Environment and Sustainable Development 5 Minute Fix 43: carbon leakage, Future Gas Strategy, logging, planning

18 Oct 2023
Time to read: 5 minutes

Climate change

Commonwealth: Investigating the carbon leakage with policy options to follow

The Australian Government has announced the appointment of Professor Frank Jotzo to lead the Carbon Leakage Review. The Review is aimed at considering additional policy measures to tackle carbon leakage. In short, carbon leakage refers to circumstances in which businesses transfer production to other jurisdictions to take advantage of their less stringent climate policies.

It is understood that the Review will engage with various stakeholders, including industry, environmental groups, and international trade partners, to assess the risks of carbon leakage and devise policy options. Additionally, it will examine the feasibility of implementing an Australian Carbon Border Adjustment Mechanism, particularly concerning steel and cement.

The Review, which began in July 2023, will involve two consultations with various groups and is set to conclude by September 30, 2024. Any approved policy measures will be incorporated into the Australian Government's net zero 2050 plan following the review.


SA: Hydrogen Bill introduced to Parliament following consultation

The Hydrogen and Renewable Energy Bill 2023 was introduced into Parliament on 14 September 2023 following consultation with key stakeholders over a six-week period. The consultation considered the views of a wide range of the community including native title groups, pastoralists, regional communities and internal government agencies.

After consideration of the consultation feedback, changes were made to the Bill before its introduction to Parliament including expanding the objects of the Bill, making provision for applications for licences on native title land, establishing a notice regime for the Minister when approving a statement of environment objectives and broadening the matters to be undertaken by the Minister in respect of environment impact reports.


Commonwealth: Future strategy for gas production and consumption: have your say

The Australian Government is actively seeking input on the Future Gas Strategy to shape Australia's path to achieving net-zero emissions with its release of the Future Gas Strategy Consultation Paper. This Strategy will outline both medium-term (to 2035) and long-term (to 2050) plans for gas production and usage in the country.

The Government is welcoming input from various stakeholders including gas producers, domestic and international consumers, distributors, as well as the general public about:

Gas demand

  • in Australia’s transition to net zero;
  • to generate electricity;
  • in homes and small businesses;
  • in manufacturing; and
  • in the world’s transition to net zero.

Gas supply

  • oil and gas regulation;
  • carbon capture and storage;
  • transportation and infrastructure;
  • workforce and LNG facilities; and
  • our domestic market.

Submissions can be made until 13 November 2023.

Sustainable development

WA: End of commercial logging of native forests in sight

The WA Government has announced native forest logging will end at the start of 2024, making it one of the first State to bring this commercial activity to an end. The decision is confined to forestry and will not affect clearing of native forests to maintain forest health and for approved mine site operations.

In conjunction with ending of commercial native forest logging, the WA Government has committed to investing $350 million in Western Australia's softwood pine plantations, a climate-friendly alternative to timber. The funding will be made available through various grants for community development projects, attract new industries and assist workers and families impacted by the end of commercial native forest logging.


SA: Changes for Landscape Act on the horizon: have your say

The Minister for Climate, Environment and Water has appointed former Minister for Environment and Conservation, the Honourable John Hill, to conduct an independent statutory review of the operation and effectiveness of the Landscape South Australia Act 2019. This Act provides the framework for promoting sustainable and integrated management of land, water, pest plants and animals, and biodiversity across the state.

The SA Government has released a Discussion Paper on the following key focus areas:

  • Outcomes of legislative reform: Looking at the desired outcomes from the reform process.
  • Objects and principles of the Landscape Act: The overarching intent of the Act and principles in implementing the Act.
  • Administration, Roles and Responsibilities: The key landscape authorities, their powers and functions.
  • Planning framework: The State Landscape Strategy, landscape board regional landscape plans, business plans and water allocation plans.
  • Levies and funding equity across landscape regions: Land and water levy arrangements, and funding equity across landscape board regions.
  • Funds of the Landscape Act: Landscape Administration Fund, Landscape Priorities Fund and Board funds.
  • Management and protection of land: Provisions for protecting the condition of agricultural land.
  • Management and protection of water resources: Regulating access to and use of water resources, including licensing provisions, water affecting activities and control policies.
  • Control of pest animals and weeds: Provisions controlling the movement, possession and management of pest animals and weeds.
  • Compliance and enforcement provisions: Framework for compliance mechanisms and enforcement for breaching the Act.

Submissions can be made until Monday, 23 October 2023.

SA: Regional plan to be prepared for Greater Adelaide: have your say

The State Planning Commission, in collaboration with the SA Government, have announced its intent to prepare a Greater Adelaide Regional Plan, which will replace the current 30-Year Plan for Greater Adelaide. The Greater Adelaide Regional Plan Discussion Paper has been released for consultation to help inform the new a draft regional plan which will be prepared in 2024.

