the definition of ‘child’, some children will be more vulnerable to climate change than others. First Nations children were highlighted as being particularly affected, however the bill does not require decision-makers to consider the impacts of climate change on First Nations and Torres Strait Islander peoples.
2.15The National Environmental Law Association (NELA) questioned whether the bill’s focus on children may lead to unintended consequences for First Nations people (other than First Nations children) as plaintiffs. NELA set out that the bill ‘may be a double-edged sword’, in that it may ‘provide evidence of government knowledge of climate harms’ including scope 3 emissions, but that ‘government counsel could argue that the bill’s amendments…establish a relationship between the Minister and Australian children, yet do not support a relationship between the Minister and a class such as [First People’s] plaintiffs’.
Definition and measurement of health and wellbeing
2.16The bill proposes the following definition of health and wellbeing:
health and wellbeing includes the following:
(a)emotional health and wellbeing;
(b)cultural health and wellbeing;
(c)spiritual health and wellbeing.
2.17The National Native Title Council (NNTC) stated that, similar to the wording proposed in the bill, ‘when we speak of wellbeing, we speak of wellness that is spiritual, emotional and physical’.
2.18Ms Keren Adams, Legal Director at the Human Rights Law Centre (HRLC), set out that the definition of health and well-being provided in the bill may not be necessarily overly broad or an obstacle for decision-makers, highlighting that these concepts are applied internationally:
…in other jurisdictions where the right to a healthy environment has been enshrined in law, the process of undertaking that weighing up of legislative or budgetary measures against the objectives of combating climate change and the impacts on vulnerable communities is an exercise that's been undertaken across a far broader range of legislation…
2.19An expansion of the definition of health and wellbeing to explicitly include physical and mental/psychological wellbeing was recommended by members of the legal and medical community, among others.
2.20In order to assist decision makers, some inquiry participants suggested greater clarity for the definition of health and wellbeing. For example, the Climate Sustainability Clinic, Bond University, stated that the broadness of the definition of health and wellbeing proposed in the bill may pose difficulties, ‘as without further guidance, particular decision makers may define the term ‘wellbeing’ narrowly, while others broadly, leading to inconsistencies’.
2.21The Australian Human Rights Commission (AHRC) queried whether health and wellbeing were intended to be taken as a singular concept or separate requirements which may each be impacted by risk. The AHRC noted the UN General Comment No. 26 on children’s rights and the environment with a special focus on climate change, in which they are separate concepts. The interpretability of the definition of health and wellbeing was highlighted as potentially leading ‘to inconsistency in how impacts are assessed’.
2.22The definition of health used in the World Health Organization (WHO) Constitution was raised throughout the inquiry by submitters and witnesses who suggested that the bill be amended to align with that definition. The preamble to the WHO Constitution states that: ‘Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’. Professor Kathryn Bowen, Deputy Director, Melbourne Climate Futures, called for a broader definition of health than used by the WHO:
I'd encourage the consideration of a broader understanding of health and wellbeing, which also points to what we call the determinants of health—the way our governance system works, as well as our economies and social structures, and the environment is clearly a determinant of health as well. Having a broader understanding of health and wellbeing is I think vital in order for this type of change to be sustaining over the coming decades.
2.23The Health and Climate Strategy, released by the Department of Health and Aged Care (DHAC) in December 2023, defines ‘health’ in line with the WHO Constitution’s definition.
Measurement of health and wellbeing
2.24The need to be able to measure health and wellbeing against tangible metrics was also raised during the inquiry. The Climate Justice Network recommended adding clarity to the definition of wellbeing, as it ‘can be a subjective term with very different meanings for different people’. In order to assist in measuring wellbeing, the Climate Justice Network called for the bill to go beyond an account or description of the term, and ‘be able to make a clear and definite statement of the exact meaning’.
2.25The ANU Institute for Climate, Energy and Disaster Solutions (ANU ICEDS) recommended that the bill be amended to set out metrics to measure wellbeing, to offer a ‘framework against which to test the likely impacts of a decision on the health and wellbeing of current and future children’. The ANU ICEDS suggested drawing on existing wellbeing measurements including Eurostat’s Quality of Life Indicators and the Organisation for Economic Co-operation and Development’s (OECD) Better Life Index. The ANU Law Reform and Social Justice Research Hub (LRSJ Research Hub) also noted the OECD Health at a Glance Indicators.
2.26The LRSJ Research Hub recommended that the definition of health and wellbeing be ‘more precisely defined to agree with general conceptions of physical and mental health and wellbeing’, and also that measurement frameworks like the OECD metrics be included in the bill or supporting materials to allow them to be used by decision makers.
2.27Doctors for the Environment Australia (DEA) highlighted the DHAC Health Impact Assessment Guidelines, which provide a framework for the assessment of a project’s impact on health. A Health Impact Assessment (HIA) is a predictive tool which considers the positive and negative impacts on health of new or upgraded developments, and can be used within an existing framework such as EPBC-related environmental assessments or used alone.
