Compendium on Energy Conservation Legislation
in Countries of the Asia and Pacific Region

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Part Two: Country Profiles and Case Studies of National Legislation for
Promotion of Energy Conservation and Energy Efficiency

Regulatory Framework for Promotion of Energy Conservation and Energy Efficiency in Australia
by Adrian J. Bradbrook*

SECTIONS IN THIS CHAPTER

Constitutional position
International law obligations
Australian domestic law
End Notes
Selected Readings

1 Constitutional position

Australia was established by its Constitution, which dates from 1901, as a federal jurisdiction. The country is governed centrally by the Commonwealth legislature. In addition, there are six states and two territories. The first question to consider is which level of government has legislative power in relation to energy conservation. This issue is not straightforward to resolve.

The Constitution is so drafted that the express powers of the Commonwealth Government are enumerated in section 51. All the residual powers not specifically enumerated in section 51 rest with the states and the territories. Issues of energy, including energy efficiency, are not listed within section 51 and so prima facie are within the province of the states.

Does the Commonwealth Government have any powers over energy efficiency? Despite section 51, it appears that the answer is in the affirmative. First, at the political level, the Commonwealth receives the bulk of taxation revenue and is able to exercise considerable political influence over the states and territories in return for the transfer of funds. Second, the Commonwealth has certain indirect powers. The High Court of Australia held in the case of Commonwealth versus Tasmania that the Commonwealth has the right under the external affairs power of the Constitution (Section 51(xxix)) to intervene to regulate the activities of a state government instrumentality in order to carry out the terms of a binding international convention. In this case the Hydro-Electric Commission of Tasmania, with the consent and support of the state government, was planning to build a large hydro-electric dam on the Franklin River which would have environmentally compromised the listing of parts of southwest Tasmania as a designated World Heritage Area. The Commonwealth was under a binding international obligation to protect such areas pursuant to the UNESCO Convention for the Protection of the World Cultural and Natural Heritage. As will be discussed, the Commonwealth has already entered into international conventions relating to energy efficiency which might well justify its intervention in this field. Third, the Commonwealth might be able to legislate in at least some aspects of energy efficiency under the corporations power of the Constitution (Section 51(xx)). This power would appear to be applicable wherever activities in respect of energy efficiency are undertaken by a corporation rather than a private individual. <return to top>

The conclusion is that in reality the power to enact energy conservation legislation is shared between the various Australian governments. The states and territories have the power to legislate pursuant to section 51 of the Constitution. The Commonwealth has the power to legislate to implement the terms of any international obligation. Where the Commonwealth and state laws clash, pursuant to section 109 of the Constitution the Commonwealth laws will prevail. The goal should be to ensure that similar laws apply throughout the country, as there are no vested interests at the state level to protect in this domain and no reason why there should be discrepancies between the laws in different parts of the country. Uniformity can best be obtained either by Commonwealth legislation or by uniform Commonwealth-state legislation negotiated through the Council of Australian Governments (COAG).

2 International law obligations

Australia has signed but not yet ratified the Energy Charter Treaty and the associated Protocol on Energy Efficiency and Related Matters (hereafter referred to as the Treaty and the Protocol, respectively). To date, these conventions have not yet entered into effect, although it is confidently expected that they will do so in the near future.¹ Both the Treaty and the Protocol impose legal obligations on Australia to take legislative and other action in support of energy efficiency.

2.1 The Energy Charter Treaty

The majority of the terms of the Treaty relate to issues of international energy investment and trade. Environmental issues, including energy efficiency, are limited to article 19, which reads in part:

"(1) In pursuit of sustainable development and taking into account its obligations under those international agreements concerning the environment to which it is party, each Contracting Party shall strive to minimize in an economically efficient manner harmful Environmental Impacts occurring either within or outside its Area from all operations within the Energy Cycle in its Area, taking proper account of safety. In doing so each Contracting Party shall act in a cost-effective manner. In its policies and actions each Contracting Party shall strive to take precautionary measures to prevent or minimize environmental degradation. The Contracting Parties agree that the polluter in the Areas of Contracting Parties, should, in principle, bear the cost of pollution, including transboundary pollution, with due regard to the public interest and without distorting investment in the Energy Cycle or international trade. Contracting Parties shall accordingly: ...

