Thursday, 21 March 2024
Bills
Energy and Public Land Legislation Amendment (Enabling Offshore Wind Energy) Bill 2024
Energy and Public Land Legislation Amendment (Enabling Offshore Wind Energy) Bill 2024
Introduction and first reading
The PRESIDENT (17:36): Order! I have a message from the Legislative Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Land Act 1958, the Crown Land (Reserves) Act 1978 and the Forests Act 1958 to enable licences over public land to be granted for up to 21 years for purposes relating to offshore wind energy generation, to include offshore wind energy generation companies within the scope of certain provisions in the National Parks Act 1975 and to amend the Electricity Industry Act 2000 to enable the Minister to declare persons to be offshore wind energy generation companies and for other purposes.’.
That the bill be now read a first time.
Motion agreed to.
Read first time.
Harriet SHING: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Harriet SHING (Eastern Victoria – Minister for Housing, Minister for Water, Minister for Equality) (17:37): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Energy and Public Land Legislation Amendment (Enabling Offshore Wind Energy) Bill 2024 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Council, is compatible with the human rights protected by the Charter for the reasons outlined in this statement.
Overview of the Bill
In December 2022, the Commonwealth Government declared an offshore wind area in Commonwealth waters situated off the Gippsland coast of Victoria. The Offshore Electricity Infrastructure Act 2021 (Cth) (OEI Act) governs the licensing, construction, installation, commissioning, operation, maintenance and decommissioning of offshore electricity infrastructure in the Commonwealth offshore area. Victoria retains jurisdiction over any offshore electricity transmission infrastructure to be installed in Victorian coastal waters (landward of a line that is 3 nautical miles seaward of the territorial baseline) and onshore, in order to connect the proposed offshore wind farms with the National Electricity Market via the Victorian electricity grid.
To that end, this Bill amends Victoria’s public land and electricity legislation to support the establishment of a Victorian offshore wind industry. The Bill amends the Land Act 1958, the Crown Land (Reserves) Act 1978 and the Forests Act 1958 to enable certain licences and permits under these Acts to be granted over public land for a term up to 21 years, for the purposes of:
• assessing the desirability or feasibility of constructing or installing offshore electricity transmission infrastructure;
• determining the optimal placement of offshore electricity transmission infrastructure; and
• carrying out an activity for the purposes of obtaining a permit or consent required by or under any Victorian Act or the OEI Act, for the construction or installation of offshore electricity transmission infrastructure,
The Bill also amends the National Parks Act 1975 to make offshore wind energy generation companies public authorities for the purposes of that Act, enabling offshore wind energy generation companies – where consent has been obtained from Parks Victoria or the Great Ocean Road Coast and Parks Authority – to perform functions and exercise powers in, and in relation to, a park as defined in the Act. The Bill also amends this Act to enable the Minister to enter into an agreement with an offshore wind energy generation company to manage and control, or to carry out functions and powers related to the company’s purpose in, certain areas specified in the Act for offshore wind energy purposes.
The Bill also amends the Electricity Industry Act 2000 to enable the Minister to declare a person to be an ‘offshore wind energy generation company’.
The Bill also makes several miscellaneous amendments, including in relation to local land boards under the Land Act 1958, and enabling as originally intended, the Minister to make an agreement with an electricity company to use land managed under the Acts for the purposes of or in connection with the company’s purpose in the future, but where the land may not currently be used for generating, transmitting or distributing electricity. These miscellaneous amendments have been assessed as not engaging the Charter.
Human rights issues
The human rights protected by the Charter that are relevant to the Bill are cultural rights in section 19 of the Charter and the right to freedom of movement in section 12 of the Charter.
Aboriginal cultural rights
The Bill amends the public land Acts to provide a pathway for offshore wind developers to acquire licences of up to 21 years over public land (unreserved and reserved Crown land and reserved forest) to carry out investigative activities to enable the transmission of electricity generated in offshore wind farms in the future. These activities include the assessment of the feasibility and placement of offshore wind electricity transmission infrastructure offshore and onshore, as well as the carrying out of activities for the purposes of obtaining relevant permits or consents required for the construction or installation of offshore electricity transmission infrastructure. The Bill also empowers the Minister administering the Electricity Industry Act 2000 to declare a person to be an ‘offshore wind energy generation company’.
