Wednesday, 31 May 2023

Energy and Resources Legislation Amendment (Transition Away from Coal) Bill 2023

Statement of compatibility

Sarah MANSFIELD (Western Victoria) (10:04): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to Energy and Resources Legislation Amendment (Transition Away from Coal) Bill 2023.

In my opinion, the bill, as introduced to the Legislative Council, is compatible with, promotes, and strengthens, the human rights protected by the Charter.

I base my opinion on the reasons outlined in this statement.

Overview of bill

The purposes of this bill are to amend the Environment Protection Act 2017 to prohibit the issue of licences to engage in thermal coal activity and revoke authorisations to engage in thermal coal activity under a licence; to amend the Renewable Energy (Jobs and Investment) Act 2017 to increase the state renewable energy target to 100% by 2030; to amend the Mineral Resources (Sustainable Development) Act 1990 (MRSDA) to prohibit the exploration for, or mining of, coal; and to amend the Constitution Act 1975 to entrench the new amendments banning coal mining and exploration in the Mineral Resources (Sustainable Development) Act 1990.

Human rights issues

In my opinion, the human rights protected by the Charter that are relevant to the bill are:

• The right to life (section 9)

• Property rights (section 20)

The right to life (section 9)

Section 9 of the Charter provides that every person has the right to life and has the right not to be arbitrarily deprived of life.

Climate change poses a real and present threat to life in Victoria. Lives are already being tragically lost in climate-fuelled extreme weather events including fires, floods and heat waves. Without urgent action to eliminate greenhouse gas pollution, Victoria faces catastrophic warming of up to 3–4 degrees celsius. These temperatures would cause extensive loss of life.

By setting a legislated end date to coal burning in Victoria, our state’s single biggest source of greenhouse gas emissions and climate pollution, this Bill promotes the right to life by limiting future catastrophic warming and its consequences.

Property rights (section 20)

Section 20 of the Charter provides that a person must not be deprived of his or her property other than in accordance with law.

By ending greenhouse gas emissions from coal burning in 2030, this Bill promotes the right to property by reducing the impacts of increasing global temperatures and extreme weather events on property.

By preventing the mining and burning of coal after 2030, this Bill may impact licences of energy companies to mine and burn coal, which are a form of property. However, to the extent that the Bill may cause a deprivation of property, I consider that any deprivation is permitted because it is expressly and clearly authorised by the Bill.

For these reasons I consider that the Bill is compatible with the Charter.

Rights in criminal proceedings (section 25)

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

Ordinarily, the presumption of innocence requires that the prosecution prove all matters beyond reasonable doubt. Section 25(1) of the Charter may be relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that he or she is not guilty of an offence.

The Bill entrenches in the Constitution Act strict liability offences in the MRSDA a that prohibit the exploration or mining of coal. The offence in s 8AE of the MRSDA contains an exception which places the evidential burden of proof on the accused.

The Bill may engage the Charter right to be presumed innocent, by including strict liability offences with a low standard of proof, to which the only exception reverses the burden of proof.

However, the Bill is not considered to limit the right. As above, persons engaging in resource exploration and extraction for the purposes of the MRSDA would likely be corporations and therefore not have any Charter rights: s 6(1).

Alternately, if the accused party were an individual, any limitation on the right is considered reasonable and justifiable as they would be a resource industry participant for whom compliance with the provisions would not be difficult. Resource industry participants must maintain significant expertise in industry regulation, including the restrictions exploring and mining for coal. Furthermore, the penalty imposed (200 units) is lower than the penalties that would normally apply where a higher burden of proof is required.

Finally, the evidential burden imposed by the exception in s 8AE(2) of the MRSDA is not considered to limit the right to be presumed innocent. The accused has only to prove that their discovery of coal was incidental, then the evidential burden will shift back to the prosecution.

Second reading

Sarah MANSFIELD (Western Victoria) (10:04): I move:

That the bill be now read a second time.

The climate crisis is here, right now.

Just this year, we have seen record bushfires in Chile, cyclones in south-eastern Africa, and heatwaves across China, India, and other parts of Asia.

Now, the World Meteorological Organization announced the earth will exceed our make-or-break 1.5-degree limit within just five years.

Breaching this limit will be catastrophic, and every fraction of a degree beyond it will cost more lives.

And credit where it is due, Labor is taking action, announcing last year a 95 per cent renewable electricity target for 2035 – not as soon as the science demands, but a far cry better than many of our other state and federal colleagues.

But unfortunately, that promise very well may mean nothing in terms of emissions, because while the Andrews government may not want our energy coming from brown coal – the dirtiest in Australia – it is apparently happy to continue mining and burning brown coal to export to the world in the form of hydrogen, as part of the so-called Hydrogen Energy Supply Chain, or HESC, project.

Back in 2018, Labor threw $50 million of Victorian taxpayer money to this brown-coal-to-hydrogen project as a pilot.

Along with co-funding from the then coalition federal government, Victorian Labor supported the plan to turn our dirtiest fossil fuel, brown coal, into hydrogen for export to Japan.

Now the Labor Treasurer tells us that the project – which will expand our coal industry – won’t add to Victoria’s emissions because we’ll capture the emissions through ‘carbon capture and storage’ in disused offshore gas wells in the Gippsland basin.

Labor is planning to do this through the CarbonNet project, which was also given $150 million in taxpayer funding.

There’s just one problem with this plan: carbon capture and storage has failed to actually capture anywhere near the emissions it has promised, anywhere in the world.

For example, Chevron’s Gorgon gas development facility in WA saw emissions increase 50 per cent last year.

