The Role of Framework Legislation in Implementing Australia's Emission Reduction Commitments under the Paris Agreement

• Author: Michael Bennett
• Position: PhD candidate, University of Western Australia. The author thanks Professor Alex Gardner and Associate Professor Sarah Murray for their comments on a draft of this article
• Pages: 240-263

240

THE ROLE OF NATIONAL

FRAMEWORK LEGISLATION IN

IMPLEMENTING AUSTRALIA’S

EMISSION REDUCTION

COMMITMENTS UNDER THE

PARIS AGREEMENT

MICHAEL BENNETT*

The Paris Agreement has been widely recognised as a signicant step forward in efforts to address

climate change. However, the success of the agreement in achieving its global goals will depend

critically on the implementation of sufciently ambitious nationally-determined commitments

(‘NDCs’) made under the Agreement. This article explores the potential for national legislation

to support the Paris Agreement by guiding the development of NDCs and establishing political

and legal accountability mechanisms to ensure that they are achieved. It also examines particular

design issues that arise in an Australian context.

INTRODUCTION

The Paris Agreement1 entered into force on 4 November 2016 and was ratied by

Australia on 9 November 2016.2 As at October 2017 it had been ratied by parties

responsible for 87 per cent of global greenhouse gas emissions.3 While President

Trump has threatened to withdraw the United States from the agreement,4 he

would need to win a second Presidential term to do so.5 At least for the time being,

* PhD candidate, University of Western Australia. The author thanks Professor Alex Gardner

and Associate Professor Sarah Murray for their comments on a draft of this article.

1. Paris Agreement [2016] ATS 24, entered into force 4 November 2016 (UNTS number not

yet assigned).

2 United Nations, Status of Agreements: Paris Agreement

ViewDetails.aspx?src=IND&mtdsg_no=XXVII-7-d&chapter=27&clang=_en>.

3 World Resources Institute, Paris Agreement Tracker (2 October 2017)

org/source/ ratication/#?lang=en>.

4 Michael D Shear, ‘Trump Will Withdraw US from Paris Climate Agreement’ New York

Times (online), 1 June 2017

climate-agreement. html>.

5 The United States has indicated that ‘unless the United States identies suitable terms for

reengagement, the United States will submit to the Secretary-General, in accordance with

Article 28, paragraph 1 of the Agreement, formal written notication of its withdrawal

as soon as it is eligible to do so’: Karl Mathiesen ‘Trump Letter to UN on Leaving

Paris Climate Accord – In Full’, Climate Change News (7 August 2017) .

climatechangenews.com/2017/08/07/trump-tells-un-intention-leave-paris-climate-accord-

full/>. Under Article 28.1 the United States is eligible to withdraw ‘[a]t any time after

three years from the date on which this Agreement has entered into force...’. Article 28.2

241

the Paris Agreement remains at the centre of international efforts and the world’s

best hope for limiting anthropogenic climate change.

The Paris Agreement endorses two important global goals: to restrain global

warming to ‘well under’ 2°C relative to pre-industrial levels, and to achieve a

balance between anthropogenic sources and sinks of greenhouse gas emissions

in the second half of this century. Central to achieving these goals is the pledge-

and-review mechanism, under which parties must submit ‘nationally-determined

contributions’ (‘NDCs’) every ve years, following global stocktakes of progress.

The success or failure of the Paris Agreement in achieving its global goals will

turn on the adequacy of successive emission reduction commitments in NDCs,

and on their effective implementation. At the same time, the agreement leaves

a great deal of discretion to parties to determine the nature and scale of their

commitments and contains soft enforcement mechanisms, such as reporting and

expert review, to ensure that parties follow through on their commitments.

This article explores the potentially important role that national framework

legislation can play in supporting the pledge-and-review mechanism

by encouraging nations to submit adequate targets and ensure adequate

implementation. It also examines some of the key design issues that Australia

would need to address in developing framework legislation of this kind. While

framework legislation also has the potential to play an important role with respect

to climate change adaptation, the focus here is on mitigation: that is, reducing

greenhouse gas emissions.6

The article is structured as follows. Part I focuses on the Paris Agreement. It outlines

the goals of the agreement, the central role of the pledge-and-review mechanism,

and the risks that the pledge-and-review mechanism will be undermined by free-

riding behaviour resulting in inadequate national targets and implementation. Part

II considers the potential for national framework legislation to help avoid this

scenario by guiding responsible target-setting and implementation. It examines

the emergence of framework legislation as a signicant regulatory strategy; the

functions it can serve; and the ways in which it can be aligned with, and support,

the goals and processes of the Paris Agreement. Part III turns the focus to Australia,

further provides that any such withdrawal will take effect upon the expiry of one year from

the date of receipt. The combined effect of these provisions is that the earliest date for

withdrawal is 4 November 2020, one day after the next US election: see Fred Pearce, ‘With

the U.S. Out of Paris, What Is the Future for Global Climate Fight?’ Yale Environment

360 (8 June 2017)

future-for-global-climate-ght>. There were other possible options for withdrawing

earlier, namely withdrawing from the United Nations Framework Convention on Climate

Change or asserting that the Paris Agreement had not been adopted in accordance with US

Constitutional requirements, but it appears that the Trump Administration has elected not

to pursue these options.

6 For ease of reference, ‘reducing emissions’ is used in this article as shorthand for both

reducing anthropogenic greenhouse gas emissions and increasing greenhouse gas removals

(e.g. through revegetation).

242

with a consideration of three issues that would be especially important in the

development of national framework legislation in this country: the constitutional

basis for the legislation, the role the Australian Parliament should have in target-

setting decisions, and the scope for the legislation to impose duties on public

ofcials to ensure that targets are achieved.

I THE PARIS AGREEMENT

A The Goals of the Paris Agreement

The principal goal of the Paris Agreement is an ambitious one:

[h]olding the increase in the global average temperature to well

below 2 °C above pre-industrial levels and pursuing efforts to limit the

temperature increase to 1.5 °C above pre-industrial levels.7

This long-term temperature goal was informed by the evolving scientic

understanding of the impacts associated with different average global temperatures,

including impacts on water availability, extreme weather events, agricultural

yield, species and ecosystems.8 At a political level, the reference to 1.5°C was

also driven by the demands of island states and least developed countries most

vulnerable to the impacts of climate change.9

Some sense of the scale of the emissions reduction challenge implied by the

long-term temperature goal is provided by estimates of the emissions budget that

humanity must stay within to meet that goal. The concept of an emissions budget

(or carbon budget as it is often called)10 is useful because it is cumulative emissions

to the atmosphere, rather than just emissions in a single year, that result in the

atmospheric greenhouse gas concentrations responsible for climate change.11 In

2014, Australia’s Climate Change Authority considered what global emissions

budget would be consistent with a 2°C goal. Drawing on work by Meinshausen et

al,12 the Authority found that:

7 Paris Agreement art 2.

8 Carl-Friedrich Schleussner et al, ‘Science and Policy Characteristics of the Paris Agreement

Temperature Goal’ (2016) 6 Nature Climate Change 827, 827-8.

9 Ralph Bodle, Lena Donat and Matthias Duwe, ‘The Paris Agreement: Analysis, Assessment

and Outlook’ (2016) 10(1) Carbon and Climate Law Review 5 7; Sara Phillips, ‘Paris

Climate Deal: How a 1.5 Degree Target Overcame the Odds at COP21’, ABC Online, 13

December 2015.

10 A carbon budget is literally ‘a mechanism for accounting for the net sources of carbon

to the atmosphere’: R Quentin Grafton et al, A Dictionary of Climate Change and the

Environment: Economics, Science and Policy (Edward Elgar Publishing, 2012) 49.

However the term is often used to refer to global emissions budgets covering all greenhouse

gases: Climate Change Authority, ‘Reducing Australia’s Greenhouse Gas Emissions -

Targets and Progress Review Final Report’ (2014) 47.

11 For an outline of the scientic basis for carbon budgets and the different methods for

their calculation see Joeri Rogelj et al, ‘Differences Between Carbon Budget Estimates

Unravelled’ (2016) 6(3) Nature Climate Change 245.

12 Malte Meinshausen et al, ‘Greenhouse-gas Emission Targets for Limiting Global Warming

to 2 C’ (2009) 458(7242) Nature 1158, 1161.