2.28A DHAC official explained that the proposed definition of health and wellbeing would be problematic to implement, as it relates to emotional, cultural and spiritual health which are difficult to estimate over a long timeframe, and would pose difficulties for the decision maker:
You are weighing the physical, emotional and spiritual and you are weighing the pros and cons, if you get to the last step, which is the health and wellbeing overall of the project. So it's not just negatives but also positives, such as people getting jobs and the local community getting boosted. How do you weigh those up over the long term? That's quite a difficult thing for a decision-maker to do and to have stand up to scrutiny.
Definition of scope 3 emissions
2.29As set out above, the bill seeks to introduce a new definition of scope 3 emissions of greenhouse gases into Commonwealth legislation ‘to capture exported emissions, which includes coal, oil and gas extracted from onshore or offshore facilities’. The EM states that there is no definition of scope 3 emission in any Commonwealth Act.
2.30The bill proposes the definition based on information from the Clean Energy Regulator and the definitions of scope 1 and 2 emissions in the National Greenhouse and Energy Reporting Regulations 2008 (NGER Regulations). Scope 3 emissions would consist of upstream and downstream emissions, end-use consumption emissions as well as exported emissions occurring outside of Australia, including:
(d)the release of greenhouse gas from the extraction or production of materials purchased by a facility;
(e)the release of greenhouse gas from the transportation of fuels purchased by a facility;
(f)the release of greenhouse gas from the use of products and services sold by a facility.
2.31The inclusion of scope 3 emissions into the bill was supported by some submitters including DEA, which highlighted its support for the ‘explicit acknowledgement of the need to account for exported as well as domestically-generated emissions’. Uniting NSW.ACT also supported this provision, and stated that ‘Australia is a major exporter of coal and gas and must take some responsibility for the impacts of emissions from fossil fuels extracted here but burnt in other countries’.
2.32NELA stated that the bill would strengthen the Climate Change Act by including scope 3 emissions. NELA further noted that the definition would include more facilities than the Safeguard Mechanism, by proposing a threshold of 100 000 tonnes (gross) of carbon dioxide equivalence over the lifetime of the facility, whereas the Safeguard Mechanism captures facilities with an emission of that same figure of carbon dioxide in a year. NELA also stated that ‘it is only if decision-makers consider Scope 3 emissions that the bill’s new proposed object…of intergenerational equity can be achieved’.
2.33Professor Rosemary Lyster and Professor Danielle Celemajer, University of Sydney, supported the proposal that the scope 1, 2 and 3 emissions be considered by the decision maker and consequently the Federal Court upon review.
2.34Professor David Shearman, Emeritus Professor of Medicine at the University of Adelaide and co-founder of DEA, was also supportive of the inclusion of scope 3 emissions, and noted that ‘Australia and the USA currently lead in the export of [liquefied natural gas] which creates more emissions than coal’. Australia, along with the UK, US, Canada and Norway, ‘account for just over half of the planned expansion in oil and gas between now and mid-century’.
2.35Engineers Australia recommended that the bill be amended to include embodied emissions from products in addition to emissions generated from the export of fossil fuels.
2.36Similar to their concerns in relation to the measurement of health and wellbeing over a long timeframe, DHAC officials also noted the difficulty in estimating scope3 emissions over a long period of time. DCCEEW officials also raised this concern, and highlighted Australia’s work with the United Nations Framework Convention on Climate Change and through bilateral relationships to address global emissions. The challenge in assessing scope 3 emissions in the context of a specific project in Australia over a long timeframe was echoed by DCCEEW officials.
Definition of significant decision
2.37As proposed in the bill, ‘significant decision’ would have the meaning of a decision ‘of an administrative character’ made, proposed or required, under a relevant enactment that is likely to result directly or indirectly, over the lifetime of the facilities, in the emission of scope 1, 2 and 3 greenhouse gases with a carbon dioxide equivalence of at least 100 000 tonnes (gross).
2.38The definition is extended in the bill to include decisions of relevant financing corporations and facilities (including financial assistance). The bill provides the following example of a significant decision by one such corporation:
A decision of the National Reconstruction Fund Corporation to provide a loan in the performance of the corporation’s investment functions under the National Reconstruction Fund Corporation Act 2023 and that is likely to result (whether directly or indirectly) in the emission of greenhouse gases as described in paragraph (b) [scope 1, 2 or 3 emissions with a carbon dioxide equivalence of at least 100,000 tonnes (gross)] is a significant decision within the meaning of this subsection.
2.39The EM set out that the extended definition is intended to overcome a decision of the High Court, in which access to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) was limited where a decision derives its capacity to affect legal rights and obligations from another source of law and not ‘under an enactment’.
2.40NELA supported the bill’s breadth in defining significant decision to include public financing and development support. Similarly, WWF-Australia stated that the bill was suited to the purpose of preventing significant decisions being made for the exploration and extraction of fossil fuels that could cause harm to current and future children.
2.41The Australian Academy of Technological Sciences and Engineering (ATSE) recommended that the bill’s scope be expanded beyond gas, coal and oil projects, as it noted that cement-based and major construction projects would not be included.
