The Environment and Climate Change Law Review: Australia
Australia operates under a federal political regime, with a federal government, six states and several territories, including two mainland territories each with their own political frameworks and ability to pass legislation. In Australia, environmental laws and policies are made at both the state and federal levels.
In the past year, the key developments in environmental law have been the following:
- both the interim and final reports of the second independent review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) were submitted to the federal environment minister, and outlined a series of recommendations to modernise the EPBC Act and its operation to address current and future environmental challenges;
- the review of the Product Stewardship Act 2011 (Cth) (Product Stewardship Act) was completed, with the federal government accepting all 26 recommendations made by the review in July 2020 and committing to further strengthening the operation of the Product Stewardship Act so as to contribute to Australia's recycling and recovery objectives in the National Waste Policy Action Plan and the development of a circular economy;
- the King Review into the Emissions Reduction Fund (ERF) released its report, with the federal government accepting a number of recommendations made by the King Review with the aim of further incentivising abatement opportunities and removing barriers to participation in sectors that have, to date, had limited involvement in the ERF under its enabling legislation;
- the Industrial Chemicals Act 2019 (Industrial Chemicals Act) came into force, which replaced earlier federal legislation regulating the importation and manufacture of industrial chemicals in Australia; and
- some of the states in Australia have introduced significant reforms to their respective environmental laws (e.g., Victoria's overhaul of its environmental protection legislation).
i Commonwealth legislation
Australia's Constitution does not contain an express power for the federal government to make laws concerning environmental protection. However, the federal government has relied upon the external affairs power to enact environmental legislation to achieve the aims of international treaties, for example the Convention on Biological Diversity. The federal government has also relied on its other constitutional powers to legislate, including trade and commerce, corporations, the race power and finance and taxation powers.
The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) is Australia's primary environmental legislation. The main objective of the EPBC Act is to protect and manage matters of national environmental significance.2 The EPBC Act and its regulations establish processes for the assessment and approval of actions that have or are likely to significantly impact these matters. The EPBC Act also provides for strategic planning and management of Australia's fisheries and the management of federal protected areas, including marine reserves. Following the completion of the second independent review of the EPBC Act in 2020, it is likely that the federal government will soon seek to embark on some significant law reform endeavours with respect to the EPBC Act in the near future.
There are also other federal environmental laws that deal with more specific environmental issues.3
ii International agreements
Australia is a party to multiple international agreements that have the objective of protecting the environment, including the United Nations Framework Convention on Climate Change,4 the Convention on Biological Diversity, the Convention on International Trade in Endangered Species of Wild Fauna and Flora, the Convention on Wetlands (the Ramsar Convention) and the Convention for the Protection of the World Cultural and Natural Heritage.
iii State and territory legislation
Australian states can enact environmental laws providing they do not conflict with any Commonwealth legislation. The Commonwealth legislation will prevail if it conflicts with a state law.5 In the territories,6 ministers possess executive powers regarding environmental protection and legislative assemblies may enact laws on issues within the authority of the relevant minister.7 Laws concerning the environment that exist at the state or territory level in Australia include planning laws, contamination and pollution laws, laws regulating environmentally hazardous chemicals, forestry, pesticides, radiation control, water, heritage and waste avoidance and management.
The Department of the Environment and Energy (the Department) is responsible for administering and enforcing the EPBC Act.
ii State and territory
Most of the states and territories have designated environmental regulators (e.g., Environmental Protection Authorities (EPAs)) as well as other government departments and authorities with regulatory powers to deal with specific sectors or aspects of the environment.
In many states and territories, any person can enforce environmental and planning laws by bringing proceedings in the appropriate courts. In certain cases, this can extend to criminal proceedings.
There are specialist environmental courts in NSW, Queensland and South Australia (SA).8
i Federal enforcement
The main offence provisions under the EPBC Act relate to taking an action that has, will have or is likely to have a significant impact on a matter of national environmental significance without approval, for example, clearing land that is habitat for a nationally listed threatened species without approval.9
A person who commits an offence can be liable for a civil penalty of up to A$1.05 million for an individual and A$10.5 million for a body corporate, or for a criminal penalty of seven years' imprisonment or a penalty of A$88,200, or both (in the case of an individual) and a penalty of A$441,000 (in the case of a body corporate). The Department has, in the past, brought proceedings and obtained significant penalties for breaches of the Act, including a A$450,000 penalty for the deliberate clearing of a Ramsar wetland.10 The Department has also prosecuted a number of people for unlawfully fishing in Commonwealth marine reserves,11 and has power to prosecute individual directors (or other executive officers) for offences under the EPBC Act.
