Act means the Offshore Electricity Infrastructure Act 2021.
activities subject to consultation: see section 63.
commercially confidential information: see section 157.
decision maker: see subsection 43(2).
design notification: see sections 96 and 97.
eligible safety zone infrastructure has the meaning given by subsection 136(1) of the Act.
financial offer group: see subsection 14(2).
general licence application information: see section 151.
initial plan approval application: see section 47.
licence activity, in relation to a licence or a proposed commercial licence, means an offshore infrastructure activity or other activity carried out, or to be carried out, in the licence area under the licence or the proposed commercial licence.
licence application means an application for, or that relates to, a licence.
offshore electricity infrastructure levy has the same meaning as in the Offshore Electricity Infrastructure (Regulatory Levies) Act 2021.
overlap: applications for feasibility licences overlap each other if the licence areas proposed in the applications cover wholly or partly the same area.
overlapping application group: see subsection 11(2).
periodic revision day, for a relevant licence, has the meaning given by subsection 56(2), subject to sections 58 and 59.
plan revision approval application: see section 50.
Division Division 4 - Offshore Electricity Infrastructure Regulations 2022 - Offering and granting of licences | Zoe
proposed commercial licence means a commercial licence:
(a) that:
(i) the holder of a feasibility licence has applied for, where the application has not been granted or refused; or
(ii) the holder of a feasibility licence proposes to apply for; and
(b) that is proposed to have a licence area that consists of, or is entirely within, the licence area of the feasibility licence.
proposed project, in relation to a licence or an application for a licence, means:
(a) in the case of a feasibility licence or an application for a feasibility licence—the proposed commercial offshore infrastructure project for the licence; or
(b) in any other case—the offshore infrastructure project proposed to be carried out under the licence.
protection zone application: see section 130.
protection zone determination: see section 126.
relevant licence means a licence or a proposed commercial licence, and:
(a) in relation to a management plan—means the licence (including a proposed commercial licence) that the management plan is approved for; and
(b) in relation to an initial plan approval application for the Regulator to approve a plan as the management plan for a licence (including a proposed commercial licence)—means that licence; and
(c) in relation to a plan revision approval application for the Regulator to approve a revised management plan as the management plan for a licence (including a proposed commercial licence)—means that licence.
relevant structures, equipment and property, in relation to a relevant licence: see subsection 87(1).
Note: The relevant structures, equipment and property in relation to a relevant licence must be listed in the management plan for the licence under section 87. However, a structure, equipment or other property mentioned in subsection 87(1) is a relevant structure, equipment or property whether or not it is listed in the plan.
safety zone application: see section 117.
safety zone determination: see section 113.
Part 2—Licensing scheme: licences
Division 1—Operation of this Part
5 Operation of this Part
For the purposes of section 29 of the Act, this Part prescribes the licensing scheme in relation to:
(a) applications for licences; and
(b) the offering and granting of licences; and
(c) transfers of licences; and
(d) changes in control of licence holders; and
(e) other matters.
Division 2—Licence areas
6 Operation of this Division
For the purposes of paragraph 29(1)(f) of the Act, this Division prescribes licence areas.
7 Licence areas
Feasibility licences
(1) The maximum area for a feasibility licence is 700 km2.
Note: See paragraph 33(4)(c) of the Act.
Commercial licences
(2) The maximum area for a commercial licence is 700 km2.
Note: See paragraph 42(4)(c) of the Act.
Division 3—Applications for licences
Subdivision A—Operation of this Division
8 Operation of this Division
For the purposes of paragraph 29(1)(a) of the Act, this Division prescribes matters relating to applications for licences.
Subdivision B—Applications for feasibility licences
9 Invitations to apply for feasibility licences
(1) The Minister may invite eligible persons to apply for feasibility licences.
(2) The invitation must be:
(a) in writing; and
(b) registered on the Federal Register of Legislation as a notifiable instrument.
(3) The invitation must:
(a) identify the declared area for which licences may be granted; and
(b) specify the time before which applications must be made; and
(c) specify any conditions that the declaration requires licences granted in the declared area to be subject to.
Note: Licences will also be subject to other conditions: see section 35 of the Act.
(4) The invitation may specify additional information or documents that must accompany applications.
10 Applications for feasibility licences
(1) If the Minister has invited applications for feasibility licences under section 9, an eligible person may apply for a feasibility licence.
(2) The application must:
(a) be made in the manner and form that is:
(i) approved by the Registrar; and
(ii) published on the Registrar’s website; and
(b) be made before the time specified in the invitation under paragraph 9(3)(b); and
(ba) describe the area proposed to be covered by the feasibility licence:
(i) by providing, in a manner consistent with Geocentric Datum of Australia 1994 as defined in Gazette No. 35 of 6 September 1995 (GDA94 geocentric data set), a detailed map of the area, specifying the geographical coordinates of the area and including shapefiles; or
(ii) by describing the area as otherwise provided by the approved form; and
(c) include a description of the proposed commercial offshore infrastructure project to be assessed under the feasibility licence; and
(d) be accompanied by any other information or documents required by the approved form; and
(e) be accompanied by any other information or documents specified in the invitation under subsection 9(4).
Note: For application fees, see section 146. An application is taken to have been made only if the fee for dealing with the application has been paid (see section 147).
(3) An application under this section is taken to include or be accompanied by a thing mentioned in paragraph (2)(c), (d) or (e) if the thing is given to the Registrar before the end of the 30‑day period that begins on the day after the day on which the time specified in the invitation under paragraph 9(3)(b) falls.
Applications for licences that cover existing licence areas
(4) If an application for a feasibility licence covers an area that is, or is part of, the licence area of an existing licence, the Registrar may:
(a) notify the holder of the existing licence that the application has been made; and
(b) inform the holder of the existing licence of:
(i) the name of the applicant; and
(ii) the proposed licence area of the feasibility licence (including a description of the location, shape and size of the area); and
(iii) the kind of project that the applicant proposes to carry out in the proposed licence area; and
(c) invite the holder of the existing licence to make a submission in relation to the potential grant of the feasibility licence.
Note: The licence area of a feasibility licence must not include any part of the licence area of any other feasibility licence or a commercial licence (see paragraph 33(4)(b) of the Act).
11 Applications for feasibility licences that overlap—Minister may determine overlapping application groups
(1) This section applies if:
(a) the Minister has invited applications for feasibility licences under section 9; and
(b) 2 or more such applications have been made in response to the invitation.
(2) The Minister may determine that a group of 2 or more of the applications forms an overlapping application group if:
(a) the Minister considers all of the applications in the group to be of equal merit; and
(b) each application in the group overlaps at least one other application in the group; and
(c) the licence areas proposed by all of the applications in the group (including parts of those areas that overlap, and parts that do not overlap) together form a continuous area; and
(d) the Minister is satisfied that, if not for the overlap or overlaps, a feasibility licence could be offered in response to each of the applications in the group.
Note 1: For example, if applications A and B overlap each other, and applications B and C overlap each other, applications A, B and C may be in an overlapping application group even if applications A and C do not overlap.
Note 2: For when applications overlap, see section 4.
(3) In considering the merit of an application for the purposes of paragraph (2)(a):
(a) the Minister must have regard to:
(i) the technical and financial capability that the applicant is likely to have, or to be able to arrange to have, to carry out the proposed commercial offshore infrastructure project; and
(ii) the likely viability of the proposed commercial offshore infrastructure project; and
(iii) the suitability of the applicant to hold the licence; and
(iv) the national interest; and
(b) the Minister may have regard to any of the matters set out in section 26; and
(c) the Minister may have regard to any other matters the Minister considers relevant.
(4) To avoid doubt, the Minister may make more than one determination under subsection (2) in relation to a particular invitation for applications for feasibility licences.
11A Overlapping applications of unequal merit
(1) This section applies if:
(a) applications for feasibility licences are made in response to an invitation made by the Minister under section 9; and
(b) at least one application overlaps at least one other application made in response to that invitation.
(2) If an application (the particular application) for a feasibility licence overlaps at least one other application, the Minister must not offer or grant the feasibility licence if:
(a) the Minister exercises the Minister’s discretion under subsection 11(2) to determine an overlapping application group in response to the invitation, being an overlapping application group that does not include the particular application; and
(b) the only reason the particular application is not included in the overlapping application group is because the Minister considers it to be of lower merit than the other applications in the overlapping application group.
(3) If, after considering whether to determine that a group of applications (the initial group) that satisfies paragraphs 11(2)(b), (c) and (d) forms an overlapping application group, the Minister does not make the determination only because one application in the initial group is of higher merit than all of the others, the Minister must not offer or grant a feasibility licence in respect of any of the other applications in the initial group.
(4) Nothing in this section prevents the Minister offering or granting a feasibility licence if the application for the feasibility licence is not included in an overlapping application group for a reason other than the reason mentioned in paragraph (2)(b) or subsection (3) of this section.
Note: Example 1: Applications A, B, C, D and E relate to a declared area. Application A overlaps application B and application B overlaps application C. The applications satisfy paragraphs 11(2)(b) to (d), but application C is of lower merit than applications A and B. The Minister determines an overlapping application group that includes applications A and B, but not application C. The Minister must not offer or grant a feasibility licence in respect of application C.
Note: Applications D and E overlap, but neither overlaps application A, B or C. Application E is of lower merit than application D. The Minister cannot determine an overlapping application group that includes applications D and E.
Note: Further, application D cannot be included in the overlapping application group that includes applications A and B, because there is no overlap between applications A, B and D (so paragraphs 11(2)(b) and (c) are not satisfied).
Note: This section does not prevent the Minister offering or granting a feasibility licence in respect of application D, because paragraph (2)(b) of this section is not satisfied in respect of application D.
Note: Example 2: Applications F, G, H and I relate to a declared area. Application F overlaps application G. Application G also overlaps application H. Application H also overlaps application I. Application H is of lower merit than applications F, G and I. The Minister determines an overlapping application group that includes applications F and G, but not application H, because it is of lower merit. The Minister must not offer or grant a feasibility licence in respect of application H. Application I does not overlap application F or G, so it cannot be included in the overlapping application group, because paragraphs 11(2)(b) and (c) are not satisfied. This section does not prevent the Minister offering or granting a feasibility licence in respect of application I, because paragraph (2)(b) of this section is not satisfied in respect of application I.
12 Registrar may invite applicants in overlapping application group to revise and resubmit applications
(1) This section applies if the Minister determines that a group of 2 or more applications for feasibility licences forms an overlapping application group.
(2) The Registrar must notify the applicants that the determination has been made, and invite the applicants to revise and resubmit their applications to remove the overlap.
(3) The notice and invitation given to an applicant:
(a) must be in writing; and
(b) must set out, for each other applicant whose application overlaps the applicant’s application:
(i) the area or areas of overlap; and
(ii) the name of the other applicant; and
(iii) the kind of project that the other applicant proposes to carry out; and
(c) may include such other information as the Registrar considers reasonable about the applications mentioned in paragraph (b); and
(d) may include such information as the Registrar considers reasonable about other applications that cover areas adjacent to, or nearby, the area covered by the applicant’s application; and
(e) must specify the day on or before which an application, as revised, must be resubmitted; and
(f) must inform the applicant that any revised application must be in accordance with section 13.
(4) Subsections 10(2) to (4) apply to an application that is revised and resubmitted in accordance with this section, except that paragraph 10(2)(b) and subsection 10(3) apply as if a reference to the time specified in the invitation under paragraph 9(3)(b) were a reference to the end of the day specified by the Registrar under paragraph (3)(e) of this section.
(5) An applicant who revises an application in response to the invitation is not required to pay any additional fee for revising or resubmitting the application.
(6) If an applicant revises and resubmits an application in response to the invitation on or before the day specified under paragraph (3)(e), and the revised application is in accordance with section 13, then, after that day:
(a) the revised application replaces the original application; and
(b) the original application is to be disregarded.
Note: If the revised application is not in accordance with section 13, the original application remains in effect.
13 Requirements for revised applications
(1) For the purposes of subsection 12(6), a revised application for a feasibility licence is in accordance with this section if the Registrar is satisfied that:
(a) the revised application is, so far as is reasonably possible, substantially similar to the original application; and
(b) the revised application does not overlap any other application for a feasibility licence made in response to the same invitation under section 9 (including other applications that are, or are not, in the same overlapping application group).
(2) For the purposes of paragraph (1)(a), the Registrar may consider:
(a) the location, shape and size of the licence areas proposed by the revised application and the original application; and
(b) the details of the proposed commercial offshore infrastructure projects of the revised application and the original application; and
(c) anything else the Registrar considers relevant.
(3) If, for the purposes of paragraph (1)(b), the Registrar is comparing the licence area of the revised application to the licence area of another application that has also been revised and resubmitted, the Registrar must have regard only to the licence area of the other application as revised (and not to the licence area of the other application as originally made).
14 Applications for feasibility licences that overlap after opportunity to revise and resubmit—Minister may determine financial offer groups
(1) This section applies if:
(a) the Registrar has invited 2 or more applicants from an overlapping application group to revise and resubmit their applications under subsection 12(2) (whether or not any of those applicants have done so); and
(b) the day specified in the invitation under paragraph 12(3)(e) has passed.
(2) The Minister may determine that a group of 2 or more of the applications forms a financial offer group if:
(a) each application in the group overlaps at least one other application in the group; and
(b) the licence areas proposed by all of the applications in the group (including parts of those areas that overlap, and parts that do not overlap) together form a continuous area; and
(c) the Minister is satisfied that, if not for the overlap or overlaps, a feasibility licence could be offered in response to each of the applications in the group.
Note 1: For example, if applications A and B overlap each other, and applications B and C overlap each other, applications A, B and C may be in a financial offer group even if applications A and C do not overlap.
Note 2: For when applications overlap, see section 4.
(3) If the Registrar has made more than one invitation under subsection 12(2) as a result of a particular invitation by the Minister under section 9, the Minister may make a determination under subsection (2) of this section only after the end of the latest day specified under paragraph 12(3)(e) in any of the invitations under subsection 12(2).
(4) To avoid doubt, the Minister may make more than one determination under subsection (2) in relation to a particular invitation under subsection 12(2) for applicants from an overlapping application group to revise and resubmit their applications.
15 Financial offers for feasibility licences
(1) This section applies if the Minister determines that a group of 2 or more applications for feasibility licences forms a financial offer group.
Financial offers for feasibility licences
(2) The Minister may, in writing, invite the applicants to submit financial offers in relation to their applications.
(3) The invitation to submit financial offers:
(a) must:
(i) include information on how the offers are to be made; and
(ii) specify the day on or before which the offers must be made; and
(iii) require the applicants to substantiate their ability to pay amounts offered; and
(iv) set out the effect of section 16; and
(b) may specify other requirements to be addressed in the submission of the financial offer.
(4) A financial offer in relation to an application for a feasibility licence must:
(a) be made in writing to the Registrar; and
(b) be made on or before the day specified in the invitation under subparagraph (3)(a)(ii); and
(c) address any other requirements specified in the invitation.
16 Procedure for dealing with financial offers
(1) This section applies if the Minister invites, under subsection 15(2), the applicants whose applications are in a financial offer group to submit financial offers in relation to their applications.
Dealing with financial offers
(2) The Minister may only offer to grant a feasibility licence to:
(a) the applicant that has submitted the highest financial offer out of the applications in the financial offer group; or
(b) if, as a result of the operation of subsection (5), there is only one application in the financial offer group—the applicant for that application.
(3) If there is no single highest financial offer because 2 or more applicants (the tied applicants) have submitted equal financial offers, the Minister may do any of the following:
(a) if a tied applicant’s application does not overlap any other tied applicant’s application—offer to grant a feasibility licence to that tied applicant;
(b) for any tied applicants whose applications overlap each other—invite those tied applicants to submit increased financial offers;
(c) if an invitation under paragraph (b) does not result in there being a single highest financial offer because the financial offers of 2 or more of the tied applicants are equal—offer to grant a feasibility licence to any of those tied applicants, as the Minister thinks fit.
(4) Subsections 15(3) and (4) apply in relation to an invitation under subsection (3)(b) of this section, and any financial offer submitted in response to such an invitation, as if the invitation were an invitation under subsection 15(2).
(5) If:
(a) the Minister offers to grant a feasibility licence to an applicant whose application is in the financial offer group; and
(b) any of the following occurs:
(i) the feasibility licence is granted;
(ii) the applicant withdraws the application;
(iii) the application lapses;
(iv) the feasibility licence is not granted for some other reason (including because the applicant does not pay a financial offer in relation to the application); and
(c) after that occurrence, a feasibility licence could be offered in respect of at least one of the other applications in the financial offer group;
this section applies again to the remaining application or applications mentioned in paragraph (c) as if that application, or those applications, comprised a financial offer group.
Note: For example, if applications A, B and C are in a financial offer group, and:
(a) applications A and B overlap each other; and
(b) applications B and C overlap each other; and
(c) applications A and C do not overlap each other; and
(d) the Minister invites each applicant to submit a financial offer; and
(e) applicant A submits the highest offer;
Note: then:
(f) the Minister may only offer to grant a licence to applicant A; and
(g) if applicant A accepts the offer, and the licence is granted—this section applies again, and the Minister may offer to grant a licence to applicant C; and
(h) if applicant A does not accept the offer—this section applies again, and the Minister may offer to grant a licence to whichever of applicant B or C submitted a higher financial offer.
(6) If an applicant for a feasibility licence submits a financial offer in relation to the application, the Minister may only grant the licence to the applicant if the amount of the financial offer has been paid to the Commonwealth.
Note: The financial offer must be paid even if, at the time the licence would be granted, there are no overlapping applications (for example, because all other applicants have withdrawn their applications, or in the case mentioned in paragraph (g) of the note to subsection (5)).
Applicants that do not submit financial offers
(7) For the purposes of subsections (2) and (3), treat an applicant that has not submitted a financial offer as having submitted a financial offer of nil. Subsection (6) does not prevent the Minister granting a feasibility licence to such an applicant.
Subdivision C—Applications for other licences
17 Commercial licences
(1) An eligible person that holds a feasibility licence may apply for a commercial licence.
(2) The application must:
(a) be made in the manner and form that is:
(i) approved by the Registrar; and
(ii) published on the Registrar’s website; and
(b) include a description of the offshore infrastructure project to be carried out under the commercial licence; and
(c) be accompanied by evidence that the Regulator has approved, under the licensing scheme, a management plan for the commercial licence; and
(d) be accompanied by any other information or documents required by the approved form.
Note: For application fees, see section 146. An application is taken to have been made only if the fee for dealing with the application has been paid (see section 147).
(3) An application under this section is taken to include or be accompanied by a thing mentioned in paragraph (2)(b), (c) or (d) if the thing is given to the Registrar before the end of the 30‑day period that begins on the day after the application is made.
Applications for licences that cover existing licence areas
(4) If an application for a commercial licence covers an area that is, or is part of, the licence area of an existing licence, the Registrar may:
(a) notify the holder of the existing licence that the application has been made; and
(b) inform the holder of the existing licence of:
(i) the name of the applicant; and
(ii) the proposed licence area of the commercial licence (including a description of the location, shape and size of the area); and
(iii) the kind of project that the applicant proposes to carry out in the proposed licence area; and
(c) invite the holder of the existing licence to make a submission in relation to the potential grant of the commercial licence.
Note: The licence area of a commercial licence must not include any part of the licence area of any other commercial licence or a feasibility licence (see paragraph 42(4)(b) of the Act).
18 Research and demonstration licences—application
(1) An eligible person may apply for a research and demonstration licence.
(2) The application must:
(a) be made in the manner and form that is:
(i) approved by the Registrar; and
(ii) published on the Registrar’s website; and
(b) include a description of the offshore infrastructure project to be carried out under the research and demonstration licence; and
(c) be accompanied by any other information or documents required by the approved form.
Note: For application fees, see section 146. An application is taken to have been made only if the fee for dealing with the application has been paid (see section 147).
(3) An application under this section is taken to include or be accompanied by a thing mentioned in paragraph (2)(b) or (c) if the thing is given to the Registrar before the end of the 30‑day period that begins on the day after the application is made.
Applications for licences that cover existing licence areas
(4) If an application for a research and demonstration licence covers an area that is, or is part of, the licence area of an existing licence, the Registrar may:
(a) notify the holder of the existing licence that the application has been made; and
(b) inform the holder of the existing licence of:
(i) the name of the applicant; and
(ii) the proposed licence area of the research and demonstration licence (including a description of the location, shape and size of the area); and
(iii) the kind of project that the applicant proposes to carry out in the proposed licence area; and
(c) invite the holder of the existing licence to make a submission in relation to the potential grant of the research and demonstration licence.
19 Research and demonstration licences—applications for licences that cover the same area
(1) If applications for research and demonstration licences cover wholly or partly the same area, the Registrar may notify the applicants of the overlap and invite the applicants to revise and resubmit their applications to remove the overlap.