Proposed duties
2.42The proposed requirements on decision-makers in the bill are designed to ensure that decisions that are ‘likely to result in substantial greenhouse gas emissions’ are made with consideration of the impact they may have on the health and wellbeing of children.
Duty to consider the health and wellbeing of children
2.43The proposed duty in the bill to ‘consider the health and wellbeing of children in Australia when making decisions contributing to climate change’ would apply to the person who proposes or is required to make a ‘significant decision’. The person ‘must consider’:
(a)the likely impacts of the likely emission of greenhouse gases, as a direct or indirect result of the decision, on the health and wellbeing of current and future children in Australia; and
(b)the health and wellbeing of current and future children in Australia as the paramount consideration.
2.44The bill proposes a non-exhaustive list of considerations the person making the significant decision must consider. In addition to consideration of the extent to which the likely emission of greenhouse gases will affect reaching Australia’s reduction targets, the bill’s key provision is that the impacts of climate change on the health and wellbeing on current and future children must be considered.
2.45In considering the latter point, the decision-maker must have regard to advice published by the Intergovernmental Panel on Climate Change (IPCC) on the impacts of climate change, or the ‘best available scientific knowledge’ of the impacts of climate change.
2.46Overall, members of the legal profession and academia discussed the ability of decision makers to apply the provisions of the bill in practice. This included raising potential difficulties for decision makers in interpreting several broad terms contained within the bill, and recommendations that the bill include metrics for risk and harm. However, others set out that, in their view, the bill’s requirements were clear and should not present difficulties for experienced administrative decision makers. These and other key issues are discussed below.
2.47The Australian Conservation Foundation (ACF) supported the bill’s proposed elements to be considered by decision makers, including the IPCC’s work:
There is significant force in this approach. Currently this is not explicitly required by all the legislation identified in the Bill. The disjunct in having national targets and not prescribing their consideration in national decision-making is self-evident. The Bill will contribute to rectifying this.
2.48Both elements of the proposed statutory duty of care refer to the assessment of the ‘likely impacts of the likely emission of greenhouse gases, as a direct or indirect result of the decision’, however, the bill does not provide a definition of ‘impacts’. The Environmental Defenders Office (EDO) suggested that, if the provisions are intended to align the meaning of impacts set out in the EPBC Act, the bill should be amended to state this.
2.49The consideration of children would be required to be the ‘paramount consideration’ for the decision maker of a significant decision, as set out in a note in the bill. The Climate Sustainability Clinic, Bond University, drew attention to the purpose of the provisions of the duty, and stated that it was unclear whether the provision was intended to make the consideration of children’s health and wellbeing ‘paramount’ or one of many considerations.
2.50Mr Jack McLean, Senior Lawyer at the Human Rights Law Centre (HRLC), stated that the bill tries to plug a gap for the consideration of data on the health effects of climate change on children by administrative decision-makers. Mr McLean stated that currently, under the EPBC Act, decision-makers are not able to actively consider climate change or greenhouse gas emissions.
2.51Mr McLean further set out that administrative decision-makers are familiar with weighing considerations when assessing a process through a statutory regime:
The terminology of 'consideration' is very common and well understood as a framework both within the Public Service and administrative law more generally. As you've flagged…one question that has been raised is how decision-makers can go about this process of considering the health and wellbeing of children if the bill becomes law. It's the role of an administrative decisionmaker to do exactly that—to consider the evidence and to weigh various forms of impact and outcomes within the context of a given statutory regime.
2.52Melbourne Climate Futures, at the University of Melbourne, called for an alternative approach to be taken through the adoption of a ‘broader, rights-based approach’ in a Commonwealth Human Rights Act.
2.53Similarly, the HRLC suggested that there be requirements to consult with children and young people ‘when considering potential impacts on their health, wellbeing and rights’, and that there should be a Charter of Human Rights which enshrines the right to a clean, healthy and sustainable environment into Australian law.
Consideration of future generations in environmental legislation
2.54As noted above, intergenerational equity is one of the principles of ecologically sustainable development contained in the objects of the EPBC Act, and is recognised in the Intergovernmental Agreement on the Environment (1992). Emissions reductions targets were recently embedded in a range of Commonwealth legislation to ‘enable consideration by decision makers of Australia’s emissions reduction targets alongside other relevant considerations’.
2.55The operability of the duty to ‘consider’ harm was discussed in the public hearing, with DCCEEW officials setting out that currently, decisions under the EPBC Act relating to project approvals are worked through according to a set of decisions which weight the considerations required.
2.56This takes into account consideration of direct and indirect impacts, noting that the EPBC Act focuses on direct impacts and that consideration is restricted to matters protected under the EPBC Act. The need to look at individual circumstances was raised by DCCEEW officials:
…it is a case-by-case consideration and you have to step through this decision set to see how you might consider those impacts. Primarily it is about drawing the line between the specific action and the protected matter [of national environmental significance]. Quite often this falls into the 'indirect' category rather than having a direct impact.
2.57Consideration of the effects of a decision on climate are included in the Australian Government’s Nature Positive Plan, which sets out three elements of climate consideration. Proponents would be required to identify and report on their proposal’s scope 1 and 2 emissions while seeking approval. The Environment Minister would then be required to pass that information to the Minister for Climate Change and Energy.
