Regulatory information

Offshore wind project developers must consider the traditional knowledges, values, rights, and responsibilities of, and engage with, the relevant Traditional Owners during all phases of an offshore wind project.

Traditional Owners are partners who have cultural and legal rights that must be upheld under the Traditional Owner Settlement Act 2010 (Vic), the Aboriginal Heritage Act 2006 (Vic) and the Native Title Act 1993 (Cth).

Traditional Owners’ rights are recognised and promoted under Commonwealth and Victorian legislation and policies. Aboriginal cultural heritage (both tangible and intangible) is protected by law and includes various landforms and land categories, including, relevant to offshore wind projects – coastal Crown (‘public’) land, coastal land, dunes and waterways.

Aboriginal cultural heritage

Aboriginal cultural heritage is protected regardless of whether it is known or submerged. The Victorian Government has commitments to Aboriginal self-determination – including through various legislation and recent developments under Truth and Treaty processes.

The Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) also provides legal rights for Aboriginal Victorians, recognising self-determination as the right to “freely determine their political status and pursue their economic, social, and cultural development”.

Engaging with Traditional Owners

Further information on Victoria’s commitments, guidance and responsibilities for engaging Traditional Owners is available below:

• Engaging Traditional Owners
• Treaty process
• Self-determination reform strategy
• Aboriginal rights

Native Title Act

The Native Title Act 1993 (Cth) (NTA) provides recognition and protection of the rights and interests of Aboriginal and Torres Strait Islander people in land and waters according to their traditional laws and customs. The NTA outlines that when a native title determination is made, native title holders must establish a corporation under the NTA who manages and protects the native title rights and interests in the relevant area.

Indigenous Land Use Agreements

In addition to recognition and protections, the NTA also provides for native title groups and other interested parties to voluntarily enter into a mutual agreement, called Indigenous Land Use Agreements, in relation to the use and management of areas of land and/or waters. Developers may enter into agreements with native title holders when considering the grant of project rights, further negotiations and management arrangements.

Developers must note that if any activity carried out by a licence holding developer in the Commonwealth offshore area interferes with the exercise of native title rights and interests, a strict liability offence exists under the Offshore Electricity Infrastructure Act 2021 (Cth).

Traditional Owner Settlement Act

The Traditional Owner Settlement Act 2010 (Vic) (TOSA) recognises Traditional Owner group’s rights over public land, supporting Traditional Owners to jointly manage parks and natural resources, as well as providing an opportunity to use public land for cultural purposes and to achieve economic development. It provides for an out-of-court settlement for native title and resolution of land justice.

Recognition and Settlement Agreement

This settlement is made in respect of Victorian land, between the state of Victoria and Traditional Owners. The preferred mechanism used in Victoria to settle native title claims pursuant to the TOSA is a Recognition and Settlement Agreement (RSA).

Under an RSA, the State recognises a Traditional Owner group and certain Traditional Owner rights and may include the following with respect to land that is subject to the agreement:

• a Land Agreement, which grants a Traditional Owner group an estate in fee simple (with respect to 'unreserved public land') or Aboriginal title (with respect to 'public land')
• a Land Use Activity Agreement, which provides procedural rights to a Traditional Owner group over certain activities carried out on public land
• a Funding Agreement, which provides funding to a Traditional Owner group for the purpose of giving effect to the RSA
• a Natural Resource Agreement, which recognises Traditional Owners' rights to take and use specific natural resources and provide input into the management of land and natural resources.

Victoria's current agreements with Traditional Owners are on the Forests and Reserves website.

With the majority of Victoria’s coastal waters being public land, developers must be aware that consents, leases and licences will be required to construct on or use public land for any development related to the offshore wind project.

Reserved and unreserved public land

Public land can be both reserved and unreserved and in Victoria, the Crown Land (Reserves) Act 1958 (Vic) (CLR Act) governs tenure relating to reserved public land and the Land Act 1958 (Vic) governs unreserved public land.

• Reserved public land is public land that has been reserved, either permanently or temporarily, for a public purpose
• Unreserved land has not been set aside for any particular public use.

Project proponents and developers should note that the CLR Act provides a non-exhaustive list of public purposes for which public land may be reserved, which includes the protection of the coastline.

How the Victorian Government manages public land

For further information on how the Victorian Government manages public land, public land leases and more, visit the Forests and Reserves website.

Aboriginal Heritage Act and Aboriginal Heritage Regulations

In Victoria, Aboriginal cultural heritage is protected primarily under the Aboriginal Heritage Act 2006 (Vic) (AHA) and is the key piece of legislation that guides Aboriginal cultural heritage management in Victoria, including in coastal waters.

