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Offshore Renewable Energy Team
Department of Climate Change, Energy, the Environment and Water
GPO Box 3090
CANBERRA ACT 2601
To whom it may concern
Proposed amendments to the Offshore Electricity Infrastructure Amendment Regulations 2024
Recfishwest is the peak body for recreational fishing in Western Australia, recognised by the WA government to provide advice on recreational fishing related issues. An estimated 700,000 Western
Australians go fishing every year making participation in fishing comparable to cycling, jogging or playing team sports.
Fishing an integral part of Western Australia’s culture and lifestyle and is vital to the economies of regional locations adjacent to the only proposed area for offshore electricity infrastructure in Western Australia.
More than $2.4 billion is spent by Western Australians on their fishing every year adding more than $1.1 billion to WA’s GDP and creating 9,680 full time jobs.
As the voice of recreational fishing Recfishwest are leaders in aquatic conservation. Recfishwest work tirelessly to improve the health of our aquatic environments ensuring abundant and resilient fish stocks.
We strive to ensure fishers are provided a reasonable share of available fish and are given the opportunity to access this share. We support fisheries management that optimises the social and economic value our publicly owned fish stocks provide.
Recfishwest recognise offshore energy is an option the government can use to meet their carbon reduction targets. Recfishwest believes recreational fishing can be largely compatible with offshore energy projects provided fishing is recognised as a key value when planning, designing, constructing, and operating such projects. This includes avoiding important habitats such as spawning and nursery areas as well as popular fishing locations and not placing access restrictions on fishers within a declared area once projects are in operation.
Recfishwest will only support offshore energy projects that improve recreational fishing experiences with no net loss of amenity and no access restrictions. The advice provided in this submission is based on the proviso the government develop a clear policy explicitly supporting ongoing unrestricted fishing access to declared areas as a base case.
Recfishwest has several significant concerns in relation to the proposed amendments to the Offshore
Electricity Infrastructure Amendment Regulations 2024. The first set of regulations relating to the OEI act came into effect in late 2022 and primarily focused on matters required for the OEI framework to become operational, such as licensing scheme, data provisions, arrangements for pre-existing infrastructure, and the application of fees and levies. At the time Recfishwest were informed the next set of regulations would address more operational issues including how regulations relating to changes in access arrangements for existing users would apply. The proposed amendments to the OIE act do not answer long standing questions about how the offshore energy industry is expected to co-exist with existing users such as recreational fishers.
The consultation paper supporting the proposed changes to the OEI Act states The Australian Government seeks to strike a balance between all marine users. It also states Under the OEI Act, activities must be carried out in a way that does not unreasonably interfere with other activities being carried out in the licence area. While the proposed regulations describe the process for implementing safety and protection zones there is still no clarity as to what circumstances will see result in the application of these zones or what would constitute an unreasonable level of interference with fishing activities.
The consultation paper askes 36 questions about the proposed amendments spread across general areas such as management plans, design notification schemes, financial security, safety zones and protection zones, WH&S, record keeping, data management and fees. As the peak body for recreational fishing in
Western Australia Recfishwest have largly restricted our submission to the questions about management plans and the application of safety and protection zones.
MANAGEMENT PLANS;
Question 1: Are the revision triggers listed in subsection 53(2) of the proposed Regulations appropriate? Are there any triggers that should be added or removed?
Response to question 1:
Proposed regulations 53(2)(d) and (J) refer to the licence holder identifying new or significantly increased hazard, impacts, risks or reasonably foreseeable emergencies as a reason for making a revision to the management plan. The proposed regulations should remove the reference to licence holders identifying these things as any individual or group who is able to identify these things should trigger the revision of the management plan. In the instance a management plan has failed to prevent an incident the management plan should also be reviewed to ensure the incident is not repeated.
Question 2: Is 5 years appropriate for a periodic review? If not, what period of time do you consider is more appropriate?
Response to question 2:
The proposed review of management plans at 5 year intervals is made redundant by regulation 52A(3) which makes it clear a failure to review a management plan by the proposed review date will not invalidate the existing management plan. Similar regulations in relation to reviewing marine park management plans across multiple jurisdictions have resulted in management plans not being updated within the life of the management plan. There should be some additional measures to incentivize timely reviews of management plans.
Question 3: The Australian Government encourages the co-use of the offshore marine environment and ongoing collaboration between OEI licence holders and persons, communities, organisations and groups affected by licence activities. Licence holders should be required to consult meaningfully with them.
