Environment and Sustainable Development 5 Minute Fix 33: net zero, waste export, energy, biodiversity, planning

12 Dec 2022
Time to read: 5 minutes

Climate change

International: UN Report on net zero emissions commitments of non-state entities

The United Nations’ High Level Expert Group on the Net Zero Emissions Commitments of Non-State Entities was tasked by the United Nations Secretary General with addressing net zero pledges and commitments from non-state actors including corporations, financial institutions, and local and regional governments. The Expert Group has now released its report Integrity Matters: Net Zero Commitments by Businesses, Financial Institutions, Cities and Regions (the Report), the aim of which is to assist in the construction of recommendations to achieve the widely accepted goal of net zero by 2050.

The Report calls on cities, regions, financial institutions and businesses, as well as their regulators and policymakers to own this report and adopt the work into existing and new strategies in line with the following five guiding principles:

  1. Ambition which delivers significant near- and medium-term emissions reductions on a path to global net zero by 2050.
  2. Demonstrated integrity by aligning commitments with actions and investments.
  3. Radical transparency in sharing relevant, non-competitive, comparable data on plans and progress.
  4. Established credibility through plans based in science and third-party accountability.
  5. Demonstratable commitment to both equity and justice in all actions.

In its Report, the Expert Group details ten recommendations for setting and attaining net zero targets which fall under the following headings:

  1. Announcing a Net Zero Pledge
  2. Setting Net Zero Targets
  3. Using Voluntary Credits
  4. Creating a Transition Plan
  5. Phasing out of Fossil Fuels and Scaling Up Renewable Energy
  6. Aligning Lobbying and Advocacy
  7. People and Nature in the Just Transition
  8. Increasing Transparency and Accountability
  9. Investing in Just Transitions
  10. Accelerating the Road to Regulation

The Report further outlines a range of potential pathways to actions for regulators, initiatives and standard setters to guide non-state actors towards implementation of the recommendations into their business plan and delivering on their net zero pledges.

Commonwealth: State of the Climate 2022 report provides daunting predictions

Prepared by CSIRO and the Bureau of Meteorology, and jointly launched by the Ministers of Science and Industry and the Minister for the Environment and Water, the State of the Climate 2022 report was released on 23 November 2022 and emphasises the need for urgent action on emissions reduction and climate change.

The report is released every two years to provide the latest national and international climate research, climate monitoring and projections. It is intended to inform a range of decision-making by Governments, industries and communities.

Some of the key points for Australia’s current climate as noted in the report include the following:

  • Australia’s climate has warmed by an average of 1.47 degrees since records began.
  • Sea surface temperatures have risen by 1.05 degrees.
  • Oceans around Australia have increased in acidity, at an increasing rate.
  • Sea levels around Australia are rising, increasing flood risk.

The report predicts a range of changes, including:

  • longer periods of drought on average in the south and east;
  • a longer fire season in the south and east;
  • more intense short-duration heavy rainfall events;
  • continued warming and acidification of surrounding oceans with impacts on biodiversity and ecosystems; and
  • increase in “compound extremes” where multiple extreme events occur together or in sequence.

Commonwealth: Bill proposing amendments to safeguard mechanism introduced

In October 2022, an exposure draft Safeguard Mechanism Credits Amendment Bill 2022 was released for consultation. The Bill has now been introduced to Parliament and aims to build on the Climate Change Act 2022 and incentivise facilities covered by the Safeguard Mechanism to reduce emissions and contribute to Australia’s international commitments. If passed, the Bill will:

  • allow for the creation of a new type of unit (the Safeguard Mechanism Credits) that will allow for crediting and trading under reforms; and
  • ensure appropriate interactions for Emissions Reductions Fund Projects at Safeguard Mechanism facilities under the new reforms.

Further, the proposed reforms aim to gradually reduce Safeguard Mechanism baselines at indicative decline rates of 3.5 to 6% each year and thereby force abatement activities to occur. This Bill is expected to assist Australia in reaching its target of reducing national emissions by 43% below 2005 levels by 2030 and achieve net zero by 2050.

