Author: Dean Ansell

Research theme: Environmental Law, Regulatory Law and Policy

In May 2024, the Department of Climate Change, Energy, the Environment and Water (Department) published a reform options paper on the ACCU scheme’s landfill gas methods.1 The paper proposes five changes to the methods.

1. Extend the crediting periods of existing landfill gas projects for an undefined period, subject to 5-yearly baseline reviews. Most of the large landfill gas sites have been receiving carbon credits for 15-20 years. The proposal is seemingly to provide credits to the sector on an ongoing basis.

2. Reset the default baseline proportion for generation and flaring-only projects to 36%, with the exception of upgrade projects with baselines ≥36%.

3. Increase the default baseline proportion by 1.9% per year (inflation factor), with 5-yearly reviews of the baseline proportion and inflation factor. The application of the inflation factor would mean the 36% default baseline proportion would increase to 37.9% in the 2nd year after it comes into effect, then 39.8% in the 3rd year and so on over time, unless adjusted in the 5-yearly reviews.

4. Upgrade projects with baselines ≥36% will be required to continue to use these higher baselines until the increasing default baseline proportion reaches their baseline. At this point, their baseline will increase in line with the default baseline proportion.

5. Introduce a requirement for projects to measure the methane (CH4) proportion of captured biogas, with the exception of flaring-only projects at closed landfills, which would be allowed to use a default CH4 proportion of 30%. This proposal is not controversial.

Author: Andrew Macintosh, Megan C Evans, Pablo Larraondo, Don Butler, David Eldridge and Dean Ansell

Dr Cris Brack, an honorary Associate Professor at The Australian National University (ANU), was commissioned by the Clean Energy Regulator to undertake a review of the ‘gateway checks’ done on human-induced regeneration (HIR) projects under the Australian carbon credit unit (ACCU) scheme.

The Minister for Climate and Energy and the Carbon Market Institute have cited Dr Brack’s report as a basis for refuting findings in a paper we published in a Nature journal concerning the underperformance of HIR projects. This paper discusses why Dr Brack’s report does not provide any basis for refuting the findings in our report. 

Author: Jens van ‘t Klooster

Research theme: Administrative Law, Law, Governance and Development, Regulatory Law and Policy

Monetary financing – the issuance of public money to support public expenditure – remains a widespread policy taboo. In this article, we analyze the operational practices of the Bank of England, the Federal Reserve and the European Central Bank (ECB) from the 20th onwards to argue that monetary finance should be understood as a conventional and legitimate part of central banks’ core functions. We argue that monetary financing serves a crucial macro-financial role in the face of large fluctuations in the demand for and supply of government debt, where the central bank acts to stabilize sovereign debt markets. We show that monetary financing has been a stable and pervasive feature of the Bank of England’s and the Federal Reserve’s operations. Turning to the ECB, we show that by the mid-2000s the view came to dominate the institution that the central bank should allow markets to punish governments for excessive deficits. This view informed the ECB’s catastrophic reluctance to act on the 2008 and 2009 Financial Crisis deficits. By 2020 that attitude had once again largely been abandoned.

Research theme: Environmental Law

Professor Donald Butler has written a short paper explaining what chewed shrubs actually tell us about forest regeneration.

Author: Megan C. Evans, Marie Waschka, Dean Ansell

Research theme: Administrative Law, Environmental Law

On 28 June 2023, the Clean Energy Regulator (CER) and Department of Climate Change Energy Environment and Water (DCCEEW) published the following statement in response to two papers by the ANU/UNSW ERF research team:

• Macintosh, A., Butler, D., Evans, M.C., Waschka, M., Ansell, D. (2023) Summary Results of Analysis of the Integrity Risk and Performance of Human-induced Regeneration (HIR) Projects using CEA data. The Australian National University, Canberra (paper 1); 1 and
• Macintosh, A., Butler, D., Larraondo, P., Waschka, M., Evans, M.C., Ansell, D. (2023) The under-performance of human-induced regeneration (HIR) projects: Analysis of misinformation disseminated by the Clean Energy Regulator. The Australian National University, Canberra (paper 2).