At the same time, consultation requirements must be practical and capable of being implemented by licence holders.
Is the consultation process provided in the proposed Regulations appropriate? What changes (if any) do you recommend? a. Is it appropriate for licence holders to consult representatives and representative bodies where these bodies could reasonably be regarded as representing the interests of individual persons, organisations, groups or communities? b. Is it appropriate for the same consultation requirements to apply to all types of projects (for example, for research and demonstration projects compared to commercial projects)? If not, what changes do you recommend?
c. Do you consider the proposed stakeholder engagement strategy described in the management plan, but separate to the management plan, to be adequately flexible and appropriate? If not, why, and what might be an alternative approach? d. Do you agree with the list of information that must be described in the management plan in relation to the stakeholder engagement strategy? Should any other matters be described?
Response to question 3:
Claims the Australian Government encourages co-use of the offshore marine environment cannot be substantiated as in the more than two years since the OIE Act was passed the government has failed to provided clarity on what co-existence looks like and how it will be applied.
It is often claimed the OIE Act was developed in line with the principle of coexistence. However, when announcing consultation on the proposed declaration area in the Indian Ocean off Bunbury, Western
Australia the Minister for Climate change and Energy stated, fishing and offshore wind can co-exist, but it’s not automatic that it can.
Recfishwest has repeatedly sought clarity around co-existence with DCCEEW and the Offshore Industry
Regulator and earlier this year wrote to the Minister for Climate Change and Energy on the issue. Until the Australian Government can adequately articulate how the offshore energy industry will co-exist with existing users of the marine environment they should refrain from claiming to champion co-existence.
Consultation is an incredibly important part of developing an offshore wind industry. Meaningful consultation will ensure this industry does not unreasonably interfere with existing users and has a social license to operate. Current consultation arrangements have caused considerable hardships for community groups who are suffering consultation fatigue. There has been mixed messaging with DCCEEW advising community groups not to talk to applicants until they have a feasibility licence and applicants claiming consultation is required in order to be awarded a feasibility licences.
The consultation paper identifies the need for consultation requirements to be practical and capable of being implemented by licence holders yet has failed to articulate the same consideration for the community who are currently suffering consultation fatigue. Applicants willing to invest billions of dollars into multi decade projects should be able to undertake consultation or provide adequate resources to outsource meaningful consultation. When developing consultation regulations there should be a greater focus on ensuring the regulations are practical for the community rather than practical for the applicant.
Along with the seemingly endless consultation requests from companies aspiring to develop offshore energy projects DCCEEW also has a seemingly endless appetite for consultation. At one stage this year
DCCEEW were simultaneously consulting on a number of issues relating to the development of offshore energy including;
• proposed regulation amendments to the OIE act,
• a proposed offshore wind are in the Indian Ocean,
• the electricity and energy sector plan,
• a capacity investment scheme for Western Australia, and
• transmission and infrastructure licence guidelines
These consultations were in addition to the other consultation DCCEEW undertake on EPBC Act public notices, fisheries assessments, species and ecological communities’ assessments, wildlife trade and
National heritage assessments. It is unreasonable to expect the community to provide detailed submissions on so many simultaneous consultations without resourcing them adequately.
Proposed regulation 57(3) does not require licence holders 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.
This proposed approach only serves to further shift the burden of consultation from the applicant to the community who are not resourced to undertake the consultation that should be resourced by applicants.
The proposed regulation 57(3) will worsen the current consultation fatigue being experienced by the community as any representative group will likely need to consult with their members in order to provide advice.
Consultation burdens should NOT be transferred from the applicant to the community or representative groups. It should be noted consultation with both the community and representatives’ groups would likely prove valuable in ensuring appropriate consultation occurs. Often the local groups can provide finer scale information about how a particular area is utilised while representative groups are best placed to speak from a policy perspective.
Representative groups are also likely to be able to facilitate more meaningful consultation with their members, however these groups should be willing and resourced appropriately if they are expected to undertake this role. The representative group are also likely to prove useful in assessing the merit of claims made during consultation rather than leaving this up to the applicant to assess. The responsibility to consult appropriately should remain with the applicant who should dedicate the resources required to undertake meaningful consultation.
There is no reason consultation requirements should not be consistent across all types of projects given the consultation paper acknowledges It is important that licence holders consult appropriately with persons, organisations, communities and groups before licence activities commence and during the operation of those activities. Open and timely consultation will help build social licence for the OEI industry by enabling consultees to be heard and to provide opportunities for the benefits of the industry to be shared. It will also provide for better outcomes with respect to WHS, infrastructure integrity and environmental management…
Question 4: Are the content requirements for a management plan listed in Division 4 of Part 2 of the proposed
Regulations appropriate? Are there any other matters that should or should not be addressed?
