Key takeaways
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The proposed Offshore Electricity Infrastructure Amendment Regulations 2024 (proposed Regulations) is currently open for public consultation. It marks a further step in establishing a comprehensive regulatory framework for the offshore wind industry in Australia.
The proposed Regulations will be the second set of regulations made under the Offshore Electricity Infrastructure Act 2021 (OEI Act).
The first set of regulations, the Offshore Electricity Infrastructure Regulations 2022 (Cth), and the OEI Act established the foundation of the regulatory framework, including introducing the four types of licenses for offshore activities. Please see our previous article for my information regarding the initial regulations under the OEI Act.
The new Regulations go further, prescribing the obligations of the licence holders.
Five key proposals in respect of the Regulations are set out below:
1. Management plans
The OEI Act mandates a licence holder to have an approved management plan in place. The management plans must address consultation requirements, ongoing stakeholder engagement throughout the life of a project, content requirements and approval procedures.
In particular, the proposed Regulations prescribe additional consultation obligations beyond what currently exists at law, seeking to enhance stakeholder engagement on top of the existing consultation mechanisms in the OEI Act and the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) This includes licence holder’s requirement to consult with stakeholders when preparing a management plan and licence holder’s obligation to describe a ‘stakeholder engagement strategy’ in their management plans.
With open and timely consultation and improved stakeholder engagement, the proposed procedures should help build social licences for the offshore wind industry.
2. Financial securities
The OEI Act requires licence holders to provide financial security to the Commonwealth, which will secure the decommissioning of infrastructure, removal of property and remediation of the licence area.
The proposed Regulations prescribe the operational details of the financial securities, such as the amount, form (e.g. bank guarantee or an insurance policy) and timing for providing the financial security. Notably, neither parent company guarantees nor self-insurance are permitted forms of security.
The proposed Regulations would also set out (and streamline) the circumstances for the Commonwealth to recover a debt, cost, expense or liability from the financial security.
3. Work health and safety (WHS)
The OEI Act and regulations already prescribe that offshore projects work, health and safety considerations are primarily governed by the Commonwealth Work Health and Safety Act 2011 and Work Health and Safety Regulations 2011.
The proposed Regulations further apply and modify the WHS requirements for offshore projects. Specifically, in the context of offshore infrastructure, the Regulations remove the longstanding requirement that the principal contractor has ‘management and control’ of the site. This ensures that the licence holder can retain the principal contractor role (including coordination of concurrent activities), while delegating the responsibility for managing and controlling specific worksites to contractors.
Furthermore, the proposed Regulations address the particular risks associated with deep sea diving during offshore construction and maintenance, including imposing additional obligations on relevant persons conducting a business or undertaking, diving safety management system and diving supervisors.
4. Design notification
The proposed Regulations introduce a new design notification scheme, which ensures the Offshore Infrastructure Regulator (Regulator) is involved early in the design phase of offshore projects.
The design notification scheme establishes a process for design engagement in relation to WHS, infrastructure integrity and environmental risks.
This new scheme would allow the Regulator to provide feedback on project design before the licence holder submits a management plan application.
5. Safety and protection zones
The OEI Act provides for safety zones and protection zones to be established around the infrastructure of the offshore projects.
They are specified areas around eligible infrastructure in which access or certain activities may be restricted or prohibited. These zones are designed for the safety of workers and other marine users, as well as to protect the offshore projects from damage by other marine activities.
The proposed Regulations would prescribe mechanisms and procedures to allow persons to request the Regulator to make, vary or revoke a safety or protection zone.
| Regulation | Safety Zone | Protection Zone |
| Maximum size (around eligible infrastructure) | 500 metres | 1,852 metres (equivalent to 1 nautical mile) |
| Activities permitted within the zone | Certain vessels may be restricted from entering without the written consent of the Regulator. | Certain activities may be restricted or prohibited. (e.g. prohibiting anchoring around offshore electricity cables) |
| Whether the zones are fixed throughout the project lifecycle | Access may vary during the different phases of construction, operation, maintenance and decommissioning. | Protection zone will last for the life of the offshore wind farm. |
Get in touch
Consultation on the proposed Regulations closes on 12 May 2024.
If you are unsure where your project stands and to stay informed on the evolving challenges and opportunities in the offshore wind sector, please reach out to our experts, Matt Baumgurtel and Will Ryan.
The Hamilton Locke team advises across the energy project life cycle – from project development, grid connection, financing, construction, including the buying and selling of development and operating projects. For more information, please contact Matt Baumgurtel.