The AHA also provides protection of Aboriginal cultural heritage and Aboriginal intangible heritage in Victoria. It also acknowledges Traditional Owners as protectors of their heritage on behalf of Aboriginal people, providing them a primary role in the identification, protection, and management of Aboriginal cultural heritage in public and private in Victoria.

Cultural heritage management plan

The Act allows different organisations, Aboriginal groups and regulatory bodies to connect and enforce heritage laws and policies regarding Aboriginal heritage. In conjunction with the AHA, the Aboriginal Heritage Regulations 2018 (Vic) (AHR) gives effect to the AHA by providing a detailed framework for when a cultural heritage management plan (CHMP) is required and what the process entails

Cultural Heritage Management Plan

Project developers are required to prepare a cultural heritage management plan (CHMP) if the proposed offshore wind project leads to a ‘high impact activity’ being planned in an area of ‘cultural heritage sensitivity,’ as defined by the Aboriginal Heritage Regulations 2018. In such areas, planning permits, licences and work authorities cannot be issued without an approved CHMP. CHMP are prepared by a heritage advisor and approved by a Registered Aboriginal Party (RAP).

If there is no RAP in the project’s relevant area or the relevant RAP provides notice that they do not wish to evaluate the CHMP, the CHMP is evaluated by the Secretary to the Victorian Department of Premier and Cabinet (DPC) on the advice of the First Peoples – State Relations branch of DPC.

Critically, pursuant to the AHA, a CHMP is mandatory if a developer is required to prepare an EES under the Environment Effects Act 1978 (Vic). Offshore Wind Energy Victoria anticipates that all or the majority of developers of offshore wind projects will be required to prepare a CHMP.

To find out about the CHMP process, the Victorian Aboriginal Heritage Register, and Victoria's Registered Aboriginal Parties, please visit the First Peoples Relations and Aboriginal Heritage Council websites.

Environment Effects Act (Vic)

Projects such as offshore wind developments are subject to rigorous environmental impact assessment processes to ensure that they are developed in an ecologically sustainable way. Under the Victorian Environment Effects Act 1978 (Vic) (EE Act), projects that are capable of having significant effect on the environment in Victoria require environmental assessment. This process is administered by the Victorian Department of Transport and Planning (DTP).

Environmental assessment of proposed projects

The EE Act provides for environmental assessment of proposed projects capable of a significant effect on the environment. Once completed, the assessment (typically via an Environmental Effects Statement (EES), but alternatively an environment report) informs decision makers, when they consider project approvals.

An EES process examines the potential effects of projects on the environment and the means of avoiding, minimising, managing, rehabilitating and offsetting adverse effects.

EES/Environment Reports provide for the transparent, integrated and timely assessment of the environmental effects of projects, as well as coordination with other statutory processes.

Ecologically sustainable development, transparency, public involvement and the community’s opportunity to respond to proposals are vital elements of the process.

For the purposes of the EE Act, the environment is broadly defined and encompasses all physical, biological, social, spiritual and economic systems, processes and attributes.

For further information on the Act, please visit:

• Environment effects statements in Victoria
• Understanding the assessment process

Victorian offshore wind projects

Victorian offshore wind projects will cross the maritime boundary between the Commonwealth and Victoria. This will trigger environment assessments and approvals under both jurisdictions.

To navigate the 2 processes, the Department of Transport and Planning (Victoria) and the Department of Climate Change, Energy, the Environment and Water (Commonwealth) are developing a guidance document outlining the approach that the Commonwealth and Victorian governments have established for undertaking assessments of offshore wind projects. The approach seeks to avoid duplication and to align Commonwealth and Victorian processes were possible, while providing clarity.

The guidance document is expected to be published in the near future and a link to the document will be made available here.

Heritage Act

Victoria’s Heritage Act 2017 (Vic) (Heritage Act) aims to provide cultural heritage protection and conservation of non-Aboriginal cultural heritage, including buildings, structures, shipwrecks, objects, and archaeological sites. Any potential impacts on the sites and places of historical cultural heritage significance must receive approval.

Developers must not remove, relocate, demolish, damage, despoil, develop, alter or excavate any part of an area that is protected.

Further information can be found on the following websites:

• Heritage Victoria – Legislation and regulations
• Heritage Victoria – Historial archaeology
• Heritage Victoria – Archaeology consents
• Victorian Heritage Database

The Planning and Environment Act 1987 (Vic) (PE Act) establishes a framework for planning the use, development and protection of land in Victoria.

Developers may need to consider approval requirements for the onshore components of their projects. Planning Schemes which outlines objectives, policies and provisions relating to the use, development, protection and conservation of land in the area to which it applies.

