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

The central concept is the declared area itself, defined in section 4 as the area specified in Schedule 1. A declared area is a parcel of Commonwealth waters identified by the Minister for the purposes of the Act. It is the spatial trigger for the entire licensing regime. The coordinates in Schedule 1 describe a polygon connecting 89 points via geodesics (the shortest path on the Earth’s ellipsoid). The datum is GDA94, as noted in the definitions and cross‑referenced in section 49 of the Offshore Electricity Infrastructure Regulations 2022. The instrument provides a simplified map in Schedule 2, but the legal boundary is the coordinate set, not the map. Two types of licence are directly affected by this declaration. A feasibility licence is a licence that permits the holder to undertake activities to assess the feasibility of developing offshore electricity infrastructure in a licence area (defined in the Act). A research and demonstration licence permits smaller‑scale research or demonstration projects. A commercial licence permits the construction, operation, and decommissioning of commercial‑scale infrastructure. The instrument imposes conditions only on feasibility and research and demonstration licences; commercial licences are not mentioned in the condition table. Another key concept is the management plan, which is a document required under the Act that sets out how the licence holder will manage environmental, safety, and other risks. The consultation conditions in this instrument specifically require the management plan to address the outcomes of consultations with AMSA, Defence, and fisheries stakeholders. The note to section 6 references sections 35, 45 and 54 of the Act, which are the provisions that empower the Minister to impose conditions on licences more generally. The instrument also introduces the concept of a representative organisation for fisheries holders, though the term is not defined in the instrument itself (it would need to be established in practice). The Australian Maritime Safety Authority is the Commonwealth authority responsible for maritime safety, including navigation, and the Department of Defence is responsible for defence interests, which may include military exercises, radar, and overflight. These concepts together define the regulatory landscape for the first Australian offshore renewable energy declared area.

The primary group affected are licence applicants and holders who seek to undertake offshore electricity projects in the declared area. Any party wishing to apply for a feasibility licence or a research and demonstration licence in this area must now comply with the mandatory consultation conditions set out in section 6 of this instrument. This adds a layer of procedural cost and timeline risk to the licence application process. The conditions apply even if the licence covers only part of the declared area. For now, commercial licence holders are not directly affected by this instrument, because the condition table only covers feasibility and research and demonstration licences. However, commercial licence applicants should be aware that future amendments could extend similar conditions, and the Act itself may impose other consultation obligations. The second affected group comprises fisheries concession and licence holders whose rights under the Commonwealth Fisheries Management Act 1991 or Victorian Fisheries Act 1995 can be exercised within the declared area. These include commercial fishers with fishing permits, statutory fishing rights, or licences that overlap with the offshore wind zone. They gain a right to be consulted during the management plan preparation for feasibility licence holders, or to have a representative organisation consulted on their behalf. However, the instrument does not grant them a veto or any right to stop a project; it only requires the licence holder to “address the outcomes of this consultation, including how impacts on these holders may be avoided, mitigated, or offset.” The consultation requirement is procedural, not substantive. Third, the Australian Maritime Safety Authority and the Department of Defence are affected as compulsory consultees for all feasibility and research and demonstration licences. These agencies must allocate resources to respond to consultation requests and provide input on navigation safety and defence interests. Fourth, the Offshore Infrastructure Regulator (established under the Act) becomes responsible for ensuring that licence holders comply with these conditions, which will involve assessing management plans for adequate evidence of consultation. Finally, the Victorian state government and its fisheries agency are indirectly affected because the instrument specifically references Victorian fisheries licences, making the consultation obligation cross‑jurisdictional. The instrument does not affect recreational fishers or Indigenous traditional fishing rights (not mentioned), but those groups may be affected by future project impacts. Commercial fishing operators whose licences are not covered by the referenced Acts (e.g., Western Australian or Tasmanian licences) appear not to be covered by this instrument’s consultation condition, even if they fish in the area, unless a future amendment extends the condition.

The instrument creates three key duties for licence holders, all of which are conditional on the type of licence granted.

Duty to consult AMSA and Defence: For any feasibility licence or research and demonstration licence granted in respect of the declared area (or a part of it), the licence holder must, when preparing a management plan for the licence, consult both the Australian Maritime Safety Authority and the Department of Defence. The duty is to consult, not merely to notify. The instrument does not prescribe the form or depth of consultation, but the licence holder must then address the outcomes of that consultation in the management plan. This implies that the licence holder must actively seek and consider input from both agencies on matters such as navigation safety, vessel traffic management, military operations, and radar interference.

