ENVIRONMENTAL LAWS IN AUSTRALIA AND CLIMATE CHANGE

This article is written by Areesha Beg of 1^st semester of Dr. B.R Ambedkar National Law University, Sonipat, an intern under Legal Vidhiya

ABSTRACT

As the threat from climate change increases, there is a need to enact environmental laws as a response to tackle the issue. This paper provides detailed information about Australia’s environmental laws and climate change. The paper starts by describing the need for environmental legislation in Australia and further explains the impacts of climate change on the country. It looks into the legal framework and discusses some laws related to the protection of Australia’s environment and biodiversity. It describes several challenges that the country faces while dealing with the problem of climate change, such as lack of implementation, absence of dedication towards achieving the goal, heavy dependency on fossil fuels, etc. The paper goes on with some environmental case laws and how they could help in setting precedence for its protection. The research examines the ineffectiveness of laws and gives suggestions for their proper implementation. Ultimately, the paper seeks to explain why it is important for Australia to work in collaboration with other countries and international agencies in order to solve the issue of climate change and protect future generations from its harmful effects.

KEYWORDS:

Environment, Environmental laws, Australia, Climate change, Global warming, Emissions reduction, Renewable energy, Biodiversity, Case laws, Legislation, International agreements

INTRODUCTION

Today, the world is fighting a battle, which ironically, we ourselves have started. Yes, it’s about climate change, which has been brought on by humans’ exploitation of natural resources and their inherent greed. No part of the world is immune to climate change and almost every region has faced its adverse impact in one or the other form. However, island nations are more vulnerable to climate change than landlocked ones.

Australia, the smallest continent which is surrounded by the Pacific Ocean and Indian Ocean, is often referred to as the ‘island nation’. It is home to the world’s largest coral reef system, the Great Barrier Reef, which supports a wide variety of marine life. But climate change has altered the picture. The country is experiencing an increase in average temperature, and natural resources are heavily impacted. According to International Energy Agency, the average rise in Australia’s temperature is more than 0.042°C per year which is above world’s average of +0.011°C.[1] As a result of climate change, there are now more heat waves, low level of precipitation, frequent bushfires, and a higher chance of the extinction of wild animals.

As the effect from climate change would take years to recover from, it’s high time to address the problem in order to minimize the loss. Australia has taken a number of steps to stop climate change and has enacted various laws to tackle constant rise in temperatures. Recently at the 26^th Conference of The Parties to the UNFCCC, Australia has pledged to reach the net zero emissions by 2050[2] and its Nationally Determined Contribution includes bringing down 43% of the emission by 2030.[3]

OBJECTIVE

The main objective of this paper is to provide a picture of climate change and environmental laws in Australia. The paper tries to explain the effects of climate change on Australian biodiversity. The idea has been put forward by giving references of data and reports published by the Australian government and other authentic sources. The study aims to provide the legal framework, its effectiveness, and the way forward in dealing with the issue of climate change in Australia. 

IMPACTS OF CLIMATE CHANGE ON AUSTRALIA

Climate change does not have a single impact; rather, it affects every aspect of the economy. It not only deteriorates environmental conditions but also has an effect on the economy and the living standards of people. Here are some of the ways that Australia has been impacted by the climate crisis:

1. Rise in temperature – One of the biggest consequences of climate change is a rise in global temperature. Since 1910, the surface air temperature of Australia has been increased by more than 1.4°C[4]. The atmospheric temperature has been rising since then and has reached record breaking grounds in the year 2019 when it was declared as the hottest year in Australian history[5].  Heatwaves become more frequent as a result of rise in temperature which adds up to Australia’s naturally arid climate. Extreme temperatures could cause various health related issues. Constant exposure to hotter climate could cause various illnesses such as heat cramps, heatstroke, and hyperthermia. Extreme climatic temperature has the potential to exacerbate chronic diseases such as diabetes related conditions, cardiovascular disease and respiratory problem. According to The Sydney Morning Herald, between 2000 and 2018, 354 deaths occurred as a result of heatwave conditions.[6]
2. Rainfall – Extreme rainfall conditions are associated with climate change. Where some parts of the country may receive extremely heavy rainfall, others might go through drought- like conditions. Lower rainfall affects crops and vegetation in the region. The south-west region of Australia has witnessed 10-20 percent decrease in annual rainfall[7]. Low level of rainfall affects ground water replenishment which could eventually lead to water scarcity. On the other hand, intense, heavy short- duration rainfalls have become frequent in many parts of the country. These have become the reason of floods and water clogging.
3. Forest fires – Forest fires have become more frequent as a result of climate change. High temperature increases the risk of bushfires. According to research by the World Weather Attribution, climate change has increased the risk of intense fire weather by 30% today compared to what it was in 1900[8]. Hundreds of animals die due to forest fires every time they occur. These fires exacerbate the already worse climatic condition by releasing greenhouse gases such as carbon-dioxide and methane. It destroys natural resources and renders the nearby residential areas uninhabitable.
4. Flora and fauna – Australia is an island nation, hence it has a diverse range of plants and animals. The Great Barrier Reef which runs along the northeastern coast of Australia is home to thousands of species. But climate change has become a huge threat to the coral reefs. Ocean acidification and coral bleaching are some of the climatic catastrophes which affects the water bodies. The absorption of carbon dioxide from the atmosphere has made the oceans more acidic making it difficult for the marine creatures to survive. Rising water temperatures have compelled marine species to migrate in search of cooler environments. The loss of natural creatures could eventually affect the local ecosystem, food supply and other sectors such as tourism.
5. Australian economy – Australia is the 13^th largest economy in the world. It’s a strong economy which is heavily dependent on export of minerals, agriculture and tourism. Climate change had a variety of negative effects on the economy, including crop destruction, lack of electricity, and a decline in tourism industry. Extreme temperatures have resulted in increased demand of electricity and load shedding in numerous regions. Events like drought, floods and cyclone has impacted agriculture outputs and food production. As nature-based tourism dominates the Australian market, effects of climate change on beaches, coral reefs, and rainforests have reduced tourists’ attraction as well.