(d) ... have particular regard to Improving Energy Efficiency, to developing and using renewable energy sources, to promoting the use of cleaner fuels and to employing technologies and technological means that reduce pollution."

Improving Energy Efficiency is defined in article 19(3)(c) as meaning acting to maintain the same unit of output (of a good or service) without reducing the quality or performance of the output, while reducing the amount of energy required to produce that output. <return to top>

"Energy Cycle" is defined broadly in article 19(3)(a) as:

"the entire energy chain, including activities related to prospecting for, exploration, production, conversion, storage, transport, distribution and consumption of the various forms of energy, and the treatment and disposal of wastes, as well as the decommissioning, cessation or closure of these activities, minimizing harmful Environmental Impacts."

The provision is clearly aimed at improving energy efficiency in all conceivable circumstances and applications and applies to various externalities associated with energy use and production frequently excluded by economists from energy costing proposals and analyses.

How effective is this provision? Unfortunately, the wording of article 19 is phrased in a non-binding and loose form. Thus, each contracting party must strive to "minimize ... harmful Environmental Impacts", must strive to "take precautionary measures to prevent or minimize environmental degradation", and "should, in principle, bear the cost of pollution". There is clearly no possibility of international enforcement of any of these obligations in light of the tentative wording of the provision. Adherence by contracting parties can be regarded as purely discretionary, and the obligations are no more than hortatory.

Further, article 19 makes it clear that such environmental obligations are secondary to economic considerations. Thus, each contracting party must strive to minimize harmful environmental impacts "in an economically efficient manner" and "shall act in a cost-effective manner". In addition, the polluter pays principle is qualified by the obligation for contracting parties to act "without distorting investment in the Energy Cycle or international trade". In light of these considerations, it is perhaps surprising that the wording of the specific provision relating to energy efficiency, article 19(3)(d), is phrased more boldly in stating that contracting parties "shall ... have particular regard to Improving Energy Efficiency". Despite this, the phrase "to have regard to" imports no obligation to take any specific action to support energy efficiency, and the use of the mandatory word "shall" is somewhat misleading in this context. <return to top>

2.2 The Protocol on Energy Efficiency and Related Matters

The Protocol imposes obligations on Australia to take action in support of energy efficiency at the national level. These obligations are contained in articles 3, 5 and 8. Article 3 requires the parties to develop and implement energy efficiency policies, laws and regulations, while article 8 states that each party shall develop, implement and regularly update energy efficiency programmes best suited to its circumstances. The interrelationship between the sections is by no means clear, as the Protocol does not attempt to explain the difference between policies in article 3 and programmes in article 8.

The major parts of article 3 read as follows:

"(2) Contracting Parties shall establish energy efficiency policies and appropriate legal and regulatory frameworks which promote, inter alia:

(a) efficient functioning of market mechanisms including market-oriented price formation and a fuller reflection of environmental costs and benefits;

(b) reduction of barriers to energy efficiency, thus stimulating investments;

(c) mechanisms for financing energy efficiency initiatives;

(d) education and awareness;

(e) dissemination and transfer of technologies;

(f) transparency of legal and regulatory frameworks.

(7) Contracting Parties shall strive to achieve the full benefit of energy efficiency throughout the Energy Cycle. To this end they shall, to the best of their competence, formulate and implement energy efficiency policies and cooperative or coordinated actions based on Cost-Effectiveness and economic efficiency, taking due account of environmental aspects."

Article 5 states:

"Contracting Parties shall formulate strategies and policy aims for Improving Energy Efficiency and thereby reducing Environmental Impacts of the Energy Cycle as appropriate in relation to their own specific energy conditions. These strategies and policy aims shall be transparent to all interested parties."

Article 3(2) has the advantage of comprehensiveness. The paragraphs in the sub-article are couched widely and are stated to be non-inclusive. In addition, the sub-article is phrased in such a way as to impose at least a general obligation on all contracting parties to take some action in support of energy efficiency. Unfortunately, article 3(3) suffers from the same qualifications as article 19 of the Treaty inasmuch as the obligation of states is limited to striving to achieve the full benefit of energy efficiency and "to acting to the best of their competence" to formulate and implement energy efficiency policies.