However, prosecutions under the EPBC Act are (irrespective of the identity of the defendant as a corporation or individual) fairly rare, especially when compared to prosecution actions taken at the state and territory level in Australia. The Department has, in the recent past, been prepared to deal with breaches of the EPBC Act by means other than prosecution, particularly through use of enforceable undertakings. 12
The EPBC Act allows third parties to seek injunctions to remedy or restrain breaches of the Act if they demonstrate that they are an organisation whose objects or purposes include protecting, conserving or conducting research into the environment, or an individual who has engaged in those activities in the preceding two years.13 This provision has enabled a number of conservation groups to make administrative law challenges to decisions of the Federal Minister for the Environment under the EPBC Act, for example, approval of large coal mines.14 It has also been used to successfully obtain an injunction to prevent a Japanese whaling company from conducting whaling in Australia's Antarctic territory.15
ii State and territory enforcement
At the state and territory level the penalties for undertaking development or causing pollution without the necessary approvals or licences can be significant. In NSW, for example, the Protection of the Environment Operations Act 1997 takes a tiered approach to breaches of the Act. Tier 1 offences are the most serious and will usually involve conduct that is wilful or negligent, and can attract penalties of up to A$5 million for corporations, and A$1 million and seven years' imprisonment for individuals. Tier 2 offences include water, air, noise or land pollution, waste offences and breaches of licence conditions. These offences can attract penalties of up to A$2 million for corporations and A$500,000 for an individual for a failure to notify a pollution incident, and A$1 million for corporations and A$250,000 for individuals for other offences. Tier 3 offences are dealt with by penalty notices (on the spot fines) of up to A$15,000.
In a number of states there is a positive statutory obligation to inform the relevant regulatory authority if certain types of environmental incidents have occurred or land is contaminated. Failure to comply with these obligation is an offence. The types of notifiable incidents can, at times, be relatively minor.
iii Environmental torts
Environmental torts and class actions are not common in Australia, probably because our statutory environmental laws give regulators strong powers to require clean-up and remediation after environmental incidents. The area in which they are most likely to occur is where contamination has migrated from one site to another, the contamination is not so serious as to have the regulator get involved, but damage has been suffered by an adjoining landowner.
iv Corporate liability
Corporations in Australia can be found guilty of environmental offences by reason of the conduct of their officers, employees and, in some circumstances, subcontractors.
In NSW, legislation has broadened the potential scope of an employer's liability for an employee's actions. Provided that the employee is acting within the scope of his or her employment, the employer may be prosecuted for the employee's breach or omission.16
A company (and its directors and managers) may also be liable for the actions of subcontractors in certain circumstances. This will usually be the case where inadequate instructions are given or if the contractor has not been properly supervised.
In NSW, a licence holder will automatically be found to be guilty of the offence of a breach of a licence condition even if the breach was committed by a contractor.
v Director liability
Environmental legislation in most jurisdictions exposes not only companies, but directors and persons concerned in the management of the company to liability for offences of the corporation. For example, in Western Australia, where an offence committed by the corporation is proved to have been committed with the consent or knowledge of a director or other officer concerned in the management of the corporation; or owing to any neglect on his or her part, the director or officer may also be guilty of the offence. It is not necessary for the corporation to be prosecuted for such liability to arise.
Persons 'concerned with the management' of a corporation include various levels of management; from state and regional managers to depot or facility managers. They may also include supervisors and certain senior employees.
In NSW, environmental offences are divided into the more serious 'general executive liability offences' and then 'special executive liability offences'. For general executive liability offences, a director or manager of a company commits the same offence as his or her company unless he or she can prove that he or she was not in a position to influence the conduct of the company; or used all due diligence to prevent the offence by the company.
