Abstract
The untapped potential of offshore wind is vast, and will be critical in the global transition to renewable energy and carbon neutrality. Although Australia’s waters are home to enough wind energy to cover its entire electricity needs, the lack of a regulatory framework has prevented the establishment of an offshore wind industry. However, with the passage of the Offshore Electricity Infrastructure Act 2021, there are now significant opportunities for the offshore generation of renewable energy, as well as the transmission of electricity within—and beyond—Australian waters. Framed by consideration of the global and regional context, this paper provides a meaningful perspective on the potential for offshore wind energy in Australia, outlines the new regulatory framework which will enable it to be realised, and highlights key points of contact with contemporary issues of ocean law and policy.
1 The Potential of Offshore Wind Energy
The untapped potential of offshore wind energy is vast—in fact, it is mind-boggling. The International Energy Agency (iea) has estimated that the technical potential of offshore wind worldwide is more than 120 terawatts (tw),1 which could generate more than 420,000 terawatt hours (twh) of electricity each year.2 This means that, in theory, offshore wind alone could provide enough energy to meet the world’s total estimated electricity needs 11 times over in 2040.3 Of course, this “technical potential” can be divided between shallower and more accessible areas where turbines can be installed on fixed foundations, as well as deeper waters where access is more difficult and deployment more costly. However, even if the iea’s analysis is limited to the more accessible areas, with waters less than 60 metres deep and within 60 miles of the coast, offshore wind has the potential to generate 36,000 twh of electricity per year, which is still more than enough to meet the current annual global demand of 23,000 twh.4
The magnitude of these resources was unknown when the international community agreed to allocate sovereign rights to coastal States with respect to the “production of energy from the water, currents, and winds” in the 200 nautical mile exclusive economic zone (eez) under Article 56(1)(a) of the 1982 United Nations Convention on the Law of the Sea (the Convention).5 While the actual wind generation capacity installed in offshore areas worldwide is still very small—at the end of 2020, it was just 0.035 tw6—it is growing rapidly, and it is evident that offshore wind will play a critical role in the global transition to renewable energy. For example, under the International Renewable Energy Agency’s (irena) roadmap to deliver carbon neutrality by 2050 and limit warming to 1.5°C in accordance with the targets set in the Paris Agreement, total installed global offshore wind generation will need to reach 2 tw by 2050.7 While this will require a dramatic increase in the installation of offshore wind in every region of the world, some coastal States—and some regions—are starting much further ahead than others.
For a long time Europe was clearly the global leader in offshore wind energy, with offshore wind farms operating in European waters for more than thirty years.8 Offshore wind is currently installed in the waters of Belgium, Denmark, France, Germany, the Netherlands, Sweden, Portugal and the United Kingdom, and regulatory frameworks and targets to support the development offshore wind have been introduced by Ireland, Norway and Poland.9 But in the last twenty years the industry has expanded beyond Europe, with offshore wind infrastructure installed in the waters of China, Japan, South Korea, Taiwan, Vietnam, and the United States.10 Over the last decade, the global capacity of offshore wind has grown on average by 22 per cent each year,11 and in 2021, Europe was overtaken as the largest source of offshore wind by China, which built more offshore wind capacity in 2021 alone than the rest of the world had installed in the previous five years, and now operates almost half of all the world’s installed offshore wind generation.12 In other countries, however, the development of the offshore wind industry is still in the early stages, despite there being significant potential for offshore wind generation. This is the case for Australia, which will be a key location for offshore wind generation in the Pacific region, where it is estimated that 0.08 tw of offshore wind will need to be installed by 2050 in order to meet the 2 tw global target set by irena.13
2 The Potential for Offshore Wind Generation in Australia
Australia has huge potential for offshore wind generation, with “very high quality and abundant offshore wind resources in a range of locations, particularly in the southern latitudes where the resource is strongest.”14 A national Australian Offshore Wind resources assessment undertaken in 2021 estimated the theoretical potential of offshore wind in Australia’s eez at 27.369 tw, capable of generating up to 136,845 twh of electricity per year15—in theory, more than enough to meet the current annual demand of the entire world.16 The “technically accessible” portion of this resource—defined in the assessment by reference to areas which are less than 100 kilometres from the coast, in depths less than 1000 metres, within 100 kilometres of existing electricity sub-stations and transmission lines, and within environmentally restricted areas—was estimated to be a more modest 2.233 tw,17 capable of generating 9,396 twh of electricity per year.18 This still far exceeds Australia’s needs, as reflected in the existing National Electricity Market, which has a total generating capacity of less than 0.065 tw, and generates about 204 twh of electricity each year.19 Accordingly, exploiting even just five per cent of the “technically accessible” portion of the resource would provide more than double the electricity currently generated by Australia’s National Electricity Market.