(2) The notice and invitation:
(a) must be in writing; and
(b) must set out, for each other applicant whose application overlaps the applicant’s application:
(i) the area or areas of overlap; and
(ii) the name of the other applicant; and
(iii) the kind of project that the other applicant proposes to carry out; and
(c) may include such other information as the Registrar considers reasonable about the applications mentioned in paragraph (b); and
(d) may include such information as the Registrar considers reasonable about other applications that cover areas adjacent to, or nearby, the area covered by the applicant’s application; and
(e) must specify the day on or before which an application, as revised, must be resubmitted; and
(f) must inform the applicant that any revised application must be in accordance with section 20.
(3) Subsections 18(2) to (4) apply to an application that is revised and resubmitted in accordance with an invitation under this section. For this purpose, treat subsection 18(2) as requiring the application to be made on or before the day specified under paragraph (2)(e) of this section.
(4) An applicant who revises an application in response to the invitation is not required to pay any additional fee for revising or resubmitting the application.
(5) If an applicant revises and resubmits an application in response to the invitation on or before the day specified under paragraph (2)(e), and the revised application is in accordance with section 20, then, after that day:
(a) the revised application replaces the original application; and
(b) the original application is to be disregarded.
Note: If the revised application is not in accordance with section 20, the original application remains in effect.
20 Research and demonstration licences—requirements for revised applications
(1) For the purposes of subsection 19(5), a revised application for a research and demonstration licence is in accordance with this section if the Registrar is satisfied that the revised application is, so far as is reasonably possible, substantially similar to the original application.
(2) For the purposes of subsection (1), the Registrar may consider:
(a) the location, shape and size of the licence areas proposed by the revised application and the original application; and
(b) the details of the offshore infrastructure projects proposed to be carried out under the revised application and the original application; and
(c) anything else the Registrar considers relevant.
(3) Applications may be made to the Administrative Review Tribunal for review of a decision of the Registrar under this section that a revised application for a research and demonstration licence is not in accordance with this section.
21 Transmission and infrastructure licences—application
(1) An eligible person may apply for a transmission and infrastructure licence.
(2) The application must:
(a) be made in the manner and form that is:
(i) approved by the Registrar; and
(ii) published on the Registrar’s website; and
(b) include a description of the offshore infrastructure project to be carried out under the transmission and infrastructure licence; and
(c) be accompanied by any other information or documents required by the approved form.
Note: For application fees, see section 146. An application is taken to have been made only if the fee for dealing with the application has been paid (see section 147).
(3) An application under this section is taken to include or be accompanied by a thing mentioned in paragraph (2)(b) or (c) if the thing is given to the Registrar before the end of the 30‑day period that begins on the day after the application is made.
Applications for licences that cover existing licence areas
(4) If an application for a transmission and infrastructure licence covers an area that is, or is part of, the licence area of an existing licence, the Registrar may:
(a) notify the holder of the existing licence that the application has been made; and
(b) inform the holder of the existing licence of:
(i) the name of the applicant; and
(ii) the proposed licence area of the transmission and infrastructure licence (including a description of the location, shape and size of the area); and
(iii) the kind of project that the applicant proposes to carry out in the proposed licence area; and
(c) invite the holder of the existing licence to make a submission in relation to the potential grant of the transmission and infrastructure licence.
22 Transmission and infrastructure licences—applications for licences that cover the same area
(1) If applications for transmission and infrastructure licences cover wholly or partly the same area, the Registrar may notify the applicants of the overlap and invite the applicants to revise and resubmit their applications to remove the overlap.
(2) The notice and invitation:
(a) must be in writing; and
(b) must set out, for each other applicant whose application overlaps the applicant’s application:
(i) the area or areas of overlap; and
(ii) the name of the other applicant; and
(iii) the kind of project that the other applicant proposes to carry out; and
(c) may include such other information as the Registrar considers reasonable about the applications mentioned in paragraph (b); and
(d) may include such information as the Registrar considers reasonable about other applications that cover areas adjacent to, or nearby, the area covered by the applicant’s application; and
(e) must specify the day on or before which an application, as revised, must be resubmitted; and
(f) must inform the applicant that any revised application must be in accordance with section 23.
(3) Subsections 21(2) to (4) apply to an application that is revised and resubmitted in accordance with an invitation under this section. For this purpose, treat subsection 21(2) as requiring the application to be made on or before the day specified under paragraph (2)(e) of this section.
(4) An applicant who revises an application in response to the invitation is not required to pay any additional fee for revising or resubmitting the application.
(5) If an applicant revises and resubmits an application in response to the invitation on or before the day specified under paragraph (2)(e), and the revised application is in accordance with section 23, then, after that day:
(a) the revised application replaces the original application; and
(b) the original application is to be disregarded.
Note: If the revised application is not in accordance with section 23, the original application remains in effect.
23 Transmission and infrastructure licences—requirements for revised applications
(1) For the purposes of subsection 22(5), a revised application for a transmission and infrastructure licence is in accordance with this section if the Registrar is satisfied that the revised application is, so far as is reasonably possible, substantially similar to the original application.
(2) For the purposes of subsection (1), the Registrar may consider:
(a) the location, shape and size of the licence areas proposed by the revised application and the original application; and
(b) the details of the offshore infrastructure projects proposed to be carried out under the revised application and the original application; and
(c) anything else the Registrar considers relevant.
(3) Applications may be made to the Administrative Review Tribunal for review of a decision of the Registrar under this section that a revised application for a transmission and infrastructure licence is not in accordance with this section.
Division 4—Offering and granting of licences
Subdivision A—Operation of this Division
24 Operation of this Division
For the purposes of paragraph 29(1)(b) of the Act, this Division prescribes matters relating to the offering and granting of licences.
Subdivision B—Considering applications
25 Additional merit criteria—national interest
For the purposes of being satisfied that a licence meets the merit criteria, the Minister must be satisfied that the proposed project for the licence is in the national interest.
26 Merit criteria—matters to be considered
Technical and financial capability
(1) For the purposes of being satisfied that an eligible person has, is likely to have or is likely to be able to arrange to have the technical and financial capability to carry out a proposed project under a licence, the Minister may consider one or more of the following:
(a) the technical advice that is or will be available to the person;
(b) the financial resources that are or will be available to the person;
(c) the person’s ability to carry out the operations and works that will be authorised by the licence;
(d) the person’s ability to discharge the obligations in relation to the licence that will be imposed by the Act, these regulations or any other instrument made under the Act;
(e) any other matters the Minister considers relevant.
Viability
(2) For the purposes of being satisfied that a proposed project for a licence is likely to be viable, the Minister may consider one or more of the following:
(a) the complexity of the project;
(b) the route‑to‑market for the project;
(c) the estimated commercial return to the licence holder;
(d) any other matters the Minister considers relevant.
Suitability of the applicant
(3) For the purposes of being satisfied that an eligible person is suitable to hold a licence, the Minister may consider one or more of the following:
(a) the person’s past performance in offshore infrastructure projects, or other large infrastructure projects, in Australia or internationally;
(b) the person’s past financial performance;
(c) the person’s corporate governance structure;
(d) any other matters the Minister considers relevant.
National interest
(4) For the purposes of being satisfied that a proposed project for a licence is in the national interest, the Minister may consider one or more of the following:
(a) the project’s impact on, and contribution to, the Australian economy and local communities, including in relation to regional development, job creation, Australian industries and the use of Australian goods and services;
(b) national security;
(c) whether the project is likely to be delivered within a reasonable time;
(d) whether the project is likely to make efficient use of the licence area;
(e) conflicts that might arise with other uses or users of the licence area;
(f) any measures that are proposed to mitigate such conflicts;
(g) any other matters the Minister considers relevant.
Note: In considering a licence application, the Minister must have regard to any information, assessment, analysis, report, advice or recommendation in relation to the application given to the Minister by the Registrar: see section 42.
Subdivision C—Offering and granting licences
27 Offer of licence
(1) If the Minister decides to grant a licence to an applicant, the Minister must offer the licence to the applicant.
(2) The Minister may make the offer by arranging for the Registrar to give the offer to the applicant.
(3) The offer must:
(a) be in writing; and
(b) specify the licence area for the licence (see also subsection (4) for feasibility licences); and
(c) state the day on which the licence would come into force; and
(d) state the end day of the licence; and
(e) specify the conditions that would apply to the licence, including the requirement to pay any offshore electricity infrastructure levy; and
(f) for a feasibility licence—specify the day on or before which the amount of the financial offer (if any) must be paid to the Commonwealth if the offer of the licence is accepted by the applicant; and
(g) specify the day on or before which the offer must be accepted; and
(h) state that, if the offer is not accepted by that day, the applicant’s application for the licence will lapse; and
(i) specify the method for accepting the offer, which may include giving the acceptance or other information to the Registrar.
(4) The licence area specified under paragraph (3)(b) for a feasibility licence must be the same as:
(a) the area described in the application for the feasibility licence (see paragraph 10(2)(ba)); or
(b) if the application for the feasibility licence has been revised and resubmitted under section 12 in accordance with section 13—the area described in the revised and resubmitted application.
28 Granting licences
A licence granted as a result of the acceptance of an offer under section 27 must be consistent with the details set out in the offer.
Note 1: The grant of a licence must be recorded in the Register: see section 163 of the Act.
Note 2: For other rules relating to grants of licences, see the following sections of the Act:
(a) section 33 (grant of a feasibility licence);
(b) section 42 (grant of a commercial licence);
(c) section 52 (grant of a research and demonstration licence);
(d) section 61 (grant of a transmission and infrastructure licence).
Note 3: The Minister may delegate to the Registrar the function of giving notice of the grant of a licence (see section 303 of the Act).
28A Commercial licences—Minister may only grant licence if financial security requirement complied with
(1) This section applies if:
(a) an eligible person has applied for a commercial licence; and
(b) the commercial licence has not been granted, and the application has not been refused; and
(c) subject to section 103 of this instrument, section 117 of the Act would, if the commercial licence were granted, require the eligible person to have provided the Commonwealth with an amount of financial security at the time the commercial licence comes into force.
(2) For the purposes of paragraph 42(1)(j) of the Act, the Minister may only grant the commercial licence if the eligible person has provided the Commonwealth with that amount of financial security.
Division 5—Extending and varying licences
29 Operation of this Division
For the purposes of paragraph 29(1)(f) of the Act, this Division prescribes matters relating to extending and varying licences.
30 Extending the term of a licence
On application
(1) The Minister may extend the end day of a licence if the licence holder applies for the extension.
(2) The application must:
(a) be made in the manner and form that is:
(i) approved by the Registrar; and
(ii) published on the Registrar’s website; and
(b) be made:
(i) for a licence other than a commercial licence—before the end day of the licence; and
(ii) for a commercial licence—at least 5 years before the end day of the licence; and
(c) be accompanied by any other information or documents required by the approved form.
Note: For application fees, see section 146. An application is taken to have been made only if the fee for dealing with the application has been paid (see section 147).
(3) An application under this section is taken to be accompanied by the information or documents mentioned in paragraph (2)(c) if the information or documents are given to the Registrar before the end of the 30‑day period that begins on the day after the application is made.
On Minister’s own initiative
(4) The Minister may extend the end day of a feasibility licence or a research and demonstration licence on the Minister’s own initiative.
Notice of extension
(5) If the Minister extends the end day of a licence, the Minister must give the licence holder written notice of the extension.
(6) The Minister may give the notice by arranging for the Registrar to give the notice.
Note 1: The extension must be recorded in the Register: see item 7 of the table in subsection 164(1) of the Act.
Note 2: For other rules relating to extending the term of a licence, see the following sections of the Act:
(a) section 37 (extending the term of a feasibility licence);
(b) section 47 (extending the term of a commercial licence);
(c) section 56 (extending the term of a research and demonstration licence);
(d) section 65 (extending the term of a transmission and infrastructure licence).
31 Application to vary a licence
(1) An application to vary a licence must:
(a) be made in the manner and form that is:
(i) approved by the Registrar; and
(ii) published on the Registrar’s website; and
(b) be accompanied by any other information or documents required by the approved form.
Note: For application fees, see section 146. An application is taken to have been made only if the fee for dealing with the application has been paid (see section 147).
(2) An application under this section is taken to be accompanied by the information or documents mentioned in paragraph (1)(b) if the information or documents are given to the Registrar before the end of the 30‑day period that begins on the day after the application is made.
Note 1: The variation of a licence must be recorded in the Register: see item 1 of the table in subsection 164(1) of the Act.
Note 2: For other rules relating to varying licences, see the following sections of the Act:
(a) section 38 (varying a feasibility licence);
(b) section 48 (varying a commercial licence);
(c) section 57 (varying a research and demonstration licence);
(d) section 66 (varying a transmission and infrastructure licence).
Note 3: The Minister may delegate to the Registrar the function of giving notice of the variation of a licence (see section 303 of the Act).
Division 6—Licence conditions
32 Operation of this Division
For the purposes of paragraph 29(1)(f) of the Act, this Division prescribes conditions to which licences are subject.
33 Reports
(1) A licence is subject to the condition that the licence holder give the Registrar or the Minister reports in accordance with this section.
Annual reports
(2) The licence holder must give the Registrar annual reports.
(3) An annual report must:
(a) be given to the Registrar in the manner and form that is:
(i) approved by the Registrar; and
(ii) published on the Registrar’s website; and
(b) be given within 30 days after the most recent anniversary of the grant of the licence (or such further period as allowed by the Registrar); and
(c) relate to the activities of the licence holder during the 12‑month period (the reporting period) immediately before the anniversary; and
(d) be accompanied by any other information or documents required by the approved form.
(4) An annual report must include the following:
(a) a description of all work, evaluations and studies carried out in or in relation to the licence area during the reporting period with total expenditure by item and a summary of the results;
(b) details of how the licence has continued to meet, and continues to meet, the merit criteria;
(c) a summary of anticipated work, evaluations and studies to be carried out in or in relation to the licence area during the next reporting period for the licence, including estimated expenditure;
(d) a description of how the offshore infrastructure project carried out, or to be carried out, under the licence (including, in the case of a feasibility licence, any proposed commercial licence that the licence holder has applied for, or proposes to apply for, on the basis of the feasibility licence) is contributing, or will contribute, to the Australian economy and local communities, including in relation to:
(i) regional development; and
(ii) job creation; and
(iii) Australian industries; and
(iv) the use of Australian goods and services;
(e) any other information or documents that a condition of the licence (other than the condition in this section) requires the annual report to include.
(5) An annual report is taken to be accompanied by or include a thing mentioned in paragraph (3)(d) or subsection (4) if the thing is given to the Registrar before the end of the 10‑day period that begins on the day after the annual report is given to the Registrar.
Final report
(6) The licence holder must give the Minister a final report if:
(a) the licence holder applies to the Minister under subsection 74(1) of the Act for the Minister to consent to the surrender of the licence; and
(b) the licence would cease to be in force if the licence were surrendered in accordance with the application.
(7) A final report must:
(a) be given to the Minister in the manner and form that is:
(i) approved by the Registrar; and
(ii) published on the Registrar’s website; and
(b) accompany the application under subsection 74(1) of the Act; and
(c) relate to the activities of the licence holder during the period (the reporting period) that:
(i) begins on the most recent anniversary of the grant of the licence; and
(ii) ends the day before the application is made; and
(d) be accompanied by any other information or documents required by the approved form.
(8) A final report must include the following:
(a) a description of all work, evaluations and studies carried out in or in relation to the licence area during the reporting period with total expenditure by item and a summary of the results;
(b) details of how the licence has met the merit criteria;
(c) any other information or documents that a condition of the licence (other than this condition in this section) requires the annual report to include.
(9) A final report is taken:
(a) to accompany the application under subsection 74(1) of the Act for the purposes of paragraph (7)(b) of this section; and
(b) to include or be accompanied by the things mentioned in paragraph (7)(d) and subsection (8) of this section;
if the final report and the things are given to the Minister before the end of the 10‑day period that begins on the day after the application is made.
33A Feasibility licences—Australian supply chain and workforce analysis report
(1) A feasibility licence is subject to the condition that the licence holder must give the Registrar a report under this section before the end of 2 years after the day the licence came into force (or such further period as allowed by the Registrar).
Note: For feasibility licences in force when this section commences, see subsection (8).
(2) The report must:
(a) describe the proposed commercial offshore infrastructure project; and
(b) describe the proposed supply chain and workforce needs of the project; and
(c) describe the opportunities for Australian businesses and workers that may arise from the project; and
(d) describe the consultation that the licence holder has carried out, in respect of economic opportunities directly arising from the project, with:
(i) Australian businesses, including businesses owned or operated by Aboriginal or Torres Strait Islander people; and
(ii) local governments of areas adjacent to, or near, the project; and
(iii) workers and their representatives; and
(iv) any forums or committees representing business owners and workers located in areas adjacent to, or near, the project; and
(e) describe how the project will maximise its contributions to the Australian economy and Australian communities.
Revision of report
(3) The Registrar may, by notice in writing, direct the licence holder to review and update the report, and give the updated report to the Registrar, before the end of a period specified in the direction.
(4) The licence is subject to the condition that:
(a) the licence holder must comply with any direction given to the licence holder under subsection (3); and
(b) any updated report that the licence holder gives to the Registrar in accordance with such a direction must be in accordance with subsection (2).
Registrar must consider report for publication
(5) If the licence holder gives the Registrar a report (including a revised report) under this section (including under subparagraph (b)(ii) of this subsection), the Registrar must, before the end of 60 days after the licence holder gave the report:
(a) decide whether the report is in accordance with subsection (2); and
(b) either:
(i) if the Registrar is satisfied that the report is in accordance with subsection (2)—give the licence holder a notice stating that the licence holder must publish the report in accordance with subsection (6); or
(ii) otherwise—give the licence holder a notice requiring the licence holder to revise and resubmit the report, and setting out the information that must be included in the report.
(6) If the Registrar gives the licence holder a notice under subparagraph (5)(b)(i), the licence holder must:
(a) publish the report on the licence holder’s website within 30 days after receiving the notice; and
(b) keep the report on the licence holder’s website for as long as the feasibility licence remains in force.
(7) Before publishing the report under subsection (6), the licence holder must remove from the report any information that the licence holder reasonably considers to be:
(a) a trade secret; or
(b) information the disclosure of which would, or could reasonably be expected to, adversely affect any person’s business, commercial or financial affairs.
Licences in effect when this section commences
(8) If a feasibility licence is in effect when this section commences, the licence holder must give the Registrar the first report under this section in relation to the licence before the end of 2 years after the day this section commences, instead of before the time mentioned in subsection (1).
Division 7—Transferring licences
34 Operation of this Division
For the purposes of paragraph 29(1)(c) of the Act, this Division prescribes matters relating to transfers of licences.
35 Application to transfer a licence
(1) An application to transfer a licence must:
(a) be made in the manner and form that is:
(i) approved by the Registrar; and
(ii) published on the Registrar’s website; and
(b) be accompanied by any other information or documents required by the approved form.
Note 1: The application must be made to the Registrar: see section 69 of the Act.
Note 2: For application fees, see section 146 of this instrument. An application is taken to have been made only if the fee for dealing with the application has been paid (see section 147).
(2) An application under this section is taken to be accompanied by the information or documents mentioned in paragraph (1)(b) if the information or documents are given to the Registrar before the end of the 30‑day period that begins on the day after the application is made.
36 Assessment by Registrar
(1) If an application for the transfer of a licence is made, the Registrar must:
(a) make an assessment of the application by reference to the criteria set out in subsection 70(1) of the Act (licence transfers); and
(b) provide advice to the Minister in relation to the assessment.
(2) For the purposes of making the assessment, the Registrar may consult with the Regulator or any other person.
37 Decision by Minister
(1) In deciding whether or not to transfer a licence, the Minister:
(a) may consult with the Registrar, the Regulator or any other person; and
(b) subject to paragraph (c)—may take into account any advice or recommendations given or made by the Registrar, the Regulator or any other person; and
(c) must have regard to any advice provided by the Registrar under paragraph 36(1)(b) in relation to the application for the transfer.
Note 1: The transfer of a licence must be recorded in the Register: see item 2 of the table in subsection 164(1) of the Act.
Note 2: For other rules relating to the transfer of licences, see Part 2 of Chapter 3 of the Act.
Note 3: The Minister may delegate to the Registrar the function of giving notice of a decision to transfer, or not to transfer, a licence (see section 303 of the Act).
Financial security
(2) If a licence is transferred, then, for the purposes of subsections 72(2) and (3) of the Act, the transferor must comply with sections 117 and 118 of the Act in relation to the licence, as if the transferor still held the licence, until:
(a) the licence ceases to be in force; or
(b) the Minister gives a notice to the transferor and transferee under subsection (3) of this section.