Author: Megan C. Evans, Marie Waschka, Dean Ansell

Research theme: Administrative Law, Environmental Law

This paper presents summary results from an analysis of 192 human-induced regeneration (HIR) projects, using recently released carbon estimation area (CEA) data and the Carbon Integrity Explorer. The results show that, across the 3.4 million hectares where forest is supposedly regenerating, forest cover only increased by 1.6%. There was no net increase in forest cover across more than 98% of the area included in the assessed CEAs. The results confirm that the vast majority of HIR projects that have been credited to date have resulted in very little (and often negative) tree cover change, and that most of the change that has occurred is likely to be attributable to seasonal variability rather than the project activities.

Author: Pablo Larraondo, Marie Waschka, Megan C. Evans, Dean Ansell

Research theme: Administrative Law, Environmental Law

The Clean Energy Regulator has recently published several graphs, including Figure ES1 below, in response to concerns over the underperformance of human-induced regeneration (HIR) projects in regenerating native forests. Figure ES1 purports to show trends in woody cover (forest cover, or possibly forest and sparse woody cover combined) over the period 1988 to 2020 in the carbon estimation areas (CEAs) of projects whose project commencement dates were backdated to between 2010-11 and 2012-13, relative to the trends in the CEAs of projects that commenced over the period 2014-16 and an unspecified local government area (LGA).

Author: Marie Waschka, Megan C Evans, Dean Ansell, Pablo Larraondo

Research theme: Administrative Law, Environmental Law

On 17 March 2023, the Department of Climate Change, Energy, Environment and Water’s (DCCEEW) published a paper by Professor Ian Chubb, the former Chair of the Independent Review of Australian Carbon Credit Units (ACCUs), titled, Carbon Farming: let’s get real and let’s get on with it.1 The paper focuses on the ACCU scheme and the recommendations the Review made to improve it. The essence of the argument put forward in the paper is that the ACCU scheme is robust and that the Review’s recommendations, and the scheme’s compliance and enforcement processes, will address any issues that exist with the integrity of projects and credits. Consistent with this, Professor Chubb argues ‘[w]e have to work at it, get real and get on with it’.

Research theme: Environmental Law, International Law

China’s Belt and Road Initiative is now the world’s largest infrastructure initiative, with long-term climate change effects, and the Green Investment Principles for Belt and Road (GIPs) have been promoted as a key instrument to green the Belt and Road. This article focuses on the question: What role do the GIPs play in building a green Belt and Road and addressing relevant regulatory challenges? Based on the theory of nodal governance, it is argued that the GIPs’ two-layered networks facilitate China to influence investment decisions over many countries along the Belt and Road indirectly through fund providers as key nodes to transition toward green investment. China also avoided direct interference with the domestic policies of host countries through the GIP network. As a framework agreement, the GIPs also provide opportunities for signatories to contribute to the design and negotiation of specific implementation standards, enhanced capacity building, and the prospect of more stringent and prescriptive environmental standards in the future.

Author: Megan C. Evans, Marie Washcka, Dean Ansell

Research theme: Administrative Law, Environmental Law

Carbon offsets can play a critical role in climate policy by reducing the economy-wide costs of mitigating greenhouse gas emissions and generating important social and environmental cobenefits. However, the benefits of offsets are contingent on integrity – the offsets must represent real and additional greenhouse gas abatement. There are serious integrity issues with Australia’s carbon offset scheme. Weak governance structures have resulted in deficiencies in the design and administration of the scheme. The problems with the scheme have been detailed in a series of papers published by the Australian National University (ANU) and University of New South Wales, Canberra (UNSW) Emissions Reduction Fund (ERF) research team and other groups.

