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LAW2104 Constitutional Law

tag 0 Download17 Pages / 4,232 Words
  • Course Code: LAW2104
  • University: Edith Cowan University

    MyAssignmentHelp.com is not sponsored or endorsed by this college or university

  • Country: Australia


In early May 2017, global warming takes a surprising and altogether devastating turn for the worse. The permafrost in the Arctic melts. All the carbon dioxide, once preserved in the layers of permafrost, is released. The oceans, as ever, are the great stores of global heat. As ocean temperature rises, the icebergs in the Arctic Circle, and the Antarctic itself, melt away. The big problem comes not from melting ice, but from the fact that water expands as it heats. Warmer oceans mean rising sea levels, and so the sea levels are rising quickly – extremely quickly.

With the melting of the permafrost, the sea levels rise. Storm activity increases. Major beaches in Western Australia and South Australia are eroded in wild storms. In Northern Queensland, half of Cairns is simply lost to the encroaching ocean. The Commonwealth government initially responds by suggesting that the rebuilding process would be good for the economy, and we shouldn’t impact on industry and Australian jobs out of knee jerk reaction to fuzzy science.* Then, after a prominent minister of the Commonwealth government loses his beach side investment property in a particularly wild storm that lashes the northern New South Wales Coast, finally, the Commonwealth government sees that it must consider recent events. Expert reports indicate that all of Australia’s coastline, where most Australians reside, is under serious threat. The majority of Australian population will be displaced in 3 years if urgent action isn’t taken. There is a clear national environmental crisis. All the science on global warming suggests that recent events are due to all the carbon dioxide humans are pumping into the atmosphere. So they must reduce carbon dioxide output.

A raft of emergency legislation having immediate nationwide effect is passed, including the Electricity Suppliers Carbon Output Reduction Act 2017 (Cth).

Section 3 contains the definitions, relevantly including:

‘Commission’ means the Nation’s Grand Mitigation Commission established in Part V of this Act.

‘Electricity suppliers’ includes all State and privately owned electricity industries.

‘Minister’ means the Minister for Environment.

‘National disaster potential contributor’ means anything, or anyone, declared by the Minister in accordance with s25(3)as having the potential to cause or contribute to a National disaster

Section 25(3) states ‘The Minister may declare an Electricity supplier to be a National disaster potential contributor where it produces more than 0.4tCO2e in one financial year’.

You can take as granted that tCO2e is a well-recognised unit of measurement for greenhouse gas emissions.

The company responsible for electricity production in WA is called ‘NiceGuy WA’. NiceGuy WA produces 3tCO2e per year. NiceGuy WA is wholly owned by the Western Australian government.

Once an Electricity supplier is declared a National disaster potential contributor, it becomes subject to the jurisdiction of the Nation’s Grand Mitigation Commission set up under Part V of the Act.

Section 106 establishes the Nation’s Grand Mitigation Commission (‘the Commission’).

Section 108 provides that the Minister appoints commissioners to hear and determine disputes for 5 year terms.

Section 120 gives the Commission certain powers:

s120(1) The Commission may make orders that National disaster potential contributors reduce carbon output to a target rate determined by the Commission, within a time determined by the Commission, taking into account

a) Commercial realities
b) Theurgent need to reduce carbon output;
c) Theneeds of directly affected parties; and
d) Theneeds of the nation.
s120(14) Where it is proven that a National disaster potential contributor has not met the reduced carbon to the target rate determined pursuant to s120(1), the National disaster potential contributor may be made liable to punishment. Maximum penalty: fine $5 million.
s120(15) Where the National disaster potential contributor has not met the target rate, the Commission may give the National disaster potential contributor more time, to a maximum of 6 months.
s126(16) Where the National disaster potential contributor fails to meet the target rate, pursuant to s120(15) the National disaster potential contributor is liable to a further fine, to a maximum of $10 million.
Meanwhile, the Western Australian State government is most unhappy. It feels that WA has been unfairly targeted by the Commission, and that New South Wales in particular is being let off the hook. New South Wales also has a large energy production companies, including ‘NiceGal NSW’. NiceGal NSW produces 3.5tCO2e per year.
Thus WA passes the National Carbon Contribution Equitable Distribution Scheme 2017.
In his second reading speech, the Minister for Environment makes reference to the following
Australia is facing threats to its existence as a whole due to climatechange;
climate change is created by carbon dioxide, including carbon dioxideemitted outside of Western Australia;
some high emitters of carbon dioxide are escaping liability under theCommonwealth scheme;
the legislation is a critical exercise of parliamentary power to protect the existence of WA and so the Act shall be given great
Section 2 contains definitions, including:
‘Electricity suppliers’ includes all State and privately owned electricity industries.
‘Western Australia disaster potential contributor’ means anything, or anyone, declared by the Minister in accordance with s18(3)as having the potential to cause or contribute to a National disaster.
Section 5 of the Act creates various offences, including
‘s5(5) It is an offence for any employee of an Electricity supplier or Western Australian disaster potential contributor to promote their company or any of their company’s activities in WA. Penalty: 10 years imprisonment.
Section 18(3) states ‘The Minister may declare any Electricity supplier in Australia or Overseas to be a Western Australian disaster potential contributor where it produces more than 0.4tCO2e in one financial year’.
Section 50 states ‘No provision of this Act shall, either by express words or necessary implication, be repealed or amended except by an absolute majority of the Legislative Assembly and Legislative Council’.
NiceGuy WA is most concerned. Pursuant to the Commonwealth legislation, it has been identified as a National disaster potential contributor and has been given a target of 1.5tCO2e to be achieved in 12 months. It will require major investment in new technologies, and it will involve a major disruption to the Western Australia’s energy supply and significant flow on costs to Western Australian energy consumers. It comes to you for advice. Advise NiceGuy WA.
NiceGal NSW, pursuant to the Western Australian legislation, has been identified as a Western Australian disaster potential contributor. Phillip Chaudeau is an employee of NiceGal NSW. He was given the job of marketing NiceGal NSW’s carbon sequestration technology to NiceGuy WA. Phillip was in Western Australia doing his job (spruiking NiceGal’s carbon sequestration) when he was arrested and charged under s5(5) of the National Carbon Contribution Equitable Distribution Scheme 2017 (WA). Phillip comes to you for advice. Advise Phillip.
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