(3) The Minister may, by written notice to the transferor and transferee, determine that subsection (2) no longer applies to the transferor if the Minister is satisfied that the transferee is in compliance with sections 117 and 118 of the Act in relation to the licence.
Note: The Minister may delegate to the Registrar the function of giving a notice under this subsection (see section 303 of the Act).
(4) To avoid doubt, subsection (2) does not affect any obligation of the transferee to comply with sections 117 and 118 of the Act.
Division 8—Change in control of licence holder
38 Operation of this Division
For the purposes of paragraph 29(1)(d) of the Act, this Division prescribes matters relating to changes in control of licence holders.
39 Application for approval of change in control of licence holder
(1) An application for approval of a change in control of a licence holder must:
(a) be made in the manner and form that is:
(i) approved by the Registrar; and
(ii) published on the Registrar’s website; and
(b) be accompanied by any other information or documents required by the approved form.
Note 1: The application must be made to the Registrar: see section 86 of the Act.
Note 2: A change in control of a licence holder must be noted in the Register: see section 94 of the Act.
Note 3: For other rules relating to the change in control of a licence holder, see Part 3 of Chapter 3 of the Act.
Note 4: For application fees, see section 146 of this instrument. An application is taken to have been made only if the fee for dealing with the application has been paid (see section 147).
(2) An application under this section is taken to be accompanied by the information or documents mentioned in paragraph (1)(b) if the information or documents are given to the Registrar before the end of the 30‑day period that begins on the day after the application is made.
Division 8A—Surrendering licences
39A Application for consent to surrender licence, and notice of surrender
Application for consent to surrender
(1) An application under subsection 74(1) of the Act for the Minister to consent to the surrender of a licence in respect of an area:
(a) must be made in the manner and form that is:
(i) approved by the Registrar; and
(ii) published on the Registrar’s website; and
(b) must be accompanied by any information or documents required by the form.
Note 1: The application must specify or set out the matters required by subsection 74(2) of the Act.
Note 2: For application fees, see section 146. An application is taken to have been made only if the fee for dealing with the application has been paid (see section 147).
Notice of surrender
(2) A notice under subsection 74(4) of the Act surrendering a licence in respect of an area:
(a) must be in the manner and form that is:
(i) approved by the Registrar; and
(ii) published on the Registrar’s website; and
(b) must be accompanied by any information or documents required by the form.
Note: The notice must also be accompanied by the notice of the Minister’s consent to the surrender of the licence in respect of the area (see subsection 74(4) of the Act).
Division 9—General matters
Subdivision A—Operation of this Division
40 Operation of this Division
For the purposes of section 29 of the Act, this Division prescribes general matters relating to the operation of the licensing scheme.
Subdivision B—Support by Registrar
41 Request for further information
(1) For the purposes of advising the Minister in relation to a licence application, the Registrar may request additional information from the applicant.
(2) The request must:
(a) be in writing; and
(b) specify the information required; and
(c) specify the day on or before which the information must be provided; and
(d) specify the manner in which the information must be provided.
(3) If the additional information is not provided on or before the day specified, the Minister may refuse to consider the application further.
(4) If the Minister so refuses, the Minister must give the applicant written notice of the refusal.
(5) To avoid doubt, this section applies to an application for a feasibility licence in relation to which the Minister is considering making a determination under subsection 11(2) or 14(2).
(6) To avoid doubt, the Registrar:
(a) may make more than one request under this section; and
(b) may make further requests if the Registrar or the Minister is not satisfied with the information provided in response to a request.
42 Advice given by the Registrar
(1) In considering a licence application, the Minister must have regard to any information, assessment, analysis, report, advice or recommendation in relation to the application given to the Minister by the Registrar.
(2) To avoid doubt, this section applies to an application for a feasibility licence in relation to which the Minister is considering making a determination under subsection 11(2) or 14(2).
Subdivision C—Procedural fairness
43 Proposed decision to refuse application
(1) This section applies if, on application, the decision maker proposes to make a decision:
(a) not to offer to grant a licence (other than a feasibility licence); or
(b) not to extend the end day of a licence; or
(c) not to vary a licence; or
(d) not to transfer a licence; or
(e) not to consent to the surrender of a licence; or
(f) not to approve a change in control of a licence holder.
(2) For the purposes of this section, the decision maker is:
(a) for a decision covered by any of paragraphs (1)(a) to (e)—the Minister; or
(b) for a decision covered by paragraph (1)(f)—the Registrar.
(3) The decision maker must give the applicant written notice of the proposed decision.
(4) If the decision maker is the Minister, the notice may be given to the applicant by the Registrar.
(5) The notice must:
(a) set out the decision maker’s reasons for the proposed decision; and
(b) invite the applicant to make a written submission about the proposed decision; and
(c) specify the period within which the submission must be made.
(6) The specified period must be reasonable having regard to the circumstances.
(7) Any submission made in response to the notice must be given to the Registrar.
(8) The decision maker must take the submission into account in deciding whether to make the proposed decision.
44 Notice of refusal decision
If a decision maker makes a decision mentioned in subsection 43(1), the decision maker must give the applicant written notice of the decision and the reasons for the decision.
Note: The Minister may delegate to the Registrar the function of giving notices under this section (see section 303 of the Act).
Part 3—Licensing scheme: management of infrastructure
Division 1—Operation of this Part
45 Operation of this Part
For the purposes of section 29 of the Act, this Part prescribes the licensing scheme in relation to:
(a) management plans; and
(b) other matters.
Division 2—Licence activities must comply with management plan
46 Licence activities must comply with management plan
(1) A licence holder commits an offence of strict liability if:
(a) there is a management plan for the licence; and
(b) the licence holder carries out licence activities in a way that is contrary to the management plan.
Penalty: 50 penalty units.
Continuing offences
(2) A person who commits an offence against subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the offence continues.
(3) The maximum penalty for each day that an offence under subsection (1) continues is 10% of the maximum penalty that can be imposed in respect of that offence.
Division 3—Application for approval of plans (including revised plans)
Subdivision A—Initial plan approval applications
47 Making an initial plan approval application
(1) The holder of a feasibility licence, a research and demonstration licence or a transmission and infrastructure licence may apply to the Regulator, in accordance with this Subdivision, for the Regulator to approve a plan as the management plan for the licence.
(2) If the holder of a feasibility licence has applied for, or proposes to apply for, a commercial licence on the basis of the feasibility licence, the licence holder may apply to the Regulator, in accordance with this Subdivision, for the Regulator to approve a plan as the management plan for the proposed commercial licence.
Note: The relevant licence for an application under subsection (2) is the proposed commercial licence (see the definition of relevant licence in section 4).
(3) For the purposes of this instrument, an application under this section is an initial plan approval application.
(4) This section does not apply if there is already a management plan for the relevant licence.
Note: If there is already a management plan for the relevant licence, the licence holder may make a plan revision approval application instead (see section 50).
48 Requirements for application
(1) An initial plan approval application:
(a) must be made in the manner and form that is:
(i) approved by the Regulator; and
(ii) published on the Regulator’s website; and
(b) must be accompanied by the plan; and
(c) must be accompanied by any other information or documents required by the form.
(2) Before making an initial plan approval application, a licence holder must carry out consultation under Subdivision D.
Note 1: For application fees, see section 146. An application is taken to have been made only if the fee for dealing with the application has been paid (see section 147).
Note 2: The licence holder may be required to give the Regulator a design notification before making the initial plan approval application (see section 96).
49 Application taken to be withdrawn if further application made
If:
(a) a licence holder makes an initial plan approval application (the first application) in relation to a licence; and
(b) while the Regulator is dealing with the first application, the licence holder makes a further initial plan approval application in relation to the licence;
the first application is taken to be withdrawn when the further application is made.
Subdivision B—Plan revision approval applications
50 Making a plan revision approval application
(1) This section applies to the holder of a licence for which there is a management plan.
(2) This section also applies to the holder of a feasibility licence if:
(a) the licence holder has applied, or proposes to apply, for the Minister to grant a commercial licence on the basis of the feasibility licence; and
(b) the Regulator has approved a management plan for the proposed commercial licence.
Note: If subsection (2) applies, the relevant licence for an application under paragraph (3)(b) is the proposed commercial licence (see the definition of relevant licence in section 4).
(3) The licence holder may:
(a) prepare a revised management plan; and
(b) apply to the Regulator, in accordance with this Subdivision, for the Regulator to approve the revised management plan as the management plan for the relevant licence.
(4) For the purposes of this instrument, an application under paragraph (3)(b) is a plan revision approval application.
51 Requirements for plan revision approval application
A plan revision approval application:
(a) must be made in the manner and form that is:
(i) approved by the Regulator; and
(ii) published on the Regulator’s website; and
(b) must be accompanied by the revised plan; and
(c) must be accompanied by any information or documents required by the form.
Note 1: For application fees, see section 146. An application is taken to have been made only if the fee for dealing with the application has been paid (see section 147).
Note 2: If the relevant licence is a transmission and infrastructure licence, the licence holder may be required to give the Regulator a design notification before making the plan revision approval application (see subsection 96(3)).
52 Application taken to be withdrawn if further application made
If:
(a) a licence holder makes a plan revision approval application (the first application) in relation to a licence; and
(b) while the Regulator is dealing with the first application, the licence holder makes a further plan revision approval application in relation to the licence;
the first application is taken to be withdrawn when the further application is made.
Subdivision C—Requirements to revise management plan and apply for approval
53 Regulator may direct licence holder to revise management plan
(1) The Regulator may, at any time when an approval of a management plan for a relevant licence is in effect, direct the licence holder to:
(a) revise the management plan; and
(b) make a plan revision approval application for the Regulator to approve the revised plan as the management plan for the relevant licence.
Note: Before giving a direction under this subsection, the Regulator must give the licence holder a written notice of the proposed direction inviting the licence holder to make a submission about the proposed direction (see section 55).
(2) The direction must:
(a) be in writing; and
(b) set out the matters in respect of which the management plan must be revised; and
(c) set out the reasons for the revision; and
(d) specify the day on or before which the plan revision approval application must be made.
(3) The direction:
(a) may include a requirement for the licence holder to carry out consultation under Subdivision D before making the plan revision approval application; and
(b) if the direction includes such a requirement:
(i) may state that the consultation must relate to specified licence activities carried out, or to be carried out, under the relevant licence; and
(ii) may state that only specified persons, organisations, communities or groups of kinds mentioned in subsection 64(1) need to be consulted.
Time limit for complying with direction
(4) The day specified for the purposes of paragraph (2)(d) must be reasonable.
(5) The licence holder may, in writing, ask the Regulator to vary the day specified for the purposes of paragraph (2)(d) to a later day.
(6) If the licence holder makes a request under subsection (5), the Regulator may, by written notice to the licence holder:
(a) grant the request and vary the day specified for the purposes of paragraph (2)(d) to a later day; or
(b) refuse the request.
Licence holder must comply with direction
(7) The licence holder must comply with the direction on or before the day specified in the direction for the purposes of paragraph (2)(d).
54 Failure to comply with direction to revise management plan
Strict liability offence
(1) A person commits an offence of strict liability if:
(a) the Regulator gives the person a direction under subsection 53(1); and
(b) the person does not comply with the direction on or before the day specified in the direction for the purposes of paragraph 53(2)(d).
Penalty: 40 penalty units.
Civil penalty provision
(2) A person is liable to a civil penalty if:
(a) the Regulator gives the person a direction under subsection 53(1); and
(b) the person does not comply with the direction on or before the day specified in the direction for the purposes of paragraph 53(2)(d).
Civil penalty: 40 penalty units.
Continuing contraventions
(3) A person who commits an offence against subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the offence continues.
(4) The maximum penalty for each day that an offence under subsection (1) continues is 10% of the maximum penalty that can be imposed in respect of that offence.
(5) A person who contravenes subsection (2) commits a separate contravention in respect of each day (including a day of the making of a relevant civil penalty order or any later day) during which the contravention continues.
(6) The maximum civil penalty for each day that a contravention of subsection (2) continues is 10% of the maximum civil penalty that can be imposed in respect of that contravention.
55 Proposed decision to give direction
(1) Before giving a direction under subsection 53(1) to a licence holder, the Regulator must give the licence holder written notice of the proposed direction.
(2) The notice must:
(a) set out the proposed direction; and
(b) set out the Regulator’s reasons for giving the proposed direction; and
(c) invite the licence holder to make a written submission about the proposed direction; and
(d) specify the day on or before which the submission must be made.
(3) The day specified for the purposes of paragraph (2)(d) must be reasonable.
(4) If the licence holder makes a submission on or before the day specified for the purposes of paragraph (2)(d):
(a) the Regulator must take the submission into account in deciding whether or not to give the direction; and
(b) if the Regulator decides not to give the direction—may give the licence holder a different direction under subsection 53(1) instead, and need not comply with this section in relation to the different direction.
56 Periodic plan revision approval applications
(1) If an approval of a management plan for a relevant licence is in effect, the licence holder must, on or before the periodic revision day worked out under subsection (2):
(a) prepare a revised management plan; and
(b) make a plan revision approval application for the Regulator to approve the revised management plan as the management plan for the licence;
unless an exemption is in effect under section 57 in relation to the licence.
(2) Subject to sections 58 (deferral) and 59 (different day determined by Regulator), the periodic revision day for a relevant licence is the day 5 years after the most recent of any of the following:
(a) the day an approval of the management plan, or a revised management plan, for the relevant licence took effect as a result of a plan revision approval application made under paragraph (1)(b) of this section;
(b) if the Regulator gives the licence holder a direction under subsection 53(1) in relation to the licence—the day specified in the direction under paragraph 53(2)(d);
(c) the day an exemption under section 57 in relation to the licence ceased to have effect;
(d) the day a deferral under section 58 in relation to the licence ceased to have effect;
(e) the day a determination under section 59 in relation to the licence ceased to have effect.
Note: For when an approval of a plan takes effect, and the previous plan ceases to be the management plan for the licence, see section 71.
(3) To avoid doubt, an approval of a management plan for a relevant licence does not cease to be in effect merely because of a failure to comply with subsection (1).
Offence
(4) A person commits an offence of strict liability if:
(a) the person holds a licence for which there is a management plan; and
(b) no exemption is in effect under section 57 in relation to the licence; and
(c) the periodic revision day for the licence passes; and
(d) the person does not prepare a revised management plan and make a plan revision approval application for the Regulator to approve the revised management plan as the management plan for the licence.
Penalty: 40 penalty units.
Continuing offences
(5) A person who commits an offence against subsection (4) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the offence continues.
(6) The maximum penalty for each day that an offence under subsection (4) continues is 10% of the maximum penalty that can be imposed in respect of that offence.
57 Exemption from periodic plan revision requirement
(1) If an approval of a management plan for a relevant licence is in effect, the licence holder may apply to the Regulator, in writing, for an exemption from the requirements in subsection 56(1) in relation to the licence.
(2) The Regulator may, by written notice to the licence holder, grant the exemption if the Regulator is satisfied that:
(a) no licence activities are occurring under the management plan; and
(b) there is no licence infrastructure in the licence area.
Note: If an exemption under this section is in effect in relation to a relevant licence, the periodic revision obligation in subsection 56(1) does not apply (see that subsection and paragraph 56(4)(b)). However, sections 53 (Regulator may direct licence holder to revise management plan) and 60 (other circumstances in which licence holder must make a plan revision approval application) continue to apply.
Revocation of exemption
(3) An exemption under this section is taken to be revoked if the Regulator gives the licence holder a direction under section 53 in relation to the relevant licence.
Note: See also subsections 33(3) and (3AA) of the Acts Interpretation Act 1901.
58 Deferral of periodic plan revision requirement
(1) If an approval of a management plan for a relevant licence is in effect, the licence holder may apply to the Regulator for a deferral of the periodic revision day for the relevant licence.
(2) The application must:
(a) be in writing; and
(b) set out the reasons for the deferral, including an explanation of why the deferral is necessary and appropriate; and
(c) propose a deferred periodic revision day for the relevant licence.
(3) The Regulator may, by written notice to the licence holder, grant a deferral of the periodic revision day for the relevant licence if the Regulator is satisfied that:
(a) the licence holder is reasonably likely to comply with the management plan for the period of the deferral; and
(b) the deferral is reasonably necessary for the reasons described in the application under paragraph (2)(b).
(4) A notice under subsection (3) must specify the deferred periodic revision day for the relevant licence.
(5) If a deferral under this section is in effect in relation to a relevant licence, the periodic revision day for the relevant licence is the day specified for the purposes of subsection (4).
Note: A deferral under this section defers the periodic revision obligation under section 56. However, sections 53 (Regulator may direct licence holder to revise management plan) and 60 (other circumstances in which licence holder must make a plan revision approval application) continue to apply.
Revocation of deferral
(6) A deferral under this section is taken to be revoked:
(a) at the end of the day specified for the purposes of subsection (4); or
(b) if the Regulator gives the licence holder a direction under section 53 in relation to the relevant licence.
Note: See also subsections 33(3) and (3AA) of the Acts Interpretation Act 1901.
59 Regulator may determine different periodic revision day
(1) This section applies if the Regulator grants a plan revision approval application under section 71 in relation to a relevant licence.
(2) When the Regulator grants the application, the Regulator may determine that the periodic revision day for the relevant licence is a particular day.
(3) If the Regulator makes a determination under subsection (2):
(a) the Regulator must give the licence holder written notice of the determination; and
(b) for the purposes of section 56, the periodic revision day for the relevant licence is the day determined by the Regulator.
Revocation of determination
(4) A determination under this section is taken to be revoked:
(a) at the end of the day determined for the purposes of subsection (2); or
(b) if the Regulator gives the licence holder a direction under section 53 in relation to the relevant licence.
60 Other circumstances in which licence holder must make a plan revision approval application
(1) If an approval of a management plan for a relevant licence is in effect, the licence holder must, in any of the circumstances set out in subsection (2):
(a) prepare a revised management plan; and
(b) make a plan revision approval application for the Regulator to approve the revised management plan as the management plan for the licence.
(2) For the purposes of subsection (1), the circumstances are the following:
(a) the licence activities are to change significantly;
(b) the list of relevant structures, equipment and property included in the plan in accordance with section 87, or the details included under subsection 87(3), is significantly incorrect;
(c) the licence holder identifies a new or significantly increased hazard, impact or risk of a kind referred to in paragraph 83(2)(a);
(d) the licence holder identifies a kind of emergency that could reasonably foreseeably arise in relation to the licence activities, and that is not already identified in the management plan under paragraph 91(2)(a);
(e) a significant change is made to the emergency response plan required to be described under paragraph 91(2)(c);
(f) an obligation of a kind mentioned in section 85 (obligations under the Environment Protection and Biodiversity Conservation Act 1999) begins to apply to the licence holder in relation to the licence activities, or there is a material change in such an obligation that already applies to the licence holder in relation to the licence activities;
(g) there has been a change in control of the licence holder that has changed, or is likely to change, the manner in which licence activities are carried out;
(h) the relevant licence has been transferred under Division 2 of Part 2 of Chapter 3 of the Act, and the transfer has changed, or is likely to change, the manner in which licence activities are carried out;
(i) a requirement included in the management plan under paragraph 73(d) (requirement to revise plan when it becomes possible for the plan to fully address a matter) applies;
(j) the Minister makes a determination under section 102 (requirement for financial security to be in a particular form) in relation to the relevant licence;
(k) a condition is imposed on the relevant licence, or a condition that applies to the relevant licence is varied, and the condition:
(i) relates to the licence activities; or
(ii) requires a matter to be addressed in the plan;
(l) if:
(i) the plan (the first plan) provides for a matter by applying, adopting or incorporating any matter contained in the management plan for another licence as in force from time to time; and
(ii) the Regulator approves a revised plan as the management plan for the other licence;
the revision of the management plan for the other licence is likely to have a significant effect on the meaning or operation of the first plan.
(3) The licence holder must comply with subsection (1) as soon as reasonably practicable after the licence holder becomes aware that a circumstance set out in subsection (2) applies.
(4) However, subsection (1) does not apply to a particular circumstance set out in subsection (2) if:
(a) the management plan already makes provision for the circumstance; and
(b) the circumstance does not, and is not likely to, result in the licence holder failing to comply with the management plan.
61 Offences of failing to make a plan revision approval application in certain circumstances
(1) A person commits an offence of strict liability if:
(a) the person holds a licence for which there is a management plan; and
(b) the person reasonably ought to know that a circumstance in subsection 60(2) applies in relation to the licence; and
(c) the circumstance results, or is likely to result, in the person failing to comply with the management plan; and
(d) the person does not, as soon as reasonably practicable after paragraph (b) applies, prepare a revised management plan and make a plan revision approval application for the Regulator to approve the revised management plan as the management plan for the licence.
Penalty: 40 penalty units.
Continuing offences
(2) A person who commits an offence against subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the offence continues.
(3) The maximum penalty for each day that an offence under subsection (1) continues is 10% of the maximum penalty that can be imposed in respect of that offence.