For special executive liability offences, the prosecution bears the legal burden of proving all of the elements of an offence before a director or manager can be found to be guilty of the same offence as his or her company, the elements being that the corporate officer of the corporation commits an offence where the person knows or ought reasonably to have known that the executive liability offence would be or is being committed; and that person fails to take all reasonable steps to prevent or stop the commission of the offence.
In Queensland, liability has recently been extended beyond corporations and corporate officers through the passing of the Environmental Protection (Chain of Responsibility) Amendment Act 2016. The Act empowers the Department of Environment and Heritage Protection (EHP) to enforce and recover costs against a company's 'related persons'. Related persons may include (subject to certain qualifications), a holding company, an owner of land on which the company carries out or has carried out an activity, or a person that the EHP decides has a 'relevant connection' to the company.
Reporting and disclosure
i Environmental audits
Similar to other jurisdictions, with the introduction of ISO 14000 environmental management standards, a number of companies are incorporating periodic environmental audits into their management systems.
In some cases, government agencies may initiate environmental audits, for example through conditions of environmental licences.17 Companies are also able to undertake voluntary environmental audits under the POEO Act in NSW. In doing so, documents prepared for the audit may be protected and inadmissible in enforcement proceedings and cannot be inspected or seized by the EPA.18
ii Reporting requirements
Environmental reporting is imposed through a number of federal, state and territory laws.
At the federal level, the National Greenhouse and Energy Reporting Act 2007 (Cth) provides a framework for corporations to report on greenhouse gas (GHG) emissions, energy use and energy production, where reporting thresholds for the corporate group or individual facilities are exceeded.
Environmental reporting obligations are also commonly imposed on companies undertaking licensed activities through conditions placed upon environmental or development approvals or environment protection licences. These may require annual compliance reporting or more frequent reporting of monitoring results for air and water discharges.
iii Notifiable incidents and contamination
As stated above, in a number of states there is a positive statutory obligation to inform the relevant regulatory authority if certain types of environmental incidents have occurred or that land is contaminated. Failure to comply with this obligation is an offence. The types of notifiable incidents can, at times, be relatively minor.
i Air quality
Air quality is regulated in Australia at both the federal and state level.
The National Environment Protection (Ambient Air Quality) Measure was established in 1998. It aims to provide a common national goal to best protect human health and well-being from the adverse impacts of air pollution. It provides a consistent framework to assess Australia's outdoor air quality by setting national ambient air quality standards for six common air pollutants19 as well as mandatory monitoring and reporting requirements against these standards for participating jurisdictions. Obligations under this Measure are generally assumed by governments rather than emitters.
At the federal level, the National Environment Protection (National Pollutant Inventory) Measure (NPI NEPM) sets out national objectives for protecting particular aspects of the environment, which may also affect air quality. More than 4,000 facilities from a wide range of industry sectors that exceed NPI reporting thresholds for the emission of NPI substances to air, land and water are required to report annually to relevant state or territory environment agencies under the NPI NEPM. This reporting enables the NPI to collate and disseminate data about emissions on a geographic, sectoral and facility level.
The federal government also regulates the manufacture, import and export of ozone depleting substances and synthetic GHG through the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth) and related acts and regulations. This framework is intended to assist Australia to meet its obligations under the Montreal Protocol.20
State and territory governments implement legislation, statutory instruments, policies and programmes in their own jurisdictions to meet the Ambient Air Quality NEPM standards and manage the collection of data under the NPI NEPM. The EPA monitors achievement of the ambient standards and encourages a range of measures to improve air quality such as promoting clean technology, discouraging open-air burning, using tall stacks to promote dispersion and reducing exhaust pollutants from vehicles.
State and territory governments also implement legislation, policies and programmes to meet their own individual goals in relation to air emissions, such as via specific legislative provisions and licence conditions.
ii Water management and water quality
Responsibility for water resources is primarily vested in the state and territory governments; however, the federal government does exercise certain powers under the Water Act 2007 (Cth) in relation to the management of the Murray Darling Basin, which stretches across the eastern states of Australia, and in respect of water information and data collection. In most cases, there are separate regimes related to water management and water quality.
