A Bill for an Act to amend the Climate Change Act 2022, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act is the Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Act 2023.
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Note: This table relates only to the provisions of this Act as originally enacted.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 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments
Climate Change Act 2022
1 At the end of section 3
Add:
; and (d) to promote intergenerational equity by requiring the health and wellbeing of current and future children in Australia to be considered by persons making certain administrative decisions that are likely to contribute to climate change.
2 Section 4
After:
• The Climate Change Authority is to advise the Minister on greenhouse gas emissions reduction targets to be included in a new or adjusted nationally determined contribution.
insert:
• Persons making certain administrative decisions likely to contribute to climate change (called significant decisions) have statutory duties to consider the health and wellbeing of current and future children in Australia.
3 Section 5
Before “In”, insert “(1)”.
4 Section 5
Insert:
carbon dioxide equivalence has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.
child means an individual who has not reached 18 years.
health and wellbeing includes the following:
(a) emotional health and wellbeing;
(b) cultural health and wellbeing;
(c) spiritual health and wellbeing.
IPCC (short for Intergovernmental Panel on Climate Change) means the Intergovernmental Panel on Climate Change established by the World Meteorological Organization and the United Nations Environment Programme.
relevant enactment means the following:
(a) the Environment Protection and Biodiversity Conservation Act 1999;
(b) the Export Finance and Insurance Corporation Act 1991;
(c) the Infrastructure Australia Act 2008;
(d) the National Reconstruction Fund Corporation Act 2023;
(e) the Northern Australia Infrastructure Facility Act 2016;
(f) the Offshore Petroleum and Greenhouse Gas Storage Act 2006;
(g) an instrument made under an Act mentioned in any of the above paragraphs;
(h) any other Act or instrument prescribed by the rules for the purposes of this paragraph.
rules means rules made under section 18.
scope 2 emission of greenhouse gas has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.
scope 3 emission of greenhouse gas, in relation to a facility, means the release of greenhouse gas (other than scope 1 emissions or scope 2 emissions of greenhouse gas) into the atmosphere:
(a) as a result of an activity, or series of activities (including ancillary activities), of the facility, whether the activity, or series of activities, form part of the facility or not; but
(b) from sources that are not owned or controlled by the facility.
Example: Scope 3 emissions include upstream emissions, downstream emissions, end‑use consumption emissions as well as exported emissions occurring outside of Australia. The following are examples of scope 3 emissions:
(a) the release of greenhouse gas from the extraction or production of materials purchased by a facility;
(b) the release of greenhouse gas from the transportation of fuels purchased by a facility;
(c) the release of greenhouse gas from the use of products and services sold by a facility.
significant decision has the meaning given by subsections 15C(1) and (2).
5 At the end of section 5
Add:
(2) A reference in this Act to the making of a decision has the same meaning in this Act as it has in the Administrative Decisions (Judicial Review) Act 1977.
(3) A reference in this Act to the failure to make a decision has the same meaning in this Act as it has in the Administrative Decisions (Judicial Review) Act 1977.
(3) A reference in this Act to conduct engaged in for the purposes of making a decision has the same meaning in this Act as it has in the Administrative Decisions (Judicial Review) Act 1977.
6 After Part 4
Insert:
Part 4A—Duty to consider the health and wellbeing of children in Australia when making decisions contributing to climate change
15B Simplified outline of this Part
• A person has a statutory duty to consider the health and wellbeing of current and future children in Australia when making certain administrative decisions contributing to climate change (called significant decisions).
• A person also has a statutory duty not to make a significant decision in relation to the exploration or extraction of coal, oil or natural gas if the likely emission of greenhouse gases as a result of the decision poses a material risk of harm to the health and wellbeing of current and future children in Australia.
• The Administrative Decisions (Judicial Review) Act 1977 is modified, including to provide for judicial review of significant decisions and to extend standing for judicial review of significant decisions under that Act.