ENVIRONMENTAL LAWS OF AUSTRALIA

The government of Australia has created a number of laws to address the disastrous effects of climate change since the country first began to notice their effect in the late 20^th century. The laws cover a wide range of topics including environmental pollution, the obligations of public servants and individuals regarding environmental protection, preventing climate change from harming historical places, and protecting plant and animal species. Few of these laws have been discussed here:

1. Environment Protection Act 1997 – The law aims to prevent environmental pollution, safeguard it, and improve its quality. Its objective is to stop environmental deterioration and its possibility to impair human health. It includes provisions for waste minimization, reuse and recycling, clean manufacturing techniques and pollution prevention. It also directs the citizens to take active steps to improve the environment. The Environment Protection Authority (EPA) was established under the Environment Protection Act[9]. The body is responsible for the enforcement of this act; hence, it has the authority of providing environmental authorization, raising public awareness and setting rules for the prevention of land, water, and air pollution. Section 125 of the act gives public authorities, the power to serve environment protection orders against a person who has contravened the provisions of this act[10]. The law also reserves penalties and punishment according to the severity of environmental harm caused by a person under section 133.[11]
2. Environment Protection and Biodiversity Conservation Act, 1999 – The environment protection and biodiversity conservation act commonly known as EPBC act, aims to safeguard the ‘protected’ matters. It provides for the protection of cultural and world heritage sites. Section 12 of the act states that no one, a person, or a company should engage in any activity that might have a significant impact on protected heritage sites unless an approval is obtained from the concerned authority[12]. The law restricts human activities that might endanger threatened and migratory species and imposes penalties in case of non-compliance. It considers the Great Barrier Reef as a protected matter and prohibits any action which could have a detrimental effect on the marine environment. The act established an Australian Whale Sanctuary[13] for the protection of whales, dolphins, and porpoises. In order to achieve its goal, the legislature mandates that the indigenous people work in cooperation with the state and help conserve the nation’s natural heritage.
3. Water Act 2007 – In order to manage water resource, Australia has enacted water act in 2007. The act encourages using the water resources in an optimized way so that it maximizes social, economical, and environmental outcomes. The Act set precedents for the establishment of the “Murray-Darling Basin Authority[14]” for the management of water in the basin and its sustainable use. The MDBA works to minimize the effect of climate change on the Murray Darling Basin. The authority has predicted how climate change will affect the water resources in future including poorer quality of water, less water availability, change in the river ecosystem, etc., and has created a basin plan to address these issues.
4. Climate Change Act 2022 – To reduce the greenhouse gas emission, Australian parliament passed the Climate Change Act in September 2022. Section 10 of the act establishes ‘Australia’s greenhouse gas emission targets’ which includes reducing greenhouse gas emissions to 43% lower than 2005 levels by 2030[15]. It binds the executive powers to prepare a Nationally Determined Contribution in consistent with the Paris Agreement and to achieve net zero emissions by 2050. It stipulates that the Ministers must prepare an annual climate change statement on the advice of the Climate Change Authority[16]. The law additionally calls for a re-examination of the act’s operation on a regular basis.