In recent years, the world-class potential of Australia’s offshore wind resources has given rise to an increasing interest in utilising Australia’s waters for electricity generation. For example, projects that are currently proposed for Australia’s waters include:
- –the 2.2 gw capacity “Star of the South” wind farm, which is proposed for construction seven to 25 kilometres seaward of the coastline of the state of Victoria and would be capable of providing nearly 20 per cent of Victoria’s electricity needs;20
- –the proposed 1.5gw “Gippsland Offshore Wind Farm” proposed by Flotation Energy, which is seeking to reuse oil and gas assets in Bass Strait, and would connect to the National Electricity Market in Gippsland, Victoria;21
- –the “Newcastle Offshore Wind Energy” project which would locate up to 10gw of offshore wind generation capacity on the continental shelf 20 kilometres off the state of New South Wales, using floating foundation technology;22 and
- –five offshore wind farm projects of approximately 2gw each, planned by Oceanex Energy Pty. Ltd. for construction between 18 and 30 kilometres off the coast from the towns of Newcastle, Wollongong, Ulladulla and Eden in New South Wales, and adjacent to Bunbury in the state of Western Australia.23
These eight projects alone could yield 23.7 gw (0.023 tw) of offshore wind generation capacity—equal to one third of Australia’s current National Electricity Market. And there are additional offshore wind projects under development.24
In addition to projects which would harness offshore wind for the generation of electricity in Australia’s waters, there is also significant interest in the offshore transmission of electricity through those waters. In this respect, proposals currently on foot include the high profile Sun Cable PowerLink project, which would transmit electricity generated by a 14 gw solar farm in the Northern Territory to Singapore via a 4,200 kilometre undersea cable,25 and the Marinus Link, a proposed 1.5 gw undersea and underground connection to enable the transmission of energy between Tasmania and Victoria as part of Australia’s future electricity grid.26 However, the implementation of all these projects—and the installation of any infrastructure for the offshore generation or transmission of electricity—depends on an appropriate regulatory framework under Australian law.
3 A New Regulatory Framework: the Offshore Electricity Infrastructure Act 2021
Under Australia’s “Offshore Constitutional Settlement” arrangements, the regulation of offshore activities in Australian waters is divided between the Commonwealth (federal) Government, and the governments of individual states and territories. Each state government has the same powers with respect to the “coastal waters” of their state (which include the internal waters and extend to three nautical miles from the territorial sea baselines, including the seabed below) as they would have if those waters were within the limits of the state, while the Commonwealth has responsibility for the “offshore areas” beyond (from three to 200 nautical miles from the territorial sea baselines, including the seabed below).27 Consistent with these arrangements, the exploration and exploitation of petroleum and greenhouse gas activities in Australia’s offshore areas is regulated by the Commonwealth under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (opggsa).28 Unfortunately, the opggsa framework does not extend to the offshore generation and transmission of electricity. But perhaps propelled by the increasing interest in electricity generation and transmission projects in Australia’s waters, this regulatory gap was addressed in December 2021 with the passage of the Offshore Electricity Infrastructure Act 2021 (Cth) (the oei Act),29 which provides a regulatory framework for the development and operation of energy infrastructure in Australia’s waters.