Water management legislation usually provides for:
- the preparation of water management plans for water resource areas21 to support the sustainable use of available water and protect environmental values of those ecosystems;
- the grant of licences or other entitlements to take and use water for various purposes,22 having regard to the availability of water at different times;
- approvals for the construction of works to take and use water;23
- rules to facilitate trading of water entitlements; and
- powers of regulators to investigate and enforce the legislation.24
Water quality issues are then separately regulated through pollution control legislation that creates offences for the pollution of water and sets water discharge limits and monitoring requirements through environment protection licences.
The Federal Department of Health is responsible for undertaking environmental risk assessments for industrial chemicals under the Australian Industrial Chemicals Introduction Scheme. These responsibilities derive from the Industrial Chemicals Act and include:
- conducting scientific risks assessments on the introduction and intended use of industrial chemicals in Australia;
- maintaining the Australian inventory of industrial chemicals;
- issuing certificates and authorisations for the introduction of industrial chemicals in Australia;
- compliance and enforcement; and
- assisting Australia to meet its obligations under relevant international treaties concerning industrial chemicals.
The Federal Department of Health is also responsible for managing Australia's engagement with, and obligations under, international treaties relating to hazardous and persistent chemicals, for example, gathering information about persistent organic pollutants25 and developing strategies to reduce or eliminate their use and environmental exposure in accordance with a National Implementation Plan.
State and territory governments also play a role in managing the use and disposal of industrial chemicals. Certain activities involving the manufacture or use of chemicals may be regulated by EPAs and require environment protection licences to be held. Further, the disposal of certain chemicals will in most jurisdictions only be permissible at facilities licensed to receive them.
iv Solid and hazardous waste
The waste industry in Australia is highly regulated, primarily by state and territory governments through their EPAs.
At the federal level, legislation has been introduced to manage certain activities relating to hazardous waste, used packaging waste and promote product stewardship. The Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) regulates the export, import and transit of hazardous waste within and outside Australia. The Act was developed to enable Australia to comply with specific obligations under the Basel Convention on the Control of the Transboundary Movements of Hazardous Wastes and their Disposal.
The main functions performed by the Department in relation to hazardous waste include processing of export, import and transit permit applications under the Act; ensuring compliance and enforcement with the Act; and participating in domestic and international policy development under the Basel Convention.
The National Environment Protection Measure on Used Packaging Materials (the Australian Packaging Covenant) provides a framework where voluntary signatories make commitments to practise product stewardship throughout the life cycle of consumer packaging. This includes through the design of packaging to minimise the use of materials and eliminate excess packaging; adopting and implementing the Environmental Code of Practice for Packaging; supporting materials recovery systems; and reporting and demonstrating continuous improvement. 'Brand owners' of consumer products who do not sign up to the Australian Packaging Covenant and who have a gross annual income of A$5 million or more are required to comply with obligations to recover, reuse and recycle in accordance with targets set by relevant regulatory authorities. They are also required to prepare a waste action plan and to keep certain records. These obligations are imposed under environmental laws in each Australian state and territory, and there are penalties for non-compliance.
Under the Product Stewardship Act the life cycle of products, materials and industries can be regulated through voluntary approaches, co-regulatory approaches and mandatory obligations. To date, regulations have only been passed to support a co-regulatory approach for the recycling of televisions and computers. These regulations require liable parties to notify the Minister each year of how many products (identified by product code) in the class of products they imported in the financial year. Approved co-regulatory arrangements are then responsible for the collection and recycling of computers (normally this would be by an administrator). This usually involves providing access to collection services or sites. Voluntary approaches have been adopted for used tyres and mercury containing lamps. Following the completion of the review of the Product Stewardship Act in 2020, and the federal government's acceptance of all 26 recommendations made as part of that review, it is anticipated that increased legislative activity will occur with respect to this Act in the near future.
At the state and territory level, most jurisdictions adopt an approach to waste management that looks at management options in the following order:
- recovery (e.g., reuse, reprocessing and recycling); and
- treatment, contaminant and disposal.
By way of example, the NSW EPA has produced guidelines on waste avoidance and resource recovery under the NSW Waste and Resource Recovery Strategy 2014–2021, which prioritise avoidance as a primary measure, with measures then cascading into recycling, diverting waste from landfill, reducing litter and finally responsible disposal of waste. The target for the diversion of waste from landfill is increasing from 63 per cent in 2014–2015 to 75 per cent by 2021.
