As a result of this activity, Australia has made progress towards the legislated national 2030 target of reducing greenhouse gas emissions to 43% below 2005 levels (see the Climate Change Act 2022 (Cth) s 10(1)(a)). Australia’s Emissions Projections 2024, published by the Department of Climate Change, Energy, the Environment and Water (DCCEEW) in November, projected that emissions will reach 42.6% below 2005 levels in 2030, under the baseline scenario (p3). For the Hon Chris Bowen MP, the Minister for Climate Change and Energy, this means “… we are on track to deliver our 2030 emissions reduction target” (as he wrote in the foreword to the Annual Climate Change Statement 2024, p1).

However, this optimism has not been shared across Australia, with attendees at the 2024 Pilbara Summit in June (WA) expressing frustrations that Australia has fallen behind (read our insight into the 2024 Pilbara Summit here). As such, effective delivery of climate and sustainability policies remains critical. The 2024 Annual Progress Report published by the Climate Change Authority acknowledged improvement but stressed that “… only the delivery of their promised outcomes will get us there” (p9).

The Australian Energy Market Operator (AEMO) echoed a similar sentiment in its 2024 Electricity Statement of Opportunities (AEMO ESOO), reporting that for government programs to effectively provide sufficient generation capacity to meet demand reliably, they must be “… delivered on time and in full” (p3).

Decarbonisation of the electricity sector will be ‘vital’ in achieving Australia’s 2030 emissions reduction target, according to the Annual Climate Change Statement 2024 (p25). Australia’s Emissions Projections 2024 sets out that the electricity sector accounted for 35% of Australia’s emissions in 2024 (p97). However, the electricity sector is likely to account for over 80% of emissions reductions to achieve the 2030 national target (2024 Annual Progress Report, p48, citing Australia’s Emissions Projections 2023). This may represent an investment opportunity, with the Climate Change Authority projecting an 8 gigawatt (GW) gap in capacity necessary to achieve Australia’s target of 82% renewable electricity by 2030 (see the 2024 Annual Progress Report, p49).

Batteries and synchronous condensers received increased attention in 2024, as reliability of generation and system security became points of focus, with AEMO publishing its first Transition Plan for System Security in December. To provide system security, one recommendation from the Climate Change Authority in its 2024 Annual Progress Report was large-scale deployment of synchronous condensers with back-up generation capability (p13).

Efforts to address and mitigate the effects of climate change are clearly not confined to Australia. While the Hon Chris Bowen MP considers Australia ‘on track’ to reach its 2030 emissions reduction target (see the Annual Climate Change Statement 2024, p1), the Climate Change Authority’s coverage of Paris Agreement’s first Global Stocktake, released late 2023, revealed the world is not yet on track to meet goals set out in the Paris Agreement (2024 Annual Progress Report, p22).

Additionally, the Climate Change Authority reported that current plans to address climate change have a 66% chance of seeing global temperatures increase by 2.6-3.1°C during the 21st century (p22, citing the UN Environment Programme Emissions Gap Report 2024). The 2024 Annual Progress Report goes on to highlight that countries Party to the Paris Agreement will be required to submit updated Nationally Determined Contributions (NDCs)) in 2025 (p22), outlining their plans to address climate change.

The COP29 climate conference concluded on 24 November 2024, wrapping up two weeks of intense international climate negotiations. The ‘Finance COP’ will be remembered for securing landmark agreements on several key agenda items: a new collective quantified goal on climate finance (NCQG), the operationalisation of international carbon markets under Article 6 and capitalisation of the Fund for Responding to Loss and Damage. These are significant outcomes that will enable greater climate action and support communities adversely affected by climate change.

The NCQG was the most anticipated agenda item at COP29. Parties agreed on a new target of mobilising at least USD 300 billion annually by 2035, with developed country Parties to take the lead but with voluntary contributions from other parties encouraged. The Parties also agreed on working towards mobilising USD 1.3 trillion per year from all public and private sources by 2035. This landmark decision will help drive the scaling up of climate finance flows, particularly into developing countries and offer co-investment and blended finance opportunities for the private sector. Private capital partnering with public capital can help to de-risk investments in developing countries where significant energy transformation is required to meet NDCs and global emissions reduction targets.

