Offshore Electricity Infrastructure (Declared Area OEI-04-2024) Declaration 2024

This instrument declares a specified offshore area, called Declared Area OEI-04-2024, for the purposes of the Offshore Electricity Infrastructure Act 2021 (the Act) and imposes licence-related conditions for certain licence types granted in that area. The instrument is made by the Minister for Climate Change and Energy (signed Chris Bowen) under the authority of s 17 of the Act (see s 3 of the instrument). It is titled the Offshore Electricity Infrastructure (Declared Area OEI‑04‑2024) Declaration 2024 (s 1) and, by its commencement table, takes effect at 10:00 am AEST on the day after the instrument is registered (s 2(1)). The instrument was dated 11 December 2024.

Mechanically, the instrument does three things:

• It declares the geographic area known as Declared Area OEI‑04‑2024 for the purposes of the Act (s 5(1)).
• It defines the declared area by reference to two parts of boundary coordinate lists in Schedule 1 (Part 1) and Schedule 2 (Part 2) and by reference to a simplified map in Schedule 3 (s 5(2); Schedules 1-3). The boundaries are described as lines running along geodesics sequentially connecting listed points and back to the point of commencement in each part.
• It prescribes licence conditions that will apply to particular licence types when those licences are granted in respect of the declared area (s 6 and the conditions table).

The prescribed conditions apply only to licences that satisfy the matters in column 1 of the conditions table in s 6. Those matters are: the licence is a feasibility licence or a research and demonstration licence, and it is granted in respect of the declared area or any part of the declared area (s 6, Conditions table, Item 1 Column 1). Where those matters are satisfied, the management plan approval process must follow the instrument’s requirements. Concretely, before making an initial application for the Regulator to approve a plan as the management plan for the licence, the licence holder must consult the Department of Defence in relation to any proposed underwater noise monitoring and the accurate charting of all surface and sub‑surface infrastructure for navigational purposes (s 6, Column 2, condition 1). The initial management plan must also include details of: (a) measures (if any) the licence holder is to implement to address any of the Department of Defence’s claims of adverse effects of the licence activities; and (b) measures (if any) to ensure those measures are effective and likely to remain effective (s 6, Column 2, condition 2(i)-(ii)).

The instrument cross-references the Act’s definitions at s 8 and the Offshore Electricity Infrastructure Regulations 2022 for geodetic datum (note to s 4 referencing s 49 of the Regulations). It also notes that licences will be subject to other conditions under ss 35, 45 and 54 of the Act (note to s 6).

Declared area: The instrument creates Declared Area OEI‑04‑2024 by positive declaration (s 5(1)) and defines it through two coordinate-based polygons (Schedules 1 and 2). Each part is described as "the line commencing at point OEI‑04‑2024‑P1‑1 (or P2‑1) … and running along the geodesics sequentially connecting the points … and then along the geodesic to the point of commencement" (Schedules 1 and 2). The geometry therefore is closed polygons formed by geodesic segments between listed latitude/longitude points.

Geodesic and datum specification: The instrument requires the position on the Earth's surface to be determined by reference to the Geocentric Datum of Australia as defined in Gazette No. 35 of 6 September 1995 (GDA94 geocentric data set). This is stated in the instrument’s definitions note to s 4 and cross-referenced to s 49 of the Offshore Electricity Infrastructure Regulations 2022; the instrument itself anchors its coordinates to that datum (s 4 Note 2; reference to Regulations s 49).

Licence types and scope: The conditions in s 6 apply specifically to feasibility licences and research and demonstration licences when granted in respect of the declared area (s 6, Column 1). The instrument does not purport to alter the substantive licensing regime contained in the Act; rather it adds conditions applicable to those licence types in the declared area. It also explicitly notes that licences will be subject to other conditions under ss 35, 45 and 54 of the Act (note to s 6).