243

[a] global emissions budget that provides at least a likely (67 per cent

probability) chance of limiting warming to less than 2 degrees above

pre-industrial levels...equates to a global budget of no more than 1,700

Gt CO2-e emissions of Kyoto gases from 2000 to 2050.13

The Authority further found that approximately 36 per cent of this global budget

had already been used between 2000 and 2012.14 Given that this leaves a little

over 1000 Gt CO2-e, and that annual global emissions currently exceed 50 Gt

CO2-e,15 this implies that very substantial emission reductions would be needed

to live within the remaining budget associated with 2°C of warming, let alone a

goal of closer to 1.5°C.

While the long-term temperature goal is at the heart of the Paris Agreement,

Article 4.1 sets out an important supplementary goal:

In order to achieve the long-term temperature goal as set out in Article

2, Parties aim to reach global peaking of greenhouse gas emissions as

soon as possible, recognizing that peaking will take longer for develop-

ing country Parties, and to undertake rapid reductions thereafter in ac-

cordance with best available science, so as to achieve a balance between

anthropogenic emissions by sources and removals by sinks of green-

house gases in the second half of this century... (italics added).

As with the long-term temperature goal, this net-zero emissions goal is a collective

global goal, rather than one that strictly requires each party to achieve net-zero

emissions.16

B The Pledge and Review Mechanism

Unlike the Kyoto Protocol,17 the Paris Agreement does not prescribe country-

specic emissions targets. Instead, each party is required to submit its own

nationally determined contribution.18 Under Article 4.2:

13 Climate Change Authority, above n 10, 50.

14 Ibid.

15 In 2014 global greenhouse gas emissions were approximately 52.7 Gt CO2-e (range 47.9-

57.5 with a 90 per cent condence interval): United Nations Environment Program, ‘The

Emissions Gap Report 2016: A UNEP Synthesis Report’ (2016) 3.

16 Daniel Bodansky, ‘The Legal Character of the Paris Agreement’ (2016) 25(2) Review of

European, Comparative & International Environmental Law 142, 146.

17 Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened

for signature 11 December 1997, 2303 UNTS 162 (entered into force 16 February 2005).

18 The difference with the Kyoto Protocol should not be overstated. While the fact that

emission reduction targets were recorded in an annex to the protocol might on the surface

suggest a ‘top-down’ model of targets being imposed on parties, ‘the reality is that ‘bottom

up’ has always been how diplomacy works in a world that has no central government’:

David G Victor, ‘Copenhagen II or Something New’ (2014) 4(10) Nature Climate Change

853 1.

244

Each Party shall prepare, communicate and maintain successive

nationally determined contributions that it intends to achieve. Parties

shall pursue domestic mitigation measures, with the aim of achieving

the objectives of such contributions.

NDCs are to be prepared by all parties, not just developed countries. However,

the content of NDCs will differ. Developed countries ‘should continue taking

the lead by undertaking economy-wide absolute emission reduction targets’ while

developing country parties are ‘encouraged to move over time towards economy-

wide emission reduction or limitation targets in the light of different national

circumstances’.19

While the long-term, collective goals of the Paris Agreement are clear enough,

the agreement provides little guidance as to how the efforts to achieve these goals

should be divided among nations. The closest it comes to outlining such principles

is Article 4.3, which provides that:

Each Party’s successive nationally determined contribution will represent

a progression beyond the Party’s then current nationally determined

contribution and reect its highest possible ambition, reecting its

common but differentiated responsibilities and respective capabilities, in

the light of different national circumstances.

As at October 2017, 160 nations had submitted NDCs, out of a total of 166 parties

that had ratied the Paris Agreement.20 As discussed below, early estimates

suggest that current NDCs are not adequate to meet the Paris Agreement’s goals.

However, the great hope of the Paris Agreement is that successive NDCs will

progressively strengthen mitigation efforts. The architecture of the agreement

seeks to encourage this in a number of ways. Under Article 4.11 a party ‘may

at any time adjust its existing nationally determined contribution with a view to

enhancing its level of ambition...’.21 Parties are also required to communicate an

NDC every ve years.22 Such communications will be informed, in practice, by

the country’s own reporting on progress in implementing its NDCs,23 technical

expert reviews of those reports24 and global stocktakes of collective progress.25

The Paris Agreement seeks to ratchet up the level of ambition in successive NDCs

through the requirements, already noted, of ‘progression’ and ‘highest possible

ambition’.26

19 Paris Agreement art 4.4. On the characterisation of the statement regarding developed

country parties as a recommendation rather than a legally binding obligation see Bodansky,

above n 16, 149-150.

20 UNFCCC Secretariat, NDC Registry (Interim)

Pages/Home.aspx> (accessed 2 October 2017).

21 Paris Agreement art 4.11.

22 Ibid art 4.9.

23 Ibid art 13.7.

24 Ibid art 13.11.

25 Ibid arts 4.9, 14. Art 4.9 explicitly provides that NDCs ‘shall...be informed by the outcomes

of the global stocktake ...’.

26 Ibid art 4(3).

245

The ve-yearly cycle of global stocktakes and successive NDCs is illustrated in

Table 1.

TABLE 1: PARIS AGREEMENT TIMETABLE 2018-2030

Year Event

2018 Facilitative dialogue1

2020 Deadline to communicate NDCs2

2023 Global stocktake

2025 Deadline to communicate NDCs

2028 Global stocktake

2030 Deadline to communicate NDCs

The strength of the Paris Agreement’s ratchet mechanism, and specically

the question of whether a party could downgrade the level of ambition in its

NDC, was the subject of debate following the election of President Trump and

speculation as to whether the United States could downgrade its NDC as an

alternative to withdrawing from the Paris Agreement. On one view, it could do

so because ‘higher ambition is not a legal requirement, and Article 4.11 does not

legally prohibit a party from adjusting its NDC in another direction.’27 A different

view has also been strongly argued: that on its proper interpretation, Article

4.11 ‘only countenances upward adjustment of NDCs’.28 It is argued that this

interpretation is consistent with the object and purpose of the Paris Agreement

because it preserves the effectiveness of the ratchet mechanism that is so central

to its successful operation. The alternative, of allowing parties to downgrade their

emission reduction commitments at any time, would undermine the requirement

that each new NDC represent a progression beyond the then current NDC.29

The Paris Agreement does not specify the timeframe for NDCs. Competing

proposals for ve and 10 year NDCs were put forward in negotiations but no

agreement could be reached on a preferred timeframe.30 This question was

effectively deferred to the rst meeting of the parties,31 which further deferred

27 Susan Biniaz and Daniel Bondansky, Legal Issues Related to the Paris Agreement (Center

for Climate and Energy Solutions, May 2017).

28 Lavanya Rajamani and Jutta Brunnée, ‘The Legality of Downgrading Nationally Determined

Contributions under the Paris Agreement: Lessons from the US Disengagement’ (2017)

Journal of Environmental Law 1, 12.

29 Ibid; Jonathon Church, ‘Guest Post: Can the US Legally Weaken its Paris Agreement

Climate Pledge?’ on Carbon Brief (8 May 2017) g/guest-

post-can-the-us-legally-weaken-its-paris-agreement-climate-pledge>; Lavanya Rajamani,

‘The US and the Paris Agreement: In or Out at What Cost?’ on Blog of the European

Journal of International Law (10 May 2017)

paris-agreement-in-or-out-and-at-what-cost/>.

30 Harald Winkler, ‘Mitigation (Article 4)’ in Daniel Klein et al (eds), The Paris Climate

Agreement: Analysis and Commentary (Oxford University Press, 2017) 157.

31 Paris Agreement art 4(10).

246

the question.32 What is clear is that by 2020 parties using a ve-year timeframe

must have communicated NDCs for 2021-2025 and 2026-2030, and parties (such

as Australia) using a 10 year timeframe will need to communicate or update their

2021-2030 NDCs.33 In other words, all parties must have commitments in place

for the 2021-2030 period by this time.

