Smokestacks at a coal power plant in Kansas.
The coalition government has not passed legislation to enshrine its net zero emissions target. Image by AP

Is Australia’s net zero emissions target actually binding?

Max Opray April 29, 2022

The federal government's commitment to achieve net zero emissions by 2050 is a binding target.


Mixture. Australia is unable to weaken its target under the Paris Agreement, however experts say the net zero pledge is not legally binding or enforceable.

Tension within the Liberal and National parties over the coalition’s net zero emissions target for 2050 has spilled over into the federal election campaign, with representatives making contradictory claims about whether the goal constitutes a binding commitment.

The coalition agreed to the target ahead of a November 2021 commitment from Prime Minister Scott Morrison in time for the COP26 climate conference.

However, in an ABC radio interview on April 25, Queensland LNP candidate Colin Boyce described the government’s net zero plan as “flexible” with “wiggle room”, adding Mr Morrison’s statement was “not binding (and) there will be no legislation attached to it”.

Deputy Prime Minister Barnaby Joyce later said Mr Boyce’s view that the target was not binding was “completely understandable”, adding that the coalition would “try and meet” the goal.

North Sydney Liberal MP Trent Zimmerman pushed back, telling The Australian the government’s net zero by 2050 target was a “binding commitment which the government should and will honour”.

But the claim that the target is binding is flawed. While Australia’s target has been formally submitted to the United Nations and cannot be reduced under the terms of the Paris Agreement, experts say it is not legally binding and there is no mechanism for enforcing the goal. The target has also not been legislated in Australia.

AAP FactCheck contacted Mr Zimmerman’s office for information on the basis of his claim but received no response.

He is one of a number of sitting Liberals facing challenges from so-called “teal” independent candidates, who are advocating for stronger action to combat climate change, to make similar claims about the government’s net zero target.

Fellow Sydney MP Jason Falinski also told The Australian the target was “binding and it is not flexible”, adding that the government had “signed an agreement with the United Nations to make net zero by 2050”.

“There are reporting structures and frameworks around that and accountability measures as well,” he said.

Another Sydney MP, Dave Sharma, previously claimed to have “delivered a binding commitment to net zero emissions by 2050”.

As part of its net zero pledge, Australia formally submitted the target to the UN with what is known as a Nationally Determined Contribution (NDC)

Professor Jacqueline Peel, an international environment law expert at the University of Melbourne, told AAP FactCheck in an email that “it is mandatory for parties like Australia to communicate a NDC and to review/revise that progressively”.

NDCs must be submitted to the UN every five years. The Paris Agreement sets out that each NDC “will represent a progression beyond the party’s then current nationally determined contribution” (article 4, section 2).

Prof Peel noted that Australia was not allowed to weaken the target during the review process as this would “breach a country’s obligations under the Paris Agreement if in a subsequent NDC it sought to have a less stringent target”.

“However, the targets in the NDCs of parties are not binding in a legal sense in that there is no avenue internationally for another country to sue Australia if it does not achieve its 2050 net zero target, or for enforcement action to be brought under the Paris Agreement,” she said.

Rather, the agreement says that compliance would be brought about through an expert-based committee that would be “facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive” (article 15, section 2).

Several other experts and advocacy groups have identified that the targets contained in NDCs are not considered legally binding (see examples here and here).

In a blog post published in May 2021, Christoph Schwarte, executive director of the UK-based Legal Response International, wrote that while the Paris Agreement was a legally binding international treaty, “it was generally recognised … it only creates procedural obligations: to submit and maintain an NDC and subsequently report on performance. There is no obligation to actually meet a mitigation target”.

Nevertheless, some signatories have formalised their net zero pledges in legislation. They include major emitters such as the European Union, United Kingdom, Japan and Canada.

Professor Tim Stephens, an international environmental law expert at the University of Sydney, said the government’s target was not binding “as a matter of Australian or international law”, although the country may be in breach of prior commitments to limit dangerous global warming if it failed to reach net zero emissions by 2050.

He noted there had been no federal legislation enshrining emissions targets since the repeal of the Gillard government’s Clean Energy Legislation in 2014.

“Without a legally binding target, climate action becomes voluntary,” he told AAP FactCheck via email.

“The federal government cannot compel industry and others to reduce their emissions, and itself is not held to account. It is difficult to see how Australia can meet a net zero by 2050 target without a binding legislative framework.”

Anita Foerster, an expert in domestic environmental law at Monash University, told AAP FactCheck that legislation which enshrines targets played “a really important role” in coordinating emissions reduction.

She said no such legislation had been passed at a federal level, although some examples – such as Victoria’s 2017 Climate Change Act – existed at state and sub-national levels.

The Verdict

The claim that Australia’s target of net zero emissions by 2050 is binding is only partially correct.

While the government has formally submitted the target to the United Nations and cannot wind back the net zero goal under the Paris Agreement, experts say such commitments are not legally binding and Australia cannot be forced to meet the target. The net zero pledge has also not been legislated as binding under federal laws.

Mixture ÔÇô The claim includes accurate information but also significant errors or problems.

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