Section 19(2) of the Charter provides specific protection for Aboriginal persons, providing that Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community, to enjoy their identity and culture, maintain and use their language, maintain kinship ties, and maintain their distinct spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.
The rights under section 19(2) are to be read broadly and are concerned not only with the preservation of the cultural, religious and linguistic identity of particular cultural groups, but also with their continued development. Aboriginal cultural rights are inherently connected to the relevant community and the traditions, laws and customs of that community. It can include traditional ways of life including practice of spiritual traditions, custom and ceremonies, and the maintenance of a cultural connection with land, including the use of natural resources and the preservation of historical sites and artefacts. Further, Aboriginal cultural rights co-exist with, and may extend beyond, rights in other legislative schemes, including the Aboriginal Heritage Act 2006, Traditional Owner Settlement Act 2010 and Native Title Act 1993 (Cth).
A critical aspect of the protection of the cultural rights under section 19(2) is participation in decision-making that affects the group. This would include decisions in relation to investigative activities that would impact the ability of Aboriginal persons to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources which they have a connection under traditional laws and customs.
The licensing regulatory framework provided for in the Bill does not, in itself, affect the Aboriginal cultural rights protected under section 19(2) of the Charter. Rather, any impact upon cultural rights protected under the Charter would be as a result of the issuing of a licence, permit or the entering into an agreement or consent. To the extent that any activities undertaken pursuant to a licence or a permit may affect the enjoyment of cultural rights, in considering whether to grant a licence or a permit under the new licensing provisions of the Bill, the Minister as a public authority will, pursuant to section 38(1) of the Charter, be required to give proper consideration to, and act in a way that is compatible with, human rights, including cultural rights under section 19(2) of the Charter. The Minister will also need to consider the Charter when entering into an agreement under the National Parks Act 1975. Parks Victoria or the Great Ocean Road Coast and Parks Authority will also need to consider the Charter when providing a consent under that Act.
That is to say, where there are cultural claims by one or more individual or Traditional Owner group in relation to the area the subject of a licence, permit, agreement, or consent the Minister or relevant body will be obliged to consider whether the licence, permit or agreement grants rights to an area which may limit the cultural rights of individuals or groups with a claim to the area, including: access and use of the land and waters; the spiritual connection to the land, including the preservation of places of cultural or spiritual significance; participation in culturally significant or traditional practices on the land, including fishing, and exercising self-determination in relation to the management of country.
In addition, the Minister, when considering whether to grant a licence under the new licensing provisions of the Bill or entering into an agreement, and Parks Victoria or the Great Ocean Road Coast and Parks Authority, when considering giving a consent, will be required to do so in accordance with the statutory requirements in or under the Aboriginal Heritage Act 2006, Traditional Owner Settlement Act 2010 and Native Title Act 1993 (Cth). If enlivened, the procedures imposed by or under these Acts allow for the participation of Traditional Owners in decisions that may affect their rights and requires the Minister to consider the impact a licence to conduct investigative activities may have on Aboriginal persons with a connection to the relevant land and/or waters.
As such, to the extent that land and waters with which Aboriginal persons may have distinctive spiritual, material and economic relationships, may be impacted by the licensing regulatory framework provided for in the Bill, there is, in my view, no limitation imposed by this Bill on the cultural rights under section 19(2) of the Charter.
Right to freedom of movement
Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria. The right extends, generally, to freedom to move throughout the State without impediment or restrictions (both physical and procedural) and a right to access public places and services. This right is, however, not an absolute right under the Charter and may be subject to such reasonable limitations as are demonstrably justified in a free and democratic society, including the property rights of others.