3.1 The Regulatory Framework
Consistent with the Offshore Constitutional Settlement, the oei Act applies in the “Commonwealth offshore area”, which is defined to encompass the waters, seabed and subsoil beyond 3 nautical miles from the territorial sea baselines, extending to the outer edge of Australia’s eez.30 In this area, the Act regulates the conduct of all “offshore infrastructure activities”, a term which is used collectively to mean the construction, installation, commissioning, operation, maintenance and decommissioning of “offshore renewable energy infrastructure” or “offshore electricity transmission infrastructure”.31 This necessitates the consideration of some lengthy, but important, defined terms.
Pursuant to Section 10 of the Act, “offshore renewable energy infrastructure” is fixed or tethered infrastructure that has the primary purpose of exploring for, assessing the feasibility of exploiting, or exploiting a “renewable energy resource”;32 or storing, transmitting or conveying a “renewable energy product”.33 Pursuant to Section 11 of the Act, “offshore electricity transmission infrastructure” is also limited to structures that are fixed or tethered, but has the primary purpose of storing, transmitting or conveying electricity, whether or not the electricity is generated from a renewable energy resource.34 Whether or not something is a “renewable energy resource” can be determined by reference to the extensive definition in Section 13(1) of the Act, which provides that a renewable energy resource is:
any of the following from which energy may be obtained: (a) wind and air flow; (b) wind-generated waves; (c) tides; (d) ocean currents; (e) light or heat from the sun; (f) rain; (g) geothermal heat; (h) a resource, event or circumstance prescribed by the regulations for the purposes of this paragraph.35
And relatedly, a “renewable energy product” is electricity generated or obtained from a renewable energy resource, or anything that embodies or contains energy that was generated or obtained from a renewable energy resource for the purpose of storing, transmitting or using the energy.36
The regulatory framework established by the Act to govern the conduct of offshore infrastructure activities has three central components. First, it empowers the Minister to declare specified areas that are suitable for offshore renewable energy infrastructure.37 In making such a declaration, the Minister must have regard to: the potential impacts of the infrastructure on other marine users and interests; any submissions received from the public about the proposal to declare the area; any advice provided by the Defence Minister and the Minister responsible for administering the Navigation Act 2012 (Cth); and Australia’s international obligations in relation to the area.38 Second, the regulatory framework provides for a licensing scheme to be established by regulations,39 and allows the Minister to grant various types of licences authorising the conduct of offshore infrastructure activities.40 Third, and to give effect to the rest of the scheme, the regulatory framework places a prohibition on the conduct of offshore infrastructure activities in the Commonwealth offshore area without a licence.41
The Act establishes a Registrar to administer the regulatory framework (in particular, the licensing scheme),42 and a Regulator to oversee its day-to-day operation (such as safety and environmental management) and provide advice and support to the Minister, the Registrar, and the industry.43 The Regulator has a suite of powers to monitor and enforce compliance with the framework, including with respect to the work health and safety of offshore workers,44 the safety and integrity of offshore energy infrastructure, and compliance with environmental management obligations. The costs associated with the functions of the Commonwealth, the Registrar and the Regulator will be recovered through fees and levies, including through the Offshore Electricity Infrastructure (Regulatory Levies) Act 2021,45 which provides for an offshore electricity infrastructure levy to be imposed on the industry pursuant to a scheme to be established in regulations.