The operationalisation of international carbon markets under Article 6 of the Paris Agreement was another significant achievement at COP29. Critical agreements were reached on important technical elements as well as the standards for implementing projects and activities eligible to generate carbon credits. This means that there will be new opportunities for the private sector to engage in carbon markets and support international emission reduction efforts.

However, Parties were unable to agree to take work forward from COP28 on implementing the outcomes of the first Global Stocktake, nor was there any real progress in respect to the phasing out of unabated fossil fuels, increasing the uptake of renewable energy or improving energy efficiency – some of the key decision points from COP28.

For Australia, the outcomes of COP29 are important and reflective of shifting global and domestic climate policies and investor expectations in respect of climate change. It is clear there are significant climate-related risks and opportunities for Australian governments and businesses presented by the energy transition. However, the lack of progress on phasing out fossil fuels and scaling up renewable energy demonstrates the unique challenges in the energy transition. It is important for businesses to familiarise themselves with the outcomes of COP29 and areas of future focus because these will inform expectations of the private sector and provide opportunities, to contribute to and benefit from the increasing flows in climate finance and policy settings for a decarbonising economy.

We reflect on the key outcomes of the conference and what they mean for Australian businesses in our article on COP29: The ‘Finance COP’: COP29 outcomes and key takeaways for businesses on global climate action.

The battery market

With the retirement of coal generators, generation capacity is increasingly being obtained from renewable energy sources that have variations in output, such as solar and wind (see the Australian Energy Regulator (AER) State of the energy market 2024 report (AER Report), p45). Focus has turned to battery storage systems as a solution to help maintain system security through their fast response times (AER Report, p45), firming the grid by filling short term supply gaps. The Australian Renewable Energy Agency (ARENA) expressed this notion “… we require significantly more firming, including energy storage, to balance the variability of renewable energy sources and provide essential system services” in its Annual Report 2023-24 (p8).

Despite significant investment interest and developments underway, Australia’s current storage capacity of 3 GW (according to the Australian Energy Council in August 2024) falls far short of the capacity required. According to AEMO’s Integrated System Plan published in June 2024, the National Electricity Market (NEM) alone is forecast to need 36 GW of storage capacity in 2034-35 (p66).

This resource gap has been identified by investors and developers, with large-scale storage seeing $4.9 billion in financial commitments in 2023, according to the Clean Energy Australia 2024 report published March 2024, having risen from $1.9 billion in 2022 (p2). ARENA approved $143 million in funding for the deployment of 370 batteries under the Community Batteries for Household Solar program (per the ARENA Annual Report 2023-24, p8). Appetite for battery procurements continued through 2024, with approximately 40 GW of dispatchable capacity projects, including batteries, proposed since August 2023 (see the AEMO ESOO, p52).

In performing this role of ‘firming’ the grid by addressing system security, the duration capability of battery storage systems is significant. According to the AEMO ESOO (p52), currently the average battery storage duration in mainland NEM regions is 2.3 hours. The ability to continuously dispatch electricity for longer periods, such as through longer duration storage, may be more effective in managing less common reliability risks requiring longer dispatch (see AEMO ESOO, p70), such as extended weather events. The ongoing need for longer storage dispatch duration can be seen in the policy steps outlined below, supporting investment in long duration storage projects.

NSW Government reaffirms commitment to long duration energy storage

In October, the NSW Government announced its commitment to utilising long duration energy storage, which will continue to be a key reliability management mechanism in the State’s own energy transition. The final Position Paper sets out the priorities of the NSW Government, including:

• its intention to legislate a higher long duration storage objective. This new proposed target of 28 gigawatt hours (GWh) of long duration storage by 2034 (Position Paper, p5) is a 75% increase from the current objective of 16 GWh of long duration storage by 2030; and

• minimum dispatch duration for long duration storage units will remain at eight hours (Position Paper, p3), despite calls for reduction (for example, from AEMO Services in its The value of long-duration storage 2024 advice, p3). As AEMO reported average battery storage duration in mainland NEM regions as being 2.3 hours (AEMO ESOO, p52), the NSW Government is requiring a significant step forward in duration capability of the electricity market.

Read the Clean Energy Council’s publication on the NSW Government’s announcement here and its paper on the future of long duration energy storage here.