Aspects of this Bill are concerned with enabling access to unreserved and reserved Crown land, reserved forest and parks under the National Parks Act 1975. In this regard, the Bill does not, in itself, prevent movement freely within Victoria as protected under section 12 of the Charter. Rather, the Minister, when considering whether to grant a licence or a permit under the new licensing provisions of the Bill, will, pursuant to section 38(1) of the Charter, be required to give proper consideration to, and act in a way that is compatible with, human rights, including the right to freedom of movement under section 12 of the Charter. As set out above, the Minister will also need to consider the Charter when entering into an agreement under the National Parks Act 1975, and Parks Victoria or the Great Ocean Road Coast and Parks Authority will need to consider the Charter when providing a consent under that Act.
Accordingly, the Bill does not, in my view, limit the right to freedom of movement under section 12 of the Charter.
Conclusion
I therefore consider that the Bill is compatible with the Charter.
Hon Ingrid Stitt MP
Minister for Mental Health
Minister for Ageing
Minister for Multicultural Affairs
Second reading
That the bill be now read a second time.
Ordered that second-reading speech be incorporated into Hansard:
Victoria is leading nationally in developing offshore wind having recently legislated new offshore wind energy targets of at least 2 gigawatts (GW) by 2032, 4 GW by 2035 and 9 GW by 2040, established Offshore Wind Energy Victoria to progress sector development including undertaking engagement with industry, Traditional Owners and the Australian Government on proposed offshore wind projects, and established VicGrid to coordinate the overarching planning and development of Victoria’s Renewable Energy Zones and offshore wind transmission projects.
Our state is undergoing a significant renewable energy transition and the Victorian Government is committed to ensuring that Victorians have access to renewable, reliable, and affordable energy while making sure we meet our renewable energy and climate targets. Offshore wind energy is a key pillar of Victoria’s renewable energy future, and I am proud to say that Victoria is the national leader and at the forefront of offshore wind development in Australia.
The Energy and Public Land Legislation Amendment (Enabling Offshore Wind Energy) Bill 2024 is the next stage of the State’s offshore wind legislative reform program following introduction of the Climate Change and Energy Legislation Amendment (Renewable Energy and Storage Targets) Bill 2023.
Amendments enabling offshore wind activities
The primary purpose of this Bill is to extend the existing licensing and agreement regime under various public land legislation to enable offshore wind project proponents to access Victorian public land for the purpose of investigating the suitable placement of connection infrastructure between offshore wind projects and an onshore electricity grid connection point.
Offshore wind farms will be located in Commonwealth waters adjacent to the State’s waters, which extend three nautical miles from the coast. Accordingly, offshore wind project proponents are required to obtain the necessary licences to undertake feasibility, research and demonstration, construction and commercial works under the Commonwealth’s Offshore Electricity Infrastructure Act 2021 and accompanying regulatory framework.
The passage of this Bill will provide offshore wind project proponents with greater certainty and continuity to undertake their project planning and design from Commonwealth waters through to the onshore connection point into the Victorian electricity grid. It will do so by:
• enabling Victorian licences to be issued to, or agreements to be entered into between the relevant Minister (or their delegate) and offshore wind project proponents to access ‘public’ or ‘Crown’ land including the Victorian seabed up to three nautical miles from the coast, for a period up to a maximum 21 years to conduct initial investigatory works, as part of any proposed construction of offshore wind farms
• allowing the Minister administering the Electricity Industry Act 2000 to declare an entity to be an ‘offshore wind generation company’ to allow investigatory activities to be conducted if necessary under the National Parks Act 1975.
These amendments are intended to work with, and not be contrary to, existing rights and obligations that apply under the Acts being amended by this Bill. Further, the amendments are intended to work with, and not be contrary to, existing rights and obligations under other legislation likely to apply to offshore wind projects notably the Planning and Environment Act 1987, Marine and Coastal Act 2018, the Traditional Owner Settlement Act 2010, the Aboriginal Heritage Act 2006 and the Native Title Act 1993 (Cth). Further, the licensing regime does not cover any investigatory activities proposed to be undertaken on private land. Access to private land will be a matter for project proponents to negotiate with landholders.