C Two Risks with the Pledge and Review Mechanism

The tragedy of the commons, as described by ecologist Garrett Hardin in

his famous 1968 article,34 provides a useful conceptual lens through which to

consider the dynamics of the Paris Agreement and associated national actions

to reduce greenhouse gas emissions. The metaphor Hardin employs is that of

cattle being grazed on a commons, ‘a pasture open to all’.35 From the perspective

of each herder it makes sense to graze as many cattle as possible, as individual

herders have the full benet of adding another animal but suffer only a fraction of

the costs of over-grazing. However, the net result of these individual decisions is

the degradation, even the destruction, of the pasture. ‘Therein is the tragedy. Each

man is locked into a system that compels him to increase his herd without limit

– in a world that is limited.36 The dynamic described by Hardin has the potential

to apply to any open access resource that can be depleted by overuse. Obvious

examples are shared sheries37 and water resources,38 but the global atmospheric

commons can be, and often has been, viewed in the same way.39

The tragedy of the commons, with its focus on the often-tragic misalignment

of individual incentives and collective interests, contains a powerful lesson for

the implementation of the Paris Agreement. In a comparable way to Hardin’s

herders, every country has a common collective interest in a sustainable outcome

but an individual incentive to do things that will undermine that outcome. This

position was not fundamentally changed by the Paris Agreement. International

endorsement of the long-term temperature goal was a substantial diplomatic

32 Center for Climate and Energy Solutions, Outcomes of the UN Climate Conference in

Marrakech: 22nd Session of the Conference of the Parties to the United Nations Framework

Convention on Climate Change

marrakech/summary> (accessed 17 July 2017).

33 Paris Agreement art 4.9; 1/CP.21[23]-[25].

34 Garrett Hardin, ‘The Tragedy of the Commons’ (1968) 162(3859) Science 12431.

35 Ibid 1244.

36 Ibid.

37 e.g. Alison Rieser, ‘Prescriptions for the Commons: Environmental Scholarship and the

Fishing Quotas Debate’ (1999) 23 Harvard Environmental Law Review 393.

38 e.g. Shol Bluestein, ‘From the Bottom Up: Redesigning the International Legal Response

to Anthropogenic Climate Change’ (2011) 32 Adelaide Law Review 316, 308.

39 e.g. Peter-Tobias Stoll, ‘The Climate as a Global Common’ in Daniel A Farber and Marjan

Peeters (eds), Climate Change Law: Volume 1 (Elgar, 2016) ; Ottmar Edenhofer et al,

Climate Change 2014: Mitigation of Climate Change. Contribution of Working Group

III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change

(Cambridge University Press, 2014); Barton H Thompson Jr, ‘Tragically Difcult: The

Obstacles to Governing the Commons’ (2000) 30 Environmental Law 241, 253.

247

achievement. However agreement on this goal has not, in itself, changed the

incentives of individual countries. It is still the case that ‘[e]very country has

an incentive to shirk, to free-ride on the efforts of others’40 with respect to their

contribution to the collective goal. These ‘others’ include both other countries and

future generations.

There is a very real risk that this incentive will manifest itself in two ways, in either

case leading to a tragedy of the global atmospheric commons. The rst risk is that

NDCs will not, even if fully implemented, be sufcient to achieve the temperature

goal. While countries have agreed on a global goal, there is still an incentive to

free-ride by making inadequate contributions towards achieving it.41 Given that

there are no clear principles in the Paris Agreement for translating the global goals

to national commitments, there is considerable scope for this to occur. This free-

riding has the potential to manifest itself in a myriad of ways, from the adoption

of convenient assumptions about business-as-usual emissions,42 to the use of

economic modelling that exaggerates the costs of achieving mitigation targets, 43

to the identication of ‘special’ national circumstances to justify modest targets.44

The early evidence suggests that we are heading down a path of inadequate

national commitments. The United Nations Environment Program’s Emissions

Gap Report (2016) found that existing mitigation commitments amount to about

a quarter of what is needed to stay below 2oC and are in fact consistent with

a 3-3.2oC increase in average global temperature above pre-industrial levels by

2100.45 The great hope of the Paris Agreement is that successive NDCs will

represent an ‘upward spiral of ambition’46 to bridge the gap between what has

been committed and what is required, but it remains to be seen whether this can

40 Robert O Keohane and Michael Oppenheimer, ‘Paris: Beyond the Climate Dead End

Through Pledge and Review?’ (2016) 4(3) Politics and Governance 142 2; Richard Cooper

et al, ‘Why Paris Did Not Solve the Climate Dilemma’ in Peter Cramton et al (eds), Global

Carbon Pricing: The Path to Climate Cooperation (The MIT Press, 2016).

41 Keohane and Oppenheimer, above n 42, 2.

42 This is especially important for countries using business-as-usual projections as part

of their baseline – e.g. Korea has set a target to reduce emissions by 27 per cent below

business-as-usual levels by 2030. A generous estimate of business-as-usual levels would

make it easier to achieve that target.

43 Andrew Macintosh, ‘Mitigation Targets, Burden Sharing and the Role of Economic

Modeling in Climate Policy’ (2013) 73 Australian Journal of Public Administration 164.

44 Eckersley, Robyn ‘Climate Leadership Before and After the Paris Agreement’ (Public

Lecture, London School of Economics, 16 November 2016)

GranthamInstitute/ event/public-lecture-climate-leadership-before-and-after-the-paris-

agreement/> (‘there is an ever-present danger of self-differentiation degenerating into a

self-serving apology for a defence of national interests narrowly conceived’).

45 United Nations Environment Program, above n 15, xvi-xvii. See also Joeri Rogelj et al,

‘Paris Agreement Climate Proposals Need a Boost to Keep Warming Well Below 2 C’

(2016) 534(7609) Nature 631 (analysis based on intended NDCs submitted in the lead

up to the Paris Agreement estimating an increase of 2.6–3.1 degrees Celsius above pre-

industrial levels by 2100 if these commitments are fully implemented).

46 Ad Hoc Working Group on the Durban Platform. Parties’ Views and Proposals on the

Elements for a Draft Negotiating Text ADP.2014.6 (UNFCCC, 2014), cited in David

MacKay et al, ‘Price Carbon - I Will if You Will’ (2015) 526 Nature 315, 315.

248

be achieved in the face of strong free-riding incentives.

The second risk is that adequate domestic measures to achieve NDCs will

not be adopted and implemented – a form of free-riding through inadequate

implementation. It is important to note, in this regard, that the Paris Agreement

does not impose hard penalties or sanctions for non-compliance. While the

agreement does create what it calls ‘[a] mechanism to ... promote compliance’,

that mechanism takes the form of a ‘non-punitive’ and ‘facilitative’ expert

committee that reports annually to the Conference of the Parties.47 At most,

there would adverse reputational consequences for parties that are found by this

expert committee to have breached the broad duty to ‘pursue domestic mitigation

measures, with the aim of achieving the objectives [of NDCs]’.48 There is also

limited scope for independent resolution of disputes concerning interpretation or

application of the Paris Agreement.49 Given these features of the Paris Agreement,

governments may be tempted to accept the reputational costs of failing to meet

an NDC over the economic and political costs they may face in implementing

effective emission reduction measures.

While there are substantial incentives for free-riding through inadequate targets

and implementation, there are also forces pulling in the other direction. It would

be a mistake to assume countries will always be looking for ways to free-ride

on the efforts of others. Some nations will be driven by electorates that take a

moral stance on the issue, rather than narrowly conceived assessments of national

self-interest.50 Other nations will be motivated hard-headed assessments of the

co-benets of taking action – such as the economic, health and other benets of

replacing fossil fuels with renewable energy.51 While it is true that free-riding by

climate laggards can undermine the Paris Agreement, it is also possible that action

by climate leaders could provide the basis for a ‘virtuous cycle of reciprocation’

between nations.52

47 Paris Agreement art 15.

48 Ibid art 4(2).

49 While the Paris Agreement and UNFCCC allow parties to submit to the jurisdiction of

the International Court of Justice or an arbitral body with respect to settlement of disputes

of this kind, there is no requirement to do so: Paris Agreement art 24; UNFCCC, art 14.

Australia has not done so: Australian Government, National Interest Analysis [2016]

ATNIA 10 (2016) [53].

50 David M. McEvoy and Todd L. Cherry, ‘The prospects for Paris: behavioral insights into

unconditional cooperation on climate change’ (2016) 2 (08/16/online) 16056 1 (presenting

survey evidence from the United States that most Americans support domestic action on

climate change that is not conditional on other countries’ commitments, and that this is

‘driven by notions of responsibility, morality and global leadership’).

51 Fergus Green, Nationally Self-Interested Climate Change Mitigation: A Unied Conceptual

Framework (2015, Grantham Research Institute) 1 (arguing that climate change is mostly

not a tragedy of the commons problem because ‘the majority of emissions reductions

needed to decarbonise the global economy can the achieved in ways that are net-benecial

to countries’ and that ‘the barriers to mitigation action lie, primarily, not in the macro-

incentive structures of states...but rather within the domestic sphere, at the intersection of

domestic interests, institutions and ideas formed in the fossil fuel age’).