CHALLENGES IN HANDLING CLIMATE CHANGE

Despite enacting comprehensive laws, Australia continues to face various obstacles in effectively confronting the issue of climate change. These challenges are:

1. Lack of implementation – Although there are detailed laws on climate change, there is lack of implementation on the part of government. This is due to lack of proper mechanism. There is frequent non-compliance of laws and no action is taken to stop it.
2. Unrealistic goals – The net zero target of 2050 appears to be unrealistic as it is difficult to achieve within the timeframe. Additionally there is lack of dedicated efforts towards achieving the goal.
3. Dependence on conventional energies – Australia still largely depends on fossil fuels for its energy requirements; about 92% of its need are met by coal, oil and, gas[17], which significantly adds to the problem of carbon emissions.
4. Public awareness – There is lack of social awareness about the harmful effects of climate change. People depend on their same old lifestyle due to which the need for environmentally friendly choices get overlooked.
5. Heavy transitional cost – It requires a lot of research and investment to switch from fossil fuels to renewable energies. Further, with present-day technology, it is difficult to produce enough energy from these renewable sources to meet the needs of entire population.

LANDMARK JUDGEMENTS ON ENVIRONMENTAL ISSUES IN AUSTRALIA

1. Commonwealth of Australia v. Tasmania (1983)[18] – In 1978 the Tasmanian government proposed the construction of a dam on Gordon River. The construction of the dam could have resulted in flooding a large section of Franklin River. Later the area in which dam was proposed to be built was declared a World Heritage Site. But merely being a World Heritage Site could not become the reason of halting the construction of the dam therefore, Australian Government passed the ‘World Heritage Properties Conservation Act 1983’ to protect the site. Even after the passing of legislature, the Tasmanian government refused to stop the construction following which the case went to the High Court. The High Court delivered the judgment and upheld the validity of commonwealth laws thereby preventing the dam construction. This ruling continues to be a point of reference for examining the constitutionality of any action that could have a negative impact on environment.
2.  Gloucester Resources Ltd. v. Minister for Planning (2019)[19] – Commonly known as the ‘Rocky Hill Coal Project Case’, the case discussed the effects of a coal mine known as Rocky Hill Mine Project on climate change and its visual and social impacts. Brian Preston, the Chief Justice of New South Wales Land, rejected the approval of the project, citing the emissions of greenhouse gases from the mine. He also denoted the importance of a decision made by a developed country on developing countries regarding the protection of environment, stating that if Australia refused the approval of the project, countries like India and Indonesia would take examples from the judgments and follow the same.
3. Daniel Billy and others v. Australia[20] – The case involves Daniel Billy and seven other Torres Strait Islanders as petitioners who filed a suit against the Australian government with the United Nations Human Rights Committee, complaining that the government’s inability to address the climate issue has threatened their survival on the island. The petitioners argued that climate change has led to the degradation of land, acidification of ocean, flooding and many other ecological imbalances. The committee ruled in favor of the petitioners and found that Australia has violated the rights of native islanders by failing to take action in a timely manner, and it asked the government to provide them a compensatory amount.

RECENT DEVELOPMENTS AND WAY FORWARD

In recent years, the threat posed by climate change has become more severe; to handle this issue Australia has taken several steps. The country has made commitment to the Paris agreements in 2015[21]. It has made long term emission reduction plan to achieve net zero by the year 2050[22]. It has been working with International bodies and is part of various international and bilateral agreements to improve global climatic conditions. At COP 26, Australia pledged 2 billion dollars in climate change for the year 2020-2025 which includes funds for building climate resilience in the Pacific.[23] It has been a member of International Renewable Energy Agency, an intergovernmental organization to promote and facilitate responsible utilization of renewable energy. It is a founding member of the International Solar Alliance, an initiative of India and France to make efforts against climate change by providing solar energy as an alternative to conventional energies[24]. 

Despite these ongoing efforts, the path to environmental protection is filled with many obstacles, and to fix these, a planned approach must be followed. The country should strengthen its emission reduction targets and make a robust mechanism to deal with non-compliance of environmental laws. Climate resilient infrastructure must be made to protect the cities from climatic catastrophes. Investment is needed to gradually increase the use of renewable energies and people must be encouraged to work collectively in addressing the issue of climate change.

CONCLUSION

The issue of climate change is ubiquitous and cannot be fraught individually; therefore, countries should work in collaboration with each other to reduce global warming and its harmful effect. Australia has made commendable strides in addressing the issue, but the journey is grappling with substantial hurdles. If not treated immediately, climate change would result in long term losses that would be even more difficult to solve. The country must work towards achieving the Sustainable Development Goals, especially SDG 13, which calls for taking urgent actions to combat climate change and its impact[25]. It should learn from leading nations and exchange technologies to accelerate the use of sustainable energies. Every possible step must be taken to keep global temperatures well below 1.5°C, as stated in the Paris agreements. Addressing climate change is crucial not just for our survival but for the future generations, that would bear the brunt of any unwise decisions made today.

