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Michael Pascoe: Why ‘fantasy’ carbon credits scheme is a Labor and Coalition problem

When an Australian National University law school professor and director of research tells you that you’ve made a mistake about what is illegal and perhaps criminal, it’s wise to pay attention.

Not something I’ve done personally that might involve fines or jail time, but in writing that the key difference between Robodebt and the carbon credits scandal is that the former was illegal and the latter is not.

Professor Andrew Macintosh believes the federal government has acted illegally in aspects of its “carbon farming” scheme for generating carbon credits.

And he claims that, like Robodebt, there could be criminal matters of misfeasance in public office and misconduct in public office – an offence that can carry a sentence of five years’ imprisonment.

The professor is wisely not holding his breath waiting for the government to take itself to court while it is continuing to defend and promote the Australian Carbon Credit Units (ACCU) scheme that is at the core of its half-hearted climate policy.

Robodebt was all the Coalition’s problem – the ACCU belongs to both the Coalition and Labor.

The $4.5 billion Emissions Reduction Fund was the Abbott government’s alternative to a real climate policy, a scheme with more than a whiff of a National-Party boondoggle to throw vast sums at farmers.

At its extreme, it generated carbon credits for “avoided deforestation” – paying farmers to not clear land they weren’t going to clear anyway. That was a step too far for the Chubb review which otherwise OK’ed the scheme.

Denied legal standing

Professor Macintosh says his team wants to take the government to court and has several senior barristers who want to take the case, but they are denied legal standing.

“The government and Chubb review have made sure this remains the case by not proposing the inclusion of open or even broadening standing provisions in the Carbon Farming Initiative Act, which are a common feature of other environmental statutes and even Australian consumer law,” he says.

That’s certainly convenient for the government – and a further exhibit for the prosecution doubting the integrity of the ACCU scheme.

At the centre of the legal argument is the matter of paying farmers many hundreds of millions of dollars for supposedly revegetating land that is already vegetated.

A paper by Professor MacIntosh’s team goes into the legal detail of that waste of money.

“In short, the human-induced regeneration (HIR) method – a legislative instrument – prohibits the inclusion of areas with pre-existing mature trees and shrubs in their carbon estimation areas (CEAs),” he said.

“However, this has occurred on a near unfathomable scale. Almost 50 per cent of the aggregate CEA area of HIR projects had either ‘sparse woody’ or ‘forest’ cover when the projects were first registered, telling us that almost the majority was wooded when they truly started.

“We have repeatedly raised the fact that this is unlawful with the regulator and department and asked for it to be addressed. However, we have been ignored.

“We raised the same with the Chubb review, but our comments were ignored and the review panel was very careful to avoid the issue in its final report.”

But wait, there’s more

But wait, Professor Macintosh alleges more unlawful behaviour under the Corporations Act – the dissemination of misleading information concerning a financial product.

He says the government has repeatedly published misleading information about ACCUs, backing the claim with detailed research papers, the most recent two weeks ago in response to the regulator’s response.

The government’s problem with criticism of its ACCU scheme is that its climate policy – already thin – would be naked without it.

In wanting to be seen to be doing something about reducing carbon emissions, it’s much more important to have a scheme than for the scheme to always be doing what it’s supposed to be doing.

It also shouldn’t surprise that problems arise when implementing key government policy is effectively outsourced to a panoply of consultants, brokers and merchant bankers. Some are genuine, some perhaps not so meticulous, but time and again, the profit motive finds a way of exploiting schemes and policies.

Facing record global temperatures, record-low sea ice and escalating climate disasters, but also a troglodyte federal opposition of Abbottesque negativity and deception, the Albanese government is still subsidising new fossil fuel ventures, dragging the chain on vehicle fuel efficiency and isn’t game to rationally price carbon.

No wonder it’s sticking with fantasy carbon credits.

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