Offshore Electricity Infrastructure (Declared Area OEI-01-2024) Declaration 2024

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Climate Change and Energy

Offshore Electricity Infrastructure Act 2021

Offshore Electricity Infrastructure (Declared Area OEI‑01‑2024) Declaration 2024

Purpose and Operation

The Offshore Electricity Infrastructure Act 2021 (OEI Act) establishes a legal framework to enable the construction, installation, commissioning, operation, maintenance, and decommissioning of offshore electricity infrastructure (OEI) in the Commonwealth offshore area. The OEI Act commenced on 2 June 2022.

The OEI Act provides a robust framework for granting licences to undertake OEI activities in the Commonwealth offshore area, while providing for co-existence with other marine users, the effective management of environmental impacts, the safety of workers and the protection of OEI.

Before the Minister can issue an invitation to apply for licences under the OEI Act in respect of a particular area, the Minister must first declare an area, by way of legislative instrument, pursuant to s 17(1) of the OEI Act. 

Before a declaration can be made, pursuant to s 17(3) of the OEI Act, a number of criteria must be met: 

On 28 June 2023, a notice of proposal to declare an area in the Southern Ocean, off the Victorian and South Australian coast was published on behalf of the Minister, on the Department of Climate Change, Energy, the Environment and Water’s (the department’s) website. This commenced a 65-day public consultation period which closed on
31 August 2023.

The Minister has consulted with the Defence Minister and the Minister administering s1 of the Navigation Act 2012, formalised through letters sent by the Minister on 19 December 2023. The consultation with these Ministers did not raise any additional issues that had not been addressed during consultation with the respective departments of those Ministers.

In addition, for the Minister to be satisfied that the area is suitable for offshore renewable energy infrastructure, pursuant to s 19(1) of the OEI Act, the Minister must have regard to a number of prescribed matters. These are:

The Minister has had regard to all the matters required under the OEI Act.

Subsection 19(2) states that the Minister may also have regard to any other matters that they think are relevant.

The Minister has had regard to the additional matters considered relevant, including:

As the Minister has met all statutory preconditions required to make a declaration under the OEI Act, the Minister may:

The Minister has declared a part of the proposed declared area that is suitable for offshore renewable energy infrastructure. The Minister has also made the declaration subject to conditions under s 20 of the OEI Act that they consider make the area suitable for offshore renewable energy infrastructure.

The Offshore Electricity Infrastructure (Declared Area OEI-01-2024) Declaration 2024, gives legal effect and defines the spatial extent of the declared area in the Southern Ocean off the coast of Victoria and details the conditions that the declaration is subject to.

The Offshore Electricity Infrastructure (Declared Area OEI-01-2024) Declaration 2024 will remain in force until it is revoked under s 26 of the OEI Act or until it sunsets in accordance with the Legislation Act 2003.

Background

The boundaries of Declared Area OEI-01-2024 were informed by a number of factors including:

• key feasibility factors for offshore wind in Australia as identified by the Blue Economy Cooperative Research Centre;
• the proximity of the area to existing electricity infrastructure;
• the technical suitability of the area;
• Victorian Government support for offshore electricity infrastructure in the area;
• South Australian Government opposition for offshore electricity infrastructure in waters off South Australia;
• the level of industry interest in applying for licences under the OEI Act to construct offshore electricity infrastructure in the area;
• advice received through consultation with the Defence Minister and the Minister administering section 1 of the Navigation Act 2012.
• information and advice received through ongoing consultation with relevant Commonwealth, Victorian and South Australian government departments and agencies; and
• submissions received during the public consultation period.  

The declaration has been made subject to conditions.

Under the OEI Act, licence holders must develop management plans prior to carrying out any offshore renewable energy infrastructure activities within their licence areas. The declaration is subject to a condition that requires holders of feasibility licences or research and demonstration licences, granted in respect of this declared area, must consult with the Australian Maritime Safety Authority and the Department of Defence during the preparation of a management plan and address the outcomes of this consultation in the management plan for the licence.

In addition, feasibility licence holders are also required to consult with holders of fishing concessions granted under the Fisheries Management Act 1991; or licences issued under the Fisheries Act 1995 (Victoria) that can be exercised in relation to any part, or parts, of the licence area. Feasibility licence holders will need to address the outcomes of this consultation in the management plan for the licence, including how impacts on these holders may be avoided, mitigated, or offset.

The management plan must also address matters of environmental management, including how the licence holder is to comply with any obligations under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), or regulations under that Act, in relation to the activities to be carried out under the licence.

The management plan must be approved by the Offshore Infrastructure Regulator before an application for a commercial licence can be granted. Before deciding whether to grant a commercial licence, the Minister may require the developer to conduct specific kinds of consultation. Feasibility licence holders should ensure they have received all other relevant approvals, including those required under the EPBC Act, and undertake any other consultation processes, before they apply for commercial licences.

Prospective holders of licences issued under the OEI Act should be aware that there are a number of threatened species in the vicinity of the Declared Area OEI-01-2024 including, but not limited to the following critically endangered or endangered species:

• Southern Right Whale;
• Pigmy Blue Whale;
• Humpback Whale;
• Antarctic Blue Whale;
• Shy Albatross;
• Amsterdam Albatross;
• Grey-headed Albatross;
• Northern Royal Albatross; and
• Southern Giant Petrel.

There are also a number of migratory species that have important foraging or breeding areas within the declaration area, including various petrels, albatrosses, and cetaceans. Potential areas of migration for the Swift Parrot and Orange Bellied Parrot also occur.