52 Stefano Carattini, Simon Levin and Alessandro Tavoni, Cooperation in the Climate

249

In the face of opposing forces for free-riding and climate leadership, will the

pledge-and-review mechanism end in a ‘positive spiral of strengthening trust

and enhanced cooperation’ or ‘a downward spiral of weakening trust and lower

ambition’?53 While only time will tell, one thing is clear: that the more hopeful

scenario will be more likely to be realised if parties’ domestic rules promote

principled target-setting and effective implementation. The next section considers

one regulatory strategy with the potential to achieve these goals and so support the

Paris Agreement’s pledge-and-review mechanism.

II FRAMEWORK LEGISLATION FOR CLIMATE

CHANGE MITIGATION

A The Emergence of Framework Legislation

How can domestic laws guide the setting of responsible national emission

reduction targets and help ensure that these targets are achieved? One way to

do so is to directly address these questions in domestic law through ‘framework

legislation’ for climate change mitigation.54 The value of such legislation has been

highlighted in publications by the Grantham Institute and Inter-Parliamentary

Union,55 but has been largely overlooked in the Australian policy debate.56 For

Commons (Grantham Research Institute on Climate Change and the Environment, 2017)

2. On the need for trust and reciprocity see Elinor Ostrom, ‘A Polycentric Approach for

Coping with Climate Change’ (2014) 15(1) Annals of Economics and Finance; Daniel

H. Cole, ‘Advantages of a Polycentric Approach to Climate Change Policy’ (2015) 5(2)

Nature Climate Change 114.

53 Robert Falkner, ‘The Paris Agreement and the New Logic of International Climate Politics’

(2016) 92(5) International Affairs 1107, 1121.

54 Michal Nachmany et al, ‘The 2015 Globe Climate Legislation Study: A Review of Climate

Change Legislation in 99 Countries’ (Grantham Research Institute on Climate Change

and the Environment, GLOBE and Inter-Parliamentary Union, 2015) 13 (‘Framework

legislation has been dened as a law or regulation with equivalent status, which serves as a

comprehensive, unifying basis for climate change policy, which addresses multiple aspects

or areas of climate change mitigation or adaptation (or both) in a holistic, overarching

manner.’) Legislation sharing some of these features has also been described as ‘emissions

reduction target legislation’ or ‘agship legislation’: see Rob Fowler, ‘Emission Reduction

Targets Legislation’ in Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia

(The Federation Press, 2007) 104 (using the term ‘emissions reduction target legislation’

to describe legislation that incorporates ‘emission reduction targets and timetables’); Terry

Townshend et al, ‘How National Legislation Can Help to Solve Climate Change’ (2013)

3(5) Nature Climate Change 430 (describing a ‘agship law’ as ‘a piece of legislation or

regulation with equivalent status that serves as a comprehensive, unifying basis for climate

change policy’).

55 Alina Averchenkova and Samuela Bassi, ‘Beyond the Targets: Assessing the Political

Credibility of Pledges for the Paris Agreement’ (2016); Alina Averchenkova and Sini

Matikainen, ‘Assessing the Consistency of National Mitigation Actions in the G20 with

the Paris Agreement’ (2016) 6, 17, 22; Nachmany et al, above n 54, 13.

56 An exception is the submission by the Environmental Defender’s Ofces of Australia to the

Commonwealth Government’s review of climate policies: EDOs of Australia, Submission

on Australia’s Climate Change Policy Review, 5 May 2017 .environment.

gov.au/submissions/climate-change/review-climate-change-policies-2017/environmental-

defenders-ofces-of-australia-edoa.pdf>.

250

example, a major report published by Australia’s Climate Change Authority

following the Paris Conference focused exclusively on the ‘toolkit’ of policy and

regulatory measures that should be available to the Australian Government, and

did not consider the higher level question of what overarching framework should

guide successive governments in setting, planning for and achieving its emission

reduction targets.57

The concept of entrenching national or sub-national greenhouse gas emission

reduction targets in legislation (or in instruments made under legislation) pre-dated

the Paris Agreement, but is, nevertheless, a relatively recent policy innovation.

Writing in 2007, Fowler observed that ‘[w]hile the need for targets and timetables

with respect to greenhouse emissions reductions has been recognised for many

years, it is only most recently that the idea of enshrining targets within legislation

has been pursued.’58 Noting a urry of proposals for legislation of this kind being

debated in Europe, the United Kingdom, Canada and South Australia in March

2007, Fowler suggested that these proposals ‘may be part of a wider trend to

develop such legislation in many jurisdictions over the next few years.’59 This

prediction has been borne out by subsequent events. Legislation that contains

national emission reduction targets, or establishes a process for setting such

targets, has now been enacted in the United Kingdom (2008), New Zealand

(2008), South Korea (2010), Austria (2011), Mexico (2012), Switzerland (2013),

Bulgaria (2014), Denmark (2014), Finland (2015), France (2015), Norway (2017)

and Sweden (2017).60 A number of sub-national parliaments have also passed

legislation of this kind, including in Australia, 61 the United States62 and Canada.63

57 Climate Change Authority, ‘Towards a Climate Policy Toolkit: Special Review on

Australia’s Climate Goals and Policies’ (Commonwealth of Australia, 2016).

58 Fowler, above n 54, 120.

59 Ibid.

60 London School for Economics and Grantham Institute, Climate Change Laws of the

World (accessed 29 September 2017) < http://www.lse.ac.uk/GranthamInstitute/climate-

change-laws-of-the-world >; Boot, Pieter Climate Legislation in Europe: Work In Progress

(19 June 2017) http://eeac.eu/wp-content/uploads/2016/04/Presentation-Pieter-Boot-

climate-legislation-June-2017-2.pdf>; Government Ofces of Sweden, ‘Riksdag Passes

Historic Climate Policy Framework’ (15 June 2017)

releases/2017/06/riksdag-passes-historic-climate-policy-framework/>. New Zealand is

listed as having adopted emission reduction target legislation in 2008 because s 224 of the

Climate Change Response Act 2002 (NZ), which provides for the gazettal of targets, was

inserted by legislative amendment in 2008: Climate Change Response (Emissions Trading)

Amendment Act 2008 (NZ) s 50.

61 Climate Change and Greenhouse Emissions Reduction Act 2007 (SA); Climate Change

(State Action) Act 2008 (Tas); Climate Change and Greenhouse Gas Reduction Act 2010

(ACT) s 6; Climate Change Act 2017 (Vic).

62 Center for Climate and Energy Solutions, Greenhouse Gas Emissions Targets (August

2016)targets>

(identifying States with legislated targets as Maine, Connecticut, California, Vermont,

Minnesota, New Jersey, Oregon, Washington, Hawaii and Maryland).

63 e.g. Greenhouse Gas Reductions Targets Act, SBC 2007, c 42; Climate Change and

Emissions Management Act, SA 2003, c 16.7; Climate Change and Emissions Reductions

Act SM 2008 c 17; Environmental Quality Act SQ 2015 c 12; Climate Change Mitigation

and Low-Carbon Economy Act, SO 2016 c 7.

251

B The Functions of Framework Legislation

While the contents of these laws differ, it is possible to identify four main functions

that can be served by framework legislation for climate change mitigation.

First, it can provide a transparent and principled way to set emission reduction

targets. Where targets are directly specied in the legislation, there will at least

be an assurance of parliamentary scrutiny. Where targets are set under delegated

authority, a number of different techniques can be used to ensure transparent and

principled decision-making. These can include a requirement for a decision-maker

to apply, or take into account, specied principles or considerations; requirements

to obtain and publish independent advice; and requirements to engage in public

consultation.

Second, by setting statutory targets rather than just policy-based targets, framework

legislation can signal a greater level of commitment to emission reduction goals.

This is recognised, for example, in the Grantham Institute’s assessment of the

political credibility of intended NDCs submitted prior to the Paris Conference,

which draws a distinction between ‘targets that are formally anchored in laws

passed by parliaments or executive regulation enacted by governments’ and

‘targets that are only included in non-mandatory documents (e.g. white or green

papers), in government announcements (e.g. a speech by a head of state) or

recorded in voluntary international agreements, but not enshrined in national

legislation’.64 Statutory targets are seen to ‘strengthen policy credibility because

they are mandated by law and therefore, in principle, are much more difcult to

breach or revise’.65

Third, framework legislation can facilitate planning for greenhouse gas mitigation,

including through coordination of regulatory mitigation tools. As Peel correctly

identied in 2008, ‘climate change regulations have tended to be adopted in

an ad hoc fashion, rather than as part of a coordinated system or strategic plan

oriented towards the achievement of particular goals’.66 Legislation that requires

governments to plan for how emission reduction targets will be achieved can

address this problem by ensuring a more coordinated and strategic approach.67 In

this way, climate change mitigation laws can catch up with other more established

areas of environmental law – such as the law concerning the management of water

resources, sheries and (to some extent) ambient air quality – where the use of

planning instruments already plays an important role in identifying precise goals

and coordinating the use of measures to achieve them.