2.58Further, regional or landscape-based instruments (including recovery strategies) will be required to ‘explicitly reflect climate change scenarios in their development’ to ensure that agreements and national-level documents reflect climate change implications for decision makers.
Duty not to make a significant decision
2.59The bill also seeks to impose a duty on the decision maker not to make a significant decision to approve the exploration or extraction of coal, oil or natural gas if the likely emissions of greenhouse gas pose a material risk of harm to the health and wellbeing to children. This duty would apply if the decision related to (directly or indirectly providing assistance for) activities that involve the exploration or extraction of coal, oil or natural gas. Other activities would be prescribed by rules.
2.60A non-exhaustive list of considerations, identical to that discussed above, is proposed for the decision-maker to take into account when considering whether the significant decision poses a material risk to the health and wellbeing of children.
2.61The EM set out that this new statutory duty is intended to apply to all new and extended coal, oil and gas extractive projects, including coal mines such as those proposed in the Peak Downs Coal Project, and, on- and offshore gas extraction facilities such as in the Beetaloo Basin, Barossa and other locations.
2.62The proposed statutory duties are intended to operate despite any other laws of the Commonwealth, including laws enacted before or after the commencement of the bill. For example, the bill’s duties would apply to significant decisions made under the EPBC Act, and would override the provisions of the EPBC Act which restrict the Minister’s consideration of certain matters in making the decision to approve an action.
Views on both proposed duties
2.63The majority of submitters supported the concept of a duty of care as the intent of the bill, however, views on the operation of the bill highlighted potential challenges and issues. Members of the legal profession submitted differing views on whether the bill would create a duty of care or a different duty.
2.64NELA put forward the view that the bill would create ‘absolute duties’ rather than a duty of care. NELA noted the title of the bill, and references to Justice Bromberg’s findings in the Second Reading Speech:
Yet unlike the duty pleaded in Sharma, the duties in proposed ss 15D [duty to consider the health and wellbeing of children] and 15E [duty not to make a significant decision] are not statutory duties of care (duties to take reasonable care either to protect, or avoid harm to, plaintiffs). Instead, ss 15D and 15E are expressed as absolute duties (a duty to consider the health and wellbeing of Australia’s children, and a duty not to make certain decisions).
2.65Dr Amy Steinepreis, member of the Climate Change Working Group, NELA, elaborated on this view at the public hearing, setting out that duties of care are well-established in tort and common law:
You have teachers owing duties of care to students, and doctors to patients. Those are duties to take reasonable care to protect someone from harm or to not cause harm to someone. And when you're dealing with a duty of care you're making, at the stage of looking at breach of that duty, an assessment of the reasonableness of the person's actions.
2.66It was NELA’s view, however, that the bill seeks ‘to legislate administrative law duties’ which would make it easier for plaintiffs ‘to come forward and put forward duty arguments…in relation to climate change and duties that decision-makers owe’. Dr Steinepreis stated that the bill seeks to put restrictions on possibilities for plaintiffs.
2.67Associate Professor Lucy Cradduck, Queensland University of Technology (QUT) Law School, also considered that the bill would not create a duty of care, rather:
…what [the proposed duties] purport to do is to impose decision-making obligations on specific decision-makers for specific types of decisions made under specific laws. Although Section 15E(1) [duty not to make a significant decision] purports to require that in certain circumstances a significant decision must not be made, this also does not create a duty of care.
2.68Professors Lyster and Celermajer stated that the duties proposed for decision makers would achieve the objects of the bill, and also noted the absence of references to a duty of care in the bill’s text:
If a novel ‘duty of care’ is to be imposed on decision-makers this should be included as a mandatory consideration in the Amending Bill. At present, other than its mention in the title of the Amending Bill, it is not mentioned in any other provision of the Bill.
2.69Professor Cradduck recommended that the bill be renamed, or that a duty of care be added to the bill through a new provision. NELA similarly suggested that the title of the bill be changed.
2.70Professor Rosemary Lyster and Professor Danielle Celermajer submitted that they were supportive of the passage of the bill, but said that they ‘did not believe that it is necessary for the tort notion of ‘duty of care’ to be included in the Amending Bill’.
2.71Professor Cradduck also stated that the remedy for a failure to comply with the two proposed duties would be for an affected party to seek a judicial review of any decision (or failure to make a decision), but that, ‘relevantly, there is no right to commence an action in negligence for a failing to adhere to the requirements’ of the proposed sections.
2.72The AHRC recommended that the Climate Change Act be amended to insert new objects to promote and protect intergenerational equity by requiring the consideration of ‘the full range of children’s human rights’ in decision-making.
2.73The AHRC put forward that the bill’s objects would be most effectively achieved through a statutory requirement for a Child Rights Impact Assessment (CRIA). The AHRC launched Australia’s first CRIA tool Safeguarding Children, in October 2023. The tool was developed with support from UNICEF in accordance with international standards for the protection of children’s rights, and aims to ‘help governments and service providers assess how children's rights will be affected by new laws and policies’.