Subdivision D—Consultation
62 Operation of this Subdivision
This Subdivision sets out how a licence holder is to comply with the following:
(a) subsection 48(2) (requirement to consult before making initial plan approval application) in relation to an initial plan approval application;
(b) a requirement under subsection 53(3) (Regulator may require consultation before a plan revision approval application is made) in relation to a direction to make a plan revision approval application.
Note 1: The management plan for the relevant licence must include information about consultation carried out in accordance with this Subdivision (see section 81).
Note 2: Conditions on the relevant licence may also require consultation to be carried out. Depending on the nature of the requirement, it may be possible to carry out consultation required by the conditions alongside consultation carried out under this Subdivision.
63 Consultation—activities subject to consultation
(1) The activities subject to consultation for consultation that relates to a proposed initial plan approval application are the licence activities that the proposed plan would authorise if:
(a) the application were made; and
(b) the Regulator granted the application and approved the proposed plan.
(2) To avoid doubt, a licence activity that is mentioned in the proposed plan, but that the proposed plan would not authorise, is not an activity subject to consultation under subsection (1).
Note: For example, an activity that is mentioned in the timetable of licence activities mentioned in paragraph 80(2)(a), but that the plan will not authorise without a further revision, is not an activity subject to consultation.
(3) If:
(a) consultation is required to be carried out as a result of a direction under subsection 53(1); and
(b) the direction includes a statement, under subparagraph 53(3)(b)(i), that the consultation must relate to specified licence activities;
then, despite subsections (1) and (2) of this section, the activities subject to consultation for the consultation are the licence activities specified in the direction.
64 Consultation—who is to be consulted
(1) The licence holder must make reasonable efforts to identify and consult the following:
(a) each Department of State, agency or authority of the Commonwealth, a State or a Territory that has functions that relate to the activities subject to consultation;
(b) Aboriginal or Torres Strait Islander people or groups that the licence holder reasonably considers may have native title rights and interests (within the meaning of the Native Title Act 1993) in relation to:
(i) the licence area; or
(ii) areas of land or water that are adjacent to the licence area;
(c) Aboriginal or Torres Strait Islander organisations that are established under a law of the Commonwealth, a State or a Territory and that the licence holder reasonably considers to have functions related to managing, for the benefit of Aboriginal or Torres Strait Islander people:
(i) land or water in the licence area; or
(ii) areas of land or water that are adjacent to the licence area;
(d) Aboriginal or Torres Strait Islander organisations or groups that the licence holder reasonably considers to be parties to agreements related to land and water rights for Aboriginal or Torres Strait Islander people under the Native Title Act 1993 or any law of a State or Territory, where the land or water rights relate to:
(i) land or water in the licence area; or
(ii) areas of land or water that are adjacent to the licence area;
(e) the holder of any other licence granted under the Act where:
(i) the licence area of the other licence covers wholly or partly the same area as the licence area of the relevant licence; or
(ii) there is licence infrastructure in relation to the other licence in or near the licence area of the relevant licence;
(f) people or organisations that the licence holder reasonably considers may, in or near the licence area of the relevant licence, carry out activities:
(i) for a commercial purpose; and
(ii) under a licence or permit (however described) issued under a law of the Commonwealth or a State or Territory; and
(iii) in a way that may directly interact with the activities subject to consultation;
(g) communities:
(i) that are located adjacent to the licence area; and
(ii) that the licence holder reasonably considers may be directly affected by the activities subject to consultation;
(h) any organisation representing recreational fishers whose activities the licence holder reasonably considers may be directly affected by the activities subject to consultation.
Note: For consultation requirements relating to the health and safety of workers, see item 9 of Schedule 1 (which modifies the Work Health and Safety Regulations 2011, as those Regulations apply for the purposes of Part 1 of Chapter 6 of the Act).
(2) However, if:
(a) the consultation is being carried out as a result of a direction under subsection 53(1); and
(b) the direction includes a statement, under subparagraph 53(3)(b)(ii), that only specified persons, organisations, communities or groups need to be consulted;
then subsection (1) of this section does not apply to the consultation, and the licence holder must make reasonable efforts to consult the specified persons, organisations, communities or groups.
(3) Subsection (1) does not require the licence holder to consult a person, organisation, community or group (the first person, organisation, community or group) if the licence holder has consulted another person, organisation, community or group that could reasonably be regarded as representing the interests of the first person, organisation, community or group.
65 Consultation—manner of consultation
(1) For the purpose of the consultation, the licence holder must give each person, organisation, community or group being consulted sufficient information to allow an informed assessment of any reasonably foreseeable effects that the activities subject to consultation may have on:
(a) for a Department, agency or authority mentioned in paragraph 64(1)(a)—the functions mentioned in that paragraph; or
(b) for people and groups mentioned in paragraph 64(1)(b)—the native title rights and interests (within the meaning of the Native Title Act 1993) mentioned in that paragraph; or
(c) for organisations mentioned in paragraph 64(1)(c)—the functions mentioned in that paragraph; or
(d) for organisations or groups mentioned in paragraph 64(1)(d)—the rights mentioned in that paragraph; or
(e) for the holder of a licence (other than the relevant licence) mentioned in paragraph 64(1)(e)—the licence activities in relation to that licence; or
(f) for a person or organisation mentioned in paragraph 64(1)(f)—the activities mentioned in that paragraph; or
(g) for a community mentioned in paragraph 64(1)(g)—the community; or
(h) for an organisation mentioned in paragraph 64(1)(h)—the activities mentioned in that paragraph.
(2) However, subsection (1) does not require the licence holder to disclose information that could reasonably be expected to substantially prejudice the commercial interests of:
(a) the licence holder; or
(b) any other person.
(3) The licence holder must allow a person, organisation, community or group a reasonable period for the consultation.
Division 4—Dealing with applications
Subdivision A—Operation of this Division
66 Operation of this Division
(1) This Division applies if a licence holder makes an initial plan approval application for the Regulator to approve a plan as the management plan for a relevant licence.
Note: See section 47 (making an initial plan approval application).
(2) This Division also applies if a licence holder makes a plan revision approval application for the Regulator to approve a revised plan as the management plan for a relevant licence.
Note: See section 50 (making a plan revision approval application).
Subdivision B—Consideration of application
67 Time for making decision on application
(1) The Regulator must make a decision on the application before the end of the period (the decision period) of 60 days after the day the application is made.
Extensions of decision period
(2) The Regulator may, by written notice to the licence holder, extend the decision period by a period specified in the notice.
(3) The notice must set out the reasons for the extension.
Note: For example, the Regulator may extend the decision period if the Regulator gives the licence holder a notice under subsection 68(1) (requiring further information), subsection 69(1) (requiring the licence holder to amend and resubmit the plan) or subsection 75(2) (proposing to refuse to grant the application), or for other reasons.
(4) To avoid doubt, the Regulator may extend the decision period more than once.
Failure to make decision within decision period does not affect validity
(5) A failure by the Regulator to comply with subsection (1) does not affect the validity of any decision made on the application or anything done by the Regulator in dealing with the application.
68 Regulator may require further information
(1) If, at any time while considering the application, the Regulator is not satisfied that the application or the plan contains sufficient information for the Regulator to grant the application, the Regulator may, by written notice, require the licence holder to give further information.
(2) The notice must:
(a) specify the information required; and
(b) specify the day on or before which the information must be given; and
(c) specify the manner in which the information must be given.
Note: If the licence holder does not comply with the notice on or before the day specified for the purposes of paragraph (b), the Regulator may refuse to grant the application (see section 74).
Time limit for complying with notice
(3) The day specified for the purposes of paragraph (2)(b) must be reasonable.
(4) The licence holder may, in writing, ask the Regulator to vary the day specified for the purposes of paragraph (2)(b) to a later day.
(5) If the licence holder makes a request under subsection (4), the Regulator may, by written notice to the licence holder:
(a) grant the request and vary the day specified for the purposes of paragraph (2)(b) to a later day; or
(b) refuse the request.
Further information becomes part of plan
(6) If the licence holder gives information to the Regulator in accordance with the notice:
(a) the information becomes part of the plan as if it had been included in the plan when the application was given to the Regulator; and
(b) the Regulator must have regard to the information as if it had been so included.
Regulator may give multiple notices
(7) To avoid doubt, the Regulator:
(a) may give more than one notice under this section; and
(b) may give further notices if the Regulator is not satisfied with the information provided in response to a notice.
69 Regulator may require licence holder to amend and resubmit plan
(1) The Regulator may, by written notice, require the licence holder to amend the plan and resubmit the plan to the Regulator if, at any time while the Regulator is considering the application, the Regulator:
(a) is not satisfied that the plan can be approved as the management plan for the relevant licence; and
(b) considers that the plan could be amended in a way that may make it able to be approved as the management plan for the relevant licence.
(2) The notice must:
(a) set out the matters in relation to which the Regulator considers that the plan could be amended; and
(b) specify the day on or before which the amended plan must be resubmitted.
Note: If the licence holder does not comply with the notice on or before the day specified for the purposes of paragraph (b), the Regulator may refuse to approve the plan (see section 74).
Time limit for complying with notice
(3) The day specified for the purposes of paragraph (2)(b) must be reasonable.
(4) The licence holder may, in writing, ask the Regulator to vary the day specified for the purposes of paragraph (2)(b) to a later day.
(5) If the licence holder makes a request under subsection (4), the Regulator may, by written notice to the licence holder:
(a) grant the request and vary the day specified for the purposes of paragraph (2)(b) to a later day; or
(b) refuse the request.
Regulator may give multiple notices
(6) To avoid doubt, the Regulator:
(a) may give more than one notice under this section; and
(b) may give further notices if the Regulator is not satisfied with the amendments made in response to a notice.
70 Licence holder may withdraw application
A licence holder who has made an initial plan approval application or a plan revision approval application may, by written notice to the Regulator, withdraw the application if the Regulator has not granted the application or refused to grant the application.
Subdivision C—Decision on application
71 Decision to approve or refuse to approve management plan
(1) The Regulator may, by written notice to a licence holder who has made an initial plan approval application or a plan revision approval application:
(a) grant the application and approve the plan, or the revised plan, as the management plan for the relevant licence; or
(b) refuse to grant the application and refuse to approve the plan or revised plan as the management plan for the relevant licence.
Note 1: The Regulator may only grant the application in accordance with section 72.
Note 2: The Regulator may only refuse to grant the application in accordance with section 74, and must give the licence holder the opportunity to make a submission on the proposed refusal under section 75.
Note 3: If the Regulator refuses to grant a plan revision approval application, the management plan for the relevant licence continues in effect without the revision (subject to later successful plan revision approval applications).
(2) An approval under paragraph (1)(a) takes effect:
(a) if the notice under subsection (1) specifies a day for the purposes of this paragraph—on that day; or
(b) otherwise—when the notice is given.
(3) When an approval under paragraph (1)(a) takes effect:
(a) the plan, or the revised plan, approved under that paragraph becomes the management plan for the relevant licence; and
(b) if the application was a plan revision approval application—the management plan for the licence immediately before the approval took effect ceases to be the management plan for the licence.
(4) If the Regulator refuses to grant the application, the notice under subsection (1) must set out the reasons for the refusal.
72 Requirements for grant of application and approval of management plan
(1) The Regulator may only grant the application if the Regulator is satisfied:
(a) that the plan addresses the matters mentioned in section 115 of the Act (including the matters prescribed in this instrument for the purposes of paragraph 115(1)(h) of the Act, and any matters required by the Regulator under subsection 115(3) of the Act); and
(b) that approving the plan would be consistent with:
(i) the Act (including this instrument); and
(ii) any conditions of a declaration that apply to the relevant licence (or, if the relevant licence is a proposed commercial licence, will apply to the relevant licence) under section 20 of the Act; and
(iii) any direction given to the licence holder, and any determination or requirement that applies to the licence holder, under the Act (including this instrument); and
(c) that the applicant has:
(i) carried out the consultation required by subsection 48(2); and
(ii) complied with any requirements to carry out consultation imposed by the Regulator under subsection 53(3); and
(d) if section 96 requires the applicant to give the Regulator a design notification:
(i) that the applicant has complied with the requirement; and
(ii) that the Regulator has given feedback on the design notification under section 99; and
(e) if the relevant licence is in force, and the application is an initial plan approval application—that the licence holder has provided, in accordance with the plan, any financial security required by section 117 of the Act in relation to the licence activities (subject to section 103 of this instrument); and
(f) if the relevant licence is in force, and the application is a plan revision approval application—that the licence holder has provided, in accordance with the plan as proposed to be revised, any financial security required by section 117 of the Act in relation to the licence activities (subject to section 103 of this instrument); and
(g) if the relevant licence has been granted (whether or not the relevant licence is in force)—that approving the plan would be consistent with any conditions on the relevant licence; and
(h) of the other matters that provisions of Division 5 of this Part require the Regulator to be satisfied of in order to approve the plan.
Note: Division 5 of this Part prescribes matters that a plan for a relevant licence must address, and also includes other provisions relating to the Regulator’s consideration of whether to approve the plan (including particular matters that the Regulator must be satisfied of in order to approve the plan).
(2) In considering whether to grant the application, the Regulator must have regard to:
(a) the purpose of the relevant licence; and
(b) the nature and scale of the licence activities; and
(c) the stage that the offshore infrastructure project to be carried out under the relevant licence is at; and
(d) if the relevant licence is not a commercial licence or a feasibility licence—how similar the offshore infrastructure project described in the plan is to the proposed project for the relevant licence as described in the application for the relevant licence; and
(e) if a design notification has been given in relation to the design of licence infrastructure for the relevant licence, and the Regulator has given feedback on the design notification—whether the licence holder has adequately addressed the feedback; and
(f) any other matters the Regulator considers relevant.
Note: For paragraph (a), the purposes of different kinds of licences are set out in the following provisions of the Act:
(a) section 30 (purpose of a feasibility licence);
(b) section 39 (purpose of a commercial licence);
(c) section 49 (purpose of a research and demonstration licence);
(d) section 58 (purpose of a transmission and infrastructure licence).
73 Matters that cannot be fully addressed because of stage of project
If the plan cannot fully address a matter because of the stage that the offshore infrastructure project to be carried out under the relevant licence is at, the plan must:
(a) identify the matter; and
(b) explain why the plan cannot yet fully address the matter; and
(c) explain how and when it will be possible for the plan to fully address the matter; and
(d) include a requirement, for the purposes of paragraph 60(2)(i), for the licence holder to prepare a revised management plan and make a plan revision approval application when it is possible for the plan to fully address the matter; and
(e) include a requirement that any licence activities directly related to the matter must not be carried out until the licence holder has prepared a revised management plan and made a plan revision approval application as mentioned in paragraph (d), and the Regulator has granted the application.
74 Refusal of application
The Regulator may only refuse to grant the application if:
(a) any of the following apply:
(i) the Regulator is not satisfied of the matters in subsection 72(1), having had regard to the matters in subsection 72(2);
(ii) the Regulator has given the licence holder a notice under subsection 68(1) (requirements for further information), and the licence holder does not comply with the notice on or before the day specified in the notice for the purposes of paragraph 68(2)(b);
(iii) the Regulator has given the licence holder a notice under subsection 69(1) (requirements to amend and resubmit plan), and the licence holder does not comply with the notice on or before the day specified in the notice for the purposes of paragraph 69(2)(b); and
(b) the Regulator has complied with section 75 and the day specified for the purposes of paragraph 75(3)(c) has passed (whether or not the licence holder has made a submission about the proposed decision).
75 Proposed decision to refuse application
(1) This section applies if the Regulator proposes to make a decision to refuse to grant the application.
(2) The Regulator must give the licence holder written notice of the proposed decision.
(3) The notice must:
(a) set out the Regulator’s reasons for the proposed decision; and
(b) invite the licence holder to make a written submission about the proposed decision; and
(c) specify the day on or before which the submission must be made.
(4) The day specified for the purposes of paragraph (3)(c) must be reasonable.
(5) If the licence holder makes a submission on or before the day specified for the purposes of paragraph (3)(c), the Regulator must take the submission into account in deciding whether to grant, or refuse to grant, the application.
Subdivision D—Summary of management plan
76 Licence holder must provide summary of management plan
(1) If:
(a) the application is an initial plan approval application; and
(b) the Regulator grants the application and approves the plan as the management plan for the relevant licence;
the licence holder must, before the end of 30 days after the day the approval takes effect, give the Regulator a summary of the management plan that includes the information set out in section 77.
(2) If:
(a) the application is a plan revision approval application; and
(b) the Regulator grants the application and approves the revised plan as the management plan for the relevant licence; and
(c) the most recent summary of the management plan for the relevant licence given to the Regulator under this section does not accurately reflect the revised plan;
the licence holder must, before the end of 30 days after the day the approval takes effect, give the Regulator a summary of the revised plan that includes the information set out in section 77.
Note: The Regulator may publish a summary given under subsection (1) or (2) on the Regulator’s website (see section 115A of the Act).
Offence
(3) A person commits an offence of strict liability if:
(a) the person is required to give the Regulator a summary under subsection (1) or (2) before the end of a period; and
(b) the person does not comply with that requirement before the end of the period.
Penalty: 50 penalty units.
Continuing offences
(4) A person who commits an offence against subsection (3) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the offence continues.
(5) The maximum penalty for each day that an offence under subsection (3) continues is 10% of the maximum penalty that can be imposed in respect of that offence.
77 Requirements for summary of management plan
(1) A summary of a management plan given to the Regulator under section 76 must include a summary of the matters addressed in the management plan under the following provisions:
(a) section 80 (description of activities and operations);
(b) section 81 (consultation);
(c) section 82 (stakeholder engagement);
(d) section 83 (management system);
(e) section 84 (conditions of licence);
(f) section 85 (obligations under the Environment Protection and Biodiversity Conservation Act 1999);
(g) section 88 (maintenance of relevant structures, equipment and property);
(h) section 89 (decommissioning of licence infrastructure);
(i) section 90 (removal of relevant structures, equipment and property, and remediation);
(j) section 91 (emergency management);
(k) section 94 (work health and safety).
(2) Despite subsection (1), the summary is not required to include information that could reasonably be expected to substantially prejudice the commercial interests of:
(a) the licence holder; or
(b) any other person.
(3) A summary of a management plan given to the Regulator under section 76 must include:
(a) contact details for the licence holder (which must include a telephone number and an email address); and
(b) the business address or addresses of any premises where records relating to any of the following are required to be kept, and can be inspected, under a provision of the management plan mentioned in paragraph 115(1)(f) of the Act:
(i) work in the nature of offshore infrastructure activities carried out in the Commonwealth offshore area;
(ii) any other work carried out, or purportedly carried out, in the Commonwealth offshore area under the relevant licence;
(iii) any other work carried out, or purportedly carried out, in the Commonwealth offshore area in accordance with a requirement under the Act.
78 Regulator may direct revision and resubmission of summary
(1) If:
(a) a licence holder gives the Regulator a summary of a management plan under section 76; and
(b) the Regulator:
(i) is not satisfied that the summary includes the information required by section 77; or
(ii) is not satisfied that the summary is suitable for publication on the Regulator’s website;
the Regulator may direct the licence holder to revise the summary and resubmit the summary to the Regulator.
(2) The direction must:
(a) be in writing; and
(b) describe the revisions that are required to be made; and
(c) specify the day on or before which the revised summary must be resubmitted.
(3) The day specified for the purposes of paragraph (2)(c) must be reasonable.
(4) To avoid doubt, the Regulator:
(a) may give more than one direction under subsection (1); and
(b) may give further directions if the Regulator is not satisfied with the revisions made in response to a direction.
Offence
(5) A person commits an offence of strict liability if:
(a) the Regulator gives the person a direction under subsection (1); and
(b) the person does not comply with the direction on or before the day specified in the direction for the purposes of paragraph (2)(c).
Penalty: 50 penalty units.
(6) A person who commits an offence against subsection (5) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the offence continues.
(7) The maximum penalty for each day that an offence under subsection (5) continues is 10% of the maximum penalty that can be imposed in respect of that offence.
Division 5—Matters that management plan must address
79 Purpose of this Division
(1) This Division prescribes, for the purposes of paragraph 115(1)(h) of the Act, matters that a plan (including a revised plan) for a relevant licence must address in order to be approved as the management plan for the relevant licence.
Note 1: The requirements to address matters prescribed by this Division apply alongside the other requirements to address matters set out in subsection 115(1) of the Act, and a management plan may address these matters together. For example, a management plan may address the matters required by paragraph 115(1)(c) of the Act (environmental management) and the matters required by section 85 of this instrument (obligations under the Environment Protection and Biodiversity Conservation Act 1999) together.
Note 2: It is likely, although not certain, that a plan that complies with paragraph 115(1)(h) of the Act because it complies with this Division will also comply with the other paragraphs of subsection 115(1).
