Federal Register of Legislation - Australian Government

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A Bill for an Act to provide that major emitters of greenhouse gases are liable for climate change damage that occurs in Australia, and for related purposes
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Registered 24 May 2021
Introduced HR 24 May 2021
Table of contents.

2019‑2020‑2021

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

Liability for Climate Change Damage (Make the Polluters Pay) Bill 2021

 

No.      , 2021

 

(Mr Bandt)

 

 

 

A Bill for an Act to provide that major emitters of greenhouse gases are liable for climate change damage that occurs in Australia, and for related purposes

  

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 2

3............ Simplified outline of this Act.............................................................. 2

4............ Definitions.......................................................................................... 2

5............ Definition of major emitter................................................................. 4

6............ Actions for climate change damage..................................................... 5

7............ Evidentiary matters.............................................................................. 6

8............ No limitations period........................................................................... 7

9............ Jurisdiction of Federal Court............................................................... 7

10.......... Application of this Act........................................................................ 7

 


A Bill for an Act to provide that major emitters of greenhouse gases are liable for climate change damage that occurs in Australia, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Liability for Climate Change Damage (Make the Polluters Pay) Act 2021.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act.

The day after this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Simplified outline of this Act

This Act provides a right to recover damages in relation to climate change damage suffered by a person. Damages are recoverable from major emitters of greenhouse gases, including fossil fuel producers and the owners or operators of coal‑fired power stations. A major emitter is liable for the same proportion of damage as the proportion of the emitter’s greenhouse gas emissions to total global greenhouse gas emissions.

4  Definitions

                   In this Act:

climate change means a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods.

climate change damage means any damage arising in Australia from climate change, including, but not limited to, the following:

                     (a)  economic loss or physical loss of property, infrastructure, structures, resources or other assets;

                     (b)  the costs associated with obtaining and maintaining insurance reasonably required due to the risk of the losses referred to in paragraph (a);

                     (c)  death, injury, illness or other physical or psychological harms and the costs associated with treating or caring for persons suffering from them;

                     (d)  damage related to ocean acidification;

                     (e)  loss of land or damage to infrastructure due to rising sea levels, including slow‑onset loss;

                      (f)  the costs of monitoring, researching and analysing the climate and the weather if the costs are reasonably incurred to provide information about the effects of climate change and appropriate adaption measures;

                     (g)  the costs of responding to emergencies arising from natural disasters associated with climate change;

                     (h)  the costs of constructing, renovating, repairing or improving infrastructure in order to minimise further such damage and costs;

                      (i)  the costs of carrying out public education campaigns to inform the public about reducing and avoiding such damage and costs.

Climate Change Department means the Department administered by the Minister administering the National Greenhouse and Energy Reporting Act 2007.

controlling corporation has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

emission, of a greenhouse gas, means the following:

                     (a)  a scope 1 emission of greenhouse gas within the meaning of section 10 of the National Greenhouse and Energy Reporting Act 2007;

                     (b)  a scope 2 emission of greenhouse gas within the meaning of section 10 of the National Greenhouse and Energy Reporting Act 2007;

                     (c)  a scope 3 emission of greenhouse gas for which there is an emission factor listed in the National Greenhouse Accounts Factors, published by the Climate Change Department, as in force from time to time.

fossil fuel means thermal coal, oil and gas.

greenhouse gas has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

group has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

major emitter: see section 5.

5  Definition of major emitter

             (1)  A person is a major emitter if:

                     (a)  the person is the controlling corporation of a group; and

                     (b)  the group is either or both of the following:

                              (i)  the producer of fossil fuels that produce carbon dioxide or other greenhouse gases when used;

                             (ii)  the owner or operator of one or more coal‑fired power stations that cause the discharge of carbon dioxide or other greenhouse gases into the atmosphere; and

                     (c)  the total greenhouse gas emissions from:

                              (i)  the use of the fossil fuel produced by the group, whether or not the group used the fuel itself, as well as emissions from any of the fuel used in the production process; or

                             (ii)  the use of coal burnt for the electricity produced by any power stations owned or operated by the group, as well as emissions from any of the coal burnt to power those stations;

                            are greater than 1 million tonnes in any 12 month period that begins on or after 1 September 1990; and

                     (d)  either or both of the following apply:

                              (i)  the person is a company (within the meaning of the Corporations Act 2001);

                             (ii)  the person is a body corporate incorporated in Australia.

             (2)  A major emitter is only responsible for the greenhouse gas emissions made by the emitter’s group on or after the earlier of the following:

                     (a)  1 September 1990;

                     (b)  the day the major emitter knew, or ought to have known, that the group’s production of fossil fuels (as referred to in subparagraph 5(1)(b)(i)), or owning or operating coal‑fired power stations (as referred to in subparagraph 5(1)(b)(ii)) would contribute to climate change.

6  Actions for climate change damage

             (1)  A person may bring an action against a major emitter for climate change damage suffered by the person.

             (2)  The Attorney‑General of the Commonwealth, or of a State or Territory, may bring an action under subsection (1) on behalf of a person or persons.

             (3)  The relief that a court may grant in an action for climate change damage includes an injunction (subject to such terms (if any) as the court thinks fit, including terms that require a major emitter to reduce or cease activities that may cause climate change damage in the future) and damages.

             (4)  In determining the amount of damages, the court may assume the major emitter’s share of the climate change damage is at least the same as the major emitter’s share (based on the greenhouse gas emissions for which the emitter is responsible under subsection 5(2)) of total global greenhouse gas emissions.

             (5)  Nothing in subsection (4) limits the court’s ability to determine that a major emitter is jointly and severally liable for the entirety of the damage.

             (6)  Subsection (1) applies regardless of whether the group’s production of fossil fuels (as referred to in subparagraph 5(1)(b)(i)), or owning or operating coal‑fired power stations (as referred to in subparagraph 5(1)(b)(ii)), was required or authorised by law.

7  Evidentiary matters

             (1)  In determining whether a major emitter is liable for climate change damage under section 6, evidence that the major emitter’s group has produced greenhouse gas emissions of the magnitude mentioned in paragraph 5(1)(c) is sufficient to demonstrate, on the balance of probabilities, that the major emitter has contributed to the climate change damage.

             (2)  In determining whether particular damage constitutes climate change damage, the court may have regard to any of the following:

                     (a)  scientific or statistical information or modelling;

                     (b)  historical experience;

                     (c)  information derived from relevant studies, including information derived from sampling.

             (3)  In determining whether a particular weather event was caused by climate change, evidence that:

                     (a)  climate change has increased the likelihood of that type of event occurring; or

                     (b)  climate change has increased the likelihood that type of weather event will be more severe when it occurs and the particular weather event is of that severity;

is sufficient to demonstrate, on the balance of probabilities, that the event was caused by climate change.

8  No limitations period

                   Any statute of limitations that may otherwise apply in relation to an action under section 6 has no effect in relation to that action.

9  Jurisdiction of Federal Court

                   Jurisdiction is conferred on the Federal Court of Australia with respect to actions under section 6.

10  Application of this Act

             (1)  This Act applies in relation to climate change damage suffered on or after 1 July 2019, whether or not the greenhouse gas emissions that caused that damage occurred before, on or after 1 July 2019.

Note:          Under subsection 5(2) a major emitter is generally only responsible for greenhouse gas emissions occurring on or after 1 September 1990.

             (2)  This Act is not intended to exclude or limit the operation of the general law or a law of a State or Territory that is capable of operating concurrently with this Act.