2.74The tool aligns with the UN General Comment No. 26, and sets out an 18question checklist to assess the impact of a potential decision on the realisation of children’s rights. This allows the harm and impact on children to be measured to inform outcomes that are in the best interest of children.
2.75Ms Anne Hollonds, National Children’s Commissioner, told the committee that she would like to see the CRIA tool ‘applied to questions about [the approval of] fossil fuel projects, as was anticipated’. Ms Hollonds stated that ‘we're right at the beginning of socialising how one might use [the CRIA tool], how it can be helpful in the hands of the public servants and the hands of decision-makers’, and noted that the tool may be used, revised and improved over time.
2.76The ACF suggested that the bill be amended to include a requirement that the decision maker consider a CRIA tool as part of the decision making process.
2.77In contrast to these views, the Institute of Public Affairs (IPA) set out its opposition to the proposed requirements on decision-makers in the bill, raising concerns over a potential increase in litigation aimed at disrupting major projects should the bill pass:
Requiring ministers or regulators to consider the indirect results of their decision on the health and wellbeing of future children is an exceptionally vague duty that would invite endless litigation, give green groups expanded opportunities to engage in lawfare, and put more major projects at risk of delay and cancellation.
Views on the duty not to make significant decisions
2.78NELA considered that the current wording in the bill ‘strikes the right balance by leaving scope for a federal decision-maker to approve a project above the threshold (of at least 100 000 tonnes) with stringent conditions in place’.
2.79The HRLC noted that, since the EPBC Act came into force in 2000, 1300 projects have been approved and 14 refused. Of the 1300 projects approved, 740 were fossil fuel projects, with 555 of these projects approved without undergoing a full environmental assessment. Although the EPBC Act requires the Environment Minister to consider the principles of ecologically sustainable development (including intergenerational equity) when considering the approval or refusal of a proposed project, the EPBC Act does not explicitly address climate change or the regulation of greenhouse gas emissions. The HRLC stated that the bill would ‘help to plug these gaps’ in the legislation by ‘putting the principle of intergenerational equity at the heart of government decision-making’.
2.80NELA acknowledged the presence of intergenerational equity in environmental law, but raised concerns that there is currently little guidance for decision makers for how much weight to apply to the concept in a planning context, for example.
2.81On the other hand, Engineers Australia submitted that the wording of this provision to deny decisions to be made for projects may not achieve its purpose, and recommended a review of ‘the wording of this clause to ensure the outcome achieves prohibiting approval rather than mandating indecision’.
2.82The IPA stated that the duty not to make a significant decision if it would provide direct or indirect assistance to the activities involved in the exploration or extraction of fossil fuels would ‘effectively ban the future use of three major sources of baseload power’. Further, the IPA argued that the bill would undermine Australia’s energy security ‘as it would make consumers more dependent on intermittent and unreliable renewable energy sources such as wind and solar’.
2.83DCCEEW officials noted Australia’s role as an energy supplier:
The policy position of the government is that Australia needs to remain a trusted and stable supplier of energy and that we need to maintain our international trading relationships as the world transitions from unabated fossil fuels to the clean energy future. It's not a part of the government's policy platform to prohibit the start of fossil fuel projects. At the moment, the safeguard is the key mechanism to make sure that any new project that comes on is consistent with Australia's existing targets.
Lifetime threshold
2.84Melbourne Climate Futures recommended that the bill be expanded beyond significant decisions which are likely to result in scope 1, 2 or 3 emissions greater than 100 000 tonnes from facilities over their lifetime:
We consider that the impact of climate change on children should be relevant to all government decision making, rather than just the approval of specific projects under specific pieces of legislation. For example, the government could allow mergers of oil and gas companies to proceed, and this might not include consideration of the impacts of climate change on children.
2.85ATSE, however, stated that the lifetime threshold proposed in the bill is low, and provided the following example:
The relevant minister must consider carbon emissions within the context of the lifetime of a proposed new project. For example, if a project has a 30-year life, the low threshold would only permit around 3,300 tonnes of emissions yearly – the equivalent amount emitted by about 700 internal combustion engine cars (EPA 2023).
2.86The EDO recommended that the 100 000 tonne threshold be supplemented with a ‘designated project list’ which would ‘capture decisions about developments which fall below the threshold, but will materially contribute to climate change’. The EDO further recommended an additional threshold which would capture decisions which could threaten Australia’s obligations under the Paris Agreement.
2.87ATSE suggested that, when considering the lifetime of a project, a higher lifetime threshold should be set, and that the Australian Government ‘must work with industry to reduce emissions and understand alternatives and lifetime consequences when making approval decisions’.
2.88The Safeguard Mechanism currently requires large industrial greenhouse gas emitting facilities to keep emissions below a baseline emissions limit. If a facility exceeds its baseline, it must manage its excess emissions and may pay a pecuniary penalty for failure to comply with the mechanism.