Commonwealth: Legislation to close the hold in the ozone layer passes

As discussed in our 5 Minute Fix 32, the Ozone Protection and Synthetic Greenhouse Gas Management Reform (Closing the Hole in the Ozone Layer) Bill 2022 (Cth) and is currently waiting assent.

The Bill would amend the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth) to (amongst other things):

  • impose controls that are currently imposed through licence conditions, such as the ban on import of bulk gas in non-refillable containers;
  • clarify licence and exemptions requirements, including changes to make the legislation easier to understand and reduce unintentional non-compliance;
  • increase the time allowed for submitting reports and payment levies;
  • adopt the standard provisions of the Regulatory Powers (Standard Provisions) Act 2014, including certain minor modifications;
  • update the offence and civil penalty provisions;
  • introduce information gathering powers including the ability to issue a notice to produce;
  • provide the option of licence suspension as an alternative to immediate cancellation of financial penalties;
  • provide for an internal review mechanism for reviewable decisions; and
  • allow the use or disclosure of certain information.

TAS: Climate Change Bill passes Parliament and has now commenced

In our 5 Minute Fix 21 and 5 Minute Fix 32, we considered and discussed the progress of Tasmania’s Climate Change (State Action) Amendment Bill 2021. The Bill has since been passed by both houses of Parliament with amendments and commenced upon receiving Royal Assent on 30 November 2022.

The amendments made to the original bill before it was passed include an updated definition of greenhouse gas emissions, the inclusion of children and young people as a required consultation group, consideration of the health and wellbeing of Tasmanians (rather than simply future generations), and a more transparent and fast-tracked timeline for the publication of the required climate change action plans, climate change risk assessment, and emissions reduction and resilience plans. Additionally, the climate change activity statement must now also include details of progress toward achieving the targets and objectives of the emissions reduction and resilience plan.

Under the Climate Change (State Action) Amendment Act 2022 (Tas), the Minister must prepare:

  • a climate change report within 12 months;
  • a State-wide climate change risk assessment within 24 months;
  • an emissions reduction and resilience plan within 12 months regarding the transport sector; and
  • an emissions reduction and resilience plan within 24 months in all other cases.

SA: Anticipated Green Paper to inform the 2023 Energy White Paper

The South Australian Government has announced it will incorporate key outcomes from the South Australia’s inaugural Energy Transition Roundtable into a Green Paper, which in turn will inform an Energy White Paper to be published in 2023.

The Energy Transition Roundtable discussed the State’s way forward to meet its target of net zero carbon emissions by 2050. The session was attended by residential, commercial and industrial energy consumers, energy industry participants, investors, producers, market bodies, peak bodies, and research institutes who outlined existing, emerging and future barriers to achieving the net zero carbon emissions target by 2050 and explored ways to overcome these barriers.


Commonwealth: Cost recovery from regulated waste export businesses to begin in mid-2023: have your say

In March 2020, the Council of Australian Governments agreed that the export of plastic, paper, glass and tyre waste be regulated by the Australian Government. Subsequently, recycling and waste legislation was passed in 2020 to create a regulatory framework for waste exports to improve recycling and waste management in Australia.

Under this framework, a phased approach applies with the export wastes being regulated as follows:

  • waste glass: since 1 January 2021;
  • waste plastic: since 1 July 2021;
  • waste tyres: since 1 December 2021; and
  • mixed paper and cardboard: to be regulated from July 2024.

At this stage, the relevant regulated waste exporters have only been required to hold a waste export licence and declare their waste exports with no cost applying.

The Commonwealth Department of Climate Change, Energy, the Environment and Water has now released a consultation paper which outlines three possible waste export cost recovery proposals – a flat fee, a base fee with a possible additional fee for further assessment if required, or a levy – which will come into effect on 1 July 2023.