Consultation and plan content obligations: The instrument makes two distinct obligations part of the licence condition framework. First, before making the initial application for Regulator approval of a management plan, the licence holder must consult the Department of Defence about proposed underwater noise monitoring and accurate charting of surface and sub-surface infrastructure for navigational purposes (s 6, Column 2 condition 1). Second, the management plan submitted to the Regulator must include details of measures (if any) to address any Department of Defence claims of adverse effects from the licence activities, and measures (if any) to ensure those measures are effective and likely to remain effective (s 6, Column 2 condition 2(i)-(ii)).

Administrative actors: The instrument identifies three decision-makers or stakeholders in the mechanics it creates: the Minister (who made the instrument under s 17 of the Act; s 3), the Regulator (who must approve management plans under the Act and in respect of which this instrument prescribes a pre-application consultation requirement), and the Department of Defence (which must be consulted on specified matters and whose "claims of adverse effects" are to be addressed in the management plan where relevant) (s 3; s 6).

Licence holders (feasibility licences and research and demonstration licences): The primary parties affected are licence holders who are granted a feasibility licence or a research and demonstration licence in respect of Declared Area OEI‑04‑2024. Such licence holders must undertake pre‑application consultation with the Department of Defence on prescribed topics before making an initial application for the Regulator to approve a management plan, and must include specified plan content addressing any Department of Defence claims of adverse effects (s 6, Conditions table, Item 1).

Prospective applicants: Entities considering applying for feasibility or research and demonstration licences over parts of the declared area will need to factor the consultation and plan-content requirements into project timelines and budgets. The requirement to consult before making the initial application for Regulator approval of a management plan effectively creates a pre-application step involving the Department of Defence that must be completed and documented.

Department of Defence: The Department of Defence becomes a required consultee for initial management plan applications for the specified licence types in the declared area (s 6, Column 2 condition 1). The Department is positioned to raise "claims of adverse effects of the licence activities", and the management plan must contain measures (if any) to address such claims and measures to ensure their effectiveness (s 6, Column 2 condition 2). The instrument thus institutionalises the Department of Defence’s role in management-plan design for these licence types in this declared area.

The Regulator: The Regulator, as the statutory approver of management plans under the Act, is affected in practice because the instrument mandates that licence holders consult the Department of Defence before lodging the initial plan-approval application. The Regulator’s assessment will therefore receive plans that (by condition) include details of consultation and measures to address any Defence claims. The instrument does not change the Regulator’s statutory role but alters the pre-approval process that the Regulator receives (s 6).

Other licence types and activities: The conditions are limited to the two licence types named. The instrument does not purport to attach the same conditions to other licence types or to operational licences, though it notes licences are subject to other Act conditions under ss 35, 45 and 54 (s 6 note). Parties holding other licences or engaging in other activities in or near the declared area should note the declaration itself; the instrument does not specify additional obligations for them.

Duties imposed on licence holders (expressed in the instrument): If a licence is a feasibility licence or a research and demonstration licence granted in respect of the declared area (the triggering matters in s 6 Column 1), the licence must be subject to specified conditions set out in s 6 Column 2. The concrete duties are:

• Pre‑application consultation: The licence holder must, before making an initial application for the Regulator to approve a plan as the management plan for the licence, consult the Department of Defence in relation to (i) any proposed underwater noise monitoring; and (ii) the accurate charting of all surface and sub-surface infrastructure for navigational purposes (s 6, Column 2 condition 1.1-1.2). This is a pre-condition to the initial application for plan approval rather than a post-approval obligation.

• Management-plan content: The management plan must include details of (i) the measures, if any, that the licence holder is to implement to address any of the Department of Defence’s claims of adverse effects of the licence activities; and (ii) the measures, if any, that the licence holder is to implement to ensure that the measures mentioned in subparagraph (i) are effective, and are likely to remain effective (s 6, Column 2 condition 2(i)-(ii)).

Scope of duty: Both duties are expressed as applying to licences that meet the triggering criteria. The instrument uses mandatory language: "A licence … must be subject to the corresponding condition" (s 6 main provision), indicating that these duties are conditions of the licence rather than voluntary guidance.