3.2 Licensing Offshore Infrastructure Activities
Four types of licences may be granted under the oei Act, three of which relate to the offshore generation of electricity, and one to its offshore transmission. The first type of licence is a “feasibility” licence, which is granted for the purpose of assessing the feasibility of an offshore infrastructure project; it allows the licence holder to undertake scoping activities in the licence area for up to seven years.46 The second is a “commercial” licence, which may be only be granted to a person who holds a feasibility licence, and authorises the holder to actually carry out an offshore infrastructure project and “exploit” renewable energy resources.47 The third is a “research and demonstration” licence, which is intended for small-scale projects seeking to carry out research or test and demonstrate emerging technologies, such as electricity generation from waves, tides or ocean thermal energy.48 And the fourth is a “transmission and infrastructure” licence, which allows the holder to construct and operate infrastructure that will store, transmit or convey electricity (whether or not generated from renewable sources) or a renewable energy product.49 Under each of these licences, the licence holder is authorized to carry out offshore infrastructure activities in the licence area, provided that: there is a management plan in place with respect to any activities to be carried out under the licence;50 the activities are carried out in accordance with the management plan and the licence conditions;51 and the licence holder is in compliance with obligations regarding financial security, which must be sufficient to cover the cost of decommissioning all proposed infrastructure.52
The licensing scheme is still to be prescribed in regulations, and significant details about its operations are not yet clear, including the criteria that must be considered in granting a licence. There are also some questions about the way in which the rights of existing users of offshore areas - such as fishing operators and native title holders - will be protected. In this respect, the Act provides that it is an offence for a licence holder to carry out activities in the Commonwealth offshore area which interfere with navigation, the exercise of native title rights and interests, fishing, the conservation of the resources of the sea or the seabed, any activities being carried out in accordance with the opggsa, or any other activities being lawfully carried on by another person, if the interference is greater than necessary for the reasonable exercise of the licence holder’s rights or the performance of their obligations.53 It also establishes a criminal offence for the conduct of activities that interfere with offshore renewable energy infrastructure, offshore electricity transmission infrastructure, or related structures, vessels or equipment, in the Commonwealth offshore area.54 In this context, as some stakeholders observed during the development of the legislation, it is not yet clear how “co-existence” between conflicting user rights will be managed in practice—or who will bear the costs.55
3.3 Protection of Offshore Infrastructure
The oei Act contains two key measures designed to protect offshore energy infrastructure and the people working on such infrastructure: safety zones and protection zones.
Section 136 of the Act allows the Regulator to establish safety zones in order to protect “eligible safety zone infrastructure” (including offshore renewable energy infrastructure, offshore electricity transmission infrastructure, and cables running between such items of infrastructure) by prohibiting certain vessels from entering or being present in the safety zone. According to the explanatory material, safety zones are intended to be “temporary” areas, able to be declared quickly in order to minimise the risk to the safety of offshore workers and manage interactions between offshore energy infrastructure and vessels on a short term basis (such as preventing entry during construction or in order to address an urgent safety issue such as fallen or broken infrastructure which may cause a hazard).56 A safety zone can extend for a radius of up to 500 metres around specified infrastructure at sea level, and rolling or mobile safety zones may be established around a vessel or group of vessels that are progressively working on the installation of infrastructure (such as a cable).57
The owner or master of a vessel which enters or is present in a safety zone commits an offence, unless they can demonstrate that the vessel’s presence in the safety zone was in response to an unforeseen emergency relating to safety, was necessary for the prevention of pollution, or occurred in circumstances where it was not under the control of the person on navigational watch.58 If a vessel enters or remains in a safety zone, an authorized official may require the master to take it outside the safety zone or (if the vessel has been disabled) to accept assistance to move the vessel away from the safety zone.59 The explanatory material clarifies that this removal power is intended to apply to foreign-flagged vessels only when those vessels are being used in the conduct of offshore infrastructure activities pursuant to a licence, and is not intended to apply to foreign-flagged ships navigating freely through Australia’s eez.60