2.89It was reformed after a consultation process undertaken by DCCEEW. The reformed mechanism commenced on 1 July 2023, and applies to around 215 facilities which account for around 28 per cent of Australia’s emissions. These are facilities which ‘emit direct (scope 1) emissions of more than 100 000 tonnes of carbon dioxide equivalent in a year’, as opposed to the bill’s threshold of 100000 tonnes over a facility’s lifetime.
2.90The Safeguard Mechanism ‘sets legislated emissions targets, known as baselines, on the net greenhouse gas emissions of covered facilities’. Major emitters in the mining, manufacturing, transport, oil, gas and waste sectors are included in this legislation. The Safeguard Mechanism’s legislated baseline limits will decline predictably and gradually, and the Australian Government has developed international best practice benchmarks for new facilities to ensure the highest levels of emissions performance. The Safeguard Mechanism legislation ensures that emissions from all covered facilities deliver a proportional share of the legislated targets and total gross emissions decline over time, with independent annual review by the Climate Change Authority.
Material risk of harm
2.91The bill proposes that a person ‘must not make a significant decision’ if ‘the likely emission of greenhouse gases…poses a material risk of harm to the health and wellbeing of current or future children in Australia’.
2.92Melbourne Climate Futures set out that, although it supported the bill’s aims to ensure that decision makers would not make a decision detrimental to current and future children, ‘it remains to be seen what “material” would mean in terms of impacting upon children’.
2.93The EDO recommended defining ‘material risk’ widely, to avoid issues with emissions and their direct impacts:
For example, a risk may be ‘material’ notwithstanding that the action causing that risk may be spatially or temporally remote from its possible or foreseeable impacts. The definition should ensure that risks in this context may be material, even where specific emissions from a specific project may not be directly attributable to impacts felt by the specific class of people, or where risks may arise in the future. This is consistent with the IPCC finding that every tonne of greenhouse gas emissions contributes to climate change.
2.94NELA suggested that ‘greater clarity can be achieved by replacing the words “poses a material risk of harm” with “materially increases the risk of harm”’, on the grounds that:
It is clearer to speak of an increase in greenhouse gas emissions materially increasing a risk of harm (either through increasing global temperatures in a roughly linear correlation, or through increasing the risk of triggering tipping points).
2.95Uniting NSW.ACT questioned what specific material harms are in view, how they would be assessed, and how the level of severity would be assessed and applied.
2.96As noted above, DCCEEW officials considered that terms such as ‘material risk’ may have implications requiring expert advice before operationalising.
Other provisions
Judicial review provisions
2.97The bill seeks to extend the availability of judicial review for significant decisions, including:
extending the category of persons who may seek judicial review under the ADJR Act to cover a child who is an Australian citizen or ordinarily resident in Australia or an external Territory;
extending the availability of judicial review under the ADJR Act to all significant decisions, including those covered by the definition in proposed subsection 15C(2) [relating to the decisions of relevant financing corporations and facilities (including financial assistance)]; and
ensuring that the decisions relating to the activities of the Export Finance and Insurance Corporation can be obtained if they relate to a significant decision, as they are currently excluded under the ADJR Act.
2.98The meaning of ‘making a decision’, ‘failure to make a decision’, and ‘conduct engaged in for the purposes of making a decision’ are proposed to be aligned with the meaning of the terms in the ADJR Act.
2.99Melbourne Climate Futures submitted that Australian case law ‘has consistently shown the limitations of judicial review as a mechanism to ensure accountability for government decision-making on climate change’.
2.100Professors Lyster and Celermajer set out that the provision relating to decisions of the Export Finance and Insurance Corporation is important due to there currently being no right to receive reasons for an administrative decision:
Section 13 of the ADJR Act gives a person affected by a decision the right to request the decision-maker to provide a written statement of reasons after the decision has been made. This provides essential information for the bringing of a judicial review application and – in theory at least – has an instrumental value in putting decision-makers on notice that they may have to justify their decisions in writing after the fact.
2.101The AHRC supported the bill’s principles to extend standing to children to commence judicial review proceedings in relation to decisions impacted by the bill.
Commonwealth policies to reduce emissions and manage climate risk
2.102In addition to the operation of the reformed Safeguard Mechanism outlined earlier, DCCEEW set out that other legislative and policy tools are in place to reduce Australia’s emissions in line with the targets set out in the Paris Agreement and legislated in the Climate Change Act.
2.103National emissions in the year to December 2023 were 29 per cent below emissions in the year to June 2005, which is the baseline year for Australia’s 2030 Paris Agreement targets.
2.104Electricity generation is the biggest contributor to national greenhouse gas emissions. Significant reductions are possible as renewable energy displaces fossil fuel power sources and coal production is reduced. Driving this transition is the Capacity Investment Scheme, which is being expanded from the pilot stage to support 9 GW of dispatchable capacity and 23GW of variable renewable capacity. Combined with significant investment in the Rewiring the Nation policy, renewable energy is set to be 82per cent of the National Electricity Market by 2030.
2.105To decarbonise new passenger and light commercial vehicles and incentivise the provision of low and zero emissions vehicles into the Australian market, the New Vehicle Efficiency Standard Bill passed both Houses and then received Royal Assent on 31 May 2024.