Author: Megan C. Evans, Marie Waschka, Dean Ansell

Research theme: Administrative Law, Environmental Law

Under the Albanese Government’s climate policy, the Safeguard Mechanism is intended to be the primary mechanism for reducing Australia’s emissions and achieving its climate change mitigation targets (43% reduction by 2030 and net zero by 2050). To do this, the Government is making changes to the Safeguard Mechanism to convert it from a regulatory instrument that was originally designed to constrain emission increases into an emissions trading scheme that drives down emissions. Under the enhanced Safeguard Mechanisms, covered facilities will be subject to emission caps based on the emissions-intensity of their operations that will decline over time. These facilities will be able to meet their emission caps (called baselines) by cutting onsite emissions or buying and surrendering either ‘Safeguard Mechanism Credits’ (a form of emission permit issued to covered facilities if their emissions are below their caps) or Australian carbon credit units (ACCUs).

Author: Hannah Klose

Research theme: International Law

Australia and the United Kingdom (UK) have each witnessed a ‘punitive turn’ in relation to youth justice responses. A lack of contextualisation, such as the impact of trauma and adverse childhood experiences on young people, is often overlooked by media outlets, governments and policymakers, in favour of individual pathologisation of young people. In direct contrast to these punitive responses, the public health approach (PHA) has emerged particularly in the UK; and it identifies experiences of trauma as one of the leading causes of violence within communities. Drawing on the perspectives of those working with children and young people, we critically explore whether the implementation of a PHA could be an effective approach to addressing the underlying causes of young people's involvement in violence. The paper focuses specifically on a case study of the youth justice system in Victoria, Australia and draws on domestic and global perspectives of key stakeholders, to consider whether the introduction of a PHA in Victoria, Australia, would position young people's diverse needs at the centre of policy change in youth justice and better outcomes for young people and communities.

Author: Hannah Klose

Research theme: International Law

Australia and the United Kingdom (UK) have each witnessed a ‘punitive turn’ in relation to youth justice responses. A lack of contextualisation, such as the impact of trauma and adverse childhood experiences on young people, is often overlooked by media outlets, governments and policymakers, in favour of individual pathologisation of young people. In direct contrast to these punitive responses, the public health approach (PHA) has emerged particularly in the UK; and it identifies experiences of trauma as one of the leading causes of violence within communities. Drawing on the perspectives of those working with children and young people, we critically explore whether the implementation of a PHA could be an effective approach to addressing the underlying causes of young people's involvement in violence. The paper focuses specifically on a case study of the youth justice system in Victoria, Australia and draws on domestic and global perspectives of key stakeholders, to consider whether the introduction of a PHA in Victoria, Australia, would position young people's diverse needs at the centre of policy change in youth justice and better outcomes for young people and communities.

Research theme: International Law

This article submits that the Philippines’ withdrawal from the ICC is invalid under municipal law and ineffective under international law. Notwithstanding the silence of the Philippine Constitution, the principles embodied under it do not allow for a unilateral executive withdrawal from the Statute. Nothing under the president’s plenary executive or foreign affairs power allows him to perform such an act. Moreover, the doctrines of transformation, separation of powers, and the principle of checks and balances require a concurrent legislative act in denouncing a treaty. The withdrawal being invalid under municipal law, it arguably produces no effect under international law. While the regime governing the law of treaties is silent as to the effect of domestic law concerning the competence of a state organ to withdraw, there exists ample authority to suggest that fundamental violations under the latter invalidate the competence to denounce treaties under the former.

Research theme: International Law

This article submits that the Philippines’ withdrawal from the ICC is invalid under municipal law and ineffective under international law. Notwithstanding the silence of the Philippine Constitution, the principles embodied under it do not allow for a unilateral executive withdrawal from the Statute. Nothing under the president’s plenary executive or foreign affairs power allows him to perform such an act. Moreover, the doctrines of transformation, separation of powers, and the principle of checks and balances require a concurrent legislative act in denouncing a treaty. The withdrawal being invalid under municipal law, it arguably produces no effect under international law. While the regime governing the law of treaties is silent as to the effect of domestic law concerning the competence of a state organ to withdraw, there exists ample authority to suggest that fundamental violations under the latter invalidate the competence to denounce treaties under the former.

