Consultation requirements in Australia's offshore wind space

What you need to know

• The recently amended Offshore Electricity Infrastructure Regulations 2022 (Cth) (OEI Regulations) require offshore wind project proponents to consult with various stakeholders at different points throughout project development.
• Feasibility licence holders must carry out consultation in the preparation of management plans. Consultation is also required for an application for a safety and protection zone around critical infrastructure.
• There are detailed requirements governing how to identify parties to consult (including First Nations people and groups) and what makes consultation "adequate".

What you need to do

• Consider the OEI Regulations and the Regulator's guidance material to ensure adequate and appropriate consultation is undertaken when preparing a management plan.
• Ensure that consultation with First Nations people and groups is carried out in accordance with the OEI Regulations, in addition to any consultation required by other Federal and State or Territory legislation.

Consultation requirements for the Australian offshore wind industry

As explained in the earlier articles in this series (linked below), the long awaited amendments to the Offshore Electricity Infrastructure Regulations 2022 (Cth) (OEI Regulations) have commenced, providing clarity to offshore wind project proponents in Australia. This alert details the consultation required for a management plan and in respect of safety and protection zones.

Consultation for management plans

The OEI Regulations require offshore wind proponents to consult about the activities authorised by its management plans. Consultation obligations arise before a proponent makes an initial plan approval application, and may also be required at the direction of the Regulator if the management plan is, or is required to be, amended after approval.

What does the consultation need to be about?

As discussed in our third article in this offshore wind series, feasibility licence holders must have an approved management plan to undertake activities required to assess the feasibility of the proposed offshore wind project – for example, the construction and operation of infrastructure such as lidar and other buoys to assess wind speed and ocean conditions.

The OEI Regulations make clear that consultation need only relate to the feasibility activities to be authorised by the management plan, or those activities that are the subject of a direction to undertake consultation made by the Regulator. Accordingly, at feasibility licence stage, project proponents do not need to consult about the whole project lifecycle and can be more targeted in the content of consultation.

Who must be consulted and how?

Clause 64 of the OEI Regulations specifies that project proponents (a "licence holder") must make "reasonable efforts to identify and consult" with the following:

1. Each Government department, agency or authority (both Commonwealth and State) that has functions that relate to the activities the subject of consultation.
2. Aboriginal or Torres Strait Islander peoples or groups that the licence holder reasonably considers may have native title rights and interests in the licence area, or areas of land or water that are adjacent to the licence area.
3. Aboriginal or Torres Strait Islander organisations established under a law of the Commonwealth/State/Territory that the licence holder reasonably considers to have functions related to managing, for the benefit of Aboriginal or Torres Strait Islander people, land or water in the licence area, or that are adjacent to the licence area.
4. 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), where rights relate to land or water in the licence area, or areas of land or water adjacent to the licence area.
5. The holder of any other licence granted under the OEI Act, if the licences overlap or if there is infrastructure in or near the licence area.
6. People or organisations that the licence holder reasonably considers may carry out activities (in or near the licence area) for a commercial purpose pursuant to a licence or permit issued under a law of the Commonwealth/State/Territory in a way that may directly interact with the activities the subject of consultation.
7. Communities that are located adjacent to the licence area which the licence holder reasonably considers may be directly affected by the activities subject to consultation.
8. Any organisation representing recreational fishers whose activities the licence holder reasonably considers may be directly affected by the activities subject to consultation.

While the drafting in the OEI Regulations has been tightened since the Government's April 2024 exposure draft of the OEI Amendment Regulations (Exposure Draft), it will still be open to project proponents to determine exactly who is captured by clause 64 – for example, how narrowly to consider the area "adjacent" to a licence area. While the particular words in the regulations could be read narrowly and the breadth of the obligation limited to those who share a boundary with the licence area, the policy intent of the OEI Regulations perhaps supports a broader reading.

The OEI Regulations also state that proponents do not need to consult with a person (or organisation, community or group), if the proponent has consulted with another person (etc) that could reasonably be regarded as representing the interests of the first person. Proponents need to carefully consider whether to cast the net wide in undertaking consultation or seek to focus consultation through representative bodies, where they exist.