64 Averchenkova and Bassi, above n 55, 15.

65 Ibid.

66 Jacqueline Peel, ‘Climate Change Law: The Emergence of a New Legal Discipline’ (2008)

32 Melbourne University Law Review 922; see also Alexander Zahar, Jacqueline Peel and

Lee Godden, Australian Climate Law in a Global Context (Cambridge University Press,

2013) 7.

67 Michael Mehling, ‘Implementing Climate Governance: Instrument Choice and Interaction’

in Climate Change and the Law (Springer, 2013) 23-28.

252

Fourth, emission reduction legislation can create accountability mechanisms that

increase the likelihood of targets being met. As Fowler points out:

There is very little point in incorporating emission reduction targets in

legislation, rather than in a policy instrument, unless the relevant legisla-

tion provides for mechanisms that can hold governments accountable for

the delivery of the relevant targets.68

Mechanisms that provide a measure of political accountability include

requirements for independent advisory bodies or elected ofcials to report

publicly on progress towards achieving targets. The use of statutory targets, with

associated duties and discretions, also opens up the possibility of enabling legal

accountability through the courts.69

C Framework Legislation and the Paris Agreement

The Paris Agreement gives further impetus for the enactment of framework

legislation that performs the functions outlined in the preceding section. Framework

legislation can provide greater credibility to NDC commitments by embedding

them in domestic law, together with planning and accountability requirements.

Such legislation can also promote a principled and transparent approach to setting

the emission reduction targets contained in NDCs. In these ways, the continuing

diffusion of framework legislation among parties to the Paris Agreement has the

potential to help underpin the most positive scenario for the pledge-and-review

mechanism: one of ambitious targets, effective implementation and the realisation

of the Paris Agreement’s goals.

The architecture of the Paris Agreement has some important implications for

the design of future framework legislation. One issue is the alignment between

the target-setting provisions in framework legislation and the Paris Agreement’s

pledge-and-review timetable. The ve-year pledge-and-review cycle suggests

that rather than legislating xed targets well in advance, some exibility

should be retained to set the ambition of targets following global stocktakes.

This would not preclude a long-term legislated emission reduction targets, nor

‘guardrail’ minimum targets along the way. But it would not be consistent with

the pledge-and-review cycle to set a xed target trajectory, with no discretion for

governments to commit to more ambitious targets in the light of information from

global stocktakes. Table 2 provides an example of how the Paris Agreement’s

requirements for communicating NDCs could be aligned with target-setting

requirements in framework legislation.

68 Fowler, above n 54, 118. See also Sarah Waddell, ‘By How Much Will A ‘Price on Carbon’

Actually Lower Australia’s Emissions?: Towards Climate Accountability for Greenhouse

Gas Emissions Abatement’ (2013) 16(1) Australasian Journal of Natural Resources Law

and Policy 1.

69 Fowler, above n 56, 118.

253

TABLE 2: AN EXAMPLE OF TARGET-SETTING ALIGNED WITH THE

PARIS AGREEMENT

Year Paris Agreement requirement National framework legislation

By 2020 Communicate NDCs to 2030 Targets for 2021-2025 and 2026-2030

By 2025 Communicate NDCs to 2035 Target for 2031-2035

By 2030 Communicate NDCs to 2040 Target for 2036-2040

By 2035 Communicate NDCs to 2045 Target for 2041-2045

By 2040 Communicate NDCs to 2050 Target for 2045-2050

Another important question concerns amendments to targets. As we have seen,

the Paris Agreement provides that NDCs may be amended at any time with a view

to increasing their level of ambition, but there are opposing legal arguments as to

whether parties can downgrade the level of ambition in their NDCs. This question

will need to be considered in the drafting of any provision in national framework

legislation concerning amendments to emission reduction targets. A clear statutory

prohibition on amending targets to reduce their level of ambition would help build

state practice that supports the Paris Agreement’s ratchet mechanism.

The Paris Agreement’s long-term temperature and net-zero emissions goals also

need to be considered in the development of national framework legislation. One

difcult issue here is how the long-term temperature goal can help guide national

target-setting. Some ideas can be drawn from existing framework legislation.

One approach is to require the target-setting decision-maker, on advice from

an independent and expert body, to consider whether targets are consistent with

staying within a national emissions budget. This helps to address the issue of

intergenerational equity, as emissions budgets clarify trade-offs: if more of the

budget is used in the next NDC cycle, less will be available for future periods.

Combined with this requirement, decision-makers could be required to confront

the question of what national carbon budget would represent a fair contribution,

relative to the contribution of other nations, to the global temperature goal.

The target-setting provisions of the Climate Change (Scotland) Act 2009 provide

a helpful example of how this can be done. Under that Act, Scottish Ministers

are required, when setting annual targets, to have regard to ‘the objective of

not exceeding the fair and safe Scottish emissions budget’.70 The ‘fair and safe

Scottish emissions budget’ is dened as

the aggregate amount of net Scottish emissions for the period 2010–

2050 recommended by the relevant body as being consistent with

Scotland contributing appropriately to stabilisation of greenhouse gas

concentrations in the atmosphere at a level that would prevent dangerous

70 Climate Change (Scotland) Act 2009 s 4(4)(a).

254

anthropogenic interference with the climate system.71

If the reference to dangerous anthropogenic interference with the climate system

(drawn from Article 2 of the UNFCCC) were replaced with Paris Agreement’s

long-term temperature goal, these provisions could provide a good starting point

for a principled approach to translating this goal into national targets.

The task of translating global goals to a national level is simpler for the net zero

emissions goal.72 Legislative action in the short period since the adoption of the

Paris Agreement underlines that this can be done relatively easily. The Australian

Capital Territory and Victoria enacted legislation in 2016 and 2017 respectively

with targets for net-zero emissions by 2050.73 As statements by responsible

Ministers make clear, these legislated targets are intended to align with the net

zero emissions goal in the Paris Agreement.74 Sweden has gone even further,

with a framework law that endorses a goal of net zero emissions by 2045.75

Experience with existing framework legislation shows that long-term national

targets of this kind can assist in guiding the setting of shorter-term emissions

reduction targets. The Climate Change Act 2008 (UK) provides a good example.

Under this Act, ve-year emission reduction targets, in the form of carbon budgets,

must be developed by the Secretary of State ‘with a view to meeting’ legislated

2020 and 2050 targets.76 These carbon budgets must be set having regard to

the recommendations of an independent, expert advisory body, the Committee

on Climate Change.77 In practice, the common thread running through the

Committee’s carbon budget recommendations has been to identify a feasible and

cost-effective path to the 2020 and 2050 targets.78 The Committee has considered

71 Ibid s 4(6).

72 Oliver Geden, ‘An Actionable Climate Target’ (2016) 9(5) Nature Geoscience 340.

73 Renewable Energy Legislation Amendment Act 2016 (ACT) s 4 (amending the Climate

Change and Greenhouse Gas Reduction Act 2010 (ACT) s 6); Climate Change Act 2017

(Vic) s 6.

74 Simon Corbell MLA, ‘ACT Commits to Zero Emissions by 2050’ (Media Release, 3 May

2016); Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 3 May

2016, 1376 (Simon Corbell); Victoria, Parliamentary Debates, Legislative Council, 7

February 2017, 23 (Philip Dalidakis).

75 UN Climate Change Newsroom, ‘Sweden Plans to Be Carbon Neutral by 2045: New

Legislation Sets Goal 5 Years Earlier than Originally Agreed’ (19 June 2017)

newsroom.unfccc.int/unfccc-newsroom/sweden-plans-to-be-carbon-neutral-by-2045/>.