In addition to safety zones, the Act also provides for the Regulator to establish “protection zones” in the Commonwealth offshore area.61 In contrast to the short-term nature of safety zones, protection zones are intended to be more permanent and provide a means to address hazards that are long term in nature by prohibiting or restricting vessels from conducting activities that may result in damage to offshore energy infrastructure.62 The Regulator may declare a protection zone on the basis that:
- –there is a risk to human safety, to offshore renewable energy infrastructure, or to offshore electricity transmission infrastructure; or
- –there would be such a risk if offshore infrastructure activities were carried out in the protection zone in accordance with an approved management plan; and
- –the determination of a protection zone would reduce that risk.63
In order to reduce the identified risk, the determination may prohibit or set restrictions on the conduct of activities in the protection zone.64 The Act establishes offences for individuals and for the masters and owners of vessels which engage in prohibited or restricted activities in a protection zone.65 However, these offences are expressly stated not to apply to foreign nationals or foreign vessels unless the prohibited conduct involves the exploration or exploitation of the resources of the eez or continental shelf, or the operations of artificial islands, installations or structures under Australia’s jurisdiction.66
4 Conclusion
While the introduction of offshore wind generation to Australia’s waters has been delayed, it will not be denied. Australia may be playing catch-up in comparison to the installed offshore wind capacity of Asia, Europe and America, but the vast potential of Australia’s offshore wind resources—particularly in its southern latitudes, where the majority of its population centres and energy needs are located—provide a strong basis for this industry to develop rapidly and play a key role in the transition to renewable energy and carbon neutrality by 2050. In this respect, the oei Act has “fired the starting gun” on offshore wind in Australia,67 putting in place a critical piece of the puzzle in the form of a regulatory framework that will govern the full life cycle of offshore energy projects, from development to decommissioning. However, since significant aspects of the day-to-day operation of this framework are to be placed in yet-to-be drafted regulations, it is difficult to determine its full scope and effect, and a number of interesting questions remain to be resolved.
From the perspective of ocean law and policy, there will be much to consider as this legislation is implemented by new users—and uses—of Australia’s waters. No doubt the development of a new industry will raise difficult questions about how to resolve cross-sectoral conflict and manage user rights, promote effective integrated ocean planning, ensure robust environmental and social impact assessment procedures, and implement appropriate compliance and enforcement measures. Listen carefully: the answers are blowing in the wind.
One terawatt (tw) is the equivalent of 1,000 gigawatts (gw) or one million megawatts (mw). These are measurements of capacity, used to refer to the maximum amount of electricity that is capable of being produced at any one time. Reference is also commonly made to terawatt hours (twh), gigawatt hours (gwh) and megawatt hours (mwh), which are measurements of energy generation, and refer to the amount of electricity that is actually generated over a period of time. For consistency and ease of comparison, the majority of measurements in this article have been converted to tw and twh.
International Energy Agency, Offshore Wind Outlook 2019: World Energy Outlook Special Report (2019) 50, available at https://www.iea.org/reports/offshore-wind-outlook-2019.
Ibid.
Ibid., 11.
Opened for signature 10 December 1982, entered into force 16 November 1994, 1833 unts 3.
J. Lee and F. Zhao, Global Wind Report 2021, Global Wind Energy Council (2021) 21, available at https://gwec.net/global-wind-report-2021/.
Ibid., 11.
The world’s first offshore wind farm, Vindeby, commenced operation in Danish waters in 1991 and operated for 25 years, producing a total of 0.243 twh of electricity from 11 turbines: see C. Westra, Build Them At Sea: New Energy for the World (Chris Westra Consulting bv, 2021) 17.
Lee and Zhao, supra note 6, at 25–29.
Ibid., 20.
Ibid., 21.
D. Vetter, ‘China Built More Offshore Wind in 2021 than Every Other Country Built in 5 Years’, Forbes, (online, 26 January 2022) available at https://www.forbes.com/sites/davidrvetter/2022/01/26/china-built-more-offshore-wind-in-2021-than-every-other-country-built-in-5-years/?sh=5fbc17f24634.
Lee and Zhao, supra note 6, at 12–13.
C. Briggs, et al, Offshore Wind Energy in Australia: Final Project Report (2021) 19, available at https://blueeconomycrc.com.au/projects/offshore-wind-potential-australia/.
Ibid., 36.
As discussed above, the current annual global electricity demand is 26,000 twh (supra note 4 and associated text).
Briggs, et al, supra note 14, at 39.