Specific waste provisions in each state and territory generally regulate production and storage of some waste, transport, disposal and reuse of waste. In some circumstances, an offence can be committed by a previous owner of waste if that waste is not disposed of properly by a contractor, unless the due diligence defence can be established.
Another increasing trend in Australian jurisdictions relating to product stewardship is the container deposit schemes (CDS). CDS has been introduced in SA, Northern Territory (NT), NSW, Queensland, Western Australia and the Australia Capital Territory (ACT).
v Contaminated land
There is no federal law that deals directly with contaminated sites, although there are a number of policy documents and guidelines that have influenced state laws. For example, the National Environment Protection (Assessment of Site Contamination) Measure (Site Contamination NEPM) aims to establish a nationally consistent approach to the assessment of site contamination. It provides guidance on determining whether contamination poses an actual or potential risk to human health and the environment, either on or off-site, sufficient to warrant remediation, having regard to current and future land uses.
While the Site Contamination NEPM is used by environmental consultants as a national standard, each state and territory in Australia regulates contaminated land independently. Western Australia and NSW are the only states that have legislation specifically relating to contaminated land, while the remainder of Australia's states and territories regulate the issue in more general environmental protection and management acts and in subordinate legislation.26 In addition, the NSW Environment Protection Authority released the Contaminated Land Management Compliance Statement in July 2018. It sets out how the EPA can ensure those responsible for managing and remediating significantly contaminated land can comply with their legal obligations to achieve improved environmental and human health outcomes.
Although different definitions are adopted, contamination is broadly described as 'a condition of land or water where any chemical substance or waste has been added at above background level and represents, or potentially represents, an adverse health or environmental impact'. Several states in Australia, including NSW, Western Australia, Victoria, Queensland and Tasmania, have a contamination register that the public can search for sites with known contamination. In general, these registers are not exhaustive. If a site is not listed in a register, this cannot be relied upon as conclusive evidence that the site is not contaminated, and conversely, nor will listing a site in the register automatically satisfy disclosure obligations.
Responsibility of persons for the clean-up and remediation of contaminated land is expressed differently in each jurisdiction but will ordinarily start with the person causing the contamination and then cascade down to owners or occupiers of contaminated sites. In NSW, in determining the appropriate person to serve with a management order, the EPA is, 'as far as practicable', to specify a person who is responsible for the contamination over the owner of the land or the notional owner of the land (such as a mortgagee in possession).
A similar principle applies in Western Australia, where the legislation establishes a hierarchy for determining responsibility of remediation, and allows for the transfer of that responsibility. In addition, in Western Australia, if an owner or occupier has changed or proposes to change the use of all or part of the land, the owner or occupier will be liable for remediation of that land to the extent that the remediation is required because of the change. To the extent that remediation is required because of the change of use, the person who caused or contributed to the contamination, as well as the state, is released from any liability he or she may otherwise have had.
In Victoria, there is a greater risk to owners and occupiers of land. The Victorian Environment Protection Authority may serve a notice directing the recipient to clean up the contaminated area and the person so directed need not necessarily be the person who caused the contamination. There is no hierarchy of responsibility and the notice may be served on the occupier. The definition of occupier includes a controller of premises, which may be an owner or a lessee and in certain circumstances can include a financial institution that is a mortgagee in possession or a liquidator.27
Where contaminated land is being transacted, it is prudent to conduct investigations for potential contamination. In Western Australia, any transaction that will involve the sale, lease or mortgage of a site that has been classified as contaminated or possibly contaminated under the relevant legislation must include formal disclosure of the contamination at least 14 days before completion.
It is possible to provide contractually that the buyer accepts and undertakes clean-up requirements in some states. In Western Australia, responsibility for clean-up can be transferred with a written agreement and with the approval of the Department of Environment and Conservation. Similarly, in SA and Tasmania, responsibility can be transferred to a purchaser if appropriate notices have been provided to the respective environment protection authorities. Conversely, in NSW for example, a contract cannot operate to transfer statutory liability for contamination under the Contaminated Land Management Act 1997, although indemnities can still provide contractual protection where appropriately drafted.