Similar problems beset article 5. While there are significant differences in the energy mix and demands of different countries, and in this regard it is unrealistic to require each contracting party to the Protocol to take similar measures in support of energy efficiency, the clause as appropriate in relation to their own specific energy conditions effectively gives each country carte blanche to do as much or as little in relation to energy efficiency as it might wish at any given time. The article effectively makes each country the sole arbiter of what action is appropriate and makes international enforcement impossible <return to top>

The wording of article 5 is echoed in article 8(1), which requires each contracting party to "develop, implement and regularly update energy efficiency programmes best suited to its circumstances". Again, what is "best suited to its circumstances" is a subjective test effectively within the exclusive preserve of each nation.

Article 8(2) refers to the activities to be included within domestic programs. It reads:

"These programs may include activities such as the:

(a) efficient functioning of market mechanisms including market-oriented price formation and a fuller reflection of environmental costs and benefits;

(b) assessment of the energy, environmental and economic impact of actions taken;

(c) definition of standards designed to improve the efficiency of energy using equipment, and efforts to harmonize these internationally to avoid trade distortions;

(d) development and encouragement of private initiative and industrial cooperation, including joint ventures;

(e) promotion of the use of the most energy efficient technologies that are economically viable and environmentally sound;

(f) encouragement of innovative approaches for investments in energy efficiency improvements, such as Third Party Financing and co-financing;

(g) development of appropriate energy balances and databases, for example with data on energy demand at a sufficiently detailed level and on technologies for Improving Energy Efficiency; <return to top>

(h) promotion of the creation of advisory and consultancy services which may be operated by public or private industry or utilities and which provide information about energy efficiency programs and technologies, and assist customers and enterprises;

(i) support and promotion of cogeneration and of measures to increase the efficiency of district heat production and distribution systems to buildings and industry;

(j) establishment of specialized energy efficiency bodies at appropriate levels, that are sufficiently funded and staffed to develop and implement policies."

At first glance, article 8(2) appears broad-based and comprehensive. The sub-article recognizes, for example, that lack of action in support of energy efficiency measures results from the limitations of current financing arrangements and supports the need for innovative approaches to remedy the current situation. The recognition and promotion of scenario planning to determine long-term energy supply and demand is also important as traditional planning has proved to be notoriously unreliable. Two problems exist, however. First, the paragraphs in article 8(2) are only optional, as the clause uses the verb "may" rather than "shall". Second, and more important, the programmes listed in the sub-article only contain a small fraction of the provisions that have been adopted, or at least considered for adoption, by the governments of more progressive nations in support of energy efficiency. Reference should be made to the measures itemized in the third paragraph of this paper, all of which have been considered for adoption in at least one country. A comparison of this list of possible measures with that contained in article 8(2) shows that only one measure, that of the introduction of standards designed to improve the efficiency of energy-using equipment (paragraph (c)), is within the specified list in the Protocol. Although the wording of article 8(2) does not preclude the adoption of any of the other energy efficiency measures, the failure to include these measures within the specified list represents at best a missed opportunity to foster a more comprehensive approach to energy efficiency legislative programs among contracting parties to the Protocol. Far from broad-based and comprehensive, article 8(2) is, in reality, narrow and limited in scope. <return to top>

2.3 Relevance of international law

By acceding to the above legal conventions, the Australian Government has committed itself to take wide-sweeping legislative measures in support of energy conservation. As of March 1998, no action had yet been taken to incorporate the terms of the Treaty and Protocol into domestic law. Traditionally, international law does not represent binding law in Australia until such time as domestic law has been enacted.²

In the recent decision of Minister of State for Immigration and Ethnic Affairs v. Teoh, however, the High Court of Australia held that even without domestic legislation, international law represents good law in Australia if the terms of a treaty or protocol are such as to create a legitimate expectation that a particular law has been enacted. The Commonwealth Government has promised to introduce legislation to overturn this decision but, as of March 1998, this had not yet occurred.

