“Unlawful” ARENA regulations destined for court, after further failed repeal attempts

Controversial regulations that direct the Australian Renewable Energy Agency to fund non-renewable energy technologies – described as unlawful by legal experts and a powerful parliamentary oversight committee – are set to be challenged in the courts, after fresh attempts to cancel them out in parliament fell short.

Federal energy and emissions reduction minister Angus Taylor issued the regulations in July, which seek to redirect funds earmarked for renewable energy technologies to fund the Morrison government’s preferred technologies, including carbon capture and storage and fossil hydrogen.

The Morrison government is also counting on the regulations remaining in place to allow ARENA to administer a number of government programs, including funding for new electric vehicle infrastructure and a range of energy efficiency and freight fuel efficiency programs.

The regulations have so far survived attempts to repeal them, launched by Labor and the Greens in both the Senate and the House of Representatives, despite a Coalition controlled oversight committee having recommended the regulations be cancelled out as they were likely to be unlawful.

Both the oversight committee and senior barrister Fiona McLeod SC, have found that the regulations issued by Taylor, which extends the functions of ARENA to funding non-renewable energy technologies, were beyond the energy minister’s powers under ARENA’s Act.

In each case, the assessment’s of ARENA’s legislation found that it had a clear purpose to fund the ongoing development of renewable energy technologies, and it was not possible for the energy minister to direct the agency to fund non-renewable energy technologies – including carbon capture and storage, soil carbon and transport technologies – as Taylor has sought to do.

A fresh attempt to cancel out the ARENA regulations failed in the Senate on Monday, after a tied vote, with One Nation senators providing sufficient numbers to the Morrison government to see off the disallowance.

A second attempt, made in the House of Representatives on Tuesday, also failed in an afternoon vote, with the Morrison government using its majority to defend the regulations.

Federal Labor spokesperson Chris Bowen used the latest attempt to disallow the regulations to criticise Taylor’s approach to energy policy and his record as a minister.

“Call me a traditionalist, but I happen to think ministers should comply with the law and they should not ask the parliament to vote for regulations, which are not in keeping with the law,” Bowen said.

“But this minister, who has made something of a habit of breaching protocols and breaching proper practice in this building, thinks it’s perfectly okay to introduce a regulation which is which members of his own party believe is not in keeping with the law of the land.”

The regulations, and the funding awarded under them, are likely to be very vulnerable to a court challenge, and both Labor and the Greens have indicated that this will likely be the next step.

Australian Greens leader Adam Bandt said that the Morrison government was creating a “lawyers’ picnic” by allowing the regulations to remain in force.

“This government is so desiring to give money to its coal and gas corporate donors that it is willing to break the law to do it. Now this regulation will be struck down in the courts. That is what the government’s own scrutiny a bills committee, headed by a government member, has said,” Bandt said on Tuesday.

“So with this regulation, if it is allowed to stand, the government is inviting lawsuits that even its own advice is that they’ll lose, and it is creating a lawyer’s picnic in its desperation to funnel money out the door to big coal and gas corporations.”

Taylor defended the regulations, dismissing the issues raised about their legality and compatibility with the ARENA Act.

“Let’s be clear; this is not a question of legality. [The ARENA] bill [sic] was always envisaged to adapt to changing technology requirements. When it was established in the first place it always envisaged to ensure that as the range of technologies to bring down emissions expand, the regulation and the bill would adapt to those technologies,” Taylor said.

If the regulations are successfully cancelled out, ARENA will default to using its previous set of regulations which did not seek to channel funding into non-renewable energy technologies.