Planning for Australia’s Offshore Wind Future

In November last year, the Commonwealth Parliament introduced legislation to develop Australia’s offshore wind industry. This is a vital development, and will allow Australia to harness the abundance of wind resources in our offshore area to fuel the green transition.

That being said, there is no such thing as perfection when it comes to statute. The offshore wind legislation, whilst important, is not where it needs to be. The most worrying imperfection is the inadequate environmental protections offered by the legislation.

Marine ecosystems are delicate, and experience with other offshore industries has proven the costs of damage to them. To prevent this, the legislation requires a ‘management plan’ to accompany offshore wind projects. These plans must comply with federal environmental law, namely, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’).

This is problematic, as these laws were found wanting when reviewed in 2019. Mere compliance will not go far enough to ensure critical marine environments are conserved. Aside from the issues raised by the review, the EPBC Act is unable to address the challenges presented by offshore wind. For example, there are no measures in place to address impacts such as noise pollution, potential reef damage, or disruption of fish spawning patterns.

It is difficult to even perceive how an entity could appropriately comply with the management plan requirements. This is due to the requirement that the plan complies with both the EPBC Act and any regulations made thereunder. What these regulations are is not prescribed, and are likely only contained in a guidance note of some kind. In this form, such quasi-regulations lack clear and effective legal enforcement. 

Leaving compliance to the side, it is also notable that the drafting itself is couched in reactive language. Aside from the management plan compliance provisions, all environmental protections are reactionary rather than proactive. This creates a commercial context wherein entities focus on remediating environmental damage rather than preventing it in the first place.

To ensure already threatened marine ecosystems are preserved, these issues must be addressed. 

The law currently utilises an ad hoc declaratory model wherein the Minister determines certain areas to be suitable for offshore wind projects. There is nothing wrong with ministerial discretion, but the legislation offers little to no guidance on what the criteria for suitability is. 

The declaratory process needs to be augmented by a marine spatial planning framework. This means the offshore area is strategically assessed to ensure existing marine users, including conservation areas, are not disrupted by large, physically and aurally intrusive turbines. These assessments would clearly set out areas, prior to the declaration, that are suitable to offshore wind and will cause minimal environmental harm.

Doing this will create more work for those public bodies involved. There will be a need for further consultation with marine industries, and the government would need to compile more environmental and social baseline data. However, this work is necessary to ensure our natural heritage is preserved for future generations.