(2) This Division also includes other provisions relating to the Regulator’s consideration of whether to approve the plan as the management plan for the relevant licence.
80 Plan must describe activities and operations
(1) The plan must:
(a) describe the environment, including the physical environment and the general operating conditions, for the licence activities; and
(b) specify the location or locations of the licence activities; and
(c) include details of the layout of all licence infrastructure; and
(d) include an outline of the operational details of the licence activities.
(2) The plan must:
(a) include a timetable for the licence activities; and
(b) require the licence holder to notify the Regulator at least 30 days (or another period agreed between the Regulator and the licence holder) before a licence activity specified in the timetable is to commence; and
(c) require the licence holder to notify the Regulator no more than 30 days (or another period agreed between the Regulator and the licence holder) after a licence activity specified in the timetable has been completed.
81 Plan must address consultation carried out
(1) The plan must include the material set out in this section for any consultation carried out in accordance with Subdivision D of Division 3 in relation to the relevant licence.
(2) The plan must include the following:
(a) a description of the process that was used to identify persons, organisations, communities and groups to consult;
(b) a list of the persons, organisations, communities and groups consulted;
(c) a report on the outcomes of the consultation.
Note: The management plan may also address other consultation carried out in relation to the relevant licence, such as consultation required by a licence condition.
(3) The report mentioned in paragraph (2)(c) must:
(a) include a summary of any claims raised about any adverse effects that the licence activities might have on the persons, organisations, communities and groups consulted; and
(b) for each such claim—include an assessment of the merits of the claim, and a statement of whether the licence holder considers the claim to have reasonable merit; and
(c) for each such claim that the licence holder considers to have reasonable merit—include details of:
(i) the measures (if any) that the licence holder is to implement to address the claim; 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.
(4) If the plan includes details of any measures under paragraph (3)(c), the plan must require the licence holder to carry out the measures as described.
(5) The Regulator may only approve the plan if the Regulator is satisfied that:
(a) any assessments or statements included in the report under paragraph (3)(b) are reasonable; and
(b) for each claim mentioned in paragraph (3)(a) that the licence holder considers to have reasonable merit:
(i) any measures detailed in the plan under subparagraph (3)(c)(i) are reasonably appropriate and adapted to addressing the claim; and
(ii) any measures detailed in the plan under subparagraph (3)(c)(ii) are reasonably appropriate and adapted to ensuring that the measures detailed in the plan under subparagraph (3)(c)(i) are effective, and are likely to remain effective; and
(iii) if the plan does not detail measures under subparagraph (3)(c)(i)—it is reasonable in the circumstances for the licence holder not to implement measures under that subparagraph; and
(iv) if the plan does not detail measures under subparagraph (3)(c)(ii)—it is reasonable in the circumstances for the licence holder not to implement measures under that subparagraph.
82 Plan must describe stakeholder engagement strategy
(1) The plan must describe a plan for stakeholder engagement (a stakeholder engagement strategy) that the licence holder will implement to identify and consult the following persons, organisations, communities and groups (stakeholders) in relation to the licence activities:
(a) each Department of State, agency or authority of the Commonwealth, a State or a Territory that has functions that relate to the licence activities;
(b) Aboriginal or Torres Strait Islander people or groups that the licence holder reasonably considers may have native title rights and interests (within the meaning of the Native Title Act 1993) in relation to:
(i) the licence area; or
(ii) areas of land or water that are adjacent to the licence area;
(c) Aboriginal or Torres Strait Islander organisations that are established under a law of a State or a Territory and that the licence holder reasonably considers to have functions related to managing, for the benefit of Aboriginal or Torres Strait Islander people:
(i) land or water in the licence area; or
(ii) areas of land or water that are adjacent to the licence area;
(d) Aboriginal or Torres Strait Islander organisations or groups that the licence holder reasonably considers to be parties to agreements related to land and water rights for Aboriginal or Torres Strait Islander people under the Native Title Act 1993 or any law of a State or Territory, where the land or water rights relate to:
(i) land or water in the licence area; or
(ii) areas of land or water that are adjacent to the licence area;
(e) the holder of any other licence granted under the Act where:
(i) the licence area of the other licence covers wholly or partly the same area as the licence area of the relevant licence; or
(ii) there is licence infrastructure in relation to the other licence in or near the licence area of the relevant licence;
(f) people or organisations that the licence holder reasonably considers may, in or near the licence area of the relevant licence, carry out activities:
(i) for a commercial purpose; and
(ii) under a licence or permit (however described) issued under a law of the Commonwealth or a State or Territory; and
(iii) in a way that may directly interact with the licence activities;
(g) communities:
(i) that are located adjacent to the licence area; and
(ii) that the licence holder reasonably considers may be directly affected by the licence activities;
(h) any organisation representing recreational fishers whose activities the licence holder reasonably considers may be directly affected by the licence activities.
(2) Without limiting subsection (1), the plan must require the stakeholder engagement strategy to:
(a) set out a list of stakeholders that the licence holder has identified; and
(b) describe the process that the licence holder used to identify those stakeholders, and the process that the licence holder will use to identify stakeholders in the future; and
(c) include a summary of any claims raised about any adverse effects that changes in the licence activities might have on the stakeholders consulted; and
(d) for each such claim—include an assessment of the merits of the claim, and a statement of whether the licence holder considers the claim to have reasonable merit; and
(e) for each such claim that the licence holder considers to have reasonable merit—include details of:
(i) the measures (if any) that the licence holder is to implement to address the claim; 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; and
(f) describe the licence holder’s process for continuing to engage with stakeholders and managing complaints from stakeholders; and
(g) describe how the strategy will be updated and kept current (including by identifying any new stakeholders); and
(h) include any reports included in a management plan under paragraph 81(2)(c) (reports on the outcomes of consultation).
(3) The Regulator may only approve the plan if the Regulator is satisfied that the stakeholder engagement strategy described in the plan would be reasonably likely to provide for ongoing engagement with stakeholders in relation to the licence activities.
Publication requirement
(4) The plan must require the licence holder to:
(a) publish the stakeholder engagement strategy on the licence holder’s website before the end of 30 days after the management plan is first approved; and
(b) keep the stakeholder engagement strategy on the licence holder’s website until the licence ceases to be in force, or the licence holder ceases to hold the licence; and
(c) ensure that any changes to the stakeholder engagement strategy are reflected in the published stakeholder engagement strategy.
83 Plan must include description of management system
(1) The plan must describe a management system to address the licence holder’s compliance with all obligations (relevant obligations) that:
(a) apply, or will apply, to the licence holder under any of the following:
(i) the Act or any instrument made under the Act;
(ii) the Environment Protection and Biodiversity Conservation Act 1999, or regulations under that Act;
(iii) the applied work health and safety provisions;
(iv) the conditions of the relevant licence;
(v) the management plan for the relevant licence; and
(b) relate to the licence activities for the relevant licence.
(2) Without limiting subsection (1), the description of the management system in the plan must set out how the licence holder is to do each of the following:
(a) implement an ongoing process to identify, assess and deal with any hazards, impacts or risks:
(i) that might arise in relation to the licence activities; and
(ii) that would, if they did arise, result in the licence holder failing to comply with a relevant obligation;
(b) use the results of the process to develop measures to ensure that the licence holder meets the relevant obligations;
(c) establish and implement processes for managing changes in circumstances over time;
(d) consult, communicate and cooperate with other persons and organisations involved in the licence activities to ensure that the relevant obligations are met;
(e) make reasonable efforts to inform any person or organisation involved in the licence activities of their obligations, where compliance or non‑compliance with those obligations might affect the licence holder’s compliance with the relevant obligations;
(f) identify the roles and responsibilities of the licence holder and any person or organisation involved in the licence activities, in relation to anything that might affect the licence holder’s compliance with the relevant obligations;
(g) establish arrangements to coordinate the actions of the licence holder and any person or organisation involved in the licence activities, in relation to anything that might affect the licence holder’s compliance with the relevant obligations;
(h) establish arrangements for communication between the licence holder and any person, organisation, infrastructure, vessel or aircraft that is involved in the licence activities;
(i) establish protocols to ensure that the licence holder is informed, in a timely manner, of any incident or circumstances that might lead to the licence holder failing to comply with the relevant obligations;
(j) ensure that any person involved in the licence activities has the qualifications, competencies and supervision necessary to ensure that the licence holder complies with the relevant obligations;
(k) implement an ongoing process to:
(i) monitor, audit and record the licence holder’s compliance with the relevant obligations; and
(ii) identify and manage any non‑compliance with the relevant obligations; and
(iii) identify and, where appropriate, implement opportunities to improve the licence holder’s performance in relation to the relevant obligations.
(3) The plan must require the licence holder to implement the management system described in the plan.
(4) The Regulator may only approve the plan if the Regulator is satisfied that the management system described in the plan will be reasonably likely to ensure that the licence holder meets, and will continue meeting, the relevant obligations.
84 Plan must address compliance with conditions of licence
(1) If a condition of the relevant licence relates to the licence activities, the plan must:
(a) describe measures that the licence holder is to implement to ensure that the condition is complied with; and
(b) require the licence holder to implement those measures.
(2) The Regulator may only approve the plan if the Regulator is satisfied that the measures are reasonably likely to ensure that the condition is complied with.
Note: This section applies to licence conditions that relate to licence activities. The plan must also comply with paragraph 115(1)(b) of the Act, which applies to licence conditions that require the plan to address particular matters.
85 Plan must refer to any obligations under the Environment Protection and Biodiversity Conservation Act 1999
(1) This section applies if the licence holder has obligations under the Environment Protection and Biodiversity Conservation Act 1999, or under regulations under that Act, in relation to the licence activities (including any such obligations under conditions attached to an approval under that Act, or conditions of a permit issued under that Act).
(2) The plan must:
(a) describe the obligations; and
(b) describe the measures that the licence holder is to implement to comply with the obligations.
(3) The plan must require the licence holder to implement the measures described under paragraph (2)(b).
Note: Obligations under the Environment Protection and Biodiversity Conservation Act 1999 are also enforced under that Act.
86 Plan must include information about design notification
(1) If the licence holder has given the Regulator a design notification in relation to the relevant licence, the plan must:
(a) set out any feedback provided by the Regulator on the design notification; and
(b) describe how the feedback has been addressed by the licence holder; and
(c) state whether or not the way the offshore infrastructure project is being carried out, or is to be carried out, under the relevant licence is broadly consistent with the design notification; and
(d) if the way the offshore infrastructure project is being carried out, or is to be carried out, under the relevant licence is not broadly consistent with the design notification—identify the extent of the inconsistencies and evaluate and describe how the inconsistencies have affected the offshore infrastructure project.
(2) If the Regulator gave feedback on the design notification, the Regulator may only approve the plan if the Regulator is satisfied that the licence holder has adequately addressed the feedback.
87 Plan must include list of relevant structures, equipment and property
(1) This section applies to all structures, equipment and other property (relevant structures, equipment and property in relation to the relevant licence):
(a) that:
(i) are in the licence area of the relevant licence; and
(ii) were brought into the licence area by, or with the authority of, the licence holder; and
(iii) are being, are to be or have been used in connection with activities authorised or required by or under the Act; or
(b) that:
(i) are to be brought into the licence area of the relevant licence by, or with the authority of, the licence holder; and
(ii) are to be used in connection with activities authorised or required by or under the Act.
(2) The plan must include a list of all relevant structures, equipment and property.
(3) The list must include, for each item that is a relevant structure, equipment or property, the following details:
(a) a concise description of the item;
(b) the location or locations in the licence area where the item is being, will be or has been used;
(c) how the item is being, will be or has been used;
(d) if the item is being, or has been, decommissioned—how the item is being, or has been, decommissioned.
(4) The list and details need not be updated for the purposes of a plan revision approval application unless the list or the details are significantly incorrect.
Note: If the list or details become significantly incorrect, the licence holder may need to revise the plan and make a plan revision approval application (see paragraph 60(2)(b)).
88 Plan must describe maintenance of relevant structures, equipment and property
(1) The plan must describe measures for maintaining, in good condition and repair, relevant structures, equipment and property in relation to the relevant licence.
(2) Without limiting subsection (1), the plan must:
(a) describe measures for providing assurance that the relevant structures, equipment and property are fit for their function or use in normal operating conditions; and
(b) describe measures for providing assurance that any of the relevant structures, equipment and property that are intended to function or be used in an emergency are fit for their function or use in emergency conditions; and
(c) describe reasonable and appropriate measures for monitoring, maintaining and providing assurance of:
(i) the ability of the relevant structures, equipment and property to perform their intended purpose; and
(ii) the structural soundness, strength and stability of the relevant structures, equipment and property; and
(iii) the mechanical integrity and systems integrity (including the integrity of electrical, hydraulic and other systems) of the relevant structures, equipment and property; and
(d) set out arrangements and schedules for the inspection, testing, maintenance and repair of the relevant structures, equipment and property; and
(e) identify any standards that are, or are to be, applied in relation to the operation, performance and infrastructure integrity of the relevant structures, equipment and property; and
(f) describe measures for determining whether the standards (if any) mentioned in paragraph (e) are being met.
Note: The standards identified under paragraph (e) may be applied as in force or existing from time to time (see section 95).
(3) The plan must require the licence holder to:
(a) implement the measures described in the plan under this section; and
(b) carry out inspections, testing, maintenance and repair of the relevant structures, equipment and property in accordance with the arrangements and schedules mentioned in paragraph (2)(d).
(4) The Regulator may only approve the plan if the Regulator is satisfied that the matters included in the plan under this section are reasonably likely to result in the relevant structures, equipment and property being maintained in good condition and repair.
Note: A significant change in the relevant structures, equipment or property may result in the plan needing to be revised (see paragraph 60(2)(b)).
89 Plan must describe decommissioning of licence infrastructure
(1) The plan must describe how the licence holder intends to decommission licence infrastructure.
(2) The plan must describe how the licence area is to be remediated in relation to the decommissioning of licence infrastructure.
(3) The plan must require the licence holder to give effect to provisions included in the plan under subsections (1) and (2).
(4) This section does not limit section 90.
Note: The plan must also describe how decommissioned licence infrastructure is to be removed from the licence area in the circumstances described in subsection 90(1), subject to any arrangements mentioned in subsection 90(2).
90 Plan must address removal of relevant structures, equipment and property, and remediation
(1) The plan must describe how relevant structures, equipment and property in relation to the relevant licence are to be removed from the licence area if:
(a) they are neither used nor intended to be used in connection with the activities:
(i) in which the licence holder is or will be engaged; and
(ii) that are authorised or required by or under the Act; and
(b) section 116 of the Act (subject to subsection (6) of that section) requires them to be removed from the licence area.
Note: See also paragraph 74(3)(e) of the Act (about how equipment and other property is to be dealt with before a licence may be surrendered).
(2) The plan must describe how the licence area is to be remediated in relation to the removal of relevant structures, equipment and property.
(3) The plan must require the licence holder to give effect to:
(a) provisions included in the plan under subsection (1); and
(b) any arrangements set out in the plan under subsection (2).
Note 1: In considering whether to approve the plan, the Regulator must have regard to the stage that the offshore infrastructure project is at (see paragraph 72(2)(c)). This may result in the matters included in the plan under this section becoming more detailed as the project progresses.
Note 2: A significant change in the relevant structures, equipment or property may result in the plan needing to be revised (see paragraph 60(2)(b)), and the matters addressed in the plan under this section may need to be updated.
91 Plan must address emergency management
(1) The plan must address emergency management in relation to all licence activities.
(2) Without limiting subsection (1), the plan must do the following:
(a) identify, and include an analysis of, each kind of emergency that could reasonably foreseeably arise in relation to the licence activities;
(b) describe measures to reduce the likelihood of each kind of emergency identified under paragraph (a) occurring;
(c) describe a plan (an emergency response plan) for responding to each kind of emergency identified under paragraph (a);
(d) without limiting paragraph (c), require the emergency response plan to do the following for each kind of emergency identified under paragraph (a):
(i) describe the capabilities, roles and responsibilities of the licence holder and any other person or organisation in relation to that kind of emergency;
(ii) set out processes to quickly and effectively respond to that kind of emergency;
(iii) set out processes to ensure timely notification to, and effective communication with, workers, responders, emergency service providers and other persons and organisations in the event of that kind of emergency;
(e) require the licence holder to prepare, maintain and implement an emergency response plan that is consistent with the description included under paragraph (c) and complies with the requirements included in the plan under paragraph (d);
(f) describe measures for monitoring the effectiveness of the emergency response plan, including arrangements for testing the emergency response plan;
(g) describe how the licence holder will provide appropriate information, training and instruction, including a copy of the emergency response plan, to persons and organisations who could reasonably foreseeably be involved in an emergency in relation to the licence activities.
(3) The testing arrangements described in the plan under paragraph (2)(f) must include a schedule of tests of the emergency response plan, which must require the response plan to be tested at least:
(a) when the emergency response plan is introduced; and
(b) when the emergency response plan is significantly modified; and
(c) in any case—at least once in any period of 12 months.
(4) The testing arrangements must also:
(a) describe the objectives of the tests; and
(b) describe how the outcomes of the tests are to be measured; and
(c) describe how the licence holder is to use the results of tests to improve the emergency response plan.
(5) The Regulator may only approve the plan if the Regulator is satisfied that the emergency response plan described in the plan will be reasonably likely to ensure that the licence holder is able to respond to emergencies that occur in relation to the licence activities.
92 Plan must address compliance with financial security requirements
(1) The plan must describe how the licence holder is complying, or is to comply, with section 117 of the Act.
(2) Without limiting subsection (1), the plan must:
(a) set out the method used to calculate the amount of financial security provided, or to be provided, to the Commonwealth for the purposes of subsection 117(1) of the Act, which must comply with subsection (3) of this section; and
(b) describe how the licence holder has verified that the method set out under paragraph (a) will calculate an amount of financial security that is sufficient to comply with subsection 117(1) of the Act and subsection (3) of this section; and
(c) state the amount of financial security (if any) that the licence holder has provided, and describe the form or forms in which it has been provided; and
(d) state any amounts of financial security that the licence holder is to provide, and describe the form or forms in which it is to be provided; and
(e) describe any determinations made by the Minister under section 102 (Minister may require financial security to be in a particular form), and describe how any such determinations are being, or are to be, complied with; and
(f) if financial security is to be provided at different times in relation to particular licence infrastructure—include the material mentioned in section 103.
(3) Without limiting the matters that the method set out under paragraph (2)(a) may deal with, the method must identify and calculate the costs, expenses and liabilities that may arise in connection with, or as a result of, the following:
(a) the decommissioning of licence infrastructure;
(b) removing relevant structures, equipment and property from the licence area;
(c) removing things from a vacated area that would be relevant structures, equipment or property if the vacated area was still part of the licence area of the relevant licence;
(d) the remediation of the licence area and vacated areas, and any other area affected by licence activities.
Note: For relevant structures, equipment and property, see section 87.
(4) The method set out under paragraph (2)(a) must take into account any costs, expenses and liabilities that might arise from emergencies or unexpected circumstances in relation to anything mentioned in paragraph (3)(a), (b), (c) or (d).
(5) The Regulator may only approve the plan if the Regulator is satisfied that:
(a) the method set out in the plan under paragraph (2)(a) appropriately identifies and quantifies the costs, expenses and liabilities mentioned in subsection 117(1) of the Act; and
(b) if the Minister has made a determination under section 102 about the form or forms of the financial security—the form or forms of financial security described under paragraph (2)(c) and (d) of this section are consistent with the determination; and
(c) if financial security is to be required at different times in relation to particular licence infrastructure, in accordance with section 103—the material included in the plan for the purposes of section 103 is likely to ensure that financial security that relates to particular licence infrastructure is provided before that licence infrastructure is constructed or installed in the licence area.
93 Plan must address compliance with record‑keeping requirements
(1) The plan must address:
(a) how the licence holder is to comply with section 142 (requirements to keep accounts, records and other documents) in relation to the relevant licence; and
(b) how the licence holder is to comply with data management directions; and
(c) requirements to make records available for inspection under the applied work health and safety provisions.
Note: Division 2 of Part 7 of the Work Health and Safety Act 2011, as modified by section 237 of the Offshore Electricity Infrastructure Act 2021, provides for WHS entry permit holders to enter a workplace that is related onshore premises and inspect documents in certain circumstances.
(2) The Regulator may only approve the plan if the Regulator is satisfied that the matters included in the plan under subsection (1) are reasonably likely to result in the licence holder complying with the requirements and directions mentioned in that subsection.
94 Plan must address work health and safety
(1) The plan must:
(a) describe the obligations that apply to the licence holder under the applied work health and safety provisions; and
(b) describe how the licence holder is complying with, and will continue to comply with, the obligations mentioned in paragraph (a).