A critical element of the obligation in clause 64 is how project proponents "identify" consultees and what constitutes adequate "consultation". A management plan must include a description of the process used to identify consultees. Little guidance is provided by the Regulator about how to identify consultees but strategies may include:

• desktop studies of relevant databases (ie to identify relevant peoples, groups, organisations or licence holders);
• advertising in local newspapers to invite engagement; and
• participating in community information sessions.

Guidance released by the Regulator makes clear that the primary purpose of consultation is to assist licence holders to understand the external context in which the project will operate, including how the project may interact with other users of the area. Whilst the Regulator has indicated that licence holders should be guided by consultees when determining the amount and manner of consultation required, judgement about whether adequate consultation has occurred may be required in circumstances where consultee and proponent expectations diverge. Ultimately, the mere provision of information to community members is unlikely to be seen as true "consultation". Rather, proponents should ensure sufficient information has been provided and enough time allowed for consultees to form an informed assessment of the impact of the activities on their interests. Thought should also be given to the best way to communicate the information to different types of consultees to aid understanding.

First Nations consultation

The OEI Regulations contain a broad requirement for licence holders to make reasonable efforts to identify and consult with Aboriginal or Torres Strait Islander peoples or groups with interests in, or management functions related to, the relevant licence area or an area adjacent to the licence area (this includes native title interests, or land or water rights under Federal or State-based agreements).
In Victoria, consultation would be required with determined native title holders as well as current claimants, First Nations parties to an indigenous land use agreement or Recognition and Settlement Agreement, and any CATSI company or Registered Aboriginal Party (RAP) that has functions managing land or waters in the area (items 2 – 4 listed above).

Consultation requirements in the OEI Regulations are additional to existing obligations on project proponents to engage with and obtain necessary consents from First Nations people under other legislative regimes. Proponents must ensure that they have complied with the Native Title Act 1993 (Cth) as well as any applicable cultural heritage and any land rights legislation (in Victoria, the Aboriginal Heritage Act 2006 and the Traditional Owner Settlement Act 2010.)

Proactive engagement with First Nations peoples is increasingly the focus of legislative reform at both the Commonwealth and State/Territory level (beyond the OEI framework). At the moment, legislative requirements typically lag behind community expectations, but the trend is clear. Project proponents should see consultation with First Nations peoples required under the OEI Regulations as an opportunity to help identify or narrow key cultural heritage, environmental and social issues arising in relation to the project at an early stage, and as a means by which to enhance the project's social licence to operate.

Safety and protection zone consultation

The OEI framework provides that the Regulator may make a determination to establish safety zones and protection zones, in order to protect offshore infrastructure and ensure the safety of offshore workers and other marine users.

A safety zone is an area around eligible infrastructure that must not be entered by vessels, or particular kinds of vessels specified in the determination. A protection zone does not limit general access to the area, but restricts or prohibits certain activities from being undertaken in the area.

Project proponents can apply to the Regulator to determine a safety zone or protection zone. Guidance from the Regulator makes clear that prior to making an application, the proponent is required to demonstrate that adequate consultation has been undertaken. A consultation report must be included in the application.

Consultation will need to be undertaken with:

1. any other licence holder who may be affected by the safety zone or protection zone;
2. the Australian Maritime Safety Authority;
3. relevant Commonwealth and state/territory agencies;
4. where applicable, relevant individuals or organisation with native title rights and interest under the Native Title Act; and
5. any other marine users (persons or organisations) likely to be directly affected by the proposed zone.

The guidance material makes clear that where relevant, consultation undertaken for the purpose of a management plan may be referenced in the application for a safety or protection zone, but only where the consultation conducted during the management plan process is sufficiently specific for consultees to understand the implication of a protection zone or safety zone.

Other consultation obligations

There are additional consultation obligations introduced by the OEI Regulations into the Work Health and Safety Regulations 2011 (Cth). These will be discussed in the next article in this series.

Want to know more?

• New management plan requirements for Australian offshore wind projects (25 March 2025) 
• Australia opens applications for offshore wind transmission licences (5 March 2025) 
• Australia finalises new regulations for offshore wind projects (19 February 2025)
• Australia's offshore wind industry: 2024 year in review (11 February 2025)

Authors: Jeff Lynn, Partner; Clare Lawrence, Partner; Anna Seddon, Senior Associate and Leonie Flynn, Expertise Counsel.