Response to question 4:
Given any structures are likely to establish ecosystems over their lifespan the proposed regulations relating to decommissioning and removal of structures (sections 83-85) should better explain how the ecological value of the structures at the time of decommissioning will be assessed and the impact of removing these ecosystems evaluated. Regulations surrounding any decision to remove infrastructure should be prefaced around achieving the best environmental outcome.
Question 5: There is strong public interest in enabling public access to relevant and reliable information on OEI projects. Are management plan summaries an efficient and effective way to make information available to the community? If not, what are your concerns and how can they be addressed?
Question 6: Do you think the alternative approaches of publishing management plans in full (with necessary redactions), or requiring licence holders to publish management plans themselves is more efficient or appropriate than the current approach in the proposed Regulations?
Question 7: Is the list of matters that must be included in a management plan summary in section 71 of the proposed
Regulations appropriate? If not, why?
Response to questions 5,6 &7 :
While summaries can be useful they often contain a limited amount of information. Publishing of management plans and reports against these plans in full remains the best way to ensure the community has access to relevant information.
The list of matters that must be included in a management plan in section 71 of the proposed regulations would also benefit from including a long-term research and monitoring plan to ensure the health of the surrounding environment is adequately monitored.
DESIGN NOTIFICATION SCHEME;
Question 8: Is the list of matters that must be included in a design notification in subsection 93(2) of the proposed
Regulations appropriate? Do you think any other matters should be addressed?
Question 9: The design notification scheme only applies to transmission and infrastructure licences and commercial licences. Should the design notification scheme be extended to all licence types, so that it would also include feasibility licences and research and demonstration licences? If yes, should it be mandatory or voluntary for these other licence types? Please outline your reasoning.
Response to question 8 & 9:
The proposed list of matters that must be included in a design notification would benefit from the including an explanation of how the design options were considered and impacts on other users of the environment minimised. The design notification scheme should also be extended to all licence types to ensure consistency and allow for early identification of issues relating to design.
FINANCIAL SECURITY
Questions 10-16 in the consultation paper relate to financial security. Recfishwest do not have any comments to provide in relation to proposed regulations relating to financial security.
SAFETY ZONES AND PROTECTION ZONES
In our submission on the Offshore Electricity Infrastructure (Regulatory Levies) Bill 2021 and Offshore
Electricity Infrastructure Bill in 2021 Recfishwest raised concerns over potential exclusion of fishers in proximity to offshore renewable energy infrastructure. Recfishwest advised the Senate Standing
Committees on Environment and Communications that recreational fishers are likely to oppose offshore infrastructure if it results in reduced access to areas that have been sustainably fished for generations.
In the more than two years since the OIE Act was passed the Commonwealth Government has failed to provide clarity on the base case for access and the circumstances where exclusion zones around turbines will be applied (if at all). This is critical information required to assess the suitability of the proposed regulation amendments including the proposal to implement two nautical mile wide protection zones.
There are numerous examples of regulations that are rarely if ever applied so the existence of Division 3 and 4 in the OEI Act to provide for safety zones and protection zones and Part 5 and 6 in the proposed regulations should not imply safety and protections zones will ever be required or commonly used once offshore infrastructure is operational.
As explained in the consultation paper a safety zone is a specified area around eligible infrastructure and a protection zone is intended to protect OEI from activities that pose a risk to damaging infrastructure rather than restricting access.
While the recreational fishing community broadly understand and accept there is likely to be some form of access restrictions during construction and maintenance of offshore infrastructure there is no reasonable ground to exclude recreational fishers from declared areas when offshore energy projects are in operation. Such regulations would be akin to banning cars from within a City’s Central Business District due to the risk buildings pose to people or the risk cars pose to buildings.
The existence of safety or protection zones would represent a failure of the approval process to ensure infrastructure is designed and constructed to a level where operations do not pose a danger to people and infrastructure is not compromised by the simple act of fishing.
The consultation paper implies regulatory models used in countries such as the United Kingdom (UK) and
Denmark where a safety zone of 50 metres can be established are likely to be followed. It should be noted the UK guidance notes for implementation of these zones acknowledges that, in practice, very few applicants have to date sought ‘operational’ safety zones.