The Victorian Government’s engagement with Traditional Owners is underpinned by self-determination. The Government aims to form genuine, meaningful partnerships with Traditional Owners by transferring power back to and being held accountable to Traditional Owners.
Amendments to the Land Act 1958, Crown Land (Reserves) Act 1978, Forests Act 1958 and National Parks Act 1975
Offshore wind connection infrastructure, notably transmission cables, will traverse public land of different ‘types’, currently managed under different statutes. All seabed in Victorian coastal waters is regarded as public land, and the onshore components of connection infrastructure are likely to traverse public land, including reserved Crown land, unreserved Crown land and State forest.
Accordingly, the Bill amends the Land Act 1958, Crown Land (Reserves) Act 1978 and Forests Act 1958 to provide a pathway for offshore wind project proponents to acquire long term licences over public land (unreserved and reserved public land and reserved forest) of up to a maximum of 21 years in order to begin investigative activities to connect to a consolidated connection point. The Bill also enables Parks Victoria to consent to an offshore wind energy generation company carrying out such activities in a park under the National Parks Act 1975.
The Minister or their delegate in granting a licence must have regard to:
• whether or not the applicant for a Victorian licence is the holder of a licence under the Commonwealth Offshore Electricity Infrastructure Act 2021
• whether granting the Victorian licence would contribute to achieving a Victorian offshore wind energy target or renewable energy generation target
• any other matters that the Minister or delegate considers relevant.
For example, other matters the Minister or delegate may consider relevant could include:
• the proposed scope and nature of the investigatory activities to be conducted on the Victorian seabed and onshore
• the period of time that the applicant wishes to have access to the land
• any known environmental or Traditional Owner cultural values or sensitivities in the area that is the subject of the application and suitable measures to avoid or mitigate impacts.
These considerations have to occur in the context of all applicable Victorian legislation. This may include meeting the requirements set out in a land use activity agreement under the Traditional Owner Settlement Act 2010, and, where applicable, requirements to obtain a consent under the Marine and Coastal Act 2018 or the Flora and Fauna Guarantee Act 1988 or the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and, for any substantial development, meeting the requirements to carry out an environmental effects statement under the Environmental Effects Act 1978.
The Bill also makes amendments to the public land acts to ensure that electricity companies can enter into agreements for the purposes of constructing and operating electricity infrastructure.
Amendments to the Electricity Industry Act 2000
The Bill makes amendments to empower the Minister administering the Electricity Industry Act 2000 to declare an entity to be an ‘offshore wind generation company’. This will be limited for the purpose of investigatory work. Under existing regulatory frameworks, at the time of construction, a developer would be expected to be licenced as a generation company, a transmission company and/or a distribution company, by the Essential Services Commission.
Other amendments
The Bill also amends the Land Act 1958 to repeal provisions requiring a public hearing to be undertaken by the Minister or an appointed ‘local land board’ prior to undertaking various land-related transactions including the issuing of licences and leases. This process, which derives from earlier Land Acts, is inefficient and administratively burdensome, and not appropriate to support contemporary land management.
The Bill also clarifies section 21 of the National Parks Act 1975 (which relates to the granting of permits) so that the Great Ocean Road Coast and Parks Authority can grant permits in relation to parks under the Act for which it will shortly take responsibility.
Conclusion
Offshore wind is critical to the delivery of 95% renewables by 2035, and net zero by 2040. As coal-fired power plants exit, as they have flagged, the increased generation capacity of offshore wind farms provides crucial reliability assurance for Victoria’s grid. It’s not just a nice to have, and the Victorian Government is committed to enabling offshore wind project proponents to undertake the necessary site feasibility investigation works to inform their project design phase, harness the opportunities of our world-class wind resources and contribute to Victoria’s offshore wind and renewable energy generation targets.
I commend the Bill to the house.
Georgie CROZIER (Southern Metropolitan) (17:37): I move on behalf of my colleague Mr Davis:
That debate on this bill be adjourned for one week.
Motion agreed to and debate adjourned for one week.