(2) The Regulator may only approve the plan if the Regulator is satisfied that the matters included in the plan under paragraph (1)(b) are reasonably likely to result in the licence holder complying with the obligations mentioned in paragraph (1)(a).
Division 6—Management plans may apply, adopt or incorporate other instruments or writing
95 Plan may apply, adopt or incorporate other instruments or writing as in force or existing from time to time
(1) For the purposes of subsection 114(3) of the Act, a management plan may provide for a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.
(2) However, the management plan for a licence (the first licence) may only provide for a matter by applying, adopting or incorporating a matter contained in the management plan for another licence (the other licence) if:
(a) the first licence and the other licence are held by the same eligible person; and
(b) the other licence is not a proposed commercial licence.
Division 7—Design notifications
96 Requirements to give design notifications
(1) For the purposes of paragraph 114(2)(d) of the Act, this section provides for requirements for licence holders to give the Regulator notifications (design notifications), in accordance with section 98 of this instrument, in relation to the design of licence infrastructure.
Proposed commercial licence
(2) A licence holder that proposes to make an initial plan approval application for the Regulator to approve a plan as the management plan for a proposed commercial licence:
(a) must, before making the application, give the Regulator a design notification in relation to the design of licence infrastructure for the proposed commercial licence; and
(b) must not make the application until the Regulator has given feedback on the design notification under section 99.
Transmission and infrastructure licences
(3) If:
(a) the holder of a transmission and infrastructure licence proposes to make an initial plan approval application or a plan revision approval application in relation to the licence; and
(b) if the application were granted, the management plan for the licence would authorise the licence holder to carry out an offshore infrastructure project for a purpose mentioned in paragraph 58(b) of the Act (storing, transmitting or conveying electricity or a renewable energy product); and
(c) in the case of a plan revision approval application—the existing management plan for the licence does not authorise the licence holder to carry out an offshore infrastructure project for such a purpose;
the licence holder:
(d) must, before making the application, give the Regulator a design notification in relation to the design of licence infrastructure for the licence (other than licence infrastructure that is only to be used for the purpose mentioned in paragraph 58(a) of the Act (assessing feasibility)); and
(e) must not make the application until the Regulator has given feedback on the design notification under section 99.
97 Voluntary design notifications
The holder of a feasibility licence or a research and demonstration licence may give the Regulator a notification (a design notification), in accordance with section 98, in relation to the design of licence infrastructure for the licence.
98 Contents, manner and form of design notification
(1) A design notification must:
(a) include a plan of the intended location, or locations, and layout of the licence infrastructure; and
(b) include descriptions of the following:
(i) the seabed and subsoil at the intended location or locations of the licence infrastructure;
(ii) the reasonably foreseeable meteorological and oceanographic conditions to which the licence infrastructure may be subject;
(iii) how the licence infrastructure will be constructed;
(iv) how the licence infrastructure will be operated and maintained;
(v) how the licence infrastructure will be decommissioned and removed;
(vi) any significant risks or hazards that may arise from the location or locations, design, construction, operation, maintenance, decommissioning or removal of the licence infrastructure;
(vii) proposed measures to deal with those risks and hazards; and
(c) explain the process used to select the design of the licence infrastructure, including by:
(i) outlining the criteria, design philosophy and standards (if any) that were used to guide the process; and
(ii) outlining how design considerations influenced decisions made in relation to any of the matters in paragraph (a) or (b); and
(iii) summarising any other design options that were considered, and the reasons why they were rejected.
(2) A design notification:
(a) must be given in the manner and form that is:
(i) approved by the Regulator; and
(ii) published on the Regulator’s website; and
(b) must be accompanied by any information or documents required by the form.
99 Regulator must give feedback on design notification
(1) If a licence holder gives the Regulator a design notification under section 96 or 97, the Regulator:
(a) must consider the design notification; and
(b) must give feedback to the licence holder on the design notification.
(2) The Regulator must endeavour to give feedback on the design notification before the end of the period (the feedback period) of 60 days after the day the design notification is given, subject to subsection (3).
Extension of feedback period
(3) If the Regulator makes a request for further information under subsection 100(1):
(a) the feedback period is extended by 30 days; and
(b) any days after the day the request is given do not count for the purposes of the feedback period, until the day the request is complied with.
100 Regulator may request further information about design notification
(1) If, at any time while considering what feedback to give a licence holder on a design notification, the Regulator is not satisfied that the design notification contains sufficient information for the Regulator to give feedback, the Regulator may, by written notice, request further information from the licence holder.
(2) The notice must:
(a) specify the information required; and
(b) specify the day on or before which the information must be provided; and
(c) specify the manner in which the information must be provided.
(3) The day specified for the purposes of paragraph (2)(b) must be reasonable.
(4) To avoid doubt, the Regulator:
(a) may make more than one request under this section; and
(b) may make further requests if the Regulator is not satisfied with the information provided in response to a request.
Part 4—Financial security
Division 1—Operation of this Part
101 Operation of this Part
This Part prescribes matters relating to the financial security that licence holders may be required to provide under section 117 of the Act.
Division 2—Financial security
102 Minister may require financial security to be in a particular form
(1) For the purposes of paragraph 117(3)(a) of the Act:
(a) the Minister may determine that the financial security that is or will be required to be provided, for the purposes of subsection 117(1) of the Act, in relation to a particular licence (whether or not the licence is in force) must be in a particular form, which may be a combination of different forms of financial security; and
(b) if the Minister does so, the financial security must be in that form or those forms.
Note: The Minister may make a determination under this subsection whether or not the licence holder has already provided financial security. For cases where the licence holder has already provided financial security, see subsection (9).
(2) A determination under subsection (1):
(a) must be in writing; and
(b) must specify the day on which the determination takes effect.
(3) The day specified for the purposes of paragraph (2)(b) must be reasonable.
Procedure for making determination
(4) Before making a determination under subsection (1), the Minister must give the licence holder written notice of the proposed determination.
(5) The notice must:
(a) set out the Minister’s reasons for the proposed determination; and
(b) invite the licence holder to make a written submission about the proposed determination; and
(c) specify the day on or before which the submission must be made.
(6) The day specified for the purposes of paragraph (5)(c) must be reasonable.
(7) If the licence holder makes a submission on or before the day specified for the purposes of paragraph (5)(c), the Minister must take the submission into account in deciding whether to make the determination.
(8) The Minister must give written notice of a determination under subsection (1) to the licence holder.
Determination may require existing financial security to be provided in a new form
(9) To avoid doubt:
(a) the Minister may determine under subsection (1) that financial security already provided by a licence holder in a particular form (the first form) must be provided in a different form (the second form); and
(b) if the Minister does so, then:
(i) any obligation that the licence holder has to provide the financial security in the first form continues until the end of the day before the day the determination takes effect; and
(ii) on and after the day the determination takes effect, the licence holder must provide financial security in the second form.
103 Financial security may be required at different times in relation to particular licence infrastructure
For the purposes of paragraph 117(3)(b) of the Act, the financial security required by subsection 117(1) of the Act in relation to a licence may be provided at different times in relation to particular licence infrastructure if:
(a) the management plan for the licence includes a timetable for the provision of financial security under subsection 117(1) of the Act that:
(i) sets out when the financial security that relates to particular licence infrastructure is to be provided; and
(ii) requires the financial security that relates to particular licence infrastructure to be provided before that licence infrastructure is constructed or installed in the licence area; and
(b) the financial security is provided in accordance with the timetable included under paragraph (a) of this section.
104 Amount of financial security that is no longer required
(1) For the purposes of paragraph 117(3)(c) of the Act, the Minister may determine, in writing, that a licence holder is no longer required to provide a specified amount of financial security if:
(a) the Minister is satisfied that no further costs, expenses or liabilities are likely to arise in relation to the licence infrastructure, property or remediation activities to which the amount of financial security relates; and
(b) the Minister is satisfied that the determination would not result in the amount of financial security provided by the licence holder in relation to the licence being insufficient to pay the costs, expenses and liabilities mentioned in subsection 117(1) of the Act.
(2) In considering whether to make a determination under subsection (1):
(a) the Minister must seek advice from the Regulator; and
(b) the Minister must have regard to that advice.
(3) If the Minister makes a determination under subsection (1):
(a) the amount of financial security specified in the determination ceases to be required; and
(b) the Minister must give written notice of the determination to the licence holder.
105 Reductions in amount of financial security
(1) For the purposes of paragraph 117(4)(d) of the Act, the Minister may determine, in writing, that the amount of financial security provided by a licence holder may be reduced by a particular amount if the Minister is satisfied that the reduction would not result in the total amount of financial security provided by the licence holder in relation to the licence being insufficient to pay the costs, expenses and liabilities mentioned in subsection 117(1) of the Act.
(2) In considering whether to make a determination under subsection (1):
(a) the Minister must seek advice from the Regulator; and
(b) the Minister must have regard to that advice.
(3) The Minister must give the licence holder a copy of a determination under subsection (1) within 30 days after making the determination.
106 No other cessation or reduction of financial security obligations
An amount of financial security provided by a licence holder in relation to a licence does not cease to be required and cannot be reduced, while the licence remains in force, otherwise than in accordance with a determination by the Minister under section 104 or 105.
107 Financial security for a transferred licence
(1) This section applies if:
(a) the Minister has decided to transfer a licence, as mentioned in subparagraph 72(1)(c)(ii) of the Act; or
(b) a licence has been transferred, as mentioned in subparagraph 72(1)(c)(iii) of the Act.
(2) For the purposes of subsections 72(2) and (3) of the Act, as long as the licence remains in force:
(a) all of the transferor’s obligations in relation to the licence under sections 117 and 118 of the Act continue until, and unless, the obligations cease under paragraph (6)(a) of this section; and
(b) both the transferor and the transferee must comply with sections 117 and 118 of the Act in relation to the licence until the transferor’s obligations cease under paragraph (6)(a) of this section.
Note: If the Minister makes a determination under subsection (5), the transferor’s obligations cease, while the transferee’s obligations continue.
(3) The transferor may apply to the Minister for the Minister to make a determination under subsection (5).
(4) The application:
(a) must be made in the manner and form that is:
(i) approved by the Minister; and
(ii) published on the Department’s website; and
(b) must be accompanied by any other information or documents required by the form.
Determination that transferor’s financial security obligations are to cease
(5) The Minister may determine that the transferor’s obligations in relation to the licence under sections 117 and 118 of the Act are to cease if the Minister is satisfied that the transferee has provided the Commonwealth with the financial security required by section 117 of the Act.
(6) If the Minister makes a determination under subsection (5):
(a) the transferor’s obligations in relation to the licence under sections 117 and 118 of the Act cease at the later of the following times:
(i) when the Minister makes the determination;
(ii) when the transfer of the licence takes effect; and
(b) the Minister must give written notice of the determination to the transferor and the transferee.
108 Regulator may direct licence holder to arrange verification of financial security
(1) The Regulator may, by written notice, direct a licence holder to arrange an independent verification of any of the following:
(a) that the method used or to be used to calculate the amount of financial security, as set out for the purposes of paragraph 92(2)(a) in the management plan for the licence, will calculate an amount that is sufficient for the purposes of section 117 of the Act;
(b) that the method to be used to calculate the amount of financial security, as set out for the purposes of paragraph 92(2)(a) in a plan that the Regulator is considering approving as the management plan for the relevant licence as a result of an initial plan approval application or a plan revision approval application, will calculate an amount that is sufficient for the purposes of section 117 of the Act;
(c) that an amount of financial security calculated by the licence holder in relation to a relevant licence is consistent with the method;
(d) any other matters that the Regulator considers need to be verified in relation to the financial security calculated by the licence holder in relation to a relevant licence.
(2) The licence holder must engage an entity that is suitably qualified, competent and independent to:
(a) carry out the verification; and
(b) provide a written report on the verification to the licence holder.
(3) The licence holder must give a copy of the report to the Regulator.
109 Arrangements that may be treated as financial security
(1) For the purposes of paragraph 117(4)(a) of the Act, the following arrangements may be treated as financial security for the purposes of section 117 of the Act:
(a) an amount received by the Commonwealth as mentioned in paragraph 119(3)(a) of the Act and retained in accordance with paragraph 119(4)(d) of the Act;
(b) a cash deposit held by a financial institution;
(c) a credit facility with a financial institution;
(d) a guarantee from a financial institution;
(e) an insurance policy with a general insurer (within the meaning of the Insurance Act 1973).
Note 1: Subsection (1) does not limit the kinds of arrangements that may be treated as financial security for the purposes of section 117 of the Act.
Note 2: The Minister may determine that the financial security that is required to be provided in relation to a particular licence must be provided in a particular form, which may be (but is not required to be) a form mentioned in subsection (1) (see section 102).
(2) This section has effect subject to section 110.
(3) In this section:
financial institution means a corporation that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.
110 Arrangements that are not to be treated as financial security
(1) For the purposes of paragraph 117(4)(b) of the Act, the following kinds of arrangements are not to be treated as financial security in relation to a licence for the purposes of section 117 of the Act:
(a) an arrangement involving self‑insurance;
(b) an arrangement under which the Commonwealth is a beneficiary of a trust;
(c) a guarantee provided by a related body corporate (within the meaning of the Corporations Act 2001) of the licence holder.
(2) For the purposes of paragraph 117(4)(b) of the Act, an arrangement is not to be treated as financial security for the purposes of section 117 of the Act if any of the following applies to the arrangement:
(a) the arrangement does not limit the ability of persons other than the Commonwealth to recover amounts from financial security provided under the arrangement;
(b) it is not highly certain that the Commonwealth would be able to recover amounts under the arrangement when required;
(c) the terms of the arrangement are unclear.
111 Recovery of debts from financial security
Debts arising due to non‑compliance
(1) For the purposes of subsection 119(1) of the Act, if:
(a) a licence holder owes a debt to the Commonwealth or the Regulator under the Act (other than under section 189 or 190 of the Act) in relation to the licence; and
(b) the licence holder has provided financial security in relation to the licence; and
(c) the Minister is satisfied that:
(i) the debt has not been recovered by the Commonwealth or the Regulator; and
(ii) the debt is unlikely to be paid within a reasonable time; and
(iii) recovering the debt from the financial security is likely to be more economical than recovering the debt through other means;
the Commonwealth may recover the debt from the financial security.
Debts arising due to unpaid fees, levy or late payment penalty
(2) For the purposes of subsection 119(1) of the Act, if:
(a) a licence holder owes a debt to the Commonwealth or the Regulator under section 189 (fees) or 190 (offshore electricity infrastructure levy) of the Act in relation to the licence; and
(b) the licence holder has provided financial security in relation to the licence; and
(c) the Minister is satisfied that:
(i) the debt is unlikely to be paid within a reasonable time; and
(ii) recovering the debt from the financial security is likely to be more economical than recovering the debt through other means;
the Commonwealth may recover the debt from the financial security.
Debts only to be recovered from financial security under this section
(3) The Commonwealth may only recover a debt from a financial security in accordance with this section.
Note 1: As the Registrar is part of the Commonwealth, this section may apply to debts owed to the Registrar.
Note 2: This section does not limit the means through which a debt may be recovered otherwise than from financial security.
112 Recovery of costs, expenses and liabilities from financial security
(1) For the purposes of subsection 119(1) of the Act, if:
(a) the Commonwealth or the Regulator reasonably incurs a cost, expense or liability in relation to a licence as a result of an act or omission of the licence holder; and
(b) the cost, expense or liability is of a kind set out in the table in subsection (2) of this section; and
(c) the cost, expense or liability is not a debt that:
(i) is owed by the licence holder to the Commonwealth or the Regulator; and
(ii) could be recovered by the Commonwealth under section 111 of this instrument if the conditions in paragraph 111(1)(c) or (2)(c) were satisfied; and
(d) the licence holder has provided financial security in relation to the licence; and
(e) the Minister is satisfied that:
(i) the cost, expense or liability has not been recovered by the Commonwealth or the Regulator; and
(ii) recovering the cost, expense or liability from the financial security is likely to be more economical than recovering the cost, expense or liability through other means;
the Commonwealth may recover the cost, expense or liability from the financial security.
Note 1: As the Registrar is part of the Commonwealth, this section may apply to costs, expenses or liabilities incurred by the Registrar.
Note 2: This section does not limit the means through which costs, expenses and liabilities may be recovered otherwise than from financial security.
(2) For the purposes of paragraph (1)(b), the following table sets out kinds of costs, expenses and liabilities that may be recovered under this section.
<table cellspacing="0" cellpadding="0" style="width:415.6pt; margin-left:0.25pt; border-collapse:collapse"><thead><tr><td colspan="3" style="width:404.8pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Costs, expenses and liabilities that may be recovered from financial security</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span></span></p><p class="TableHeading"><span>Item</span></p></td><td style="width:110.9pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 1</span></p><p class="TableHeading"><span>General description</span></p></td><td style="width:247.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 2</span></p><p class="TableHeading"><span>Cost, expense or liability</span></p></td></tr></thead><tbody><tr><td style="width:24.9pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>1</span></p></td><td style="width:110.9pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Decommissioning of licence infrastructure</span></p></td><td style="width:247.4pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>A cost, expense or liability incurred as a result of a failure by the licence holder to adequately decommission licence infrastructure as mentioned in paragraph</span><span> </span><span>117(1)(a) of the Act, including:</span></p><p class="Tablea"><span>(a) costs, expenses or liabilities incurred in carrying out, or engaging another person to carry out, any of the activities set out in subsection</span><span> </span><span>(3) of this section for the purpose of decommissioning licence infrastructure; and</span></p><p class="Tablea"><span>(b) any compliance costs, legal costs or other direct or indirect costs, expenses or liabilities arising from actions taken by, or on behalf of, the Commonwealth or the Regulator that can be reasonably considered as being taken for the purpose of decommissioning licence infrastructure.</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>2</span></p></td><td style="width:110.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Removing structures, equipment and other property from the licence area and vacated areas</span></p></td><td style="width:247.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>A cost, expense or liability incurred as a result of a failure by the licence holder to adequately comply with subsection</span><span> </span><span>116(2) of the Act, or to adequately remove structures, equipment and other property from the licence area or a vacated area as mentioned in paragraph</span><span> </span><span>117(1)(b) of the Act, including:</span></p><p class="Tablea"><span>(a) costs, expenses or liabilities incurred in carrying out, or engaging another person to carry out, any of the activities set out in subsection</span><span> </span><span>(3) of this section for the purpose of removing structures, equipment and other property from the licence area or a vacated area; and</span></p><p class="Tablea"><span>(b) any compliance costs, legal costs or other direct or indirect costs, expenses or liabilities arising from actions taken by, or on behalf of, the Commonwealth or the Regulator that can be reasonably considered as being taken for the purpose of removing structures, equipment and other property from the licence area or a vacated area.</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>3</span></p></td><td style="width:110.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Remediation of the licence area and vacated areas and any other areas affected by activities carried out under the licence</span></p></td><td style="width:247.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>A cost, expense or liability incurred as a result of a failure by the licence holder to adequately remediate the licence area and vacated areas, and any other area affected by activities carried out under the licence, as mentioned in paragraph</span><span> </span><span>117(1)(c) of the Act, including:</span></p><p class="Tablea"><span>(a) costs, expenses or liabilities incurred in carrying out, or engaging another person to carry out, any of the activities set out in subsection</span><span> </span><span>(3) of this section for the purpose of remediating the licence area or vacated areas or any other areas affected by activities carried out under the licence; and</span></p><p class="Tablea"><span>(b) any compliance costs, legal costs or other direct or indirect costs, expenses or liabilities arising from actions taken by, or on behalf of, the Commonwealth or the Regulator that can be reasonably considered as being taken for the purpose of remediating the licence area or vacated areas or any other areas affected by activities carried out under the licence.</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>4</span></p></td><td style="width:110.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Maintenance and repair of structures, equipment and other property in the licence area and vacated areas</span></p></td><td style="width:247.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>A cost, expense or liability incurred as a result of a failure by the licence holder to adequately comply with subsection</span><span> </span><span>116(1) of the Act, including:</span></p><p class="Tablea"><span>(a) costs, expenses or liabilities incurred in carrying out, or engaging another person to carry out, any of the activities set out in subsection</span><span> </span><span>(3) of this section for the purpose of maintaining or repairing structures, equipment and other property in the licence area or a vacated area; and</span></p><p class="Tablea"><span>(b) any compliance costs, legal costs or other direct or indirect costs, expenses or liabilities arising from actions taken by, or on behalf of, the Commonwealth or the Regulator that can be reasonably considered as being taken for the purpose of maintaining or repairing structures, equipment and other property in the licence area or a vacated area.</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>5</span></p></td><td style="width:110.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Compliance with directions and notices</span></p></td><td style="width:247.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>A cost, expense or liability incurred as a result of a failure by the licence holder to adequately comply with a direction or notice issued under any of the following provisions of the Act:</span></p><p class="Tablea"><span>(a) Part</span><span> </span><span>2 of Chapter</span><span> </span><span>4;</span></p><p class="Tablea"><span>(b) Part</span><span> </span><span>4 of Chapter</span><span> </span><span>5;</span></p><p class="Tabletext"><span>(c) Part</span><span> </span><span>1 of Chapter</span><span> </span><span>7;</span></p><p class="Tabletext"><span>including:</span></p><p class="Tablea"><span>(d) costs, expenses or liabilities incurred in carrying out, or engaging another person to carry out, any of the activities set out in subsection</span><span> </span><span>(3) of this section as a result of the failure; and</span></p><p class="Tablea"><span>(e) any compliance costs, legal costs or other direct or indirect costs, expenses or liabilities arising from actions taken by, or on behalf of, the Commonwealth or the Regulator that can be reasonably considered as being taken as a result of the failure.</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>6</span></p></td><td style="width:110.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Emergencies and unplanned circumstances, arising in connection with the licence activities, that are not adequately responded to or resolved by the licence holder</span></p></td><td style="width:247.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>A cost, expense or liability incurred as a result of a failure by the licence holder to adequately respond to or resolve an emergency or unplanned circumstance that arises in connection with the licence activities, including:</span></p><p class="Tablea"><span>(a) costs, expenses or liabilities incurred in carrying out, or engaging another person to carry out, any of the activities set out in subsection</span><span> </span><span>(3) of this section as a result of the failure; and</span></p><p class="Tablea"><span>(b) any compliance costs, legal costs or other direct or indirect costs, expenses or liabilities arising from actions taken by, or on behalf of, the Commonwealth or the Regulator that can be reasonably considered as being taken as a result of the failure.</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>7</span></p></td><td style="width:110.9pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Act or omission that could result in cancellation of licence</span></p></td><td style="width:247.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>A cost, expense or liability incurred as a result of an act or omission by the licence holder that may result in the Minister having the power to cancel the licence under paragraph</span><span> </span><span>73(1)(a), (b), (d) or (f) of the Act, including:</span></p><p class="Tablea"><span>(a) costs, expenses or liabilities incurred in carrying out, or engaging another person to carry out, any of the activities set out in subsection</span><span> </span><span>(3) of this section as a result of the act or omission; and</span></p><p class="Tablea"><span>(b) any compliance costs, legal costs or other direct or indirect costs, expenses or liabilities arising from actions taken by, or on behalf of, the Commonwealth or the Regulator that can be reasonably considered as being taken as a result of the act or omission.</span></p></td></tr></tbody></table>
(3) For the purposes of subsection (2), the activities are the following:
(a) evaluation, inspection, monitoring and surveillance;
(b) mobilisation, operation and demobilisation of vessels, aircraft or other plant and equipment;
(c) pollution and waste management and disposal;
(d) salvage or towage;
(e) protecting, remediating, restoring or reinstating any physical or biological features of the environment;
(f) repairing, replacing, relocating, removing or making safe any structures, plant, equipment or property;
(g) planning, engineering and design;
(h) engaging workers, including specialist technical advisors and contractors;
(i) site hire, communications and utilities;
(j) personal safety and medical requirements.