Rights and roles of the Department of Defence: The instrument gives the Department of Defence a formal consultative role for the specified pre-application matters. The instrument does not specify whether Defence’s input is binding; instead it requires consultation and requires the licence holder to include in the management plan measures (if any) to address any Defence "claims of adverse effects" (s 6, Column 2). The Department therefore has the practical right to bring forward claims of adverse effects that the plan must address, but the instrument does not convert those claims into enforceable vetoes in the instrument text itself.

Regulator’s role and implied requirements: The Regulator retains the statutory role to approve management plans under the Act; this instrument imposes a process step ahead of the Regulator’s initial plan approval by requiring prior consultation with Defence and that the initial plan include specified detail (s 6). The instrument does not alter the Regulator’s statutory powers, but it changes the content and pre-approval evidence flow the Regulator should expect.

The instrument itself does not create or specify any new penalties, fines, or enforcement mechanisms. It prescribes conditions that must be attached to certain licences granted in respect of the declared area (s 6), but it does not in the text set out consequences for failure to comply with those conditions. The instrument does, however, reference that licences will be subject to other conditions under ss 35, 45 and 54 of the Act (s 6 note), which implies that enforcement and penalty regimes set out in the Act for breach of licence conditions remain applicable. Because the instrument is limited to what it states, the following is what can be drawn directly from its text:

• The instrument creates mandatory licence conditions (s 6). Under the Act, licence conditions can typically be enforced through the Act’s compliance provisions, but this instrument does not reproduce those enforcement provisions. The instrument itself is silent on civil or criminal sanctions, infringement notices, cancellation or suspension procedures, or pecuniary penalties.

• The practical enforcement pathway in operation will be the Regulator’s approval process for management plans. The instrument conditions the initial management-plan application process by requiring pre‑application consultation and specified plan content (s 6). In practice, the Regulator could refuse to approve a management plan that does not meet statutory or licence‑condition requirements, thereby affecting the licence holder’s ability to proceed. The instrument does not state this in enforcement terms; it instead modifies the content and procedural requirements that the Regulator will receive.

• The Department of Defence has a consultative role, and the management plan must respond to Defence "claims of adverse effects" (s 6, Column 2 condition 2). The instrument does not make Defence the enforcer; rather Defence’s role is to identify claimed adverse effects that the licence holder must address in its plan. How the Regulator ultimately treats Defence concerns is a matter left to the Act and the Regulator’s statutory discretion.

• Any statutory remedies, administrative mechanisms, or criminal/civil penalties that apply when licence conditions under the Act are breached are contained in the Act itself. The instrument’s note that other conditions under ss 35, 45 and 54 apply (s 6 note) signals that enforcement should be considered in the context of the Act, not in the instrument text.

In short, the instrument imposes mandatory conditions but does not itself define penalty regimes. Enforcement will be exercised through the Act’s and the Regulator’s existing powers; those powers are implicit in the instrument by reference to the Act but are not restated in it.

Direct statutory authority: The instrument is made under s 17 of the Offshore Electricity Infrastructure Act 2021 (s 3). It therefore operates within the statutory framework and powers set out in the Act. The instrument does not purport to amend the Act; it exercises a power conferred by the Act to declare areas and impose conditions as appropriate.

Definitions and cross-references to the Act: The instrument relies on definitions found in s 8 of the Act (s 4 Note 1 lists several expressions). Consequently, interpretation of the instrument’s terms must be undertaken using the Act’s definitions where those terms are defined in s 8 , for example, "feasibility licence", "research and demonstration licence", "management plan", "licence area", and "offshore renewable energy infrastructure" (s 4 Note 1). The instrument does not redefine those terms.

Regulations: The instrument specifies that positions on the Earth’s surface are to be determined by reference to the Geocentric Datum of Australia (GDA94) and points to s 49 of the Offshore Electricity Infrastructure Regulations 2022 for that purpose (s 4 Note 2). Therefore mapping and geospatial determinations must be consistent with the Regulations. The instrument’s geographic definitions (Schedules 1 and 2) are therefore intended to be read together with the Regulations’ datum provisions.