Further information is available on the Planning Victoria website, including:

• Legislation and regulations
• Energy Concierge services
• Renewable energy facilities guide
• Planning schemes

The Australian Government regulates offshore wind in Commonwealth waters through the Offshore Electricity Infrastructure Act 2021 (Cth) (OEI Act) and the Offshore Electricity Infrastructure Regulations 2022 (Cth).

The OEI Act establishes a regulatory framework to enable all elements relating to offshore electricity infrastructure and activities. The OEI Act enables the relevant Commonwealth Minister to declare specified areas suitable for offshore infrastructure activities and to grant licences allowing developers to undertake offshore wind infrastructure activities in specified areas.

Further information on the process for declaring suitable areas, approvals processes and key Commonwealth entities responsible for offshore wind energy is available on the Department of Climate Change, Energy, the Environment and Water (Commonwealth) website.

Offshore wind developers must apply for various licences from the Australian Government to undertake activities in Commonwealth waters. Commonwealth waters are 3 nautical miles (or approximately 5.5 km) from the coast of the respective state or territory.

Licences issued under the Offshore Electricity Infrastructure Act 2021 (Cth) (OEI Act) are separate to approvals obtained through other Commonwealth processes such as the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) in addition to Victorian requirements. Approval under one Act does not guarantee approval under another.

Types of licences

There are 4 types of licences that can be granted under the OEI Act:

• feasibility licences
• commercial licenses
• research and demonstration licenses
• transmission and infrastructure licences.

The Offshore Infrastructure Registrar administers licences for offshore renewable energy and transmission projects and staff within the National Offshore Petroleum Titles Administrator (NOPTA) assist the Registrar.

Further information on the offshore wind feasibility licence application and assessment process is available on the Offshore Infrastructure Registrar website.

Management plan

Before carrying out any activities, a licence holder must have a management plan approved by the Offshore Infrastructure Regulator. A management plan details how activities are to be carried out by the proponent under an Offshore Electricity Infrastructure Act 2021 (Cth) (OEI Act) licence.

More information is available on the Offshore Infrastructure Regulator website.

The generation, transmission, distribution, and sale of electricity is regulated in Victoria both through State-based legislation and under the regulatory regime in the National Electricity Market (NEM).

Victoria applies the National Electricity Law (NEL) and National Electricity Rules (NER) through the National Electricity (Victoria) Act 2005 (Vic) (NEVA) and provides for a number of Victorian-specific derogations from the NEL and NER.

The NEL and the NER prescribe the methods and frameworks by which electricity generation assets are connected to the transmission network in Victoria, and how augmentations to the shared transmission network are planned for, procured and then funded.

Declared transmission network

The majority of Victoria's transmission network is a 'declared transmission network' under section 30 of the NEVA. The Australian Energy Market Operator (AEMO) is the planner and procurer of augmentations on the transmission network in Victoria and the provider of shared transmission services. AEMO then procures transmission network services from the owners of Victoria's transmission network assets, who are referred to as declared transmission system operators (DTSOs).

Further information on Victorian DTSOs is available on the AEMO website.

Registration with Australian Energy Market Operator (AEMO)

Under the National Electricity Law (NEL) and National Electricity Rules (NER), a person cannot own, control or operate a generating system connected to the National Electricity Market (NEM) unless they are registered with the AEMO in one or more ‘participant categories’ including being a ‘generator’, or are exempt.

Developers should note that the initial step in the connection application process is to register as an 'intending market participant', which will allow developers to access network models from AEMO to conduct connection application studies.

Connection process

To establish a new connection from an offshore wind project to the NEM in Victoria, developers are encouraged to consider:

• data and information request forms to be submitted to AEMO
• fees and charges from AEMO to assess the connection application
• connection voltage, connection type, project size and proposed timing
• preferred site locations and its GPS coordinates
• any location-specific constraints relating to connection points
• modelling information.

AEMO’s website has detailed information about this process:

• Registering as an intending participant
• Victorian transmission connections process overview
• Establishing or connection to declared shared network terminal stations and transmission lines
• Electricity market participants

As the independent regulator established by the Victorian Government, the Essential Services Commission (ESC) regulates prescribed essential services, including the electricity and gas industries. One of the commission’s statutory functions is to administer energy licensing in Victoria under Division 3 of Part 2 of the Electricity Industry Act 2000 (Vic).

Any developer that wishes to operate infrastructure for the purposes of generating or delivering electricity connected to a connection point within the transmission network, will need a generation licence from the ESC.

ESC will assess all applications on a case-by-case basis and may grant or refuse to grant the application under applicable legislative and regulatory frameworks.

Visit the ESC website to find out more about their role and electricity licences.