76 Climate Change Act 2008 (UK) s 8.

77 Ibid ss 9, 34(1)(a).

78 Climate Change Committee, The Fifth Carbon Budget: The Next Step Towards a Low-

Carbon Economy (Committee on Climate Change, 2015) 13; Committee on Climate

Change, The Fourth Carbon Budget Review – Part 2: The Cost Effective Path to the 2050

Target (Committee on Climate Change, 2013) 10-11; Committee on Climate Change,

Building a Low-Carbon Economy – The UK’s Contribution to Tackling Climate Change

(Committee on Climate Change, 2008) xviii. On the prominence of the 2050 target in the

Climate Change Act 2008 (UK), and the implications for interpretation of other provisions

of the Act, see Jonathan Church, ‘Enforcing the Climate Change Act’ (2015) 4 UCL

Journal of Law and Jurisprudence 109, 111-12.

255

this question carefully, informed by numerical simulation models that identify

cost-effective paths to meet the targets with given assumptions about technology

cost and availability.79 While a political judgment might favour deferring emission

reductions to later years, the technocratic Committee has recommended ‘a swift

pace of emission reductions in the power sector and an overall abatement path

that is only slightly back-loaded’.80 This advice has been accepted by successive

governments when setting carbon budgets.

The discussion to date suggests that widespread adoption of framework

legislation, aligned with the goals and processes of the Paris Agreement, could

play an important role in overcoming some of the weaknesses with the pledge-

and-review mechanism. This is not, of course, to suggest that a series of cut-and-

paste legal transplants will get the job done. Framework legislation will need

to be designed having regard to each jurisdiction’s particular governmental and

political context.81 In the next section we turn to consider three of the important

design issues in an Australian context.

III DESIGN ISSUES FOR AUSTRALIAN FRAMEWORK

LEGISLATION

A Constitutional Basis for the Legislation

A threshold question for any Commonwealth legislation is whether it is supported

by one or more of the heads of power in section 51 of the Constitution. I consider

below two heads of power with the potential to support national framework

legislation in Australia: the external affairs power (section 51 (xxix)) and the

incidental power (section 51(xxxix)).

Section 51(xxix) of the Constitution empowers the Commonwealth Parliament

‘to make laws ... with respect to ... external affairs’. In order to consider the scope

of the external affairs power in the present context, it is necessary to review the

nature of Australia’s relevant international obligations. The starting point is the

UNFCCC, which is, as its name suggests, a framework convention imposing

broad obligations on parties to the convention. These include obligations to

formulate programmes with measures to address anthropogenic sources and

sinks; to communicate policies and measures it has adopted; to estimate the effect

that these policies and measures will have; and to maintain a national greenhouse

gas inventory.82 The Kyoto Protocol establishes a more precise and detailed

regime for a relatively small number of countries, including Australia. It sets

79 Samuel Fankhauser, ‘A Practitioner’s Guide to a Low-Carbon Economy: Lessons from the

UK’ (2013) 13(3) Climate Policy 345, 347.

80 Ibid 348.

81 Alan Watson, ‘Legal transplants and Law Reform’ (1976) 92 Law Quarterly Review 79,

81-2.

82 UNFCCC arts 4.2, 12

256

binding emission reduction targets, together with a regime to track compliance

and impose sanctions for non-compliance. The Paris Agreement creates a more

inclusive post-2020 regime to succeed the Kyoto Protocol, applying to the vast

majority of nations. However, the obligations imposed by the Paris Agreement

return to the more general language of the UNFCCC, avoiding top-down targets

and detailed implementation obligations in favour of procedural obligations to

submit NDCs and a general obligation for parties to ‘pursue domestic measures,

with the aim of achieving the objectives’ of NDCs.83

On one view, this is a signicant barrier to the enactment of national climate

change legislation relying on the external affairs power. Pillai and Williams’

analysis of the UNFCCC supports this view. They argue that under the external

affairs power ‘the treaty that the statute seeks to implement must embody precise

obligations that are capable of implementation’ and that the UNFCCC, which they

characterise as ‘purely aspirational’, fails this test. 84

Given the expiry of Australia’s emission reduction obligations under the Kyoto

Protocol and strong parallels between the obligations imposed by the UNFCCC and

the Paris Agreement, this analysis, if correct, could have signicant implications

for Commonwealth legislative powers with respect to climate change post-2020.

Indeed, it could have implications for the operation of all Commonwealth climate

change legislation since 1 January 2013. This is because the Doha Amendment

to the Kyoto Protocol,85 which would extend the operation of the Kyoto Protocol

to a second commitment period (2013-2020), has not yet attracted sufcient

ratications to come into effect.86 If the use of the external affairs power does

83 Paris Agreement art 4.2. This is in part a legacy of the negotiating strategy of the Obama

Administration. It sought to strictly limit substantive obligations going beyond existing

requirements of the UNFCCC, so as to argue that the agreement was not a treaty within the

meaning of that term in the US Constitution, and therefore did not require the concurrence

of two-thirds of the US Senate: Bodansky, above n 16, 149-150; Hari M Osofsky and

Jacqueline Peel, ‘Energy Partisanship’ (2016) 65 Emory Law Journal 695 779; Margaretha

Wewerinke-Singh and Curtis Doebbler, ‘The Paris Agreement: Some Critical Reections

on Process and Substance’ (2016) 39(4) University of New South Wales Law Journal 1486,

1495-6.

84 Sangeetha Pillai and George Williams, ‘Commonwealth Power and Environmental

Management: Constitutional Questions Revisited’ (2015) 32(5) Environmental and

Planning Law Journal 395, 399, citing Victoria v Commonwealth (1996) 187 CLR 416 at

486. Appleby has gone even further, to suggest that the Carbon Credits (Carbon Farming

Initiative) Act 2011 (Cth), as amended in 2014, is not supported by the Kyoto Protocol

because the Kyoto Protocol ‘does not specify the way parties must reach their emissions

target, providing only an indicative list of policies and measures’: Gabrielle Appleby,

‘Explainer: is Direct Action Constitutionally Valid?’, The Conversation (3 November 2014)

(citing Pape v Commissioner of Taxation [2009] HCA 23, [372] (Hayne and Kiefel JJ)).

85 Doha Amendment to the Kyoto Protocol, opened for signature 8 December 2012, [2016]

ATNIF 24 (not yet in force).

86 As at 2 October 2017, 82 countries, including Australia, had ratied or otherwise accepted

the Doha Amendment: United Nations Framework Convention on Climate Change.,

Status of the Doha Amendment (2 October 2017)

257

depend on the existence of binding limits under the Kyoto Protocol, then

Australia’s existing climate laws would have lacked that constitutional support

since the end of the rst commitment period.87

However, I suggest that neither the Paris Agreement, nor for that matter the

UNFCCC, can properly be described as ‘purely aspirational’. Both are treaties,

in the sense of being ‘an international agreement concluded between States in

written form and governed by international law...’.88 Both impose at least some

legally binding obligations on parties. In the case of the Paris Agreement,

these include obligations to prepare and communicate NDCs, pursue associated

domestic mitigation measures, and provide information for the purpose of

tracking NDC implementation. These treaties are, therefore, distinguishable from

other international instruments, such G20 declarations, which might be properly

classied as purely aspirational and insufcient to invoke the external affairs

power.89

While the application of the external affairs power does not fall at this rst

hurdle, there will still be the important question of whether any law that relies

on it is ‘reasonably capable of being considered appropriate and adapted to

implementing’90 the Paris Agreement. I suggest that a Commonwealth law which

guides the development, implementation and monitoring of Australia’s emission

reduction commitments would be likely to be viewed as appropriate and adapted

to the implementation of Australia’s obligations under the Paris Agreement. The

external affairs power extends beyond direct implementation of treaty obligations

to matters reasonably incidental to that implementation.91 These matters are

reasonably incidental to Australia’s obligations to communicate NDCs, take

domestic measures to implement them, and report on progress.

doha_amendment/items/7362.php>. Under articles 20 and 21 of the Kyoto Protocol, three

quarters of the parties to the protocol (144 parties) need to accept the amendment before

it will come into force.

87 On the difculties with relying on the external affairs power between ratication and

entry into force of a treaty see Donald R Rothwell, ‘The High Court and the External

Affairs Power: A Consideration of its Outer and Inner Limits’ (1993) 15 Adelaide Law

Review 209 225-226; Alice De Jonge, ‘Australia’ in Dinah Shelton (ed), International Law

and Domestic Legal Systems: Incorporation, Transformation, and Persuasion (Oxford

University Press, 2011) 33.

88 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1115

UNTS 331 (entered into force 27 January 1980) art 2 (dening a treaty as ‘an international

agreement concluded between States in written form and governed by international law...’;

Bodansky, above n 16, 144-145.