Are the terms of the Treaty and Protocol sufficiently specific to constitute a binding international obligation within the scope of the decision in Commonwealth v. Tasmania so as to justify Commonwealth intervention into this field? As the documents are couched in terms such as "should" and "shall endeavor to" rather than "shall", it might be argued that the terms are not binding and so are outside the Commonwealth Government's powers. However, the majority of the High Court held that the mere fact that the terminology is not mandatory does not mean that there is no binding legal obligation. The terms of the Convention under consideration in the facts in Commonwealth v. Tasmania were similarly couched in indirect, non-mandatory terms, and this was held not to be fatal to the Commonwealth's position. It is submitted that the Energy Charter Treaty and its accompanying Protocol are sufficiently direct to constitute a binding obligation on Australia to take action in support of energy conservation.

The conclusion is that the Commonwealth is able to enact laws constitutionally in support of energy conservation and indeed is under a duty to do so. Its only alternative is to enter into a Commonwealth-State agreement for the enactment of uniform state and territory legislation on energy conservation. Even without such Commonwealth or uniform state and territory legislation, there is a strong argument that the terms of the convention and protocol represent binding Australian law as having created a legitimate expectation within the meaning of Teoh's case. <return to top>

3 Australian domestic law

The two most populous states, New South Wales and Victoria, have established by legislation government instrumentalities with express statutory duties to support energy efficiency: the Renewable Energy Authority of Victoria, created by the Renewable Energy Authority Act 1990 (Victoria), and the Sustainable Energy Development Authority of New South Wales, created by the Sustainable Energy Development Act 1995. While in both cases the government instrumentalities have responsibilities that extend beyond energy efficiency, energy efficiency is one of their core responsibilities.

Section 6 of the New South Wales legislation establishes that the principal objectives of the sustainable Energy Development Authority are:

"(a) to bring about a reduction in the levels of greenhouse gas emissions and other adverse by-products of the production and use of energy; and

(b) to facilitate the development, commercialization, promotion and use of sustainable energy technology ... in accordance with the principles of ecologically sustainable development."

"Sustainable energy technology" is defined in section 3 as meaning in part: "products, processes, practices ... to improve efficiency in the use of energy".

Section 4 of the Victorian legislation states that the objectives of the Renewable Energy Authority are: "to encourage and promote research into, and the development and use of, renewable energy resources and energy conservation measures to the benefit of the Victorian community."

The functions of the Authority, as described in section 6, are:

"(a) to ensure that the objectives of the Authority are met to the maximum extent that is practicable;

(b) to provide information and advice on the uses of renewable energy and the benefits of energy conservation to all sectors of the Victorian economy;

(c) to encourage and promote the development of an economically viable renewable energy and energy conservation industry in Victoria;

(d) to monitor and evaluate research, development and demonstration projects on renewable energy and energy conservation;

(e) to provide encouragement and support for renewable energy and energy conservation research, development and demonstration projects;

(f) to undertake renewable energy and energy conservation education programmes;

(g) to provide advice to the public sector departments and authorities responsible for the development and utilization of energy; and

(h) to advise the Minister on policies concerning renewable energy and energy conservation."

Besides the creation of these statutory instrumentalities, few laws in support of energy conservation have been enacted in Australia. The preferred approach of the Australian Commonwealth, state and territory governments has been to adopt voluntary industry agreements rather than to regulate. Where regulation has occurred, the Government has expressed its preference for the light-handed approach. The following represents a summary of the present legal position, encompassing both regulations, fiscal incentives and voluntary agreements, in respect of each relevant sector of the economy. <return to top>

3.1 Domestic appliances

Compulsory systems of labelling for designated appliances exist in four Australian states. The initial move occurred at the Commonwealth level in 1983. Pursuant to a decision of the Australian Minerals and Energy Council, the Coordinating Committee on Energy Conservation investigated the possible introduction on a voluntary basis of a labelling scheme for a variety of electric appliances, commencing with freezers and refrigerators. Discussions were held with various industrial associations for the adoption of a voluntary Australia-wide scheme, but broke down in 1984. In late 1985, the initiative was seized by the New South Wales and Victorian governments, which jointly advanced a proposal for a national energy labelling law. The proposal formed the basis for legislation in those two states enacted in 1986 and 1987. South Australia and Queensland introduced similar legislation in 1988 and 1994, respectively.