The Department is seeking feedback from industry stakeholders on the proposed fee options and the assumptions on which the scheme is based. Submissions can be made until 5:00PM AEDT on Monday, 12 December 2022.

SA: Government announces staged timeline for single-use plastics ban

The South Australian Government has announced that the following items will be phased out over the next three years:

  • From September 2023: plastic stemmed cotton buds, single-use plastic bowls and plates, and plastic pizza savers will be phased out.
  • From September 2024: plastic produce bags, thick supermarket or boutique-style plastic bags, Single-use plastic beverage containers, other expanded polystyrene (EPS) consumer food and beverage containers in the market (like certain ice cream tubs) that were not captured in the 1 March 2022 prohibition, plastic confetti, plastic balloon sticks/ties and plastic bread tags.
  • From September 2025: plastic fruit stickers, plastic soy sauce fish, and pre-packaged and attached products (products that have attached plastic straws or cutlery) are to be phased out.


Commonwealth: Have your say on Australia’s energy strategy

On 10 November 2022, the Australian Government released a National Energy Performance Strategy: consultation paper to seek stakeholder views across five key areas: governance, residential, commercial, industry, and supply chains. Submissions will be used to develop Australia’s energy policy to drive down energy prices and emissions.

The Strategy aims to improve Australia’s energy performance and governance with policies that are complementary to recent reforms such as the National Electric Vehicle Strategy and the current National Energy Performance Strategy. It contemplates the suitability of an energy efficiency target for Australia, a form of demand-side action that already exists in the EU.

Submissions must be made by Friday 3 February 2023.

NSW: Renewable energy shore precinct set for 2024

The NSW Government has accelerated delivery on the world’s first ever 100% renewable energy shore power precinct six months ahead of schedule. Normally, ships engines continue to run even when they are docked at the port. These shore power precincts instead connect the ships to the grid, allowing them to power their necessary functions with renewable energy and prevent further emissions from burning fuel. The precincts are located at Glebe Island and White Bay with one to service the cruise industry and another for bulk carriers.

The delivery of these precincts an important step for the Port Authority in reaching its net zero emissions target. It is claimed, that by 2023, the Port Authority will have eliminated almost all Scope 2 emissions from its operations.

QLD: Queensland Council leading the way with 10-year renewable energy transition roadmap

Gladstone Regional Council has released its Gladstone Region Economic Transition Roadmap, to address the changing landscape of the energy industry. Following the global push for decarbonisation, the Council has streamlined their initiatives on growing their base of low-cost renewables, encouraging positive repercussions on the region’s economic diversity, workforce and environment.

The Queensland Government’s significant investment in renewable energy is facilitating this transition, with a $356 million Gladstone Grid Reinforcement to connect solar and wind projects to the grid. The Council has further increased their focus on the growth of hydrogen into the industry, as a substitute for liquified natural gas, coal, oil and diesel.

The Roadmap also highlights Council’s objectives to protect and foster the regions natural resources, with an increased discussion on regular water assessments and planning to ensure healthy waterways and biodiversity, accounting for issues caused by climate change.

NT: Darwin-Katherine Battery Energy Storage System reaches milestone

The Territory Government has announced that the civil and building works for the Territory’s “big battery”, known as the Darwin-Katherine Battery Energy Storage System (DK BESS) have now been completed and the next phase of construction has commenced. When in operation the DK BESS, a 35MVA battery, is expected to reduce emissions by approximately 58,000 tonnes per annum and reduce the effects of fluctuations caused by the intermittency of solar energy. DK BESS supports the Territory Government’s commitment to 50% renewables by 2030.

SA: Have your say on new proposed hydrogen and renewable energy legislation

The Department for Energy and Mining is proposing a Hydrogen and Renewable Energy Act and is seeking public comment to shape the direction of the legislation. The aim of the new legislation is to ensure that renewable projects on government-owned pastoral lands and state waters are socially and environmentally sustainable and adequately address native title rights and Aboriginal interests. The Department has released an Issues Paper which sets out the proposed provisions to be included in the new Act. It is understood that following this first stage of consultation, a draft Bill will be prepared in early 2023 and released for further consultation.