Ibid., 40.
Australian Energy Market Operator (aemo), The National Energy Market Fact Sheet, December 2021, available at https://aemo.com.au/-/media/files/electricity/nem/national-electricity-market-fact-sheet.pdf. The National Electricity Market connects five regional market jurisdictions: Queensland, New South Wales (including the Australian Capital Territory), Victoria, South Australia, and Tasmania. Western Australia and the Northern Territory are not connected to the National Electricity Market.
Star of the South, Submission to the Senate Environment and Communications Legislation Committee, Inquiry into the Offshore Electricity Infrastructure Bill 2021 and Offshore Electricity Infrastructure (Regulatory Levies) Bill 2021, Submission No 31, 17 September 2021. See also https://www.starofthesouth.com.au/.
Flotation Energy Pty. Ltd., Submission to the Senate Environment and Communications Legislation Committee, Inquiry into the Offshore Electricity Infrastructure Bill 2021 and Offshore Electricity Infrastructure (Regulatory Levies) Bill 2021, Submission No 18, 15 September 2021. See also Australia Seadragon, available at https://www.flotationenergy.com/projects/seadragon.
Newcastle Offshore Wind Energy Pty. Ltd., Submission to the Senate Environment and Communications Legislation Committee, Inquiry into the Offshore Electricity Infrastructure Bill 2021 and Offshore Electricity Infrastructure (Regulatory Levies) Bill 2021, Submission No 9, 14 September 2021.
Oceanex Energy Pty. Ltd., Submission to the Senate Environment and Communications Legislation Committee, Inquiry into the Offshore Electricity Infrastructure Bill 2021 and Offshore Electricity Infrastructure (Regulatory Levies) Bill 2021, Submission No 7, 14 September 2021. See also Oceanex, ‘Oceanex Energy: Offshore Wind Farms – An Economic and Regional Development Opportunity for Australia’, available at https://subseaenergy.org.au/wp-content/uploads/2021/06/Oceanex_Presentation-to-Subsea-Energy-Australia_27-May-2021-1.pdf.
See, eg, C. Packham, ‘Australia’s Offshore Wind Sector Primed for Lift-Off’, Australian Financial Review (online, 14 January 2022), available at https://www.afr.com/companies/energy/australia-s-offshore-wind-sector-primed-for-lift-off-20220114-p59o9v.
Sun Cable, Submission to the Senate Environment and Communications Legislation Committee, Inquiry into the Offshore Electricity Infrastructure Bill 2021 and Offshore Electricity Infrastructure (Regulatory Levies) Bill 2021, Submission No 16, 15 September 2021. See also https://suncable.sg/.
Australian Government, Department of Industry, Science, Energy and Resources, Submission to the Senate Environment and Communications Legislation Committee, Inquiry into the Offshore Electricity Infrastructure Bill 2021 and Offshore Electricity Infrastructure (Regulatory Levies) Bill 2021, Submission No 13, September 2021, 3. See also https://www.marinuslink.com.au/.
See generally, Offshore Constitutional Settlement: A Milestone in Cooperative Federalism (agps, 1980), available at https://www.ag.gov.au/international-relations/publications/offshore-constitutional-settlement-milestone-cooperative-federalism. The key legislative elements of this arrangement are the Coastal Waters (State Powers) Act 1980 (Cth) and the Coastal Waters (State Title) Act 1980 (Cth), and the equivalent Acts applicable to the Northern Territory. See further: W. Gullett and G. Rose, ‘Australia’s Marine Jurisdictions under International and Domestic Law’ in W. Gullett, C. Schofield and J. Vince (Eds.), Marine Resources Management(LexisNexis Butterworths, 2011) 25–40.
Available at https://www.legislation.gov.au/Details/C2021C00439.