In New South Wales, the relevant law is contained in the Electricity (Energy Labelling of Electrical Articles) Regulation 1995, made pursuant to section 37(2) of the Electricity Act 1945. The regulation establishes a mandatory system of energy efficiency labelling, and states that a person shall not sell any prescribed electrical article, in respect of which there is a registered label, unless the label is prominently displayed on the article (Regulation 5(1)).

Application forms for registration are specified (Regulation 7(1) and Schedule 2). Each application must contain test reports ensuring that the appliance complies with the performance standards stipulated in the regulation (Regulation 7(2)). The Energy Corporation of New South Wales may refuse an application for registration of a label for an appliance if the applicant fails to comply with any of the terms of the regulation or if the Corporation is in doubt as to the accuracy or reliability of either the report accompanying the application or the tests to which the report relates (Regulation 8(2)). The Corporation may cancel the registration of a label if the registered person for the article fails to comply with a request by the Corporation to furnish a sample of the article to the Corporation for testing, or if, after carrying out tests on the appliance, it is of the opinion that the energy consumption rate or the efficiency rating on the label is incorrect or misleading (Regulation 12). <return to top>

Each regulation prescribes a Register of Electrical Articles, which is open for public inspection (Regulation 14). It is an offence to advertise for sale any electrical article, to attach any label to an electrical article that is offered for sale, or to display on or near an electrical article that is offered for sale any sign or notice, if the person knows, or ought reasonably to have been aware, that it is false or misleading as to the article's comparative energy consumption, energy efficiency rating or star rating (Regulation 15). A maximum penalty of A$2,000 is prescribed for a breach of this provision (Regulation 16).

In Victoria, roughly similar provisions are contained in the State Electricity Commission (Energy Efficiency Labelling) Regulations 1987 (SR No. 88), the State Electricity Commission (Energy Efficiency Labelling) (Dishwashers for Domestic Use) Regulations 1988 (SR No. 311), the State Electricity Commission (Energy Efficiency Labelling) (Refrigerative Air Conditioners) Regulations 1988 (SR No. 310), the State Electricity Commission (Energy Efficiency Labelling) (Rotary Clothes Dryers) Regulations 1989 (SR No. 414), and the State Electricity Commission (Energy Efficiency Labelling) (Clothes Washing Machines) Regulations 1990 (SR No. 146), made pursuant to Sections 57 and 111 of the State Electricity Commission Act 1958 (Victoria).

In Queensland, South Australia and Western Australia, approximately similar provisions are also contained in the Electricity (Electrical Articles) Regulation 1994 (SL No. 469), made pursuant to section 266 of the Electricity Act 1994 (Queensland), and the Electrical Products Regulations 1990 (Regulation No. 60), made pursuant to section 8 of the Electrical Products Act 1988 (SA), and the Electricity (Energy Efficiency Labelling) Regulations 1997 (EG301), made pursuant to the Electricity Act 1945 (WA).

In Tasmania, the Electricity Supply Industry Act 1995, section 122(2)(h) gives the state governor the power to make regulations for energy labelling and performance standards of electrical appliances. To date, this power has not been exercised. No such legislation exists in the Australian Capital Territory (ACT) or the Northern Territory.

The matter of adopting uniform appliance laws was discussed in 1990 by the Australian and New Zealand Minerals and Energy Council. The Commonwealth and State Energy Ministers agreed in late 1991 that mandatory electrical appliance labelling would be introduced in all Australian states and territories, and that the programme would be extended in scope to include all major electrical, gas and solar appliances. <return to top>

3.2 Buildings

In December 1994, Australia introduced a national House Energy Rating Scheme (HERS). This is an initiative of the Commonwealth and all state and territory governments and is designed to improve the energy efficiency of the residential sector. The initiative came out of the National Greenhouse Response Strategy in 1992. The HERS system consists of a five-star graded rating system for all new residential dwellings.