15C Meaning of significant decision
(1) A significant decision means a decision:
(a) of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not) under a relevant enactment or a part of a relevant enactment; and
(b) that is likely to result directly or indirectly, over the lifetime of one or more facilities, in the emission of greenhouse gases that:
(i) are scope 1 emissions, scope 2 emissions or scope 3 emissions; and
(ii) have a carbon dioxide equivalence of at least 100,000 tonnes (gross).
(2) A significant decision also means a decision:
(a) of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not):
(i) in the performance of a function, or the exercise of a power, that is required, or expressly or implied authorised, under an Act or instrument, or a part of an Act or instrument, covered by subsection (3); and
(ii) whether the decision derives its capacity to affect legal rights or obligations from the Act or instrument, or a part of the Act or instrument, covered by subsection (3) or not; and
(b) that is likely to result directly or indirectly, over the lifetime of one or more facilities, in the emission of greenhouse gases that:
(i) are scope 1 emissions, scope 2 emissions or scope 3 emissions; and
(ii) have a carbon dioxide equivalence of at least 100,000 tonnes (gross).
Example 1: A decision of the National Reconstruction Fund Corporation to provide a loan in the performance of the corporation’s investment functions under the National Reconstruction Fund Corporation Act 2023 and that is likely to result (whether directly or indirectly) in the emission of greenhouse gases as described in paragraph (b) is a significant decision within the meaning of this subsection.
Example 2: A decision of the Northern Australia Infrastructure Facility to provide a grant of financial assistance in the performance of the facility’s functions under the Northern Australia Infrastructure Facility Act 2016 and that is likely to result (whether directly or indirectly) in the emission of greenhouse gases as described in paragraph (b) is a significant decision within the meaning of this subsection.
(3) The following are covered by this subsection:
(a) the Export Finance and Insurance Corporation Act 1991;
(b) the Infrastructure Australia Act 2008;
(c) the National Reconstruction Fund Corporation Act 2023;
(d) the Northern Australia Infrastructure Facility Act 2016;
(e) an instrument made under an Act mentioned in any of the above paragraphs;
(f) any other Act or instrument prescribed by the rules for the purposes of this paragraph.
15D Duty to consider the health and wellbeing of children in Australia when making significant decisions
(1) A person who proposes to make, or is required to make, a significant decision must consider (in addition to any other matters the person is required to consider under any other law of the Commonwealth):
(a) the likely impacts of the likely emission of greenhouse gases, as a direct or indirect result of the decision, on the health and wellbeing of current and future children in Australia; and
(b) the health and wellbeing of current and future children in Australia as the paramount consideration.
(2) Without limiting the matters that the person may take into account in considering the likely impacts of the likely emission of greenhouse gases, as a direct or indirect result of the decision, on the health and wellbeing of current and future children in Australia, the person must take into account the following:
(a) the extent to which the likely emission of greenhouse gases, as a direct or indirect result of the decision, will prejudice the achievement of the following:
(i) Australia’s greenhouse gas emissions reduction targets;
(ii) the greenhouse gas emissions reduction targets included in Australia’s nationally determined contribution;
(b) the likely impacts of climate change on the health and wellbeing of current and future children in Australia, having regard to:
(i) if the IPCC has published information about the impacts of climate change—information about the impacts of climate change that was most recently published by the IPCC; or
(ii) otherwise—the best available scientific knowledge of the impacts of climate change;
(c) any other matters prescribed by the rules for the purposes of this paragraph.
(3) This section has effect despite any other law of the Commonwealth, whether enacted before or after the commencement of this section.
Note 1: The effect of this subsection is that a person is required to consider the matters in subsection (1) for a significant decision despite any other law of the Commonwealth that limits the matters the person is required or permitted to consider in making the significant decision.
Note 2: The effect of this subsection is also that a person is required to consider the health and wellbeing of current and future children in Australia as the paramount consideration for a significant decision, despite any other law of the Commonwealth that specifies any other paramount consideration for the significant decision.