---

[1]  Australia Climate Resilience Policy Indicator, iea.org, https://www.iea.org/articles/australia-climate-resilience-policy-indicator visited on 09/08/2023

[2]  Australia welcomes positive outcomes at COP26, Minister for Foreign Affairs, available at https://www.foreignminister.gov.au/minister/marise-payne/media-release/australia-welcomes-positive-outcomes-cop26 , visited on 09/08/2023

[3]  Australia’s emissions projections 2022, Australian Government, Department of Climate Change, Energy, the Environment and Water, available at https://www.dcceew.gov.au/climate-change/publications/australias-emissions-projections-2022, visited on 09/08/2023

[4]  Australian Climate Trends, Climate Change in Australia, https://www.climatechangeinaustralia.gov.au/en/changing-climate/climate-trends/australian-trends/ visited on 08/08/2023

[5]  Australia’s Changing Climate, CSIRO, https://www.csiro.au/en/research/environmental-impacts/climate-change/state-of-the-climate/australias-changing-climate visited on 08/08/2023

[6]  Miki Perkins, ‘Living in swelter boxes’: January 27 the deadliest day for heatwave deaths, The Sydney Morning Herald (07/01/2022) https://www.smh.com.au/environment/climate-change/living-in-swelter-boxes-january-27-the-deadliest-day-for-heatwave-deaths-20220127-p59rmm.html visited on 09/08/2023

[7]  What’s happening to Australia’s rainfall? Australian Academy of Science https://www.science.org.au/curious/policy-features/whats-happening-australias-rainfall visited on 09/08/2023

[8] Australia’s bushfires ‘made 30% more likely by climate change’, University of Oxford, available at https://www.ox.ac.uk/news/2020-03-12-australia-s-bushfires-made-30-more-likely-climate-change, visited on 09/08/2023

[9]  Environment Protection Authority, Access Canberra, https://www.accesscanberra.act.gov.au/s/article/environment-protection-tab-overview, visited on 10/08/2023

[10]  S. 125, Environment Protection Act, 1997 (The Commonwealth of Australia)

[11]  S.133, Environment Protection Act, 1997 (The Commonwealth of Australia)

[12]  S. 12, Environment Protection and Biodiversity Conservation Act, 1999 (The Commonwealth of Australia)

[13] Australian Whales Sanctuary, Australian Government, Department of Climate Change, Energy, the Environment and Water, available at https://www.dcceew.gov.au/environment/marine/marine-species/cetaceans/australian-whale-sanctuary, visited on 05/08/2023

[14]  The Water Act, Murray-Darling Basin Authority, Australian Government, available at https://www.mdba.gov.au/about-us/what-we-do/water-act, visited on 07/08/2023

[15]  S. 10, Climate Change Act, 2022 (The Commonwealth of Australia)

[16]  S. 12, Climate Change Act, 2022 (The Commonwealth of Australia)

[17] Energy Consumption, Australian Government Department of Climate Change, Energy, the Environment and Water available at https://www.energy.gov.au/data/energy-consumption#:~:text=Fossil%20fuels%20(coal%2C%20oil%20and,energy%20sources%20accounted%20for%208%25. , visited on 08/08/2023

[18] Commonwealth of Australia v Tasmania [1983], 158 CLR 1 (High Court of Australia)

[19] Gloucester Resources Ltd. v. Minister for Planning [2019], 234 LEGRA 257 (Land & Environment Court of New South Wales, court of Australia)

[20] Daniel Billy and others v. Australia [2019], CCPR/C135/D/3624/2019, (United Nations Human Rights Committee)

[21] International Climate Change, Australian Government Department of Climate Change, Energy, the Environment and Water available https://www.dcceew.gov.au/climate-change/international-commitments, visited on 09/08/2023

[22] Ibid, at 1

[23] International Cooperation in Climate Change, Australian Government Department of Foreign Affairs and Trade, available at https://www.dfat.gov.au/international-relations/themes/climate-change/international-cooperation-on-climate-change#:~:text=Since%20its%20creation%20in%202011,and%20more%20sustainable%20energy%20future. , visited on 08/08/2023

[24] Australia Joins International Solar Alliance, Minister for Foreign Affairs, available at https://www.foreignminister.gov.au/minister/julie-bishop/media-release/australia-joins-international-solar-alliance, visited on 08/08/2023

[25] The 17 Goals, United Nations, Department of Economic and Social Affairs, Sustainable Development, available at https://sdgs.un.org/goals, visited on 09/08/2023