That project was delayed by more than three years and has actually gotten less efficient every year since coming online in 2019 – falling from 2.7 million tonnes captured in 2019–20 to just 1.6 million tonnes last financial year.

But despite all of this – and despite the fact that the pilot HESC project produced just 1 tonne of hydrogen in its maiden shipment, instead, embarrassingly, having to purchase more than half of its minimum total requirement – the pilot was declared a success.

In March this year the Victorian Labor Treasurer Tim Pallas announced that he had secured a $2.35 billion deal through the Japanese government’s misleadingly named Green Innovation Fund – delivered to a consortium of energy providers led by Kawasaki Heavy Industries – to expand this coal-to-hydrogen project to a commercial-sized operation.

Even with CCS, carbon capture and storage, working at full capacity, the Australia Institute found the project will likely still increase emissions by up to 3.8 million tonnes per year.

I’ll repeat that: in a climate emergency, the Labor government thinks it’s a good idea to expand our brown coal industry. It’s almost too ludicrous to say aloud.

What’s more, they have kept crucial details of this hidden from the public.

On 22 March, the Legislative Council passed the Greens’ resolution requiring that the government provide briefings, assessments, analyses, examinations, modelling and consultancy reports on the HESC.

Unsurprisingly, Labor did not meet this requirement, citing time constraints, but told us they were preparing a response in mid-April. The Greens continue to wait, with bated breath, for the government to eventually provide transparency over this hugely significant project.

But amid obvious state capture of the fossil fuel industry during a climate crisis, there is hope.

The sheer idiocy of the Hydrogen Energy Supply Chain project has at least not escaped the energy minister, who is reportedly against it.

We suspect there are others in Labor who appreciate what a bad idea this is.

This bill is their chance to prove it.

On behalf of the Greens, I’m proud to introduce a bill today to phase out coal for good in Victoria and replace it with clean, renewable energy.

The Energy and Resources Legislation Amendment (Transition Away from Coal) Bill 2023 would ban destructive new coal projects like the HESC and, in a world first, cement that ban in Victoria’s constitution.

This bill sets a certain end date for coal burning in Victoria of 2030. It amends the Environment Protection Act 2017 such that all existing thermal coal activity will cease by 2030, and no new thermal coal activity can occur after this point.

It would then prohibit the exploration for, and mining of, coal after 2030, and would enshrine that ban on coal mining in the constitution.

Labor has already put a ban on gas fracking in the constitution. Given that coal is similarly devastating for our climate and our health, we hope that Labor will, similarly, support this bill.

The bill defines ‘thermal coal activity’ as establishing, expanding, operating or modifying a coalmine or coal-fired power station. Handling, stockpiling, processing or transporting coal is also captured by the definition, as is using coal for making hydrogen – no matter how ‘clean’ the industry wants to mislabel it.

The bill provides that where the Environment Protection Authority has given a licence for thermal coal activity past 2030, such a licence will be revoked. From an abundance of caution the bill also provides no compensation is payable to anyone as a result of a licence not being given or extended or revoked.

This bill would amend the Renewable Energy (Jobs and Investment) Act 2017 to increase Victoria’s renewable energy target to 100 per cent by 2030.

To ensure coal is not mined here only to be burnt somewhere else, the bill also amends the Mineral Resources (Sustainable Development) Act 1990 to prohibit the exploration for and mining of coal.

And by putting this ban in the Victorian constitution, it ensures that there is a very high bar to overturn it so that no future government, be they Labor, Liberal, National or otherwise, could continue mining this existential threat to life on earth.

This massive expansion would sit alongside a comprehensive policy plan from the Greens that outlines, in detail, how Victoria can transition away from coal to renewables by 2030 and importantly, how workers and communities can be supported through this transition and given certainty about their futures.

The Greens want to see a job-for-job guarantee for coal workers and secure funding to 2035 for an independent Latrobe Valley Authority, which has so far received piecemeal funding and needs a bigger remit.

The authority would be tasked with the closure of Victoria’s coal plants and the development of new industries for the region such as offshore wind, clean manufacturing and mine site rehabilitation.

While the bill sets an end date for coal of 2030, our plan spells out closure dates for Victoria’s remaining coal plants: Yallourn, 2024; Loy Yang A, 2027; and Loy Yang B, 2030.

This will give certainty to the industry, workers and communities while also recognising that the science demands we cannot continue using or burning coal, especially not after 2030, if we have any hope of a safe future for ourselves, our children and their children.

There is so much potential for the Latrobe Valley beyond coal. There are huge opportunities for new jobs in offshore wind, clean manufacturing and mine rehabilitation, but only if governments are honest about the transition that’s needed, give certainty, and plan ahead to support the transition – unlike what happened with Hazelwood when the Labor government assured this Parliament and communities that Hazelwood would stay open when they knew it was about to close.

When it comes to replacing coal with 100 per cent renewable energy, the great news is that it’s absolutely achievable.

With the announcement of 95 per cent renewables by 2035, the Andrews government faced the fact that we must shut down all coal plants over the next decade – and, if they are being honest with themselves, likely much sooner than those coal giants forecast.

But it would mean nothing if Victoria continues to mine and burn coal, including for hydrogen for export.

So let’s see Labor put its money where its mouth is.

Let’s phase out coal for good, get to 100 per cent renewables and support workers and communities along the way.

I look forward to support from all representatives here when we debate this bill in June.

I commend this bill to the house.

Lee TARLAMIS (South-Eastern Metropolitan) (10:14): I move:

That debate on this bill be adjourned for two weeks.

Motion agreed to and debate adjourned for two weeks.