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Liability for Climate Change Damage (Make the Polluters Pay) Bill 2020

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2019-2020

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Liability for Climate Change Damage (Make the Polluters Pay) Bill 2020

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

 

 

Adam Bandt MP



Liability for Climate Change Damage (Make the Polluters Pay) Bill 2020

OUTLINE

This Bill makes fossil fuel companies liable for climate change damage, giving victims of climate change, such as the recent bushfire survivors, the right to bring an action against thermal coal, oil and gas companies for climate change damage.

Major emitters of greenhouse gases, including fossil fuel producers and the owners or operators of coal-fired power stations, will be liable for climate change damage if their emissions are greater than 1 million tonnes in any 12 month period that began on or after 1 September 1990. The first Intergovernmental Panel on Climate Change report was released in that year, unambiguously linking fossil fuels to global warming. From at least this time onwards, every fossil fuel corporation has known or should have known about the consequences of their actions. For corporations that actively knew about the consequences of their actions earlier, liability will attach from that earlier date.

A person who suffered climate change damage, the Attorney-General of the Commonwealth, or of a State or Territory, can bring an action against a major emitter. The Federal Court of Australia will have the ability to:

·          Grant an injunction requiring the major emitter reduce or cease activities that may cause climate change damage in the future; and

·          Determine the amount of damages the major emitters is liable for. When deciding, the court may assume the major emitter’s share of the climate change damage is at least the same as their proportion of greenhouse gas emissions, to total global greenhouse gas emissions, and apportion a higher share of damages. .

FINANCIAL IMPACT

The bill will have no financial impact.

NOTES ON CLAUSES

Clause 1: Short Title

This clause provides for the Act to be cited as the Liability for Climate Change Damage (Make the Polluters Pay) Act 2020.

Clause 2: Commencement

This clause states that the Act will apply retrospectively with a commencement date of 1 July 2019. This ensures the victims of the 2019-20 bushfires are able to utilise the Act.

Clause 3: Simplified outline of this Act

This clause provides a simplified outline of the Act.

Clause 4: Definitions

This clause defines terms used in the 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 reasonable 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.

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 Department of Environment and Energy, 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 . A single controlling corporation can be a group within this definition.

major emitter see section 5 below.

Clause 5: Definition of major emitter

This clause provides a 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 beginning 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 activities of the major emitter’s group referred to in paragraph (1)(b) would contribute to climate change.

 

To avoid any doubt, a controlling corporation’s group may consist of the controlling corporation alone as set out in the National Greenhouse and Energy Reporting Act 2007.

Clause 6: Actions for climate change damage

This clause outlines who may bring action against a major emitter for climate change damage, how damages are determined and what damages and terms may be granted.

(1)   and (2) a person, the Attorney-General of the Commonwealth, or of a State or Territory on behalf of a person or persons, may bring an action on or after 1 July 2019 against a major emitter for climate change damage suffered by a person.

 

(3)   The relief granted by a court may include an injunction 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. The court may order the payment of a higher amount of damages, including finding the major emitter liable for all climate change damage suffered by the applicant. The principle of join and several liability for damage is well established at common law.

 

(5)   Subsection (1) applies regardless of whether the production of fossil fuels or the owning or operating of a coal- fired power station, as referred to in subparagraph 5(1)(b), was required or authorised by law.

Clause 7: Evidentiary matters

This clause details the evidence that may be taken into consideration when determining liability for climate change damage, whether particular damage constitutes climate change damage and whether a particular weather event was caused by climate change.

(1)   In determining whether a major 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 person 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.

Clause 8: No limitations period

This clause states that any statute of limitations that may otherwise apply in relation to an action under section 6 - actions for climate change damage, has no effect in relation to that action.

 Clause 9: Jurisdiction of Federal Court

This clause confirms that jurisdiction is conferred on the Federal Court of Australia with respect to actions under section 6 - actions for climate change damage.

Clause 10: Application of this Act

This clause provides for the 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 the commencement of this Act.

 

(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.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Liability for Climate Change Damage (Make the Polluters Pay) Bill 2020

 

This bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the bill

This Bill makes fossil fuel companies liable for climate change damage, giving victims of climate change, such as the recent bushfire survivors, the right to bring action against thermal coal, oil and gas companies for climate change. 

Major emitters of greenhouse gases, including fossil fuel producers and the owners or operators of coal-fired power stations, will be liable for climate change damage if their emissions are greater than 1 million tonnes in any 12 month period that began on or after 1 September 1990.

A person who suffered climate change damage, the Attorney-General of the Commonwealth, or of a State or Territory, can bring an action against a major emitter. The Federal Court of Australia will have the ability to;

·          Grant an injunction requiring the major emitter reduce or cease activities that may cause climate change damage in the future; and

·          Determine the amount of damages the major emitters is liable for. When deciding, the court may assume the major emitter’s share of the climate change damage is at least the same as their proportion of greenhouse gas emissions, to total global greenhouse gas emissions.

 

Human rights implications

This bill is compatible with human rights because does not raise any human rights issues, other than to increase the likelihood humans will stay alive, healthy and safe.

 

 

 

Adam Bandt MP