Part 5—Safety zone determinations
Division 1—Purpose of this Part
113 Purpose of this Part
This Part prescribes matters relating to determinations under subsection 136(2) of the Act (safety zone determinations).
Note: A safety zone determination is a notifiable instrument (see subsection 136(2) of the Act).
Division 2—General provisions about safety zone determinations
114 Information that a safety zone determination must include
For the purposes of subsection 136(4) of the Act, a safety zone determination must:
(a) specify the eligible safety zone infrastructure to which the determination relates; and
(b) include the time when the determination takes effect under subsection 138(1) of the Act (subject to subsection 138(2) of the Act); and
(c) if infrastructure to which the determination relates is licence infrastructure in relation to a licence—include sufficient information to identify the licence.
Note: A safety zone determination must also specify the area of the safety zone (see subsection 136(2) of the Act) and state which vessels it applies to (see subsection 136(3) of the Act).
115 When safety zone determination continues in effect
(1) Subject to subsection (3), a safety zone determination continues in effect until it is revoked.
Note: For revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(2) A safety zone determination may provide that it ceases to have effect at a time specified in the determination, or in circumstances specified in the determination.
(3) If a safety zone determination includes a provision mentioned in subsection (2), the determination ceases to have effect in accordance with the provision.
(4) To avoid doubt, a safety zone determination may continue in effect even if the eligible safety zone infrastructure in the safety zone has ceased to operate.
Division 3—Procedures for safety zone applications
116 Operation of this Division
For the purposes of subsection 137(2) of the Act, this Division prescribes procedures relating to safety zone determinations.
Note: The Regulator may make, vary or revoke a safety zone determination on application, or on the Regulator’s own initiative (see subsection 137(1) of the Act and subsection 33(3) of the Acts Interpretation Act 1901).
117 Making a safety zone application
Application for the Regulator to make a safety zone determination
(1) A person may apply to the Regulator, in accordance with this Division, for the Regulator to make a safety zone determination for the purpose of protecting eligible safety zone infrastructure.
Application for the Regulator to vary or revoke a safety zone determination
(2) If a safety zone determination is in force as a result of an application under subsection (1), the following people may apply to the Regulator, in accordance with this Division, for the Regulator to vary or revoke the determination:
(a) the person who made the application;
(b) the holder of any licence whose licence area includes any part of the safety zone.
Note: The Regulator’s power to make a safety zone determination includes a power to vary or revoke a safety zone determination (see subsection 33(3) of the Acts Interpretation Act 1901).
Safety zone application
(3) For the purposes of this instrument, an application under subsection (1) or (2) is a safety zone application.
118 Requirements for safety zone application—application for the Regulator to make a safety zone determination
A safety zone application under subsection 117(1):
(a) must be made in the manner and form that is:
(i) approved by the Regulator; and
(ii) published on the Regulator’s website; and
(b) must be accompanied by any information or documents required by the form.
Note: For application fees, see section 146. An application is taken to have been made only if the fee for dealing with the application has been paid (see section 147).
119 Requirements for safety zone application—application for the Regulator to vary or revoke a safety zone determination
A safety zone application under subsection 117(2):
(a) must either:
(i) state that the application is for the Regulator to revoke a safety zone determination specified in the application; or
(ii) state that the application is for the Regulator to vary a safety zone determination specified in the application, and describe the proposed variation; and
(b) must be made in the manner and form that is:
(i) approved by the Regulator; and
(ii) published on the Regulator’s website; and
(c) must be accompanied by any information or documents required by the form.
Note: For application fees, see section 146. An application is taken to have been made only if the fee for dealing with the application has been paid (see section 147).
120 Notification of certain safety zone applications
(1) If:
(a) a person (the applicant) makes a safety zone application; and
(b) there is licence infrastructure in relation to a licence (the affected licence) in:
(i) for a safety zone application under subsection 117(1)—the area that the applicant proposes to be specified as a safety zone; or
(ii) for a safety zone application under subsection 117(2)—the area (if any) that would be specified as a safety zone if the application was granted, and the area (if any) that would cease to be specified as a safety zone if the application was granted; and
(c) the applicant is not the holder of the affected licence;
the Regulator must, by written notice, inform the holder of the affected licence that the application has been made.
(2) The notice must:
(a) include the name of the applicant; and
(b) include contact details for the applicant; and
(c) include:
(i) for a safety zone application under subsection 117(1)—details of the safety zone that is proposed by the application; or
(ii) for a safety zone application under subsection 117(2)—details of the variation or revocation that is proposed by the application; and
(d) invite the holder of the affected licence to make a written submission about the application; and
(e) specify the day on or before which the submission must be made.
(3) The day specified for the purposes of paragraph (2)(e) must be reasonable.
121 Regulator may request further information
(1) If, at any time while considering a safety zone application, the Regulator is not satisfied that the application contains sufficient information for the Regulator to decide whether or not to grant the application, the Regulator may, by written notice, request further information from the applicant.
(2) The notice must:
(a) specify the information required; and
(b) specify the day on or before which the information must be provided; and
(c) specify the manner in which the information must be provided.
(3) The day specified for the purposes of paragraph (2)(b) must be reasonable.
(4) If the applicant provides further information in accordance with the notice, the Regulator must take the information into account in deciding whether to grant, or refuse to grant, the application.
(5) To avoid doubt, the Regulator:
(a) may make more than one request under this section; and
(b) may make further requests if the Regulator is not satisfied with the information provided in response to a request.
122 Time for making decision on safety zone application
(1) The Regulator must make a decision on a safety zone application before the end of the period (the decision period) of 60 days after the day the application is made.
Extensions of decision period
(2) The Regulator may, by written notice to the applicant, extend the decision period by a period specified in the notice.
(3) The notice must set out the reasons for the extension.
Note: For example, the Regulator may extend the decision period if the Regulator gives a notice under subsection 120(1) (notification of certain safety zone applications), subsection 121(1) (requesting further information) or subsection 124(1) (proposing to refuse the application), or for other reasons.
(4) To avoid doubt, the Regulator may extend the decision period more than once.
Failure to make decision within decision period does not affect validity
(5) A failure by the Regulator to comply with subsection (1) does not affect the validity of any decision made on the safety zone application or anything done by the Regulator in dealing with the application.
123 Applicant may withdraw safety zone application
A person who has made a safety zone application may, at any time before the Regulator makes a decision on the application, withdraw the application by written notice to the Regulator.
124 Proposed decision to refuse safety zone application
(1) If the Regulator proposes to refuse to grant a safety zone application, the Regulator must give the applicant written notice of the proposed decision.
(2) The notice must:
(a) set out the Regulator’s reasons for the proposed decision; and
(b) invite the applicant to make a written submission about the proposed decision; and
(c) specify the day on or before which the submission must be made.
(3) The day specified for the purposes of paragraph (2)(c) must be reasonable.
(4) If the applicant makes a submission on or before the day specified for the purposes of paragraph (2)(c), the Regulator must take the submission into account in deciding whether to grant, or refuse to grant, the application.
125 Decision on safety zone application
Decision to grant safety zone application
(1) If the Regulator decides to grant a safety zone application:
(a) the Regulator must give written notice of the decision to:
(i) the applicant; and
(ii) any licence holder that was required to be given notice under subsection 120(1) in relation to the application; and
(b) the Regulator must give effect to the decision by making a safety zone determination, or varying or revoking a safety zone determination, in relation to the application before the end of 30 days after the Regulator makes the decision.
Decision not to grant safety zone application
(2) If the Regulator decides not to grant a safety zone application, the Regulator must give written notice of the decision to:
(a) the applicant; and
(b) any licence holder that was required to be given notice under subsection 120(1) in relation to the application.
Part 6—Protection zone determinations
Division 1—Purpose of this Part
126 Purpose of this Part
This Part prescribes matters relating to determinations under subsection 142(1) of the Act (protection zone determinations).
Note: A protection zone determination is a legislative instrument (see subsection 142(1) of the Act).
Division 2—General provisions about protection zone determinations
127 Determination of area of protection zone
(1) For the purposes of paragraph 142(3)(a) of the Act, this section provides for how the area covered by a protection zone specified in a protection zone determination is to be determined.
(2) The area of the protection zone must extend no further than 1,852 metres from the infrastructure or proposed infrastructure to which the protection zone relates, measured from each point on the outer edge of the infrastructure or proposed infrastructure.
128 Information that a protection zone determination must include
For the purposes of paragraph 142(3)(b) of the Act, a protection zone determination must:
(a) specify the offshore renewable energy infrastructure or offshore electricity transmission infrastructure to which the determination relates; and
(b) include the time when the determination takes effect under subsection 146(1) of the Act (subject to subsection 146(2) of the Act).
Note: A protection zone determination:
(a) must also specify the licence under which the infrastructure is, or is proposed to be, installed (see subsection 142(1) of the Act); and
(b) must identify the area of the protection zone (see paragraph 142(3)(a) of the Act); and
(c) may set out activities that are prohibited in the protection zone and restrictions that apply to specified activities in the protection zone (see subsection 142(4) of the Act).
Division 3—Procedures for protection zone applications
129 Operation of this Division
For the purposes of subsection 143(2) of the Act, this Division prescribes procedures relating to protection zone determinations.
Note: The Regulator may make, vary or revoke a protection zone determination on application, or on the Regulator’s own initiative (see subsection 143(1) of the Act and subsection 33(3) of the Acts Interpretation Act 1901).
130 Making a protection zone application
Application for the Regulator to make a protection zone determination
(1) A person may apply to the Regulator, in accordance with this Division, for the Regulator to make a protection zone determination in relation to offshore renewable energy infrastructure or offshore electricity transmission infrastructure that has been, or is proposed to be, installed in the Commonwealth offshore area under a licence.
Application for the Regulator to vary or revoke a protection zone determination
(2) If a protection zone determination is in force as a result of an application under subsection (1), the person who made that application may apply to the Regulator, in accordance with this Division, for the Regulator to vary or revoke the determination.
Note: The Regulator’s power to make a protection zone determination includes a power to vary or revoke a protection zone determination (see subsection 33(3) of the Acts Interpretation Act 1901).
Protection zone application
(3) For the purposes of this instrument, an application under subsection (1) or (2) is a protection zone application.
131 Requirements for protection zone application—application for the Regulator to make a protection zone determination
A protection zone application under subsection 130(1):
(a) must be made in the manner and form that is:
(i) approved by the Regulator; and
(ii) published on the Regulator’s website; and
(b) must be accompanied by any information or documents required by the form.
Note: For application fees, see section 146. An application is taken to have been made only if the fee for dealing with the application has been paid (see section 147).
132 Requirements for protection zone application—application for the Regulator to vary or revoke a protection zone determination
A protection zone application under subsection 130(2):
(a) must either:
(i) state that the application is for the Regulator to revoke a protection zone determination specified in the application; or
(ii) state that the application is for the Regulator to vary a protection zone determination specified in the application, and describe the proposed variation; and
(b) must be made in the manner and form that is:
(i) approved by the Regulator; and
(ii) published on the Regulator’s website; and
(c) must be accompanied by any information or documents required by the form.
133 Notification of certain protection zone applications
(1) If:
(a) a person (the applicant) makes a protection zone application; and
(b) there is licence infrastructure in relation to a licence (the affected licence) in:
(i) for a protection zone application under subsection 130(1)—the area that the applicant proposes to be specified as a protection zone; or
(ii) for a protection zone application under subsection 130(2)—the area (if any) that would be specified as a protection zone if the application was granted, and the area (if any) that would cease to be specified as a protection zone if the application was granted; and
(c) the applicant is not the holder of the affected licence;
the Regulator must, by written notice, inform the holder of the affected licence that the application has been made.
(2) The notice must:
(a) include the name of the applicant; and
(b) include contact details for the applicant; and
(c) include:
(i) for a protection zone application under subsection 130(1)—details of the protection zone that is proposed by the application; or
(ii) for a protection zone application under subsection 130(2)—details of the variation or revocation that is proposed by the application; and
(d) invite the holder of the affected licence to make a written submission about the application; and
(e) specify the day on or before which the submission must be made.
(3) The day specified for the purposes of paragraph (2)(e) must be reasonable.
134 Regulator must invite submissions from the public on protection zone application
(1) If a protection zone application is made under subsection 130(1), the Regulator must publish a notice under this section on the Regulator’s website.
(2) The notice must:
(a) describe the offshore renewable energy infrastructure or offshore electricity transmission infrastructure that the protection zone is proposed to relate to; and
(b) describe the proposed area of the protection zone; and
(c) describe the activities that are proposed to be prohibited or subject to restrictions in the protection zone; and
(d) invite submissions from the public on the proposed protection zone; and
(e) specify how submissions may be made to the Regulator; and
(f) specify the day on or before which submissions may be made.
(3) The notice may include any other information the Regulator considers appropriate in relation to the application or the proposed protection zone.
(4) The Regulator must take any submissions made in accordance with the notice into account in deciding whether to grant, or refuse to grant, the application.
135 Time for making decision on protection zone application
(1) The Regulator must make a decision on a protection zone application before the end of the period (the decision period) of 60 days after the day the application is made.
Extension of decision period by consultation period
(2) The decision period is extended by the period:
(a) beginning on the day the Regulator publishes a notice under section 134 in relation to the application; and
(b) ending on the day specified in the notice under paragraph 134(2)(f).
Other extensions of decision period
(3) The Regulator may, by written notice to the applicant, extend the decision period by a period specified in the notice.
(4) The notice must set out the reasons for the extension.
Note: For example, the Regulator may extend the decision period if the Regulator gives a notice under subsection 133(1) (notification of certain protection zone applications), subsection 136(1) (requesting further information) or subsection 138(1) (proposing to refuse the application), or for other reasons.
(5) To avoid doubt, the Regulator may extend the decision period more than once.
Failure to make decision within decision period does not affect validity
(6) A failure by the Regulator to comply with subsection (1) does not affect the validity of any decision made on the application or anything done by the Regulator in dealing with the application.
136 Regulator may request further information
(1) If, at any time while considering a protection zone application, the Regulator is not satisfied that the application contains sufficient information for the Regulator to decide whether or not to grant the application, the Regulator may, by written notice, request further information from the applicant.
(2) The notice must:
(a) specify the information required; and
(b) specify the day on or before which the information must be provided; and
(c) specify the manner in which the information must be provided.
(3) The day specified for the purposes of paragraph (2)(b) must be reasonable.
(4) If the applicant provides further information in accordance with the notice, the Regulator must take the information into account in deciding whether to grant, or refuse to grant, the application.
(5) To avoid doubt, the Regulator:
(a) may make more than one request under this section; and
(b) may make further requests if the Regulator is not satisfied with the information provided in response to a request.
137 Applicant may withdraw protection zone application
A person who has made a protection zone application may, at any time before the Regulator makes a decision on the application, withdraw the application by written notice to the Regulator.
138 Proposed decision to refuse protection zone application
(1) If the Regulator proposes to refuse to grant a protection zone application, the Regulator must give the applicant written notice of the proposed decision.
(2) The notice must:
(a) set out the Regulator’s reasons for the proposed decision; and
(b) invite the applicant to make a written submission about the proposed decision; and
(c) specify the day on or before which the submission must be made.
(3) The day specified for the purposes of paragraph (2)(c) must be reasonable.
(4) If the applicant makes a submission on or before the day specified for the purposes of paragraph (2)(c), the Regulator must take the submission into account in deciding whether to grant, or refuse to grant, the application.
139 Decision on protection zone application
Decision to grant protection zone application
(1) If the Regulator decides to grant a protection zone application:
(a) the Regulator must give written notice of the decision to:
(i) the applicant; and
(ii) any licence holder that was required to be given notice under subsection 133(1) in relation to the application; and
(b) the Regulator must give effect to the application by making a protection zone determination, or varying or revoking a protection zone determination, in relation to the application before the end of 30 days after the Regulator makes the decision.
Decision not to grant protection zone application
(2) If the Regulator decides not to grant a protection zone application, the Regulator must give written notice of the decision to:
(a) the applicant; and
(b) any licence holder that was required to be given notice under subsection 133(1) in relation to the application.
Part 7—Work health and safety
140 Purposes of this Part
This Part has effect for the purposes of subsection 243(2) of the Act.
141 Work Health and Safety Regulations 2011 apply with modifications
The provisions of the Work Health and Safety Regulations 2011 apply, with the modifications set out in Schedule 1 to this instrument, for the purposes of the Work Health and Safety Act as applied by Part 1 of Chapter 6 of the Offshore Electricity Infrastructure Act 2021.
Part 8—Information relating to offshore infrastructure
142 Requirements to keep accounts, records and other documents
Accounts, records and other documents that must be kept
(1) For the purposes of paragraph 268(1)(a) of the Act, a licence holder must keep the following:
(a) any written reports of audits or inspections of licence infrastructure in relation to the licence;
(b) any written reports of audits or inspections of licence activities (whether conducted by the licence holder or another person);
(c) any accounts, records or other documents relating to the licence holder’s obligations under the applied work health and safety provisions;
(d) any other records relevant to whether the licence holder has complied with the Act, this instrument or the management plan (if any) for the licence.
(2) For the purposes of paragraph 268(1)(b) of the Act, a licence holder must keep any accounts, records or other documents that provide evidence in support of any statements included by the licence holder in an annual report under paragraph 33(4)(b), or a final report under paragraph 33(8)(b), of this instrument.
Note 1: The requirements in subsections (1) and (2) are in addition to any requirements imposed by data management directions under sections 263 and 264 of the Act (see subsection 268(2) of the Act).
Note 2: The management plan for a licence must address compliance with record‑keeping requirements (see section 93), and may require a licence holder to keep documents additional to the documents mentioned in this section.