Available at https://www.legislation.gov.au/Details/C2021A00120. The OEI Act was passed by the Parliament on 25 November 2021 and received Royal Assent on 2 December 2021. Pursuant to s 2 of the Act, its provisions will commence on a date to be fixed by Proclamation, or six months and one day after the date of Royal Assent.
oei Act, s 8. Pursuant to s 5, the Act extends to all of Australia’s external territories, with the exception of the Australian Antarctic Territory. Section 81 of the Act confirms that if a licence has been granted on the basis that an area is within the Commonwealth offshore area, any subsequent changes to the boundary of the coastal waters of a state or territory (for example, by geomorphological changes) will not affect the status of the licence, and the oei Act will continue to apply as if the area of the licence were still within the Commonwealth offshore area.
Ibid., s 8.
Given the way in which the sovereign rights of coastal States are described under Article 56(1)(a) of the Convention, it is relevant to note that definitions for the terms “explore” and “exploit” are given in s 8 of the oei Act. To “explore” is defined to include exploring for the existence of, or assessing or scoping the extent, capacity or attributes of, a renewable energy resource. To “exploit”, in relation to a renewable energy resource, is expressed to include generating or obtaining a renewable energy product from the renewable energy resource, and storing, transmitting or otherwise conveying a renewable energy product generated or obtained from a renewable energy resource.
oei Act, s 10(1). Section 10(2) makes clear that anything which would be offshore renewable energy infrastructure but is in the process of being constructed, installed or decommissioned, or has temporarily or accidentally ceased to be fixed or tethered, still falls within this definition. Section 10(3) clarifies some things that do not fall within this definition, including infrastructure that is within the meaning of the opggsa or is for the purpose of exploring for or recovering minerals, or cables laid on or under the seabed which do not connect to any place in Australia or the Commonwealth offshore area.
oei Act, s 11(1). Section 11(2) and (3) make the same inclusions and exclusions for offshore electricity transmission infrastructure as s 10(2) and (3) make for offshore renewable energy infrastructure.
In her submission to the Senate Committee Inquiry into the draft legislation, Associate Professor Penelope Crossley noted that this definition of renewable energy is “unusual”, and suggested that “rain” might be omitted from the definition, since there are no offshore renewable energy projects in the world that use offshore “rain” to generate energy. She also noted that marine biomass (macro and micro algaes), which can be grown at sea and used to generate energy, are omitted from the definition (although arguably this could be included by regulation under sub-paragraph (h)): P. Crossley Crossley, Submission to the Senate Environment and Communications Legislation Committee, Inquiry into the Offshore Electricity Infrastructure Bill 2021 and Offshore Electricity Infrastructure (Regulatory Levies) Bill 2021, Submission No 34, 20 September 2021, 1–2.
Ibid., s 8.
Ibid., s 17. The declaration of specified areas relates only to offshore renewable energyinfrastructure; the placement of offshore electricity transmission infrastructure is not limited to areas that have been declared.
Ibid., s 19. During the passage of the legislation, concerns were raised by a number of stakeholders about how the ministerial declaration process will operate, including on the basis that it does not adequately: ensure consultation with the Minister for the Environment; undertake strategic assessments of environmental issues that can contribute to marine spatial planning; build timeframes and timelines into the system in order to underpin the complex planning required for Australia’s energy transition; and consider additional technical criteria such as wind, wave, sea state, bathometric and geotechnical data. See L. Ferris and L. Kenny, ‘Offshore Electricity Infrastructure Bill 2021 and Offshore Electricity Infrastructure (Regulatory Levies) Bill 2021’ (2021) 27 Bills Digest 16–17.
Ibid., s 29.
oei Act, Chapter 3, Part 1.
Ibid., s 15. The criminal penalty for contravening this section is 5 years imprisonment, and the civil penalty is 3,000 penalty units (or aud $666,000).
Ibid., s 154.
Ibid., s 177.