Long-Term Energy Service Agreements (LTESAs)

AEMO Services tenders for LTESAs under the NSW Electricity Infrastructure Roadmap continued through 2024. In 2023, four storage projects with eight hour discharge capacity were selected across two tender rounds (see Tender Round 1, under which the Limondale BESS was selected, and Tender Round 3). 2024 saw the close of bids for the South West REZ Access Rights and Long Duration Storage LTESA tender in September, with selected bids to be announced in January or February 2025.

Calls for alternative long duration energy storage

Technology continues to evolve in the space of long duration energy storage. The duration capabilities of lithium batteries continue to advance and there is growing research and development into alternative long duration energy storage including compressed air energy storage, redox flow batteries and thermal energy storage, as set out in the Clean Energy Council’s report on these developments here.

Tender rounds for projects under the national Capacity Investment Scheme (CIS), expanded in November 2023, are underway. Under the CIS, the Commonwealth Government provides revenue underwriting for selected projects (as set out in the DCCEEW information page on the CIS here). Recent developments under the CIS include:

• successful bids for the South Australia-Victoria Tender, the second pilot tender, were announced on 4 September 2024, with six projects approved conditionally with various storage capabilities ranging from two to four hours;

• successful bids under the CIS Tender 1 were announced on 11 December 2024, with 19 projects with a potential generation capacity of 6.38 GW and additional storage capacity of 3.6 GWh selected; and

• successful bids under CIS Tender 2 and CIS Tender 3 will be announced in March 2025 and Q3 2025 respectively.

The CIS Tender 2 initiative focuses on projects within Western Australia, specifically targeting the South West Interconnected System (SWIS). The goal is to provide 500 megawatts (MW) of four-hour equivalent clean dispatchable electricity, amounting to 2,000 megawatt hours (MWh), across the Western Australian Wholesale Electricity Market. Stage A of the bidding process for CIS Tender 2 concluded on 19 August 2024, after which shortlisted projects were invited to submit a Stage B 'Financial Value Bid'. The submission period for Stage B ended on 2 December 2024 and AEMO is currently in the process of evaluating the Financial Value Bids.

Eligible projects must meet a minimum size of 30 MW and include at least two hours of storage capacity. The tender supports projects powered by renewable energy sources recognised under the Renewable Energy (Electricity) Act 2000 (Cth) or those charging from the SWIS, or a combination of both. The Australian Government will assess proposals based on technical and financial merits, with priority given to projects with earlier commercial operation dates. A strong emphasis is placed on securing social licence commitments, requiring proponents to establish meaningful partnerships with First Nations communities and demonstrate genuine economic and social benefits. These commitments will be contractually binding and monitored under the scheme’s Merit Criteria, ensuring robust engagement and accountability.

These developments can be tracked on the AEMO Tenders page here.

Courts have made significant progress in ensuring both companies and governments adhere to their climate-related duties and answer for climate-related violations. Our analysis of the ‘Global Trends in Climate Change Litigation: 2024 Snapshot’ Report from July can be accessed here.

European Court of Human Rights held Switzerland in breach of the European Convention on Human Rights

On 9 April 2024, the European Court of Human Rights (the Court) delivered a landmark judgment finding the Swiss Government violated the European Convention on Human Rights (the Convention). In Verein KlimaSeniorinnen Schweiz and Others v Switzerland (European Court of Human Rights, Grand Chamber, Application No 53600/20, 9 April 2024), the Court made clear that Contracting States of the Convention have positive obligations in relation to climate change, their ‘primary duty’ in such context being to adopt and apply measures to mitigate existing and future effects of climate change [545]. By failing to devise and implement a regulatory framework to address and mitigate climate change in good time and in an appropriate manner, the Swiss Government had violated the Convention [573]-[574].

The applicants in this case comprised senior women, being an association of over 2,000 women, and four individual women, who described themselves as members of “… a most vulnerable group affected by climate change” [24]. In the proceedings, the applicants argued the Swiss Government's inadequate emissions reduction targets and inadequate action to address climate change violated Article 2 (right to life) and Article 8 (right to respect for private and family life) of the Convention, among other things [327]-[329].

The Court found the Swiss Government had violated Article 8 of the Convention [573]-[574]. Under Article 8, a State’s primary duty in this context “… is to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change” [545]. The Court’s finding that there were critical gaps in the development and implementation of a regulatory framework to address climate change meant the Swiss Government had failed to comply with its climate-related obligations [573].