In our experience, a purchaser will only take on contractual responsibility for contamination for which it is not responsible if it has confirmed the level of contamination (if any) and has been compensated appropriately for taking on that liability (whether by direct payment or by adjustment of the purchase price).
Australia is a party to the United Nations Framework Convention on Climate Change and its Kyoto Protocol, and in November 2016 ratified the Paris Agreement. Australia has submitted a Nationally Determined Contribution (NDC) that commits Australia to reducing its GHG emissions to between 26 to 28 per cent below 2005 levels.
The policy measures intended to achieve this commitment include:
- the Australian Emissions Reduction Fund (ERF);
- the Safeguard Mechanism;
- the Renewable Energy Target;
- energy productivity measures; and
- fuel standards.
Under the ERF, eligible carbon abatement projects developed under the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) are able to generate Australian carbon credit units (ACCUs), for purchase by the Clean Energy Regulator through periodic reverse auctions or other competitive tendering processes. In 2014, the federal government pledged A$2.55 billion to fund the purchase of ACCUs through the ERF. As of December 2020, there have been 11 auctions of ACCUs and the majority of the funding has now been committed.
In 2019, the federal government established the Climate Solutions Fund, which will receive A$2 billion in funding between 2020 and 2030. The Climate Solutions Fund operates as a re-branded ERF and incorporates the majority of existing project methodologies under the ERF. The Clean Energy Regulator holds reverse auctions in March and September every year, with the aim of delivering approximately 100 million tonnes of emissions reductions by 2030.
The National Greenhouse and Energy Reporting Act 2007 (Cth) requires reporting on GHG emissions, energy production and energy consumption. In 2016, the federal government amended this Act to introduce the Safeguard Mechanism, which is designed to ensure that emissions reductions paid for through the ERF are not displaced by a significant increase in emissions elsewhere in the economy. The Safeguard Mechanism requires facilities whose net scope 1 emissions exceed the safeguard threshold of 100,000 tonnes of CO2e to keep their GHG emissions at or below a set baseline based upon historical calculations.
Australia adopted a renewable energy target of over 23 per cent renewable energy by 2020, which is administered through the Renewable Energy (Electricity) Act 2000 (Cth). That target has been achieved, but the federal government has not, at the time of writing, announced a revised target. Finally, in December 2016, the federal government announced that it would look to introduce more stringent fuel standards in an attempt to bring Australian standards into line with those in Europe and to achieve Australia's NDC goals. These draft standards were the subject of public consultation in 2017 and a draft regulation impact statement was released in March 2018. Discussions are still ongoing following the consultation.
During the course of 2020, the federal government announced its response to the King Review into the ERF. As part of that response, the federal government has foreshadowed its intention to introduce reforms to incentivise greater participation by a wider variety of sectors in the ERF, including compressed time frames for procuring ACCUs, allowing greater third-party involvement in the development of ERF methodologies, lowering administrative costs for projects currently applying multiple methodologies and providing greater market access for small projects through a clearing house. Details of these reforms will become apparent in due course.
Besides these laws, climate change is also addressed in a corporations law context, with the Australian Securities and Investment Commission having released revised regulatory guidelines that incorporate commentary on climate change disclosures with respect to the preparation of prospectuses and the preparation of a corporation's operating and financial review.
Australian states and territories have adopted strong positions on renewable energy and climate change. All Australian states and the two mainland territories have adopted targets of achieving net-zero emissions by 2050. The NSW Renewable Energy Action Plan sets out the framework for NSW to achieve its goal of net-zero emissions by 2050, and the NSW Climate Change Policy Framework sets out other key policy initiatives for NSW, including the establishment of a climate change fund. In Queensland, the state government announced a $145 million plan to establish three renewable energy zones across Northern, Central and Southern Queensland with the potential to deliver 16,000 MW of renewable capacity and significantly contribute towards achieving Queensland's RET by 2030 and net-zero emissions by 2050. South Australia has a RET to achieve net 100 per cent renewable energy generation in the 2030s. Victoria has a RET to meet 50 per cent of its electricity consumption needs by renewable energy sources by 2030, which is enshrined in the Renewable Energy (Jobs and Investment) Act 2017 (Vic).