Manner of storing accounts, records and other documents
(3) An account, record or other document required to be kept under subsection (1) or (2), or under a data management direction:
(a) must be stored in a place in Australia; and
(b) must, to the extent that it is reasonably possible to do so, be stored in a place where the licence holder makes decisions that:
(i) are made in the capacity of a person conducting a business or undertaking (within the meaning of the Work Health and Safety Act) at that place; and
(ii) are about matters that directly affect the health or safety of people who are relevant workers (within the meaning of section 237 of the Offshore Electricity Infrastructure Act 2021); and
(c) must be stored in a manner that allows the account, record or other document to be easily retrievable in a timely manner; and
(d) must be stored securely; and
(e) must be stored for a period of at least 7 years after the account, record or document is generated.
Accounts, records and other documents that are modified
(4) If an account, record or other document required to be kept under this section, or under a data management direction, is modified:
(a) subsection (3) applies separately to the unmodified account, record or document and to any modified versions of the account, record or document; and
(b) each modified version must be stored for a period of at least 7 years after it is modified.
Effect of licence ceasing to be in force
(5) If a person held a licence that has ceased to be in force:
(a) the person must continue to comply with subsections (3) and (4) (except paragraph (3)(b)) in relation to all accounts, records and other documents that the person was required to keep under this section or under a data management direction before the licence ceased to be in force; and
(b) the obligation in paragraph (a) of this subsection continues to apply to the person until the periods in paragraphs (3)(e) and (4)(b) have passed for all accounts, records and other documents that the person was required to keep.
Effect of licence transfer
(6) If a licence is transferred under Division 2 of Part 2 of Chapter 3 of the Act:
(a) the transferor (within the meaning of section 70 of the Act) must continue to comply with subsections (3) and (4) (except paragraph (3)(b)) in relation to all accounts, records and other documents that the transferor was required to keep under this section or under a data management direction before the transfer took effect; and
(b) the obligation in paragraph (a) of this subsection continues to apply to the transferor until the periods in paragraphs (3)(e) and (4)(b) have passed for all accounts, records and other documents that the transferor was required to keep; and
(c) the transferee (within the meaning of section 70 of the Act) is not required to comply with subsection (3) in relation to any accounts, records or other documents that the transferor is keeping in accordance with this subsection.
143 Requirements to keep accounts, records and other documents—offence and civil penalty provisions
Strict liability offence
(1) A person commits an offence of strict liability if:
(a) section 142 requires the person to keep an account, record or document; and
(b) the person does not keep the account, record or document in accordance with section 142.
Penalty: 40 penalty units.
Civil penalty provision
(2) A person is liable to a civil penalty if:
(a) section 142 requires the person to keep an account, record or document; and
(b) the person does not keep the account, record or document in accordance with section 142.
Civil penalty: 40 penalty units.
Continuing offences and continuing contraventions of civil penalty provisions
(3) A person who commits an offence against subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the offence continues.
(4) The maximum penalty for each day that an offence under subsection (1) continues is 10% of the maximum penalty that can be imposed in respect of that offence.
(5) A person who contravenes subsection (2) commits a separate contravention in respect of each day (including a day of the making of a relevant civil penalty order or any later day) during which the contravention continues.
(6) The maximum civil penalty for each day that a contravention of subsection (2) continues is 10% of the maximum civil penalty that can be imposed in respect of that contravention.
Part 9—Compliance and enforcement
144 Civil penalty provisions
(1) This section is made for the purposes of paragraphs 308(1)(b), (c) and (d) of the Act.
Enforceable civil penalty provisions
(2) Each civil penalty provision of this instrument is enforceable under Part 4 of the Regulatory Powers Act.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant
(3) For the purposes of Part 4 of the Regulatory Powers Act:
(a) the CEO is an authorised applicant in relation to the following provisions of this instrument:
(i) subsection 54(2);
(ii) subsection 143(2); and
(b) the Registrar is an authorised applicant in relation to subsection 143(2) of this instrument.
Relevant court
(4) For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this instrument:
(a) the Federal Court;
(b) the Federal Circuit and Family Court of Australia (Division 2);
(c) the Supreme Court of a State or Territory.
145 Infringement notices
(1) This section is made for the purposes of paragraphs 308(1)(e), (f) and (g) of the Act.
Provisions subject to an infringement notice
(2) The following provisions of this instrument are subject to an infringement notice under Part 5 of the Regulatory Powers Act:
(a) subsection 46(1);
(b) subsections 54(1) and (2);
(c) subsection 56(4);
(d) subsection 61(1);
(e) subsection 76(3);
(f) subsection 78(5);
(g) subsections 143(1) and (2);
(h) subsection 162(3);
(i) subsection 163(4).
Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
Infringement officer
(3) For the purposes of Part 5 of the Regulatory Powers Act:
(a) an OEI inspector is an infringement officer in relation to the following provisions of this instrument:
(i) subsection 46(1);
(ii) subsections 54(1) and (2);
(iii) subsection 56(4);
(iv) subsection 61(1);
(v) subsection 76(3);
(vi) subsection 78(5);
(vii) subsections 143(1) and (2);
(viii) subsection 162(3);
(ix) subsection 163(4); and
(b) the Registrar is an infringement officer in relation to subsections 143(1) and (2) of this instrument.
Relevant chief executive
(4) For the purposes of Part 5 of the Regulatory Powers Act, the relevant chief executive in relation to the provisions mentioned in subsection (2) is:
(a) if an OEI inspector is the infringement officer under subsection (3) for the provision—the CEO; or
(b) if the Registrar is the infringement officer under subsection (3) for the provision—the Secretary of the Registrar’s Department.
Part 10—Fees
146 Application fees
(1) For the purposes of subsection 189(2) of the Act, the following table sets out amounts of fees for dealing with certain applications.
Temporary fee reduction
(2) Despite subsection (1), the amount of the fee for dealing with an application for a research and demonstration licence made during the period of 24 months beginning on the day this subsection commences is $20,000.
(3) Despite subsection (1), the amount of the fee for dealing with an application for a transmission and infrastructure licence made during the period of 24 months beginning on the day this subsection commences is $150,000.
147 Applications taken to have been made only if fee paid
For the purposes of paragraph 189(5)(a) of the Act, an application mentioned in section 146 of this instrument is taken to have been made only if the fee for dealing with the application has been paid.
148 Fees for the Regulator to perform or exercise functions or powers
(1) For the purposes of subsection 189(2) of the Act, the following table sets out amounts of fees for the Regulator performing or exercising functions or powers under the Act.
(2) The amount of a fee referred to in column 2 of an item in the table as an “assessment fee” is the total amount of the expenses incurred by the Regulator in performing or exercising the function or power mentioned in column 1.
(3) An assessment fee is:
(a) due when the Regulator issues an invoice for the fee to the person who requested the performance or exercise of the function or power; and
(b) payable in accordance with the requirements of the invoice.
(4) The Regulator may remit the whole or a part of an amount of an assessment fee if the Regulator considers that there are good reasons for doing so.
(5) Where an amount of an assessment fee is owed by a person under this section, the Minister, the Registrar or the Regulator may decline to perform the function or exercise the power to which the fee relates until the amount is paid.
Part 11—Payment of offshore electricity infrastructure levy
149 Payment of levy
(1) This section is made for the purposes of subsection 190(1) of the Act.
(2) An amount of offshore electricity infrastructure levy that is payable for a particular period is due and payable 30 days after the beginning of the period.
Note: For kinds and amounts of offshore electricity infrastructure levies, see the Offshore Electricity Infrastructure (Regulatory Levies) Regulations 2022.
Levies to be paid to Registrar or Regulator
(3) Offshore electricity infrastructure levies must be paid as follows:
(a) annual licence levy to the Registrar;
(b) annual compliance levy to the Regulator;
(c) annual Commonwealth levy to the Registrar.
150 Refunds of levy
(1) This section is made for the purposes of subsection 190(2) of the Act.
(2) If an amount of offshore electricity infrastructure levy is overpaid, the person to whom the levy was paid must refund the amount by which the levy was overpaid.
(3) For the purposes of this section, overpaid levy includes the following:
(a) levy overpaid in error;
(b) levy overpaid because a licence was held for less than the period for which the levy was paid;
(c) levy overpaid because part of a licence area became a vacated area during the period for which the levy was paid.
150A Temporary remittal of unpaid levy—holders of feasibility licences
(1) This section is made for the purposes of subsection 190(2) of the Act.
(2) The total amount of offshore electricity infrastructure levy payable in respect of a feasibility licence for a 12‑month period is remitted if:
(a) that period began before the commencement of this section; and
(b) the levy was not paid immediately before that commencement.
(3) The total amount of offshore electricity infrastructure levy payable in respect of that licence for the next 12‑month period is remitted.
Note: See section 5 of the Offshore Electricity Infrastructure (Regulatory Levies) Regulations 2022 for the periods for which offshore electricity infrastructure levy must be paid by a person who is the holder of a feasibility licence.
150B Temporary remittal of levy payable on or after commencement of this section
(1) This section is made for the purposes of subsection 190(2) of the Act.
Levy imposed on holders of feasibility licences
(2) For a feasibility licence granted on or before 30 June 2027, the total amount of offshore electricity infrastructure levy payable in respect of that licence for the first 2 periods that begin on or after the commencement of this section is remitted.
Note: See section 5 of the Offshore Electricity Infrastructure (Regulatory Levies) Regulations 2022 for the periods for which offshore electricity infrastructure levy must be paid by a person who is the holder of a feasibility licence.
(3) Subsection (2) does not apply if the total amount of offshore electricity infrastructure levy payable in respect of the licence is remitted in accordance with section 150A.
Levy imposed on holders of research and demonstration licences
(4) For a research and demonstration licence granted on or before 30 June 2027, the total amount of offshore electricity infrastructure levy payable in respect of that licence for the first 2 periods that begin on or after the commencement of this section is remitted.
Note: See section 7 of the Offshore Electricity Infrastructure (Regulatory Levies) Regulations 2022 for the periods for which offshore electricity infrastructure levy must be paid by a person who is the holder of a research and demonstration licence.
Levy imposed on holders of transmission and infrastructure licences
(5) For a transmission and infrastructure licence granted on or before 30 June 2027, half of the total amount of offshore electricity infrastructure levy payable in respect of that licence for the first 2 periods that begin on or after the commencement of this section is remitted.
Note: See section 8 of the Offshore Electricity Infrastructure (Regulatory Levies) Regulations 2022 for the periods for which offshore electricity infrastructure levy must be paid by a person who is the holder of a transmission and infrastructure licence.
Part 12—Information relating to offshore infrastructure
151 Meaning of general licence application information
Purpose of this section
(1) This section sets out the meaning of general licence application information in relation to certain kinds of applications made to the Minister or the Registrar.
General licence application information
(2) In relation to an application for a licence, general licence application information means the following documentary information that relates to the application:
(a) the name of the applicant;
(b) whether it is an application for:
(i) a feasibility licence; or
(ii) a commercial licence; or
(iii) a research and demonstration licence; or
(iv) a transmission and infrastructure licence;
(c) general information about the proposed licence area, which may include (but is not limited to) any of the following:
(i) geographic coordinates;
(ii) the approximate size;
(iii) the approximate distance offshore;
(d) general information about the proposed project, which may include (but is not limited to) any of the following:
(i) the name of the project;
(ii) the generation capacity (if any) of the project;
(iii) the transmission capacity (if any) of the project;
(iv) the renewable energy resource of the project;
(v) the technology to be used for the project;
(vi) the approximate location of offshore renewable energy infrastructure and offshore electricity transmission infrastructure in the proposed licence area.
Note: See the following provisions:
(a) section 10 (applications for feasibility licences);
(b) section 17 (commercial licences);
(c) section 18 (research and demonstration licences—application);
(d) section 21 (transmission and infrastructure licences—application).
(3) In relation to an application for an extension of the end day of a licence, general licence application information means the following documentary information that relates to the application:
(a) the name of the applicant;
(b) the licence that the application relates to;
(c) the proposed end day of the licence;
(d) whether the proposed extension is to be in respect of the whole or part of the licence area;
(e) if the proposed extension is to be in respect of only part of the licence area—the location of the part of the licence area.
Note: See section 30 (extending the term of a licence).
(4) In relation to an application to vary a licence, general licence application information means the following documentary information that relates to the application:
(a) the name of the applicant;
(b) the licence that the application relates to;
(c) the variation proposed to be made to the licence.
Note: See section 31 (application to vary a licence).
(5) In relation to an application to transfer a licence, general licence application information means the following documentary information that relates to the application:
(a) the name of the transferor (within the meaning of section 70 of the Act);
(b) the name of the transferee (within the meaning of section 70 of the Act);
(c) the licence that the application relates to.
Note: See section 35 of this instrument (application to transfer a licence).
(6) In relation to an application to surrender a licence, general licence application information means the following documentary information that relates to the application:
(a) the name of the applicant;
(b) the licence that the application relates to;
(c) the proposed surrender area;
(d) the reasons for the surrender;
(e) how each of the requirements in subsection 74(3) of the Act has been met.
Note: See section 74 of the Act (application to surrender a licence).
152 Release of information by Registrar
For the purposes of paragraph 283(3)(a) of the Act, the Registrar may publish, or make available to a person, general licence application information in relation to an application mentioned in section 151 of this instrument.
153 Release of information about progress of application by Registrar
The Registrar may publish, or make available to a person, information about the progress of an application mentioned in section 151.
154 Release of information by Minister
For the purposes of paragraph 285(4)(a) of the Act, the Minister may publish, or make available to a person, general licence application information in relation to an application mentioned in section 151 of this instrument.
155 Release of information about progress of application by Minister
The Minister may publish, or make available to a person, information about the progress of an application mentioned in section 151.
156 Release of information in public interest
(1) For the purposes of paragraph 283(3)(a) of the Act, the Registrar may publish documentary information relating to an application mentioned in section 151 of this instrument, if:
(a) the information is not general licence application information in relation to the application; and
(b) the information is not commercially confidential information; and
(c) the Minister considers that it is in the public interest to publish the information; and
(d) the Minister has approved the information being published.
(2) For the purposes of paragraph 283(3)(a) of the Act, the Registrar may make available to a person documentary information relating to an application mentioned in section 151 of this instrument, if:
(a) the information is not general licence application information in relation to the application; and
(b) the information is not commercially confidential information; and
(c) the Minister considers that it is in the public interest to make the information available to the person; and
(d) the Minister has approved the information being made available to the person.
(3) For the purposes of paragraph 285(4)(a) of the Act, the Minister may publish documentary information, that is made available to the Minister under section 284 of the Act, relating to an application mentioned in section 151 of this instrument, if:
(a) the information is not general licence application information in relation to the application; and
(b) the information is not commercially confidential information; and
(c) the Minister considers that it is in the public interest to publish the information.
(4) For the purposes of paragraph 285(4)(a) of the Act, the Minister may make available to a person documentary information, that is made available to the Minister under section 284 of the Act, relating to an application mentioned in section 151 of this instrument, if:
(a) the information is not general licence application information in relation to the application; and
(b) the information is not commercially confidential information; and
(c) the Minister considers that it is in the public interest to make the information available to the person.
Note: For the meaning of commercially confidential information, see section 157.
157 Meaning of commercially confidential information
Documentary information given by a person to the Minister or the Registrar is commercially confidential information if:
(a) the information is not general licence application information; and
(b) the Minister considers the information to be:
(i) a trade secret; or
(ii) information the disclosure of which would, or could reasonably be expected to, adversely affect any person’s business, commercial or financial affairs.
158 References in this Part to the Minister
A reference in this Part to the Minister is a reference to the Minister administering the Act.
Part 13—Other provisions
159 Datum provisions
For the purposes of paragraph 9(2)(a) of the Act, the position on the surface of the Earth of a point, a line or an area is 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).
159A Meaning of offshore renewable energy infrastructure
For the purposes of paragraph 10(3)(e) of the Act, fixed or tethered infrastructure is prescribed if the infrastructure has the primary purpose of generating, obtaining, storing, transmitting or conveying one or more of the following chemicals:
(a) ammonia;
(b) hydrogen;
(c) kerosene;
(d) methanol;
whether any of those chemicals is in liquid form or in the form of a gas.
160 Pre‑existing infrastructure
For the purposes of paragraph 309(3)(b) of the Act, offshore renewable energy infrastructure or offshore electricity transmission infrastructure constructed, installed or commissioned for the purpose of operating, maintaining or repairing (including by replacement) pre‑existing infrastructure is to be treated as pre‑existing infrastructure.
161 Licence holder must notify Regulator of certain events
(1) A licence holder must notify the Regulator if the licence holder becomes aware that any of the following has occurred in relation to the licence:
(a) a circumstance that significantly impaired, or has the potential to significantly impair, the operation or structural integrity of licence infrastructure;
(b) a notifiable incident, within the meaning of the Work Health and Safety Act as applied by Part 1 of Chapter 6 of the Act, that arises out of licence activities;
(c) a collision between a marine vessel and any licence infrastructure;
(d) a contravention, or apparent contravention, of a safety zone determination, or a protection zone determination, in effect in relation to licence infrastructure;
(e) if there is a management plan for the licence—an incident that caused, or should have caused, the licence holder to implement the emergency response plan mentioned in paragraph 91(2)(c);
(f) if there is a management plan for the licence—an incident that:
(i) arose in connection with licence activities carried out in the Commonwealth offshore area; and
(ii) resulted, or has the potential to result, in a contravention of the licence holder’s obligations under the Environment Protection and Biodiversity Conservation Act 1999, or regulations under that Act, that are described in the management plan in accordance with paragraph 85(2)(a) of this instrument.
Note: For paragraph (b)—see clause 26 of Schedule 1 to this instrument for a modification that affects the meaning of notifiable incident in the Work Health and Safety Act as applied by Part 1 of Chapter 6 of the Act.
(2) The notification under subsection (1) must be given to the Regulator as soon as practicable after the licence holder becomes aware that the event has occurred.
(3) A notification under subsection (1):
(a) must be made in the manner and form that is:
(i) approved by the Regulator; and
(ii) published on the Regulator’s website; and
(b) must be accompanied by any other information or documents required by the form.
Offence
(4) A person commits an offence if:
(a) the person holds a licence; and
(b) the person ought reasonably to have known that an event mentioned in subsection (1) has occurred in relation to the licence; and
(c) the person does not give the Regulator a notification under subsection (1) as soon as practicable after becoming aware that the event occurred.
Penalty: 60 penalty units.
162 Licence holder must give report to the Regulator
(1) If a licence holder gives the Regulator a notification of an event under subsection 161(1), the licence holder must, before the end of 48 hours after the notification was given, give the Regulator a report of the event including:
(a) further details of the event; and
(b) details of the licence holder’s response to the event.
(2) A report under subsection (1):
(a) must be given in the manner and form that is:
(i) approved by the Regulator; and
(ii) published on the Regulator’s website; and
(b) must be accompanied by any other information or documents required by the form.
Offence
(3) A person commits an offence of strict liability if:
(a) the person holds a licence; and
(b) the person gives the Regulator a notification in accordance with subsection 161(1); and
(c) the person does not give the Regulator a report under subsection (1) of this section before the end of 48 hours after giving the notification.
Penalty: 50 penalty units.
163 Regulator may direct licence holder to give further reports
(1) If a licence holder gives the Regulator a notification of an event under subsection 161(1), the Regulator may, by written notice, require the licence holder to submit one or more written reports of the event.
(2) The notice must:
(a) describe the information to be included in a report or the matters to be addressed; and
(b) specify when the report must be given to Regulator by.
(3) The day or time specified for giving the report by must give the licence holder a reasonable time to prepare the report.
Offence
(4) A person commits an offence of strict liability if:
(a) the person holds a licence; and
(b) the Regulator gives the person a notice under subsection (1) in relation to an event; and
(c) the person does not give the Regulator a written report of the event in accordance with the notice.
Penalty: 50 penalty units.
Part 14—Application, saving and transitional provisions
164 Application of amendments made by the Offshore Electricity Infrastructure Amendment (Information Disclosure) Regulations 2024
The amendments made by Schedule 1 to the Offshore Electricity Infrastructure Amendment (Information Disclosure) Regulations 2024 apply in relation to:
(a) applications made before, on or after the commencement of that Schedule; and
(b) documentary information given to the Minister or the Registrar before, on or after the commencement of that Schedule.
165 Application of amendments made by the Offshore Electricity Infrastructure Amendment (Overlapping Applications) Regulations 2024
The amendments made by Schedule 1 to the Offshore Electricity Infrastructure Amendment (Overlapping Applications) Regulations 2024 apply in relation to an application made on or after the commencement of that Schedule.
166 Application of amendments made by the Offshore Electricity Infrastructure Amendment (Remittal of Fees and Levies and Other Measures) Regulations 2025
Section 159A of this instrument, as inserted by Schedule 1 to the Offshore Electricity Infrastructure Amendment (Remittal of Fees and Levies and Other Measures) Regulations 2025, applies in relation to an application for a licence made on or after the commencement of this section.