2.106By establishing a new vehicle efficiency standard in Australia, the scheme is expected to deliver abatement of approximately 80 million tonnes of carbon dioxide equivalent by 2035 and 321 million tonnes of carbon dioxide equivalent by 2050.
2.107DCCEEW set out that Australia’s legislative and policy efforts are working to reduce emissions:
Australia’s Emissions Projections 2023 report shows that emissions are projected to be 42 per cent below 2005 levels by 2030, once the Government’s announced policies to increase renewable electricity to 82 per cent by 2030, and to implement further National Electric Vehicle Strategy measures, are included. Under this scenario, cumulative emissions from 2021 to 2030 are projected to be 1 per cent below the target.
2.108The Australian Government is working with the states and territories to ensure that national targets are met, including funding deals with New South Wales, Western Australia, Tasmania and Victoria under the Rewiring the Nation policy. As part of the move to decarbonise the Australian economy, the Minister for Climate Change and Energy, the Hon Chris Bowen MP, set out in his 2023 Annual Climate Change Statement that sectoral plans will be developed with the states and territories as part of a ‘shared endeavour’ to attract new investment into decarbonisation:
…the government—with the support of the states and the territories, and in consultation with stakeholders—will develop six sectoral plans covering the economy across electricity and energy, industry, the built environment, agriculture and land, transport and resources. This is a shared endeavour.
2.109As part of its work with the states and territories, the Australian Government is leading a National Climate Risk Assessment, which will:
…inform adaptation actions to minimise future adverse impacts from climate change, to provide a clear and consistent process for identifying and prioritising climate risks and inform a national conversation on adaptation.
2.110The first pass of the risk assessment identifies significant risks to Australia from climate change as systems of national importance, including a health and support system. The report on this stage of the risk assessment was released in March 2024, and noted hazards to health and social support over three time horizons. Of particular note, drought and changes in aridity; extreme temperatures; and bushfires, grassfires and air pollution; flash flooding and tropical cyclones were of medium concern in the current time horizon (2011–2030), rising to high concern for the medium (2041–2060) and long-term (2081–2100) time horizons.
2.111A National Adaptation Plan will ‘establish a comprehensive framework for adapting to the nationally significant, physical climate risks identified in the risk assessment’. An issues paper which provides a basis for consultation and development of the adaptation plan was published in March 2024 and was opened for public consultation until April 2024. A targeted First Nations consultation process is also being conducted.
2.112Plans to reduce the healthcare sector’s emissions are also in train, and discussed below in relation to the National Health and Climate Strategy.
National Health and Climate Strategy
2.113In December 2023, the Australian Government announced the National Health and Climate Strategy, which outlines priorities over the next five years to address the health and wellbeing impacts of climate change.
2.114The Strategy defines ‘health’ in line with the WHO Constitution’s definition, which was discussed above. The Strategy has four objectives:
Objective 1: (Health system resilience) is to build a climate-resilient health system and enhance its capacity to protect health and wellbeing from the impacts of climate change;
Objective 2: (Health system decarbonisation) is to build a sustainable, high-quality, net zero health system;
Objective 3: (International collaboration) is to collaborate internationally to build sustainable, climate-resilient health systems and communities; and
Objective 4: (Health in all policies) is to support healthy, climate-resilient and sustainable communities through whole-of-government action which recognises the relationship between health and climate outcomes.
2.115The Strategy also has five interlinked principles which underpin the four objectives, relating to: health equity; planetary health; First Nations leadership; population health and prevention; and evidence-informed policymaking.
2.116DHAC set out that the strategy will help the health sector to deal with the influence of climate change, and address the impact that it may have on different facilities like hospitals and aged-care facilities. The strategy notes that, globally, healthcare directly or indirectly contributes 5 per cent of total global greenhouse gas emissions.
2.117The healthcare sector’s emissions include:
scope 1: for example, emissions from anaesthetic gases, natural gas used in heating, and ambulance fuel use;
scope 2: for example, emissions associated with the provision of power to hospitals; and
scope 3: for example, emissions associated with the manufacture of medical equipment and the incineration of medical waste.
2.118The Strategy recognises that infants, children and young people will have the greatest exposure to climate change, and will disproportionately experience its adverse impacts.
Committee comment
2.119The committee recognises the significant and detrimental effects that climate change has on human health and will continue to have on future generations of Australians.
2.120The committee notes the significant policy developments that have been introduced in just under two years of the Albanese Government to directly address the risks of climate change in line with Australia’s international commitments.
2.121The Australian Government has established legislative and policy mechanisms to engage industry, communities and all levels of government to meet an ambitious but achievable emissions reduction target. Under the Australian Government’s reformed Safeguard Mechanism, Capacity Investment Scheme, Rewiring the Nation program, New Vehicle Efficiency Standard and other policy settings, Australia will remain competitive while adapting to a decarbonising world.