Authority

Under subsection 17(1) of the OEI Act: Subject to subsection (3), the Minister may, by legislative instrument, declare a specified area in the Commonwealth offshore area for the purposes of this Act.

Consultation

The Minister published the Notice of Proposal to declare an area in the Southern Ocean off the Victorian and South Australian coast on 28 June 2023. This commenced the statutory public consultation period as required under the OEI Act. Members of the public were able to make submissions via the department’s Have Your Say web platform. On 31 August 2023, the public consultation period closed. 3,285 submissions were received.

Information on the consultation was shared across a number of social media channels, including on the department’s website and on departmental social media channels, Twitter, Facebook, Instagram and LinkedIn. Paid advertising was undertaken in local newspapers and radio, and via social media. A leaflet drop was also conducted in coastal suburbs adjacent to the proposed area.

Community Information sessions

The community was invited to participate in a number of community drop-in information sessions held during the consultation period. In total, five information sessions were held across the Victorian and South Australian regions (Warrnambool, Port Fairy, Portland, Mount Gambier and Port MacDonnell) from 1 to 3 August 2023, attracting more than 700 attendees.

Targeted meetings with stakeholder groups including local council representatives, First Nation groups, and port operators were also conducted across the region.

Online sector ‑based engagement

Industry stakeholders were invited to participate in online industry and community specific sessions held during the consultation period. An additional general public session was also held due to community interest. Four sessions were held between 9 and 17 August 2023. The sessions held were targeted to the following industry groups: commercial fishing, tourism and local businesses, community and environment groups, and the general public. A total of 70 individuals attended these online sessions.

Ongoing consultation was also undertaken with relevant Commonwealth, Victorian and South Australian Government agencies and departments that have policy and regulatory oversight over marine users and interests.

Regulatory Impact

A Regulation Impact Statement (RIS) was prepared for the OEI Act.[1] This RIS was included in the Explanatory Memorandum for the OEI Act. The Office of Impact Analysis has previously been contacted for advice on the need for a RIS and have advised that declarations are within the scope of the OEI Act RIS process. As such, the preparation of an Impact Analysis is not required for this declaration.

Statement of Compatibility with Human Rights

A Statement of Compatibility with Human Rights is set out in Attachment B.

Attachment A

Details of the Offshore Electricity Infrastructure (Declared Area OEI-01-2024) Declaration 2024.

Section 1 – Name

This section provides that the name of the instrument is the Offshore Electricity Infrastructure (Declared Area OEI-01-2024) Declaration 2024.

Section 2 – Commencement

This section provides that the declaration commences on the day after it is registered on the Federal Register of Legislation.

Section 3 – Authority

This section provides that the declaration is made under section 17 of the Offshore Electricity Infrastructure Act 2021.

Section 4 – Definitions

This item provides for definitions of terms used in the declaration. These terms include ‘Declared Area OEI-01-2024’, which is the area specified in Schedule 1 of the instrument.

Section 5 – Declared area

Subsection 5(1) declares the area ‘Declared Area OEI-01-2024’ as a ‘declared area’ for the purposes of the OEI Act.

Subsection 5(2) refers to Schedule 2 of the declaration, which sets out a simplified map that illustrates the location of the declared area.

Section 6 – Conditions

This section sets out the conditions that the declaration is subject to.

Condition 1

This condition requires that feasibility licence holders and research and demonstration licence holders, within the Declared Area OEI-01-2024 must, when preparing a management plan for the licence, consult with the Australian Maritime Safety Authority and the Department of Defence. The outcomes of the consultation must be addressed in the management plan.

The construction, installation, commissioning, operation, maintenance or decommissioning of offshore renewable energy infrastructure within the Declared Area OEI-01-2024 may impact the safety of navigation of vessels.

This condition ensures that feasibility licence holders and research and demonstration licence holders will undertake consultation with the Australian Maritime Safety Authority and the Department of Defence, who have identified the potential for offshore renewable energy infrastructure to impact on their existing operations or regulatory regimes, and that these potential impacts will be expressly considered during the development of projects.

Condition 2

This condition requires that feasibility licence holders, within the Declared Area OEI-01-2024, must, when preparing a management plan for the licence, consult with holders of fishing concessions granted under the Fisheries Management Act 1991 and licences issued under the Fisheries Act 1995 (Victoria) that can be exercised in relation to any part, or parts, of the licence area. If a concession or licence holder has nominated a representative organisation for the purposes of the consultation, the feasibility licence holder must consult with the representative organisation. The outcomes of the consultation must be addressed in the management plan, including how impacts on these holders may be avoided, mitigated, or offset.

The Declared Area OEI-01-2024 overlaps existing fisheries within Commonwealth waters managed under the Fisheries Management Act 1991 or the Fisheries Act 1995 (VIC). To ensure potential impacts on existing commercial fishing rights are expressly considered by feasibility licence holders, the declaration has been made subject to this condition.              

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Offshore Electricity Infrastructure (Declared Area OEI-01-2024) Declaration 2024

This declaration is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Offshore Electricity Infrastructure (Declared Area OEI-01-2024) Declaration 2024 gives legal effect and defines the spatial extent of the declared area in the Southern Ocean off the Victorian coast and details the conditions that the declaration is subject to.

Human rights implications

This declaration does not engage any of the applicable rights or freedoms.

Conclusion

This declaration is compatible with human rights as it does not raise any human rights issues.

The Hon Chris Bowen MP

Minister for Climate Change and Energy

[1] Office of Impact Analysis reference number 42703.