89 Compare Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; [2009] HCA 23,

[476]-[478] (Heydon J) (regarding a G20 declaration); discussed in Pillai and Williams,

above n 84, 399-400.

90 Victoria v Commonwealth (1996) CLR 416, 486; [1996] HCA 56, [34] (joint judgment of

Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).

91 Richardson v Forestry Commission (1988) 164 CLR 261; Sarah Joseph and Melissa

Castan, Federal Constitutional Law: A Contemporary View (Lawbook, 2014) 139.

258

The incidental power provides further support for the conclusion that the

Commonwealth Parliament can enact framework legislation. Section 51(xxxix)

of the Constitution relevantly provides that the Parliament shall have power

‘to make laws ... with respect to ... matters incidental to the execution of any

power vested by this Constitution ... in the Government of the Commonwealth.’

The power to make laws incidental to the exercise of executive power extends

beyond facilitation to ‘legislative regulation of the manner and circumstances

of the execution of the executive power of the Commonwealth’.92 It forms part

of a ‘constitutional scheme ... designed to provide mechanisms for control and

accountability of executive action.’93 The incidental power is especially relevant

to framework legislation of the kind discussed in this chapter because this

legislation is specically directed towards control and accountability of executive

action – specically, executive action that has long been undertaken by Ministers

and civil servants to develop emission reduction targets and plans to achieve those

target.94 The use of the incidental power to regulate actions undertaken by the

Commonwealth and Commonwealth agencies is supported by past legislative

practice.95 It provides an alternative constitutional basis, in addition to the external

affairs power, to support framework legislation.

B Parliament’s Role in Setting Emission

Reduction Targets

Australia has long suffered from sharp political divisions over climate change

policy. However, there are some reasons to hope that national framework legislation

could command bipartisan support. Both major political parties support Australia’s

ratication of the Paris Agreement. In this context, legislation that provides a

92 Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1 [122]

(Gageler J).

93 Dan Meagher et al, Hanks’ Australian Constitutional Law: Materials and Cmmentary

(LexisNexis, 2016) 852.

94 An early example is the Hawke and Keating Governments’ endorsement of the Toronto

Targets and the preparation, together with the States and Territories, of the National

Greenhouse Response Strategy (1992).

95 One example is the Gene Technology Act 2000 (Cth), which regulates dealings with

genetically modied organisms – including, for example, release of genetically modied

organisms by the Commonwealth Scientic and Industrial Research Organisation.

The section outlining the constitutional basis of Gene Technology Act 2000 (Cth) cites

the application of a law to ‘the Commonwealth and Commonwealth agencies’ as a

separate basis for the operation of the Act, in addition to its application to constitutional

corporations and constitutional trade and commerce: Gene Technology Act 2000 (Cth) s

13. A second example is the Water Act 2007 (Cth), which provides for the preparation

and implementation of the Basin Plan, a water resource management plan for the Murray-

Darling Basin. The Act imposes an unqualied duty on agencies of the Commonwealth to

perform their functions, and exercise their powers, consistently with that plan. However,

duties on other agencies and persons to act in accordance with the plan are limited by the

scope of relevant heads of power – for example the duty applying to other agencies and

persons ‘imposes an obligation to the extent to which imposing the obligation gives effect

to a relevant international agreement’: Water Act 2007 (Cth) ss 34-36.

259

framework for meeting Australia’s obligations under that agreement, rather than

dictating that particular emission reduction targets or mitigation measures be

adopted, should be able to attract support from both major parties. Among other

things, it should be possible to reach agreement on replacing Australia’s current ad

hoc arrangements for setting emission reduction targets with a more predictable

statutory framework governing the form of targets, when targets are set, target

timeframes, and the consultation and evidence-gathering process leading up to

target-setting decisions. It may even be possible for agreement to be reached on

a long-term net zero emissions goal.

However, there is potential for differences over some of target-related issues,

including one important question we will focus on here: the role of the Australian

Parliament in endorsing emission reduction targets. There is no uniform practice

in existing framework legislation on the question of Parliamentary involvement

in target-setting. For example, while in the United Kingdom both Houses of

Parliament must approve ve-year carbon budgets, in Victoria the parliament

has no decision-making role with respect to ve-year emission reduction targets.

The Victorian legislation requires the responsible Minister to table independent

advice concerning a forthcoming carbon budget,96 thus opening up the possibility

of parliamentary debate on the issue, but this is as far as the Victorian Act goes.

As a matter of law, the likely default position is that a target determination in

Commonwealth framework legislation will be a legislative instrument, within the

meaning of that term in the Legislation Act 2003 (Cth), and therefore subject

to disallowance. Such a determination is an instrument made under a power

delegated by Parliament.97 It clearly applies generally rather than determining the

application of the law in a particular case.98 Assuming that targets are given legal

effect, for example through a duty on the responsible Minister to achieve the target

or to produce plans directed to that end, they would also have ‘the direct or indirect

effect of ... imposing an obligation’.99 All of the elements of the denition of

‘legislative instrument’ would therefore be satised, and the target determination

would be disallowable unless the framework Act specically provided that such

determinations were not legislative instruments,100 or the operation of section

42 of the Legislation Act 2003 (Cth) concerning disallowance were expressly

excluded.101 The classication of emission reduction target determinations as

legislative instruments subject to disallowance would be consistent with the

approach adopted to date for Commonwealth ambient air quality standards,102

96 Climate Change Act 2017 (Vic) s 13(1).

97 Legislation Act 2003 (Cth) s 8(4)(a).

98 Ibid s 8(4)(b).

99 Ibid s 8(4)(c).

100 Ibid s 8(6)(a).

101 Ibid s 44(2).

102 National Environment Protection Council Act 1994 (Cth) s 21; National Environment

Protection (Ambient Air Quality) Measure (Cth).

260

water resource management plans103 and sheries management plans.104

In the partisan Australian political context, the practical implications of granting

the Senate an effective veto over Australian emission reduction targets needs to

be considered. This is, of course, a very real possibility, because the Senate is very

often not under the control of the party in government.105 If target determinations

were disallowable legislative instruments, consideration could be given to setting

a default set of target determinations in the legislation, to avoid a deadlock

situation in which no targets could be made. There is a precedent for this, in the

default national emission caps in the Clean Energy Act 2011 (Cth) (repealed).106

Pursuing a process of Parliamentary involvement raises the interesting question of

whether a target endorsed under national framework legislation could or should

impose a legal constraint on the Australian Government’s communication of

NDCs under Article 4 of the Paris Agreement. As a matter of law, it is likely

that it could. Even if under the Constitution the Commonwealth Executive has

‘an exclusive power to assume international obligations’107 and, for that reason,

the exclusive power to communicate NDCs, framework legislation would not

be usurping this power but conditioning its exercise. It is generally considered

that it would be constitutionally acceptable for the Commonwealth Parliament

to limit or regulate even the executive’s power to enter into treaties, as long as

the Parliament does not itself seek to enter into a treaty.108 Statutory limits on the

communication of NDCs would be likely viewed in the same way. As a matter of

policy and practice, it is less clear that Australian framework legislation should

impose such a constraint. Critics of this approach could argue that it trespasses

unduly on the Commonwealth Government’s traditional role in conducting foreign

affairs.109 They could also point out that it would be inconsistent with Australia’s

treaty-making process, which does not give the Commonwealth Parliament a

103 Water Act 2007 (Cth) s 33; Basin Plan 2012 (Cth).

104 Fisheries Management Act 1991 (Cth) ss 17, 19; e.g. Bass Strait Central Zone Scallop

Fishery Management Plan 2002 (Cth).

105 Features of the Australian system of government leading to this include the fact that the

existing Senate continues until 1 July following a half-Senate election, the election of

Senators for 6 year terms, and the system of proportional representation that makes it

easier to elect minor party candidates: Jospeh and Castan, above n 91, 23; Stephen Barber

and Sue Johnson, Federal Election Results 1901–2014, Research Paper (Parliament of

Australia, 2014) 4 (noting that ‘[s]ince the introduction of proportional representation (PR)

for Senate elections in 1949, the government of the day has only had control (a majority)

in the Senate during 1951–1956, 1959–1962, 1975–1981 and 2005–2007’).

106 Clean Energy Act 2011 (Cth) (repealed) ss 16, 17.

107 Hilary Charlesworth et al, ‘Deep Anxieties : Australia and the International Legal Order’

(2003) 25(4) Sydney Law Review 423, 431, citing R v Burgess; ex parte Henry (1936) 55

CLR 608, 644 (Latham CJ).