The Court acknowledged ‘serious risk’ of decreased life expectancy caused by climate change could mean Article 2 would apply [513]. However, the Court found it ‘more questionable’ whether the shortcomings in this case had ‘such life-threatening consequences’ to justify the application of Article 2 [536]. The Court examined the complaint solely under Article 8 but noted the principles developed under Article 2 are similar [537].

Read our comprehensive analysis on the judgment here, the European Court of Human Right’s Press Release here and the Lexology PRO insight here.

ASIC intensifies enforcement actions on greenwashing

In 2024, ASIC intensified its enforcement activity against companies and superannuation funds engaged in ‘greenwashing’. Greenwashing is the practice of "… misrepresenting the extent to which a financial product or investment strategy is environmentally friendly, sustainable or ethical" (set out in ASIC INFO 271). In 2024, ASIC successfully obtained civil penalties against companies involved in greenwashing for the first time. 

• First civil penalty for greenwashing (ASIC v Mercer): On 2 August 2024, the first penalty was handed down in ASIC’s greenwashing enforcement actions. The Federal Court ordered Mercer Superannuation (Australia) Limited to pay a pecuniary penalty of $11.3 million in total [8] (our analysis of the decision is available here).

• Second penalty ordered (ASIC v Vanguard): On 25 September 2024, the Federal Court ordered Vanguard Investments Australia Ltd pay a $12.9 million aggregate penalty [12], for its finding of greenwashing contraventions in March (read our analysis of the decision here).

• Potential penalty pending (ASIC v LGSS): On 5 June 2024, the Federal Court found that LGSS Pty Ltd, as trustee of Active Super, had made representations that were misleading and deceptive. On 17 December, the matter was heard in the Federal Court to determine final orders, including penalty orders (in accordance with the orders made on 7 August 2024). You can read our comprehensive analysis on the judgment here.

Read our analysis on the impact of greenwashing litigation for private equity managers and their investors here.

Judgment pending: ACCR v Santos litigation

In October and November, the Australasian Centre for Corporate Responsibility (ACCR) and Santos Limited presented their arguments over alleged greenwashing in the Federal Court of Australia. As set out in the ACCR media release, the ACCR commenced the proceedings in 2021, alleging that Santos Limited had engaged in misleading or deceptive conduct. The ACCR's argument includes Santos Limited’s alleged representations regarding its ‘net zero’ pathway and that the natural gas it produces is a ‘clean fuel’.

As stated in the ACCR media release, this is the first time in the world the veracity of a company’s ‘net zero’ plan is being challenged in court.

Upcoming trial: Parents for Climate v EnergyAustralia

On 9 August 2023, Parents for Climate Ltd filed a claim in the Federal Court of Australia, alleging EnergyAustralia Pty Ltd (EnergyAustralia) engaged in misleading or deceptive conduct in breach of the Australian Consumer Law. The Further Amended Statement of Claim reveals that conduct in dispute in these proceedings includes EnergyAustralia’s alleged representations that under its ‘Go Neutral’ program:

• energy usage is carbon neutral [18];

• all greenhouse gas emissions associated with energy usage are cancelled out and negated [18];

• energy usage does not increase atmospheric concentration of greenhouse gases [18]; and

• purchasing electricity and gas from EnergyAustralia has a positive environmental impact and makes a real difference to the environment [19].

In its filed defence, EnergyAustralia claimed the materials must be considered in their context and that they would be understood as being expressions of EnergyAustralia’s opinion [18]-[19].

The case will require consideration of how misleading and deceptive conduct provisions apply to climate-related representations made in a context where avoidance credits are in use. The hearing is set to commence on 12 May 2025 and will run for an estimated two weeks. Read the overview by Equity Generation Lawyers representing Parents for Climate Ltd here.

First Advisory Opinion on climate change issued by the International Tribunal for the Law of the Sea

The International Tribunal for the Law of the Sea (ITLOS) clarified specific obligations on States imposed by the United Nations Convention on the Law of the Sea (the Convention), in its Advisory Opinion delivered on 21 May 2024. Key clarifications made by the ITLOS include:

• Party States are under an obligation to take all necessary measures to prevent, reduce and control marine pollution from anthropogenic greenhouse gas emissions under Article 194(1) [197], [243]. Regarding these measures:

  • the measures States are required to take are determined objectively, having regard to the best available science, as well as international rules and standards [206]-[208], [243]; and

  • in determining the measures necessary to take, scientific certainty is not required. Rather, the precautionary approach should be used [213].