Licence condition framework in the Act: The instrument explicitly notes that licences will also be subject to other conditions under ss 35, 45 and 54 of the Act (s 6 note). That positions the instrument’s conditions as additions to, rather than replacements for, statutory licence conditions in the Act. The effect is that compliance and enforcement should be considered holistically under the Act rather than by reference to the instrument alone.

Interplay with maritime and navigation law: The instrument requires consultation with the Department of Defence on "accurate chartering of all surface and sub-surface infrastructure for navigational purposes" (s 6, Column 2 condition 1.2). The instrument does not displace or alter existing maritime safety, navigation or charting legal regimes administered by agencies such as the Australian Hydrographic Office or rules under the Navigation Act or international agreements. What the instrument does is require licence holders to consult Defence about charting, which will have practical overlap with existing charting and navigation obligations outside the Act, but the instrument does not legislate changes to those other legal regimes.

Environmental and other Commonwealth laws: The instrument addresses consultation on underwater noise monitoring and responding to Defence claims of adverse effects (s 6). It does not, however, identify or vary obligations under environmental legislation or other Commonwealth statutory regimes. Licence holders must therefore continue to comply with all applicable environmental laws, approvals and duties that exist outside this instrument; the instrument should be read as adding a Defence consultation and plan-content overlay within the Act’s licensing process.

The instrument includes limited statements about amendment history and provenance:

• The instrument contains a commencement table and a note stating: "This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument" (s 2 note). That is a standard formatting note indicating the historical commencement table will not be retrofitted when later versions or consolidated versions of the instrument are published.

• The instrument itself is dated 11 December 2024 and signed by the Minister for Climate Change and Energy; it commences at 10:00 am AEST the day after registration (s 1; s 2). The instrument therefore originates on that date and time.

• There are no subsequent amendments or revocations set out within the text provided. The document does not record any earlier instruments amending this instrument, nor does it provide a history of prior declarations for OEI‑04‑2024. The instrument’s own note makes clear that any later amendments would not cause the commencement table to be revised retroactively in published versions.

• The instrument’s Schedules establish the declared area by coordinate lists and a simplified map as of the instrument’s making. Any future amendment to the geographic definition, the conditions, or the declared area would need to be made under the Act’s powers (s 17) and reflected in a later instrument; such amendments are not present in the supplied text.

• Because the instrument cross-references the Offshore Electricity Infrastructure Regulations 2022 for datum determination (s 4 Note 2; reference to Regulations s 49), any changes to the Regulations that affect datum methodology or geodetic rules could affect the technical interpretation of the declared area over time. The instrument does not itself modify or lock in regulatory rules beyond the reference to GDA94.

• The instrument’s note about unamended commencement tables should be read to mean that the formal commencement entry shown in the instrument is authoritative for the instrument as originally made, and that readers should consult the consolidated or reprinted versions of instruments elsewhere for a chronology of amendments if any later instruments are made.

In sum, the instrument’s internal amendment history is limited to stating its origination date and a standard note about the commencement table; no subsequent amendments or revocations are recorded within the supplied text.

The instrument does not record, reference, or provide any litigation history. It contains no mention of judicial decisions, challenges, statutory reviews, or legal proceedings relating to Declared Area OEI‑04‑2024 or to the instrument itself. The Schedules and the body of the instrument are entirely declaratory and prescriptive; they do not summarise, cite, or reference any cases.

From the text provided:

• There are no named cases, dispute histories, or prior litigation records referenced.
• The instrument does not indicate that any party has sought review or judicial consideration of the declaration or the conditions.
• The instrument does reference the Act and Regulations as legal sources (s 3; s 4 Note 2 referencing Regulations s 49), but it does not include any litigation context for those instruments.

Therefore, based solely on the supplied instrument, there is no litigation history to report. Any actual litigation that may arise from applications, refused plans, licence conditions, or disputes over the declared boundary would be external to this instrument and would need to be identified from court or tribunal records rather than from the instrument’s text.

1. The consultation requirement is timing-specific and linked to the "initial application" for management-plan approval. The instrument requires consultation with the Department of Defence "before making an initial application for the Regulator to approve a plan as the management plan for the licence" (s 6, Column 2 condition 1). That language focuses on the very first application; it does not expressly require renewal-time or later consultation for amendments to a plan or subsequent plan applications. Practitioners should not assume the obligation applies at other stages; the instrument’s text is limited to the initial application stage.