The HERS system is optional in most jurisdictions, but has been adopted into legislation in the Australian Capital Territory and Victoria. In both these jurisdictions residential dwellings must rate at least four stars out of a maximum of five stars. In Victoria, the relevant legislation is the Building Regulations 1994, made pursuant to the Building Act 1993. Pursuant to Regulation 1.7, the Building Code of Australia (1990) is adopted and forms part of the regulations. The Building Code, while silent in its general text as to energy efficiency requirements, contains an appendix applicable only to Victoria. This appendix has the force of law under the regulations. Part F6 of the appendix relates to thermal insulation. By F6.2, residential buildings must have a reasonable level of thermal insulation to conserve energy used for internal heating and cooling. Regulation F6.2 states:

Definition of R Value

R or R Value means the thermal resistance of an element of the building measured in m²K/W.

Provision of Thermal Insulation

(a) The building must:

(i) for the elements nominated in Victoria Table F6.1, comply with all the R Values of option A or all the R Values of option B; <return to top>

(ii) achieve a House Energy Rating of at least 3 stars and at least equivalent to that which would be achieved using option A or B of Victoria Table F6.1, as assessed by -

(A) a registered building practitioner accredited in the use of Energy Victoria's House Energy Rating; or

(B) Energy Victoria.

(b) Deemed R Value - An element described in Victoria Table F6.2 is deemed to have the R Value nominated in the table adjacent to the description of the element. 

In the Australian Capital Territory, the relevant legislation is paragraph 24 of the Building Act 1972, which reads in part:

"(1) The Minister shall cause a code, to be called the Building Code, to be prepared and published for the purposes of this Act.

(2) For the purposes of subsection (1), the Minister may- ...

(b) cause to be prepared and published an Australian Capital Territory Appendix to the Building Code of Australia."

Clause F6.1 of the Australian Capital Territory Appendix deals with energy efficient design, and reads:

"(a) A building must achieve an ACT House Energy Rating of 4 Stars as assessed by an accredited ACT House Energy Assessor.

(b) An addition must:

(i) achieve an ACT House Energy Rating of 4 stars as assessed by an accredited ACT House Energy Assessor; or

(ii) comply with all of ACT Table F6 and have a:

(A) concrete floor

(B) timber floor with an R rating of 1 including carpet."

The intention of the Commonwealth Government is that energy efficiency requirements will eventually become mandatory across Australia. The statement of the Prime Minister of Australia, Safeguarding the Future: Australia's Response to Climate Change, dated 20 November 1997, reads:

"The Government will ... work with the states, territories and industry to develop energy efficiency codes and standards for housing and commercial buildings ...

We will expand the Nationwide House Energy Rating Scheme including a minimum energy performance requirement for new houses and major extensions and we will work with the States, Territories and industry to develop voluntary minimum energy performance standards for new and substantially refurbished commercial buildings.

These initiatives will take us to best practice standards in these important areas. If this voluntary approach does not achieve acceptable progress within 12 months, we will work to implement mandatory standards."

3.3 Industry

No legislation in the industry sector in support of energy efficiency has been enacted in Australia.

3.4 Electricity generation and distribution

Miscellaneous provisions imposing a duty on electricity generating and distributing authorities to have regard to the need to promote energy conservation is contained in some Australian state statutes. One illustration is the Hydro-Electric Corporation Act 1995 (Tas), paragraph 5(f), which states that one of the functions of the Corporation is to carry out research and development work relevant to the development and conservation of energy resources. Another illustration is the Electricity Corporations Act 1994 (SA), paragraph 7(e), which states that one of the electricity distribution functions of a corporation is carrying out research and works directed towards energy conservation and actively encouraging, advising and assisting customers and potential customers of the corporation in energy conservation and in the efficient and effective use of energy.

3.5 Transport

There is no energy conservation legislation regarding transport currently in existence. However, following the recommendations of the Report on Transport issued in 1992 by the Economically Sustainable Development Working Groups, the Commonwealth negotiated with the Federal Chamber of Automotive Industries in 1996 a National Average Fuel Consumption Target.