Duty to consult fisheries holders: For a feasibility licence only, the licence holder must also consult holders of fishing concessions under the Fisheries Management Act 1991 or licences under the Fisheries Act 1995 (Vic) whose rights can be exercised in any part of the licence area. If those holders have nominated a representative organisation for the purposes of the consultation, the licence holder must consult that organisation instead of each individual holder. This is an important practical point: it may reduce the consultation burden if the fishing industry has pre‑established representative bodies. The duty extends to “address the outcomes of this consultation, including how impacts on these holders may be avoided, mitigated, or offset.” This is a stronger obligation than simply reporting on consultation; it requires the licence holder to demonstrate in the management plan a concrete response to identified impacts, potentially including measures to avoid conflicts (e.g., rerouting cables, timing construction to avoid spawning seasons), mitigate disruptions (e.g., compensation for lost fishing days), or offset residual impacts (e.g., creating artificial reefs elsewhere).

Rights of third parties: The instrument confers a right on AMSA, Defence, and fisheries holders (or their representative organisations) to be consulted. This right is procedural: it does not give them a power to block a licence or require particular outcomes, but it does entitle them to have their views considered and addressed. If a licence holder fails to consult, the management plan may be rejected by the Regulator, or the licence may be subject to enforcement action.

No duty for commercial licences: A notable gap is that the instrument imposes no consultation conditions on commercial licences. The note to section 6 reminds readers that licences will be subject to other conditions under sections 35, 45 and 54 of the Act, which could include consultation. But as of this declaration, a commercial licence holder in the declared area does not have to consult AMSA, Defence, or fisheries holders as a matter of this instrument. This may create an incentive for applicants to move quickly to commercial licensing to avoid the procedural costs, but doing so would be premature without a feasibility licence.

This instrument does not itself create any penalty provisions. Penalties for non‑compliance with licence conditions arise under the Offshore Electricity Infrastructure Act 2021. Section 6 of this declaration notes that licences are subject to conditions; the Act provides the enforcement framework. For example, under the Act, a licence holder who fails to comply with a condition of the licence may be liable for civil penalties or have their licence suspended or cancelled. The precise penalty amounts are not stated in this instrument, but the Act is likely to include maximum penalties for each contravention that are substantial (often in the millions of dollars for corporations). The Offshore Infrastructure Regulator is the enforcement body. It has powers to issue directions, impose remedial notices, and seek court orders. The consultation conditions in this instrument are mandatory, so a failure to consult AMSA, Defence, or fisheries holders (as required) would be a breach of a licence condition. The Regulator could take enforcement action even if the project has not yet caused any physical harm. In practice, the Regulator would likely assess the management plan before granting the licence or as part of ongoing compliance. If the plan does not demonstrate adequate consultation or does not properly address outcomes, the Regulator may reject the plan or demand revisions. This gives the Regulator significant leverage over licence holders before any penalty is imposed. There is also the possibility of judicial review if a party alleges that the consultation was inadequate or that the Regulator failed to enforce the condition. However, the instrument does not create a private right of action for fisheries holders to sue for damages; their remedy is likely to be through the Regulator’s complaint process or through judicial review of the Regulator’s decisions. The Department of Defence and AMSA are Commonwealth bodies and could raise concerns directly with the Minister or Regulator. The instrument itself contains no sunset clause or review mechanism; it remains in force until amended or revoked by a future declaration. This means that the consultation conditions apply to any licence granted in the declared area from the date of commencement onward.

This instrument sits within a web of Commonwealth and state legislation. The parent Act is the Offshore Electricity Infrastructure Act 2021, which establishes the licensing regime for offshore renewable energy projects. Section 17 of that Act gives the Minister power to declare areas for which licences may be granted. This instrument is the first exercise of that power for a specific area. The instrument expressly references three other pieces of legislation.

First, the Fisheries Management Act 1991 (Cth). That Act governs Commonwealth‑managed fisheries in the Australian Fishing Zone. Fishing concessions under that Act (such as statutory fishing rights and fishing permits) may allow holders to operate in the waters of the declared area. The consultation condition in item 2 of the table requires feasibility licence holders to engage with holders of those concessions. This interaction creates a potential conflict between offshore energy development and commercial fishing, which the consultation condition aims to manage procedurally. However, if fishing rights are irrevocable (many are not; they are subject to renewal and can be purchased or forfeited), the condition does not directly protect the value of those rights; it only requires that impacts be “addressed” in a plan, which could mean proposing offset measures but not guaranteeing continuation of fishing access.

Second, the Fisheries Act 1995 (Vic). This is a Victorian state law. Its inclusion means that the declared area is partly within a zone where Victorian fishing licences operate. The Commonwealth cannot directly regulate Victorian licence holders, but the condition forces feasibility licence holders to consult them. This cross‑jurisdictional element adds complexity because the licence holder must identify which area falls within Victorian waters (likely the area is entirely in Commonwealth waters, but the reference to Victorian licences suggests that the declared area may abut state waters or that fishing rights under Victorian law extend into Commonwealth waters by agreement). It also raises the question of whether the Commonwealth instrument can impose obligations that affect state‑licensed fishers indirectly. The condition appears carefully drafted to avoid directing state fishers, only requiring consultation.