In the same guidance notes it is clear the UK government expect any zones to be reviewed periodically to consider whether its continuation is relevant to the ongoing safety of navigation. This is to ensure that zone arrangements agreed at the time of the original application are still adequate in the light of developments over a considerable passage of time. The proposed regulations would benefit from also regularly reviewing any safety and protection zones that are approved.
The OEI Act require OEI activities to be carried out in a way that does not unreasonably interfere with other activities such as fishing and for this to happen minimal applications of safety and protections zones needs to be applied. To achieve co-existence between all marine users that the Australian Government has repeatedly claimed it desires also requires the application of safety and protection zones to differentiate between various forms of fishing (both recreational and commercial) to ensure other users are not unfairly excluded from any areas.
The more safety and protection zones that are implemented the greater the challenge to ensure coexistence for existing users. The proposed regulations would benefit from making it clear safety and protection zones are not intended to be commonly implemented and where implemented they will be regularly reviewed. In response to the question 17-22 in the consultation paper Recfishwest can advise the following;
Question 17: Are the procedures for applying for a safety zone appropriate? If not, why?
Question 19: Are the procedures around applying for a protection zone appropriate? If not, why?
Response to question 17 and 19:
The proposed regulations refer to applications for safety and protection zones being made in the manner and form approved by the regulator. Without understanding what the manner and form actually look like it is impossible to adequately answer these questions.
Question 18: Section 113 of the proposed Regulations requires the Regulator to notify a licence holder if a safety zone application is made in relation to the licence holder’s licence area by a third party. Broadly, do you have any concerns with this arrangement?
Question 20: Section 126 of the proposed Regulations requires the Regulator to notify a licence holder if a protection zone application is made in relation to the licence holder’s licence area by a third party. Broadly, do you have any concerns with this arrangement?
Response to question 18 and 20:
All applications for safety and protection zones should be publicly available.
Question 21: Section 120 of the proposed Regulations provides that the maximum area for a protection zone is
1,852 metres on each side around the infrastructure it will protect. The size of the zone will be minimised to the extent practicable and will be case-specific.
Is 1,852 metres around each side of infrastructure an appropriate maximum size for a protection zone, considering that a protection zone may potentially prohibit or restrict the activities of other marine users? If not, what size would you consider appropriate?
Response to question 21:
Two nautical miles is an excessive area to implement a protection zone around infrastructure. The consultation paper states protection zones are likely to be used to protect OEI cables from damage and that the concept of protection zones is well-established under other frameworks such as for the protection of submarine cables. The reality is current protection zones for underwater cables in practice have no impact on recreational fishing activities. Requiring cables to be buried or protected with armor remains the most effective way to protect cables from damage and would negate the need to reduce any form of access for recreational fishers.
Question 22: Under sections 144 and 145 of the OEI Act, the OEI Regulations may prescribe additional prohibited or restricted activities in a protection zone.
The proposed Regulations do not prescribe any additional activities. Do you consider any specific activities should be prescribed under the proposed Regulations?
Response to question 22:
The proposed regulations should specifically recognise the negligible threat posed by various types of recreational fishing activities and ensure these fishing activities can continue in the event a protection zone is implemented.
WORK HEALTH AND SAFETY
Questions 23-29 in the consultation paper relate to work health and safety. Recfishwest do not have any comments to provide in relation to proposed regulations relating to work health and safety.
RECORD KEEPING
Questions 30-31 in the consultation paper relate to record keeping. Recfishwest do not have any comments to provide in relation to proposed regulations relating to record keeping.
DATA MANAGEMENT
Questions 32-34 in the consultation paper relate to data management. The consultation paper states it is intended that a regulation will be developed to require licence holders to provide to the Commonwealth
geophysical and geotechnical survey data, collected as part of offshore renewable energy feasibility survey activities. Recfishwest believe this requirement should be expanded to include making results of all environmental and social studies also publicly available. The lessons learnt from the tobacco industry withholding knowledge about the health impacts of smoking or the oil and gas industry withholding knowledge about their industries impacts on global climate need to be heeded. Regulations requiring the offshore energy industry to make publicly available the results of all environmental studies and monitoring should be included in regulations on data management.
FEES
Questions 35-36 in the consultation paper relate to licensing scheme fees. Recfishwest do not have any comments to provide in relation to proposed regulations relating to licensing scheme fees.
Thank you for the opportunity to provide input into the proposed amendments to the OEI regulations. I look forward to seeing how this feedback influences the final regulations.[redacted].
Yours sincerely
[redacted]
10 May 2024