108 Legal and Constitutional References Committee, Trick or Treaty? Commonwealth

Power to Make and Implement Treaties (Parliament of the Commonwealth of Australia,

1995) [16.16]-[16.24]; George Winterton, ‘The Relationship Between Commonwealth

Legislative and Executive Power’ (2004) 25 Adelaide Law Review 21, 38-9.

109 Brian R Opeskin, ‘The Role of Government in the Conduct of Australia’s Foreign Affairs’

(1994) 15 Australian Yearbook of International Law 129, 138.

261

decision-making role on whether Australia will ratify a treaty.110 On the other

hand, advocates of this approach could argue that it is desirable to ensure that the

Australian executive acts consistently with legislation directed to implementing

Australia’s international obligations.

C Political and Legal Accountability for Achieving Targets

Framework legislation can promote greater political accountability for achieving

emission reduction targets. The Climate Change Act 1998 (UK) provides a good

example of how this can be done, with techniques that would translate well to

an Australian context. Under that Act, targets take the form of ve-year carbon

budgets expressed as the total quantity of permissible greenhouse gas emissions

over the relevant period. These carbon budgets are made by the Secretary of State

but must rst be approved by both Houses of Parliament.111 Once the carbon

budget has been made, a set of accountability mechanisms come into play. As

soon as practicable after making the carbon budget, the Secretary of State ‘must

lay before Parliament a report setting out proposals and policies’ for meeting

that carbon budget, together with other budgets in force at that time.112 Progress

towards meeting carbon budgets is assessed by the independent Committee on

Climate Change, which must lay reports before Parliament by 30 June each

year.113 The Secretary of State must prepare a response to each report, to be laid

before Parliament by 15 October each year.114 The Secretary of State must also

table statements on the ‘net UK carbon account’ each year and at the end of a

carbon budget period.115 If a carbon budget has been exceeded at the end of a ve-

year carbon budget period, the Secretary of State must ‘lay before Parliament a

report setting out proposals and policies to compensate in future periods for the

excess emissions’.116

Some framework legislation goes beyond traditional political accountability

requirements such as those just described and also imposes duties on public

ofcials to ensure that emission reduction targets are achieved. For example, the

Climate Change Act 2008 (UK) provides that ‘[i]t is the duty of the Secretary of

State to ensure’ that each carbon budget and the Act’s 2050 emissions reduction

target are met.117 How are broad duties of this kind likely to be approached by the

110 Department of Foreign Affairs and Trade, Australia International Treaty Making

Information Kit (Commonwealth of Australia, 2000).

111 Climate Change Act 2008 (UK) s 8.

112 Ibid s 14(1).

113 Ibid s 36.

114 Ibid s 37(1).

115 Ibid ss 16, 18.

116 Ibid s 19(1). The Act does not dene what is meant by ‘compensate’, but it would

presumably mean that an additional quantity of abatement, over and above than already

committed to in future carbon budgets, would need to be achieved – effectively tightening

a future carbon budget or budgets by the excess amount.

117 Ibid ss 1, 4. For other examples, see Climate Change (Scotland) Act 2009 ss 1-3 (duty

of Scottish Ministers to meet 2050 target, an interim 2020 target and annual targets);

Environment (Wales) Act 2016 ss 29-31 (duty of Welsh Ministers to achieve 2050 target,

262

Australian courts, and should they form part of national framework legislation in

Australia?

While the target duties in the Climate Change Act 2008 (UK) are yet to receive any

detailed judicial consideration, they have been the subject of academic analysis

that provides a useful starting point in considering this question. Most commentary

has doubted whether the section duties could be enforced by the courts through

judicial review118 or other means.119 Perhaps the most signicant barrier is that

the courts are likely to refuse to entertain a judicial review application because the

Act provides for an alternative remedy.120 As Macrory puts it, ‘it could be argued

that the legislation explicitly envisages political accountability of government to

Parliament rather than legal accountability to the courts’.121 As we have seen,

this political accountability arises from the statutory reporting requirements,

including a requirement that the Secretary of State report on how any exceedance

of a carbon budget will be compensated for in future carbon budget periods.

While a court may be willing to give a declaration or even order of mandamus

to enforce the Secretary of State’s reporting obligations, it is difcult to see

how a remedy could be granted for breach of the target duty itself. On the face

of it, a simple declaration that a duty has been breached would be a possible

remedy but, as McHarg points out, this ‘might be seen as purely academic, since

a court order would add nothing to the Act’s reporting obligations’.122 What about

the other possibility that has been agged by the UK government: that a court

might order the Secretary of State to purchase offsets to compensate for the

exceedance of the carbon budget?123 There are even more substantial problems

here. To start with, there would be a natural reluctance for a court to intervene

with such an order, given that it would involve ‘complex and polycentric issues

of policy prioritization and resource allocation which are typically regarded as

decadal targets and ve-yearly carbon budgets); Climate Change Act 2017 (Vic) s 8 (duty

on Premier and responsible Minister to ensure that State achieves 2050 target); California

Global Warming Solutions Act, as amended in 2016 by SB32 (duty on State Air Resources

Board to ensure that 2030 target is met).

118 Richard Macrory, ‘The UK Climate Change Act - Towards a Brave New Legal World?’

in Richard Macrory (ed), Regulation, Enforcement and Governance in Environmental

Law (Hart Publishing, 2nd ed, 2014) 255, 265-6; Mark Stallworthy, ‘Legislating Against

Climate Change: A UK Perspective on a Sisyphean Challenge’ (2009) 72(3) The Modern

Law Review 412 423-4; Peter McMaster, ‘Climate Change—Statutory Duty or Pious

Hope?’ (2008) 20(1) Journal of Environmental Law 115; Compare Church, above n 78.

119 McMaster, above n 118, 116-18 (considering and rejecting the possibilities of compensation

for breach of statutory duty and criminal sanctions).

120 Colin Reid, ‘A New Sort of Duty? The Signicance of “Outcome” Duties in the Climate

Change and Child Poverty Acts’ (2012) (4) Public Law 748, 758-9.

121 Richard Macrory, Regulation, Enforcement and Governance in Environmental Law (Hart

Publishing, 2014) 266.

122 Aileen McHarg, ‘Climate Change Constitutionalism? Lessons from the United Kingdom’

(2011) 2(4) Climate Law 469, 478.

123 UK, House of Commons, Public Bill Committee on the Climate Change Bill, 6th session, 1

July 2008 col 236 (Mr P. Woolas).

263

non-justiciable’.124 Moreover, the Act already requires the Secretary of State (not

the courts) to grapple with these issues in preparing a report to Parliament as to

how the excess will be compensated for in future carbon budget periods. It would

not be consistent with the scheme of the Act for a court to intervene before this

report had been prepared, nor to second-guess, in a policy sense, the content of

that report after it has been published.

While apparently sweeping legal duties to achieve targets may give rise to few,

if any, practical remedies, there are two good reasons to consider including

them in Australian framework legislation. The rst is for signal they would send

within the Commonwealth bureaucracy about the importance and priority of

emission reduction goals. As was observed in the debate on the United Kingdom

legislation, legal duties to achieve emission reduction targets are ‘not just about

the punishment in the event of failure’ but about ‘trying to change institutional

behaviour through a change in the law’.125 The second is the signal they would

send to other nations about the seriousness with which Australia is taking its

emission reduction commitments under the Paris Agreement.

CONCLUSION

Growing numbers of countries are enacting framework climate laws that entrench

emission reduction targets, require planning for how targets will be achieved, and

make governments accountable for meeting their targets. This trend pre-dated

the Paris Agreement but has taken on a new importance post-Paris. The Paris

Agreement endorses important global goals, but depends critically on nationally-

determined targets and mitigation actions to achieve them. National framework

legislation aligned with the goals and processes of the Paris Agreement can help

by ensuring that emission reduction targets are set in a principled, transparent

and evidence-based manner, and by providing greater credibility that targets,

once set, will be achieved. The climate policy debate in Australia has focused

almost exclusively on the ‘toolkit’ of instruments that should be at the disposal of

governments. In the wake of the Paris Agreement, more attention needs to be given

to the question of how laws should discipline successive Australian Governments

to play their full part in achieving the global goals to which Australia is now

committed.

124 McHarg, above n 122, 477-8.

125 UK, Parliamentary Debates, House of Lords, 27 November 2007 vol 696 col 1209; ibid

472.