According to the Issues Paper, it is proposed that the new Act will include, among other aspects:

  • exemption thresholds for small-scale projects;
  • objects of legislation that place development in the context of net environmental benefit, environmentally sustainable practices and circulate economy outcomes;
  • a process which enables Aboriginal people and the government to work together in the development of the sector; and
  • fit-for-purpose compliance and enforcement powers.

Submissions can be made here on the Issues Paper until 10 February 2023.

SA: New roadmap released for carbon farming

The Department of Primary Industries and Regions has released the Carbon Farming Roadmap to increase investment in this sector in order to realise the broader economic, environmental, and social benefits of carbon farming in South Australia as part of the Government's efforts to mitigate climate change.

The Roadmap sets out four key pillars and associated actions that the state government will take to address the challenges and unlock the opportunities and increase participation in carbon farming in South Australia:

  • PILLAR 1: Develop an enabling policy and regulatory environment;
  • PILLAR 2: Progress research, innovation and market development;
  • PILLAR 3: Build knowledge and skills; and
  • PILLAR 4: Engage, collaborate and partner.


NT: New draft Georgina Wiso Water Allocation Plan released for public consultation

The Territory Government has released the draft Georgina Wiso Water Allocation Plan 2022-2030 for public consultation. Water allocation plans in respect of a water control district may be declared by the Minister under the Water Act 1992 (NT) and provides the basis for the preservation of water for environmental and cultural uses and the allocation of water for public drinking water supplies and development in the regions to which it applies.

The draft Plan is the first-ever proposed water plan for the Georgina Basin and Wiso Basin and covers an area of 155,000 square kilometres which falls within the Daly Roper Beetaloo Water Control District and includes the towns of Daly Waters, Elliott and Newcastle Waters and the smaller communities of Jangirulu, Likkaparta, Marlinja, Murranji and Wutunugurra.

The draft Plan was developed to meet recommendation 7.7 of the Final Report of the Scientific Inquiry into Hydraulic Fracturing in the Northern Territory and is proposed to operate in conjunction with all relevant water licences and permits.

Public consultation on the draft plan is open until 16 December 2022, and submissions can be made in the manner prescribed here.

WA: Second mining amendment bill passed

The Mining Amendment Bill (No. 2) 2022 (WA) has been passed by the Parliament bringing into effect amendments to the Mining Act 1978 (WA) to:

  • Allow DMIRS to prescribe a datum in the Mining Regulations 1981 (WA). This will allow DMIRS to adopt the Geocentric Datum of Australia 2020 (GDA2020). The GDA2020 is a more accurate form of location information, in line with global navigation satellite systems.
  • Allow licence holders to make an application for a mining or general-purpose lease in respect of the land the subject of their licence before marking out the land in specified circumstances. The lease applicant will be required to submit a statement which specifies why in their opinion they cannot access the land to which the lease is sought as a result of any law, disaster or emergency, civil disturbance, industrial dispute or any other circumstance beyond the control of the licence holder. As soon as practicable, the land sought in the lease must then be marked out and the mining registrar provided with evidence that the land has been marked out. In all other circumstances, the land must still be marked out before the lease is granted.
  • Provide for the making of regulations which:
  • allow for electronic service for the giving of information, a document, a notice or a notification under the Mining Act, including provisions which provide for the time at which such documents are taken to have been given; and
  • prescribe fees for the lodgement of notices relating to disputes or objections to the Warden.

Further amendments to the Mining Act 1978 (WA) as outlined in our 5 Minute Fix 31 will commence once the Mining Amendment Act 2022 (WA) provisions are proclaimed.