Author: Hitoishi Sarkar

Research theme: International Law

This Article argues that commercialisation of space coupled with technological innovation calls for a regulatory approach beyond (and complementary to) the treaty regime offered by international law. The rapid technological advances in the financial sector and corresponding regulatory innovations make financial technology (fintech) regulation a likely candidate to draw lessons from for the nascent space sector. The Article draws from the fintech sector and proposes that some lessons about initial regulation via regulatory sandboxes and sandbox bridges are useful in the space sector. At the domestic level, the Article proposes regulatory sandboxes to enable innovation while ensuring the necessary safeguards; and at the multi-national level, it proposes cooperation between regulators in various spacefaring nations along the lines of sandbox bridges used in the fintech sector. Since different states have varying levels of space sector activity, this Article makes broad recommendations with pointers that identify aspects that are more suitable to certain types of jurisdictions than others.

Research theme: International Law

There is a broad political consensus that states must not facilitate money laundering, especially as relates to the proceeds of foreign grand corruption. Over the past 30 years, an elaborate regulatory regime has been put in place in most countries to ensure that proceeds of crime are interdicted and confiscated. It rests on the technically non-binding recommendations of the Financial Action Task Force, an influential intergovernmental grouping. Despite this progress and the adoption of international treaties against corruption and organized crime, international law contains no express treaty rule that enjoins states from facilitating money laundering. Furthermore, there are formidable legal and practical obstacles to invoking international legal responsibility of states that do choose to benefit from enabling money laundering. This article explores the disconnect between international law as it stands and the widely accepted political imperative that states must not facilitate money laundering. It argues in favour of recognizing a self-standing customary rule to that effect, and outlines the content and likely impact of such a rule.

Author: Megan Caristo

Research theme: International Law

Whilst he was Prime Minister, the Hon Scott Morrison MP was appointed by the Governor-General to administer five additional departments of State unbeknownst to the other institutions of Australia’s constitutional government and the public. This article considers whether the Constitution contains an implied requirement that any appointment of a person to administer a department of State be made public within a reasonable period , and whether that requirement limits the executive power in s 64 to appoint a person to administer a department of State. Such an implication arguably arises from the text and structure of the Constitution, and in particular, the form of representative and responsible government prescribed by ss 1, 6, 7, 8, 13, 23, 24, 28, 30, 49, 50, 62, 64, 75(v), 83 and 128. If the implication be accepted, and if it gives rise to a limitation on the power to appoint in s 64, absence of publication of an appointment within a reasonable period results in invalidity of the appointment. The implication may also have other consequences for the exercise of other executive (and legislative) powers.

Research theme: International Law

A growing number of incidents—particularly since 2009—highlight the South China Sea (SCS) as the preeminent venue for the People's Republic of China (PRC) maritime gray zone operations. “Gray zone operations” are, in essence, operations that are designed to exploit or create legal (and other) uncertainties for a military or strategic advantage. A prominent example is the way that China has used the so-called nine(ten)-dash line without fully explaining the legal basis for it. There are other examples, as well. China has deliberately cultivated uncertainty about the sovereign status of maritime militia vessels—and thus about whether and how the conduct of these vessels might be directly attributable to the PRC. It has harassed U.S. survey vessels seventy-five nautical miles (nm) south of Hainan Island in an effort to disrupt military survey operations that it claims are impermissible and has sunk a Philippine fishing vessel at Reed Bank in an effort to enforce Chinese claims to exclusive fisheries rights in this area. It has also asserted claims and enforcement rights in zones that clearly belong to other states—including actions against Indonesian fishing vessels in seas in the vicinity of the Natuna Islands, which are part of the Indonesian Exclusive Economic Zone (EEZ) (and Continental Shelf). And it has conducted operations on the basis of inapplicable maritime zone rights, such as by asserting a territorial sea and thus the right to control innocent passage around low-tide elevations with artificial installations built upon them—such as with Mischief Reef. The list goes on.