15E Duty not to make certain significant decisions that pose a material risk of harm to the health and wellbeing of children in Australia
(1) A person must not make a significant decision if:
(a) the likely emission of greenhouse gases, as a direct or indirect result of the decision, poses a material risk of harm to the health and wellbeing of current or future children in Australia; and
(b) the decision is in relation to, or would provide direct or indirect assistance for, one or more of the following:
(i) activities that involve the exploration of coal, oil or natural gas;
(ii) activities that involve the extraction of coal, oil or natural gas;
(iii) any other activities prescribed by the rules for the purposes of this subparagraph.
(2) Without limiting the matters that the person may take into account in determining whether the likely emission of greenhouse gases, as a direct or indirect result of the decision, poses such a risk, the person must take into account the following:
(a) the extent to which the likely emission of greenhouse gases, as a direct or indirect result of the decision, will prejudice the achievement of the following:
(i) Australia’s greenhouse gas emissions reduction targets;
(ii) the greenhouse gas emissions reduction targets included in Australia’s nationally determined contribution;
(b) the likely impacts of climate change on the health and wellbeing of current and future children in Australia, having regard to:
(i) if the IPCC has published information about the impacts of climate change—information about the impacts of climate change that was most recently published by the IPCC; or
(ii) otherwise—the best available scientific knowledge of the impacts of climate change;
(c) any other matters prescribed by the rules for the purposes of this paragraph.
(3) This section has effect despite any other law of the Commonwealth, whether enacted before or after the commencement of this section.
Note: The effect of this subsection is that a person is required to not make a significant decision in the circumstances mentioned in subsection (1) despite any other law of the Commonwealth that requires the person to make the significant decision.
15F Modification of the Administrative Decisions (Judicial Review) Act 1977—extended standing for judicial review
(1) This section extends (and does not limit) the meaning of the term person aggrieved in the Administrative Decisions (Judicial Review) Act 1977 for the purposes of the application of that Act in relation to:
(a) a decision made that is a significant decision; or
(b) a failure to make a decision that is a significant decision; or
(c) conduct engaged in for the purpose of making a decision that is a significant decision.
(2) An individual is taken to be a person aggrieved by the decision, failure or conduct if the individual is a child who is an Australian citizen or ordinarily resident in Australia or an external Territory.
15G Modification of the Administrative Decisions (Judicial Review) Act 1977—decisions subject to judicial review
(1) This section extends (and does not limit) the meaning of the term decision to which this Act applies in the Administrative Decisions (Judicial Review) Act 1977 for the purposes of the application of that Act in relation to:
(a) a decision made that is a significant decision; or
(b) a failure to make a decision that is a significant decision; or
(c) conduct engaged in for the purpose of making a decision that is a significant decision.
(2) A decision to which this Act applies is taken to include a significant decision.
15H Modification of the Administrative Decisions (Judicial Review) Act 1977—reasons may be obtained for significant decisions
(1) This section extends (and does not limit) the meaning of the term decision to which this section applies in section 13 of the Administrative Decisions (Judicial Review) Act 1977 for the purposes of the application of that Act in relation to:
(a) a decision made that is a significant decision; or
(b) a failure to make a decision that is a significant decision; or
(c) conduct engaged in for the purpose of making a decision that is a significant decision.
(2) Despite paragraph (zb) of Schedule 2 to the Administrative Decisions (Judicial Review) Act 1977, a decision to which this section applies is taken to include a decision relating to the activities of the Export Finance and Insurance Corporation under Part 4 or 5 of the Export Finance and Insurance Corporation Act 1991 if the decision is a significant decision.
7 Part 5 (heading)
Omit “Periodic reviews of the operation of this Act”, substitute “Miscellaneous”.
8 At the end of section 16
Add:
• The Minister can make rules for the purposes of this Act.
9 At the end of Part 5
Add:
18 Rules
(1) The Minister may, by legislative instrument, make rules prescribing matters:
(a) required or permitted by this Act to be prescribed by the rules; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) To avoid doubt, the rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) directly amend the text of this Act.
10 Application of amendments
Amendments of the Climate Change Act 2022 made by this Schedule apply in relation to the following:
(a) decisions made, proposed to be made, required to be made or failed to be made, on or after the commencement of this item;
(b) conduct engaged in on or after that commencement.