NSW: Parliamentary inquiry hands down review on NSW Biodiversity Offsets Scheme

The NSW Upper House Planning and Environment Portfolio Committee has recommended a full review of the NSW Biodiversity Offsets Scheme in their new Integrity of the NSW Biodiversity Offsets Scheme report. The Committee was tasked with looking at the integrity of the NSW Biodiversity Offsets Scheme, which was established earlier this year under the under the Biodiversity Conservation Act 2016 (NSW). In particular, the Committee was to consider the following specific matters:

  • The effectiveness of the scheme to stop or reverse the loss of biodiversity and the role of the Conservation Trust in administering the scheme; and
  • the use of biodiversity offsets by the NSW Government for major projects and strategic approvals.

The Committee’s report said it had received significant complaints from various stakeholders, who raised practical issues relating to the effectiveness and efficiency of the scheme. It made 19 recommendations for changes to the scheme to amend the flaws in the current biodiversity offsets market. In particular, the recommendations included the need for:

  • greater transparency in the market, particularly for indirect offsets, through better access to information about the supply and demand for credits and pricing; and
  • the development of a monitoring, evaluation, reporting and improvement framework for the scheme.

Sustainable development

NSW: New sustainable buildings part of emissions reduction and next zero strategy

The NSW Government is introducing the new State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) to promote the development of more sustainable buildings in NSW and bring NSW closer to net zero emissions. The new Sustainable Buildings SEPP comes with changes to Environmental Planning and Assessment regulations, updated BASIX tools and policy, and technical guidance.

Under the new Sustainable Buildings SEPP:

  • all buildings will be required to calculate and report on the embodied emissions of construction materials;
  • residential developments that are detached homes or apartment blocks over five storeys will have increased energy and thermal performance standards; and
  • large commercial non-residential developments will have energy and water standards, and, along with state significant developments, will have to show that the building can operate without fossil fuels by 2035.

The policy will commence on 1 October 2023 and form part of the NSW Government’s strategy to reduce emissions by 50% by 2030 and reach net zero by 2050.

SA: Have your say on the regulation of private conservation areas

The Native Vegetation Council has opened consultation on a draft Heritage Agreement policy and Application for financial assistance guideline. The policy and guidelines will streamline the decision-making process surrounding Heritage Agreements.

The draft Heritage Agreement policy facilitates conservation, establishes criteria for approving new Heritage Agreements, clarifies permitted activities (which include carbon farming and biodiversity markets), establishes considerations for varying or terminating Heritage Agreements and creates incentives for Heritage Agreement owners.

Contributions may be made until 16 December 2022 in the manner prescribed here.

Cultural heritage

WA: Proposed guidelines for Aboriginal cultural heritage released for consultation

The Aboriginal Cultural Heritage (ACH) Council has given notice of the proposed guidelines that have been released for public comment. These statutory guidelines are provided for under section 294 of the Aboriginal Cultural Heritage Act 2021 (WA) and include the following suite of guideline documents:

  • ACH Management Code: steps out undertaking a due diligence assessment for a proposed activity;
  • Consultation guidelines: the carrying out of consultation for the purposes of this Act;
  • Knowledge holder guidelines: the identification of persons who are knowledge holders for any area;
  • Local ACH service (fees): the fees structure for the fees to be charged for service provided in connection with the provision of local ACH service functions;
  • Protection area order guidelines: the factors to be considered in determining whether ACH is of outstanding significance for the purposes of the Act; and
  • State significant guidelines: the factors to be considered in determining under section 176(1)(b) whether ACH is of State significance for the purposes of this Act.

Submissions on the proposed guidelines and the additional guideline documents can be made until 6 January 2023 in the manner prescribed here. Following the close of consultation, the Council will consider submissions to inform the proposed guidelines for Ministerial approval.


QLD: Consultation on Draft Wide Bay Burnett Regional Plan 2022

The Queensland Government has invited communities in the Wide Bay Burnett region to provide feedback on the Draft Wide Bay Regional Plan. The proposed draft Plan outlines the Governments strategies to help grow and sustain the region, strengthen the economy, facilitate and guide their social policies and environmental objectives.