Outlook and conclusions
Before the impacts of the covid-19 pandemic were realised, perhaps the most significant national event affecting Australia in 2020 were the bushfires that large swathes of the country experienced. Those bushfires increased the consciousness of Australians regarding the potential adverse effects it is confronting from climate change and the need for effective domestic legal and regulatory frameworks to be implemented to combat climate change. While there have been numerous positive legislative and policy developments concerning the environment and climate change in Australia – both at the federal and state/territory level – during the course of 2020, it is apparent that climate change remains an area of regulation at the federal level in Australia that has room for further improvement and development.
1 Ilona Millar is a partner, Guy Dwyer is a senior associate and Sophie Whitehead is an associate at Baker McKenzie.
2 Matters of national environmental significance include both subjects of national environmental significance (e.g., nationally listed threatened species and ecological communities, Ramsar wetlands, migratory species, heritage places and protected areas) and actions that may have a significant impact on particular components of the environment, including subjects of national environmental significance (e.g., coal seam gas or large coal mining development that significantly impacts on water resources, nuclear actions that significantly impact the environment).
3 These include the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, a series of Antarctic acts, the Hazardous Waste (Regulation of Exports and Imports) Act 1989, a series of Great Barrier Reef Marine Park acts, the Australian Heritage Council Act 2003, a series of ozone protection and synthetic greenhouse gas acts, the Environment Protections (Sea Dumping) Act 1981 and the Underwater Cultural Heritage Act 2018.
4 Australia has also ratified both the Kyoto Protocol and the Paris Agreement.
5 Constitution, Section 109; Commonwealth v. Tasmania (1983) 46 ALR 625.
6 Including the Australian Capital Territory, the Northern Territory and Norfolk Island.
7 Northern Territory (Self-Government) Act 1978 Section 35; Northern Territory (Self Government) Regulations 1978 r 4; Australian Capital Territory (Self Government) Act 1988 Section 22 and Sch 4; Norfolk Island Act 1979; see also Gerry Bates, Environmental Law in Australia (10th ed, 2019, LexisNexis Butterworths) at p90.
8 These are respectively the NSW Land and Environment Court, the Planning and Environment Court (Queensland) and the Environment, Resources and Development Court (South Australia).
9 See, for example, Minister for Environment, Heritage and the Arts v. Lamattina (2009) 167 LGERA 219.
10 Minister for the Environment and Heritage v. Greentrees (No.3)  FCA 1317.
11 See, for example, Minister for the Environment and Heritage v. Wilson  FCA 2.
12 Environment Protection and Biodiversity Conservation Act 1999 Sections 486DA and 486DB.
13 Section 475 EPBC Act.
14 See, for example, Australian Conservation Foundation Incorporated v. Minister for the Environment (No. 2)  FCA 1095.
15 Humane Society International Inc v. Kyodo Senpaku Kaisha Ltd  FCAFC 116.
16 Tiger Nominees Pty Ltd v. State Pollution Control Commission (1992).
17 See, for example, in NSW Section 174 POEO Act.
18 Sections 180–183 POEO Act.
19 Carbon monoxide, nitrogen dioxide, photochemical oxidants (as ozone), sulphur dioxide, lead and particles (such as PM10 and PM2.5).
20 The Montreal Protocol on Substances that Deplete the Ozone Layer.
21 These include river catchments or groundwater aquifers.
22 These include utilities, irrigation, mining, stock and domestic.
23 These include bores, pumps and pipelines.
24 See, for example, the Water Management Act 2000 (NSW) and the Water Act 2000 (Qld).
25 To meet obligations related to chemical management under the Stockholm Convention on Persistent Organic Pollutants.
26 The Contaminated Land Management Act 1997 (NSW); the Environment Protection Act 1970 (Vic); the Environmental Protection Act 1994 (Qld); the Contaminated Sites Act 2003 (WA); the Environment Protection Act 1993 (SA); the Environmental Management and Pollution Control Act 1994 (Tas); the Environment Protection Act 1997 (ACT); and the Waste Management and Pollution Control Act 1999 (NT).
27 See, e.g., EPA & Anor v Australian Sawmilling Company Pty Ltd (in liq) & Ors  VSC 550.