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Victoria's Climate Change Act 2017 - A Comprehensive Framework

On 23 February 2017, the Climate Change Act 2017 ("Act") was passed by the upper house of Victorian Parliament. Once it receives royal assent, the Act will come into operation on or before 1 November 2017.

The Act repeals the Climate Change Act 2010 (Vic) ("Previous Act") and sets out a comprehensive framework for the Victorian Government to address climate change.  Key features of the Act that weren’t seen in the Previous Act include:

  1. Targets – a long-term emissions reduction target of net zero greenhouse gas emissions ("GHGEs") by the year 2050 ("2050 Target"), and 5-yearly “interim emissions reduction targets” ("IERTs") to meet that target;
  2. Ministerial obligations – for each 5-yearly period ("IERT Period"); and
  3. Embedding the consideration of climate change – through the Act’s “policy objectives” and “guiding principles”.

The strengthened Climate Change Act will complement Victoria’s efforts on other fronts, including the renewable energy targets set in June last year for 25% of electricity generated from renewable energies by 2020, and 40% by 2025.

Targets

2050 Target

Promisingly, under the Act the Premier and the Minister have a statutory obligation to ensure that the State achieves the 2050 Target.

The net zero 2050 Target is calculated by deducting any “eligible offsets” from outside the State from the total amount of GHGEs attributable to the State (including any removals of GHGEs from the atmosphere due to activities within the State).

For an offset to be an “eligible offset” it needs to be issued under a prescribed “regulatory, accreditation of certification scheme”. It is not yet clear what kinds of offsets will be “eligible offsets” – a matter which will likely be prescribed in subordinate legislation at a later date.

Interim Targets

In addition to the 2050 Target, the Premier and the Minister must also determine IERTs in respect of the following periods, on or before the following dates:

  Start of IERT Period End of IERT Period IERT due date
Period 1 1 January 2021 31 December 2025 31 March 2020
Period 2 1 January 2026 31 December 2030 31 March 2020
Period 3 1 January 2031 31 December 2035 31 March 2023
Period 4 1 January 2036 31 December 2040 31 March 2028
Period 5 1 January 2041 31 December 2045 31 March 2033
Period 6 1 January 2046 31 December 2050 31 March 2038

 

Each IERT must be:

  • greater than any previous IERT;
  • made with reference to the total GHGE’s from the year 2005 (to ensure comparability between each IERT period);
  • based on independent expert advice; and
  • made having regarding to the 2050 Target, the policy objectives and guiding principles of the Act.

Each IERT and the independent expert advice relied on must be published on the Internet.

An IERT can only be amended if “exceptional circumstances” apply and if such amendment is accompanied by a statement of reasons. It is not yet clear what might constitute “exceptional circumstances” which would warrant amending an IERT.

Ministerial Obligations

Part 5 and 6 of the Act require the Minister to perform several key roles in assisting Victoria meet each IERT, and in turn, the 2050 Target. These include:

  • preparing a “Climate Change Strategy” ("CCS");
  • preparing an “Adaptation Action Plan” ("AAP"); 
  • making statements with respect to Victoria’s GHG “Emissions Reduction Pledges” ("ERPs"); and
  • preparing a number of reports, including climate science reports ("CSRs"), annual GHGE reports, and end of IERT period reports.

Each set of obligations has a 5-yearly cycle which references each IERT Period, and the Act sets out in detail what fulfilling the obligation entails for the relevant Minister, including what the relevant strategy, plan, statement or report must include, and what the Minister must consider when formulating the relevant strategy, plan, statement or report.

All strategies, plans, statements or reports made under these provisions must be made available to the public by publication on the Internet to ensure transparency and accountability.

Embedding the Consideration of Climate Change

As was the case under the Previous Act, the Act will regulate certain decisions made under six key pieces of Victorian legislation, namely the Catchment and Land Protection Act 1994 (Vic), the Coastal Management Act 1995 (Vic), the Environment Protection Act 1970 (Vic), the Flora and Fauna Guarantee Act 1988 (Vic), the Public Health and Wellbeing Act 2008 (Vic) and the Water Act 1989 (Vic). The kinds of decisions or actions regulated by the Act are set out in Schedule 1 to the Act. It is disappointing that the number of Acts (or kinds of decisions made pursuant to each Act) were not expanded to require climate change to be considered more broadly, despite this being a key recommendation of the Independent Review Committee when it reviewed the Previous Act.

Section 22 of the Act sets out the Act’s “policy objectives”, which are a new inclusion from the Previous Act. The six “guiding principles” contained in Division 3 of Part 4 on the other hand are largely unchanged from the Previous Act. Whilst there are numerous instances throughout the Act requiring that these policy objectives and guiding principles be considered, it is disappointing that section 20 of the Act only states that the Government of Victoria will “endeavour” to “appropriately” take account of climate change by having regard to the policy objectives and guiding principles “if it is relevant”. This largely reduces the utility of the guiding principles and policy objectives.

Other Changes

The Act also amends the Environment Protection Act 1970 (Vic) giving the EPA an additional duty or function; namely, to enable the EPA to recommend to the Governor in Council the making of statutory policies and regulations for the emission of GHG substances to help meet the IERTs under the Act, which in turn, would help meet the State’s 2050 Target.

As was the case under the Previous Act, the Act will also regulate carbon sequestration in relation to both private and Crown land, as well as forestry rights and soil carbon rights in relation to private land.

Russell Kennedy will be monitoring the passage of this legislation and will provide an update in due course. For more information please contact John Corcoran AM or Mark Burrows.