Unlike the opggsa, which establishes a specific work health and safety (whs) framework for offshore oil and gas activities, pursuant to Chapter 6 of the oei Act, the Work Health and Safety Act 2011 (Cth) will apply to offshore infrastructure activities and other things done under the Act, with some modifications to make them fit for purpose in the offshore environment. Generally speaking, the whs provisions will apply to facilities and vessels carrying out offshore energy infrastructure activities in the Commonwealth offshore area, but will not apply before arrival at a site for, or commencement of, such activities, or after the cessation of, or departure from the site of, such activities.
Available at https://www.legislation.gov.au/Details/C2021A00122.
oei Act, s 30.
Ibid., s 39.
Ibid., s 49. See also Explanatory Memorandum, Offshore Electricity Infrastructure Bill 2021, 3, available at https://www.aph.gov.au/Parliamentary_Business/Bills_LEGislation/Bills_Search_Results/Result?bId=r6774.
oei Act, s 58. These licences are not limited to declared areas, and will allow energy which is generated offshore to be connected to infrastructure on-shore or transmitted to other users: Explanatory Memorandum, supra note 48, at 4.
oei Act, s 31. While the process for having management plans approved by the Regulator will be prescribed by regulation, issues which must be addressed in a management plan include: the way in which the licence holder will carry out offshore infrastructure activities under the licence; environmental management, including how the licence holder will comply with the Environmental Protection (Biodiversity Conservation) Act 1999 (Cth); and how they will comply with obligations to maintain and remove property and provide financial security to the Regulator.
oei Act, s 40.
Ibid., ss 50 and 59. Pursuant to s 117 of the Act, a licence holder must provide sufficient financial security to pay any costs, expenses and liabilities arising in relation to the decommissioning of licence infrastructure, the removal of equipment and other property from the licence area, and the remediation of the licence area or any other area affected by activities carried out under the licence.
Ibid., ss 77 and 78.
Ibid., s 135. This provision is based on s 603 of the opggsa. The maximum criminal penalty for a person who engages in such conduct is 10 years imprisonment.
Ferris and Kenny, supra note 38, 20–22.
Explanatory Memorandum, supra note 48, at 5, [693] and [736]. These provisions are similar to those in the opggsa establishing petroleum safety zones and greenhouse gas safety zones. The Registrar can declare a safety zone by means of a “notifiable instrument”, which is publicly accessible, but is not subject to parliamentary scrutiny or sunsetting, and does not require an explanatory statement.
Ibid., [686].
oei Act, s 139. This is an offence of strict liability attracting 5 years imprisonment, with a maximum penalty of 15 years imprisonment depending on the fault element in the commission of the offence.
oei Act, s 141.
Explanatory Memorandum, supra note 48, at [727]. This limitation, which is not clear on the face of the legislation, seems to reflect a conservative approach to the enforcement of these safety zones, particularly noting the confirmation in the Arctic Sunrise Arbitration that, pursuant to Articles 56(1)(a) and 60 of the Convention, a coastal State has the power to enforce its laws prohibiting navigation in a validly established 500-metre safety zone around an artificial island, installation or structure, including with respect to foreign-flagged vessels: Arctic Sunrise Arbitration (Netherlands v. Russia), Award on the Merits, 14 August 2015, PCA Case No. 2014-02, [248]–[250].
oei Act, s 142.
Explanatory Memorandum, supra note 48, at [736]. In contrast to safety zones, which may be determined simply by a notifiable instrument, a protection zone must be determined by a legislative instrument, which is a lengthier process and involves Parliamentary scrutiny, the possibility of disallowance, and sunsetting.
oei Act, s 142.
Ibid., ss 144–145.
Ibid., ss 148–150. These offences give rise to imprisonment for five years or a financial penalty of 300 penalty units (or AUD $66,600), or both. Similarly to the safety zone offences, these offences do not apply if the conduct was necessary for reasons of safety, or the prevention of pollution, or if all reasonable steps were taken to avoid engaging in the conduct.
Ibid., s 151: In addition, Section 7 of the OEI Act does provide generally that the provisions of the Act have effect “subject to Australia’s obligations under international law, including obligations under any agreement between Australia and any foreign country or countries”.
Packham, supra note 24.