2. The wording "consult the Department of Defence in relation to any proposed underwater noise monitoring; and the accurate chartering of all surface and sub‑surface infrastructure for navigational purposes" (s 6, Column 2 condition 1) does not specify the content, formality or record format of consultation. The instrument does not state whether written confirmation, minutes, or a Defence sign-off is required. Because the management plan must include measures to address any Defence "claims of adverse effects" (s 6, Column 2 condition 2), what qualifies as a Defence "claim" may be consequential but is not defined in the instrument. Licence holders therefore face uncertainty about what level of Defence engagement satisfies the pre‑application consultation duty and what evidence the Regulator will require to show the requirement was fulfilled.

3. The requirement to include "the measures (if any) that the licence holder is to implement to address any of the Department of Defence’s claims of adverse effects" (s 6, Column 2 condition 2(i)) uses the qualifying phrase "if any". That language leaves room for a management plan that identifies no Defence claims, but the instrument does not specify standards for when Defence claims are to be treated as valid, nor does it state how to resolve disputes over the substance of Defence claims. The instrument therefore places the burden on the licence holder to document how it has addressed claims, but it does not define objective thresholds.

4. Datum and geodesic precision matter. The declaration’s boundaries are described by specific latitude/longitude coordinates and by geodesic connections between those points (Schedules 1 and 2). The instrument’s note references GDA94 (s 4 Note 2; Regulations s 49). If parties use a different datum or misapply geodesic calculations, they can misidentify whether infrastructure falls within the declared area. The simplified map in Schedule 3 does not override the precise coordinate lists, and the instrument emphasises use of GDA94 for positional determination (s 4 Note 2; Schedules 1-3).

Stepwise actions licence holders and applicants should document and implement, grounded in the instrument’s text:

1. Confirm licence type and area coverage: Before treating the instrument as applicable, confirm that the licence is either a feasibility licence or a research and demonstration licence and that it is to be granted in respect of Declared Area OEI‑04‑2024 or a part of that declared area (s 6 Column 1). Use the coordinate lists in Schedule 1 (Part 1) and Schedule 2 (Part 2), and the simplified map in Schedule 3, to determine geographic applicability. Ensure geospatial determinations use the GDA94 geocentric data set (s 4 Note 2).

2. Plan the timing of consultation: The instrument requires the licence holder to consult the Department of Defence "before making an initial application for the Regulator to approve a plan as the management plan for the licence" (s 6 Column 2 condition 1). Therefore set the consultation as a prerequisite task in the project timeline and do not lodge the initial management-plan application before consultation has occurred and been documented.

3. Scope of consultation: The consultation must cover at least two topics: (a) any proposed underwater noise monitoring; and (b) the accurate charting of all surface and sub‑surface infrastructure for navigational purposes (s 6 Column 2 condition 1.1-1.2). Prepare technical material explaining proposed underwater noise monitoring methods, thresholds, equipment, schedules, and data management. Prepare geospatial deliverables and drafts of charting plans for surface and sub-surface infrastructure showing coordinates, surveying methodology, and how charts will be updated for navigational users.

4. Document the consultation: Although the instrument does not prescribe formats for consultation records, the licence-holder obligation is procedural and will be judged in the Regulator’s approval process. Keep dated records of outreach, meeting minutes, written correspondence, technical submissions provided to Defence, and Defence responses. Include a clear statement of whether Defence made "claims of adverse effects" and the substance of any claims.

5. Draft management plan content to meet condition 2 requirements: The plan submitted for initial approval must include details of: (i) the measures, if any, that the licence holder is to implement to address any of the Department of Defence’s claims of adverse effects of the licence activities; and (ii) the measures, if any, to ensure those measures are effective and likely to remain effective (s 6 Column 2 condition 2(i)-(ii)). Even where Defence raises no claims, the plan should include a statement to that effect and a description of the consultation undertaken.