The current Wide Bay Regional Plan was implemented in 2011, and this current draft aims to provide a review that reflects the Queensland Government’s strategic direction for managing population growth and regional development.

Consultation process involves weekly polls, written submission and a series of public information sessions to be held across the region. Feedback on the draft Plan is open until 24 February 2023. Following this consultation process, it is expected that the final plan will be released sometime in 2023.

WA: Diversification leases for renewable uses in new Bill introduced to Parliament

Following consultation on the draft Policy Framework, the new Land and Public Works Legislation Amendment Bill 2022 has been introduced to Parliament. If passed, the amendment legislation will create a new form of tenure known as a “diversification lease” which will allow Crown land to be used for a range of diversified uses, including carbon farming, hydrogen, and wind and solar. The proposed amendments contained in this legislation are aimed at providing opportunities for pastoralists, native title parties and other interested parties to become involved, or more involved, in the growing renewables market. The creation of this new lease is also aimed at supporting the State's transition to net zero by 2050.

These changes will also enable pastoral leases to be extended for 50 years which will provide greater certainty of tenure and allow for investment in other land uses, including carbon sequestration. The proposed lease is also intended to provide for the co-existence of mining and Native Title rights and interests similar to pastoral leases.

Environmental protection

NSW: Risk-based calculation protocol to determine environmental regulation released

The EPA has released the Environment Management Calculation Protocol which sets out the method the EPA uses to determine the environmental management category allocated to holders of environment protection licences under the Protection of the Environment Operations Act 1997 (NSW).

The Protocol explains that the environmental management category is determined by a site-specific risk assessment which considers the following components:

  • day-to-day operations;
  • pollutant incident risk; and
  • environmental management performance of the licensee.

The first two components involve looking at the type of emissions, pollution controls, proximity to sensitive environments and the level of environmental sensitivity. The third component involves compliance history, previous EPA regulatory action and environmental improvement programs initiated by the licensee.

The EPA will then allocate a licensee to an environmental management category of A, B, C, D or E for each licence and rank the risk of each licence on a scale of one to three, with three being the highest risk. These assessments and their results will help the EPA in deciding on the type and level of regulatory intervention required.

VIC: Court finds precautionary principle not applied to protect greater and yellow-bellied gliders

In a judgment handed down on 4 November 2022, the Victorian Supreme Court held that VicForests did not consider the precautionary principle in its approach to logging in the habitats of greater and yellow-bellied gliders. The final orders were made on 18 November 2022, including an injunction to stop timber harvesting operations until the coupe has been properly surveyed.

This matter involved separate proceedings brought by two environment groups, Environment East Gippsland and Kinglake Friends of the Forest (the applicants). The applicants alleged that VicForests failed to comply with the precautionary principle because it had not undertaken comprehensive pre-logging surveys of every coupe, to identify whether gliders are present. The Court agreed that VicForests cannot take the required measures to address risks to gliders if they are unaware of whether the species are present or not.

The Court found that when interpreting the precautionary principle, there are two inquiries:

  • are there threats of serious or irreversible environmental damage?
  • is there a lack of scientific certainty about those threats?

If these conditions are met, proportionate measures to prevent environmental degradation should not be postponed.

Justice Melinda Richards found that VicForests must always apply the precautionary principle to the conservation of biodiversity values when logging in State forests. This obligation includes sufficient monitoring and detection of threatened species, as validated by ecological experts and guided by relevant scientific knowledge.


Special thanks to Sarah Ashley and Jennifer Williams (Seasonal Clerk) (Brisbane), Isabelle Macdonald (Perth), Madeleine Grant (Darwin), Eli Hall and Sammie Colless (Seasonal Clerk) (Sydney) and Sian Ainsworth and Andrew Taylor (Seasonal Clerk) (Melbourne) for their contribution to this edition.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.