The aim of the Regional Plan will be to identify growth over a 15 to 30-year period within the inevitable expanding Greater Adelaide region, by investigating and guiding:

  • where houses and employment land will go;
  • how housing and population will be serviced;
  • which areas need conservation and protection; and
  • what major infrastructure is needed and how it will be provided.

Submissions can be made until Monday, 6 November 2023.


International: Australia founding signatory on High Seas Biodiversity Treaty

On 21 September 2023, Australia became a founding signatory of the High Seas Biodiversity Treaty. The Treaty was adopted by the United Nations on 19 June 2023, and aims to establish a regime to conserve and sustainably use marine biological diversity in the high seas. The Treaty's main areas of concern include:

  • marine genetic resources;
  • area-based management tools;
  • environmental impact assessments; and
  • capacity building.

The aim is for the Treaty to deliver stronger protections for the ocean under the framework of the UN Convention of the Law of the Sea, including by providing a mechanism for establishing marine protected areas on the high seas. As part of the Treaty, Australia has agreed to deliver $3 million through the Office of the Pacific Ocean Commissioner over the next three years to support Pacific countries to sign and ratify the Treaty.

Environmental protection

QLD: Reforming environmental law powers, offences and penalties: have your say

On Thursday, 14 September 2023, the Queensland Government released its Improving the powers and penalties provisions of the Environmental Protection Act 1994 Consultation Paper, which sets out the Government's proposed approach to delivering on its commitment to implement the Independent Review of the Environmental Protection Act 1994 (Qld) Report recommendations as indicated in the Government's Response.

The Consultation Paper proposes a number of significant amendments to the Environmental Protection Act 1994 which include:

Principles underpinning the EP Act

Insert a new section into Chapter 1, Part 2 of the EP Act so that the following principles are legislated: the polluter pays principle; the precautionary principle; the principle of primacy of prevention; and the principle of proportionality.

Creation of a duty to restore

If a person permits or causes contamination that results in environmental harm they must, as far as reasonably practicable, restore the environment to the condition it was in before the incident occurred.

Enshrining human health, wellbeing, and safety in the environment

Sections 8 and 9 to be amended to more clearly state that human health, wellbeing and safety are included in "environment" and "environmental value" to limit the protection of human health under the EP Act to the extent that human health is affected by the environment.

Creation of general environmental duty (GED) offence

Unlike the GED duty, the GED offence will only apply to persons doing an activity in the course of conducting business or an undertaking. a failure to do one or more of the following will be considered a failure to uphold the GED and amount to an offence:

  • install and maintain plant, equipment, processes and systems in a manner that minimises risks of environmental harm;
  • maintain systems for identification, assessment and control of risks of environmental harm that may arise in connection with the activity, and for the evaluation of the effectiveness of controls;
  • maintain processes for the handling, storage, use and transport of substances that minimises risks of harm; and
  • have systems in place to ensure information, instruction, supervision and training to any person engaging in the activity that minimises risks of environmental harm.

GED offences will not apply to an aspect of minimising environmental harm that is currently addressed through an environmental requirement, for example, an EA, or where a person has complied with a Code of Practice.

Amend duty to notify environmental harm

The duty to notify be expanded to where the person "reasonably believes" or "should in the circumstances reasonably believe" that a notifiable event under section 320A has occurred, rather than just when a person becomes aware of potential consequences as result of carrying out an activity as prescribed in section 320A.

Creation of Environment Enforcement Order (EEO)

The administering authority will be able to issue an EEO, which will replace Environmental Protection Orders, Clean Up Notices, and Direction Notices, to ensure compliance with the GED and the proposed duty to restore.

Environmental nuisance can be serious or material harm

Contaminants with the prescribed characteristics of an environmental nuisance will also constitute serious or material environmental harm if it meets the definitions of those terms.


Submissions can be emailed to [email protected] by 5:00pm 10 November 2023.

WA: Court rules that title holder must consult on environment plans

On 28 September 2023, the Federal Court of Australia determined, in an urgent hearing following an interlocutory injunction restraining Woodside Energy Scarborough Pty Ltd from undertaking any activity described in its environmental plan, that the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) did not have statutory power to approve an environment plan where there had been insufficient consultation with First Nations stakeholders.

As a "relevant person", Raelene Cooper, a Mardudhunera woman, commenced proceedings on 17 August 2023 seeking judicial review of the decision made by NOPSEMA to approve an environmental plan for Woodside Energy's Scarborough Gas Project.

The Court held that NOPSEMA did not have statutory power to make the decision to approve the environment plan in circumstances where it was not reasonably satisfied that consultation required by regulation 11A(g) of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) was undertaken.

The Court granted declaratory relief in favour of Ms Cooper and made an order setting aside NOPSEMA's decision to accept the environment plan subject to conditions.

Special thanks to Nicole Besgrove (Brisbane) for co-ordinating the ESD 5 Minute Fix and to Zac Bosnakis (Perth), Oliver Moss and Vincent Collins (Sydney) and Johnson Choi and Jack Lofgren (Brisbane) 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.