Third, the Australian Maritime Safety Authority Act 1990 establishes AMSA. The condition to consult AMSA ensures that navigation safety and marine pollution prevention standards are considered. AMSA also administers the Navigation Act 2012 and the Protection of the Sea (Prevention of Pollution from Ships) Act 1983, which may impose additional requirements on offshore infrastructure (e.g., vessel traffic services, emergency response). The interaction is thus cumulative: the declaration does not override those laws.

The Department of Defence is not established by a single Act but its interests may arise under the Defence Act 1903 and related instruments. Consultation with Defence is common in offshore energy projects to ensure no interference with military operations, surveillance, or training areas.

Other laws that may interact but are not mentioned: the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) for environmental approvals; the Offshore Petroleum and Greenhouse Gas Storage Act 2006 for potential overlap with petroleum titles; and the Seas and Submerged Lands Act 1973 for jurisdictional boundaries. The instrument does not address these, so they remain separate approval pathways. Notably, there is no reference to the Native Title Act 1993 or traditional owner rights, though those could arise in offshore areas. The interaction between this declaration and state coastal planning laws is also unaddressed.

This instrument is the first declaration made under section 17 of the Act for a specific area, designated OEI‑01‑2024. It was made on 6 March 2024 by the Minister for Climate Change and Energy, Chris Bowen, and commenced the day after registration. As of the date of this instrument, there are no amendments. The instrument contains no provisions for automatic amendment or sunset. It can be amended or replaced by a subsequent declaration under section 17, which the Minister may make at any time. Amendments could include modifying the boundaries of the declared area, adding or removing conditions, or revoking the declaration entirely. Because the Act is relatively new (2021), and this is the first declared area, there is no history of prior declarations for comparison. Any future amendments would need to be published as new legislative instruments and registered. The instrument itself does not amend any other legislation or instrument. Its commencement table indicates that the whole instrument commences the day after registration, which is typical. There is no transitional or savings provision. The note to section 2 clarifies that the commencement table only relates to this instrument as originally made and will not be amended to deal with later amendments. This means that if the instrument is later amended, a separate commencement table would be needed for the amending instrument. The practical implication is that stakeholders cannot assume the current conditions will remain static; the Minister could add conditions (e.g., for commercial licences) or expand the consultation requirements to include other groups such as recreational fishers or Indigenous communities. The amendment history is thus short but expect future changes as the offshore wind industry develops.

As of the date of this instrument, there is no litigation history specific to this declaration. It is a recent instrument (2024), and no court or tribunal has yet considered its validity, interpretation, or application. However, potential areas of future litigation can be identified. The most likely challenges would involve the adequacy of consultation conducted under the conditions. For example, a fisheries holder could seek judicial review of a Regulator’s decision to approve a management plan on the ground that the licence holder failed to properly address the outcomes of consultation, including the requirement to consider avoidance, mitigation, or offset. The Administrative Appeals Tribunal or Federal Court could be asked to determine what “address the outcomes” means in practice. Another potential challenge concerns the boundaries of the declared area. The coordinates refer to GDA94, and any discrepancy between the coordinate list and the simplified map could give rise to ambiguity. If a project is constructed near the boundary, a dispute over whether an activity occurred inside or outside the declared area could arise. The Act likely provides that the declaration is conclusive evidence of the area, but a court might need to interpret the coordinates. A third area is the interaction with state fishing licences. A state‑licensed fisher could argue that the Commonwealth instrument cannot impose obligations that affect their operations, but the instrument only requires consultation, not compliance with state law. Still, if the management plan proposes to restrict fishing in certain areas, that could raise constitutional issues under section 51 of the Constitution (external affairs, trade and commerce). There is also the possibility of native title claims. The offshore area where this declared area sits may be subject to native title claims under the Native Title Act 1993. If a claim is successful, the declaration could indirectly affect native title rights, and the consultation conditions do not currently require engagement with native title holders. That omission could lead to litigation. However, as of now, no such cases exist.

Several aspects of this instrument warrant close attention from practitioners and affected parties.

The datum is GDA94, not GDA2020. The note to section 4 (from the Regulations) states that position is to be determined by reference to the Geocentric Datum of Australia as defined in Gazette No. 35 of 6 September 1995 (GDA94). Australia has since adopted GDA2020, which shifts coordinates by about 1.8 metres. If parties rely on GPS receivers set to GDA2020, their coordinates may be slightly offset from the legal boundary. This could cause uncertainty near the perimeter. Licence holders should ensure all survey and mapping work is transformed to GDA94.