2.122The majority of inquiry participants were strongly supportive of the intent of the bill and the need to protect the health and wellbeing of children and future children from the effects of climate change. While the committee also commends the intent of the bill, as discussed throughout this chapter, there were a range of concerns raised by inquiry participants about key definitions contained in the bill, the operation of the proposed duties, as well as the practical application of certain provisions. Concerns related to:
clarity and intent in the bill’s provisions;
perceptions of the definitions provided in the bill, and the ability for decision makers to interpret and apply them;
potential unintended consequences for First Nations people (other than First Nations children) as plaintiffs; and
most significantly, whether the bill would in effect establish a duty of care or different duties.
The bill’s proposed duty to consider the health and wellbeing of children
2.123The bill’s first proposed duty is to require that decision makers consider the health and wellbeing of current and future children when making a decision which is likely to contribute to climate change, including increasing scope 1, 2 or 3 emissions. The ability of decision makers to assess the effects of a single project on the health and wellbeing of children over the lifetime the project was called into question, with many inquiry participants noting the broad and imprecise definition of health and wellbeing.
2.124The definition proposed in the bill clarifies that emotional, spiritual and cultural health would be considered by the decision maker. The ability to measure and quantify these abstract elements in relation to approving a proposed project was highlighted as a shortcoming of the bill. The committee is concerned that the lack of detail and instruction in the bill’s provisions would make it difficult for decision makers to interpret and adhere to the proposed duty.
2.125The committee notes that Australia’s primary environmental protection law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) has intergenerational equity embedded within its objects, as one of the principles of ecologically sustainable development.
2.126The first National Children’s Commissioner (within the Australian Human Rights Commission (AHRC)) was appointed under the Gillard Government. The committee notes the important work of advocating for children and young people undertaken as part of this role. The AHRC provides independent reports to the United Nations Committee on the Rights of the Child, and last reported in 2018. Under the Convention on the Rights of the Child (CRC), the Australian Government should prepare a report on the status of the CRC in Australia every five years, and the committee notes that the next report should be in preparation.
2.127The committee notes the first national Child Rights Impact Assessment Tool (CRIA), which was launched by the AHRC in October 2023. This new tool aligns with international standards. It also provides a flexible framework for administrative policy and decision makers in all areas of government to assess the potential impact of a policy or decision, including environmental assessments and approvals, on children. The committee notes that this tool will be revised and improved over time, as policy and decision makers draw on it to guide and assist their work.
2.128The committee considers that a tool such as the CRIA would be a useful addition to administrative decision makers’ examination when assessing new or expanded coal, oil or gas projects under the EPBC Act. This would enable the principles of ecologically sustainable development (including intergenerational equity) to be considered as part of the project assessment process. The committee is of the view that the Minister for the Environment and Water should consider requiring administrative decision makers to use a tool such as the CRIA when assessing new or expanded coal, oil or gas projects under the EPBC Act.
The bill’s proposed duty not to make a significant decision on coal, oil or natural gas activities
2.129The second proposed duty requires decision makers not to make a significant decision to approve new or expanded coal, oil or gas activities if the likely emissions of greenhouse gases pose a material risk of harm to the health and wellbeing to children.
2.130The Australian Government has led reforms to the Safeguard Mechanism, ensuring that Australia’s largest emitters reduce their greenhouse gas emissions to help meet the Paris Agreement target. The Safeguard Mechanism is Australia’s primary legislative mechanism to reduce greenhouse gas emissions in Australia’s industrial sector.
2.131While the Safeguard Mechanism provides a gradual decrease of emissions, ensuring that Australia’s energy supply is secure and industry is able to transition effectively, the bill proposes a very low threshold for the second proposed statutory duty. The second proposed duty would prevent the decision to approve exploration or extraction of coal, oil or gas where the resulting emissions would pose a material risk of harm to the health and wellbeing of children. This would include any project with emissions of more than 100000 tonnes over the projects’ lifetime as opposed to the Safeguard Mechanism’s threshold of 100 000 tonnes per year.
2.132The Safeguard Mechanism’s declining baselines allow a predictable and gradual decline in industrial emissions, and the introduction of international best practice benchmarks ensures that new facilities have the highest levels of emissions performance. It allows for the direct project emissions that Australia is responsible for under the Paris Agreement to be addressed consistently, to achieve targets legislated by the Parliament. This occurs at a sector level and is not left to the discretion of administrative decision makers on a project by project basis.
2.133The committee also notes the recent launch of Australia’s first National Health and Climate Strategy which outlines priorities over the next five years to address the health and wellbeing impacts of climate change. The strategy sets out how Australia will move to a climate-resilient, sustainable healthcare system which will in turn help Australians whose health has been affected by climate change.
2.134Overall, while noting several positive aspects of the bill, the committee shares the concerns of various inquiry participants outlined above. Noting the important reforms the government has already implemented in this term, the committee does not consider the bill fit for purpose or that it would effectively achieve its stated aim.
2.135 The committee recommends that the bill not be passed.
2.136While the committee is of the view that the bill would not achieve its stated aim, the committee considers that policy development and assessment processes may benefit from a more explicit emphasis on the implications of decisions for children and future generations.
2.137The committee recommends that the Australian Government consider the utilisation of the Australian Human Rights Commission’s Child Rights Impact Assessment Tool to assist in policy development and decision making.
Senator Karen Grogan
Chair