This voluntary agreement was made under the threat of Commonwealth legislation to impose a legally binding maximum fuel consumption figure if industry did not agree to an acceptable target. The current target is 8.2 litres/100 km for the year 2000, although the Federal Government is committed to achieving a target of 7.8 litres/100 kms, or lower, for 2005.

The 20 November 1997 statement of the Prime Minister of Australia, Safeguarding the Future: Australia's Response to Climate Change, included a commitment by the Commonwealth Government to implement an Automotive Industry Environmental Strategy, in consultation with the automotive and oil industries and other stakeholders, to enhance the industry's environmental performance. This strategy will involve, inter alia, a system of mandatory, model specific, fuel efficiency labelling, and a 15 per cent fuel efficiency improvement target by 2010 over business as usual through negotiation with automotive companies. Final details of this strategy are expected to be released in mid-1998. <return to top>

End Notes

¹Article 44 of the Treaty states that it will enter into force on the ninetieth day after the deposit of the thirtieth instrument of ratification, acceptance or approval. However, pursuant to article 45 each signatory agrees to apply the Treaty provisionally pending its entry into force to the extent that such provisional application is not inconsistent with its constitution, laws or regulations. Article 45(2) permits any signatory, when signing, to deliver a declaration that it is not able to accept such provisional application. Australia has been the only nation to take advantage of this option.

As for the Protocol, article 18 states that it shall enter into force on the thirtieth day after the deposit of the fifteenth instrument of ratification, acceptance or approval, or on the same date as the Treaty enters into force, whichever is later. There is no article prescribing provisional application of the Protocol. <return to place in text>

²For a detailed discussion of these international law obligations, see A. J. Bradbrook, Energy Efficiency and the Energy Charter Treaty (1997), Environmental and Planning Law Journal 327. Note also that Australia is a signatory to the recently concluded Kyoto Protocol to the Framework Convention on Climate Change. Pursuant to article 2.1(a)(i) of this Protocol, Australia is under an obligation to implement and/or elaborate further policies and measures in accordance with its national circumstances, such as the enhancement of energy efficiency in relevant sectors of the national economy. <return to place in text>

(1983) 158 Commonwealth Law Reports 1.

(1995) 183 Commonwealth Law Reports 273.

Australian and New Zealand Minerals and Energy Council, Report 23, National Coordination of Energy Efficiency, 1991.

Bradbrook A.J., Eco-labelling: Lessons from the Energy Sector, Adelaide Law Review 18: 4-45, 1996.

Bradbrook A.J., Energy Efficiency and the Energy Charter Treaty, Environmental and Planning Law Journal 14: 327-340, 1997. <return to top>

Bradbrook A.J., Energy Conservation Legislation for Industry, Journal of Energy and Natural Resources Law 10: 145-169, 1992.

Bradbrook A.J., The Development of Energy Conservation Legislation for Private Rental Housing, Environmental and Planning law Journal 8: 91-107, 1991.

Bradbrook A.J., Energy Conservation Legislation for Building Construction and Design, Canadian Institute of Resources Law, Calgary, 1992.

Dietrich versus The Queen (1992), 177 Commonwealth Law Reports 292 at 305

Energy 2000: A National Energy Policy Review, Paper No. 9, Energy Conservation, Department of Resources and Energy, Canberra, 1986.

Energy Charter Treaty, International Legal Materials 34: 360, 1995.

Green Paper on Sustainable Energy Policy for Australia, Australian Government Publishing Service, Canberra, 1996.

Kioa versus West (1985) 159 Commonwealth Law Reports 550 at 570.

Koowarta versus Bjelke-Petersen (1982) 153 Commonwealth Law Reports 168 at 211-212, 224-225.

Protocol on Energy Efficiency and Related Matters, International Legal Materials 34: 446, 1995.

*Professor of Law
Faculty of Law
University of Adelaide
Adelaide, Australia 5005
Phone: (61)(8) 8303-4020
Fax: (61)(8) 8303-4344
E-mail: adrian.bradbrook@adelaide.edu.au                <return to place in text>

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