No conditions for commercial licences. The consultation conditions in section 6 apply only to feasibility licences and research and demonstration licences. Commercial licence holders face no equivalent condition under this instrument. This creates a gap: a developer could proceed from feasibility to commercial licence without ever having to consult AMSA, Defence, or fisheries holders on the final project design. The Regulator may impose conditions under the Act, but the instrument itself does not mandate them. Developers should not assume that no consultation is required; they should check the Act and any future declarations.

“Address the outcomes” is vague. The condition requires that the management plan “address the outcomes of this consultation, including how impacts on these holders may be avoided, mitigated, or offset.” This does not require the licence holder to accept all recommendations or to avoid all impacts. It is a procedural requirement, not a substantive one. However, if a plan is challenged, a court may inquire into whether the response was genuine and reasonable. The vagueness introduces legal risk.

The representative organisation concept is undefined. The instrument allows fisheries holders to nominate a representative organisation for consultation, but it does not specify how that nomination must be made, whether it must be in writing, or what qualifies as a representative organisation. This could lead to disputes if multiple organisations claim representation or if no organisation is nominated. Licence holders will need to ascertain the correct entity or consult individually.

Only two fisheries Acts are referenced. The condition covers only Commonwealth and Victorian fisheries concessions. Fishing licences from other states (e.g., South Australia, Tasmania) or commercial fishing by foreign vessels under bilateral treaties are not included, even if they might actually occur in the area. The declared area is off Victoria’s coast, but other state‑licensed fishers could operate there under Commonwealth rules. They would have no right to be consulted under this instrument.

No sunset or review clause. The instrument is indefinite. If circumstances change (e.g., defence needs), the area can be declared unsuitable only through amendment or revocation. This creates long‑term uncertainty for fishing and other industries that may want the area removed.

The simplified map is not legally determinative. Schedule 2 shows a map, but the legal definition is the coordinate list. The map may be approximate. Regulators and courts will rely on the coordinates. Anyone relying on the map alone risks being outside the correct area.

Potential overlap with petroleum and gas titles. The instrument does not mention other offshore titles. If petroleum exploration permits or production licences exist within the declared area, conflicts are likely. The Act may have mechanisms to manage such overlaps, but this instrument is silent.

For a licence holder (particularly a feasibility licence applicant), compliance with this instrument requires a structured approach.

Step 1: Identify the relevant consultees. For both feasibility and research and demonstration licences, the licence holder must consult AMSA and the Department of Defence. For feasibility licences only, also identify holders of fishing concessions under the Fisheries Management Act 1991 and licences under the Fisheries Act 1995 (Vic) that confer rights exercisable within any part of the proposed licence area. This requires obtaining a list of current concession and licence holders from the Australian Fisheries Management Authority (AFMA) and the Victorian Fisheries Authority. The licence holder should also determine whether any such holder has nominated a representative organisation for consultation. If so, consult that organisation instead of the individual holder.

Step 2: Conduct the consultation. Consultation should be meaningful and documented. Written invitations, meetings, and opportunities to provide written submissions are advisable. The licence holder should seek specific input on navigation safety, defence interests, and fishing operations. For fisheries holders, the consultation should explore how the project could avoid, mitigate, or offset impacts (e.g., through cable routing, timing of construction, safety zones, compensation agreements). The licence holder should keep records of all communications, including who was consulted, what was discussed, and any written responses.

Step 3: Prepare the management plan addressing outcomes. The management plan must include a section that explicitly addresses the outcomes of the consultation. This means the plan should summarise the input received, explain how the licence holder has considered it, and describe any measures taken (or proposed) to avoid, mitigate, or offset impacts on fisheries holders. The plan must also address AMSA and Defence concerns. If the licence holder decides not to adopt a recommendation, the plan should explain why, with reasoning. The plan should demonstrate a good‑faith effort, not a tokenistic response.

Step 4: Submit the management plan to the Regulator. The Regulator will assess whether the plan complies with the condition. The licence holder should be prepared to provide evidence of consultation (e.g., correspondence, attendance records) if requested.

Step 5: Maintain compliance throughout licence term. The condition is ongoing if the management plan is amended. Any material amendment should trigger renewed consultation with the same parties. The licence holder should also monitor changes in fishery concessions and Defence activities.

For fisheries concession holders, compliance is passive: they should ensure they are identifiable to licence holders. A concession holder may wish to nominate a representative organisation to streamline consultation. They should monitor public notices about licence applications and engage proactively.

For AMSA and Defence, compliance involves responding to consultation requests in a timely manner and providing clear guidance.

Affected parties should note that non‑compliance by the licence holder can be reported to the Offshore Infrastructure Regulator. The Regulator may impose penalty notices, suspend the licence, or require a revised management plan. Proactive compliance with the condition reduces legal risk and improves project timelines.