• the general obligation on Party States to protect and preserve the marine environment under Article 192 includes protection from climate change and requires States to take measures as ‘far-reaching and efficacious as possible’ [399]-[400];

• the obligation on Party States to protect and preserve rare or fragile ecosystems under Article 194(5) imposes specific obligations to protect those ecosystems from the impacts of climate change [406]; and

• while the Paris Agreement is relevant, satisfaction of commitments under the Paris Agreement will not mean obligations under the Convention have been satisfied [223].

Read our analysis of the Advisory Opinion here.

International Court of Justice hearing on the obligations of States in respect of climate change

The International Court of Justice (ICJ) hearing on the obligations of States in respect of climate change concluded on 13 December 2024 after two weeks of submissions from States. Initiated by Vanuatu and co-sponsored by over 100 States (including Australia), the ICJ is tasked with providing an advisory opinion that will interrogate the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic greenhouse gas emissions.

The advisory opinion is expected to be released in the first half of 2025 and could have significant implications in the context of responsibilities to act on climate change, particularly given that instances of States being held accountable for inadequate climate change action and being directed by Courts to take more ambitious action (whether generally or through the imposition of specific targets or measures) is increasing across almost all jurisdictions around the world.

The ACCC has published its principles and priorities, maintaining focus on environmental protection.

Sustainability remains at the top of the priority list

The ACCC’s 2024-25 Compliance and Enforcement Priorities, published on 7 March 2024, reveals that environmental claims and sustainability (relating to consumer, product safety, fair trading and competition) are a priority. In relation to electricity and energy, the ACCC also indicated its intention to prioritise competition in electricity, as well as misleading pricing focusing on energy.

Please see our insight published in March.

Final guide on sustainability collaborations published

On 18 December 2024, the ACCC published its final guide on sustainability collaborations and Australian Competition Law. This comes after the ACCC published a draft guide on 8 July 2024, with consultation closing on 26 July 2024 (see the earlier media release here).

According to the ACCC media release on 18 December, the guide is designed to:

• “increase businesses’ understanding of where competition law risks are not likely to arise when collaborating to improve sustainability outcomes”; and

• provide “information on what exemptions are available for business collaborations”.

In our earlier publication on the draft guidance, we outlined the competition law risks of sustainability collaborations and the authorisation process. As we noted in that article, the ACCC did not undertake to not take enforcement action on sustainability collaborations that might otherwise breach the Competition and Consumer Act 2010 (Cth) (the Act). This is similar to the New Zealand Commerce Commission’s approach to guidance on collaboration and sustainability, but contrasts the approach of the Netherlands Authority for Consumers and Markets in their guidance on sustainability agreements. The ACCC instead restated the importance of seeking authorisation prior to engaging in conduct that may contravene the Act.

In the final guide, the ACCC similarly has not undertaken to not act on sustainability collaborations. The final guide highlights that Australian competition law has the capacity to recognise that activities that otherwise contravene the Act may have ‘a net public benefit’ (p3 [24]). However, it does so in setting out that risk can be avoided by making use of the ‘range of exceptions and exemptions’ in the Act (p3 [25]). Accordingly, the fact that conduct is in pursuit of sustainability will not avoid risks of contravening the Act if the appropriate exception and exemption mechanisms are not used. 

ACCC commences first greenwashing proceedings in the Federal Court

On 18 April 2024, the ACCC commenced its first Federal Court proceedings alleging greenwashing behaviour. Filed in Victoria, the ACCC alleges that Clorox Australia Pty Limited engaged in conduct that was false, misleading or deceptive in breach of various provisions of the Australian Consumer Law in the claims (made with “50% Ocean Plastic”) and imagery displayed on the packaging of its GLAD-branded kitchen and garbage bags. As we set out in our insight on this case in April, this is the first time the ACCC has brought greenwashing proceedings, commencing two years after environmental claims and sustainability were first raised as an ACCC enforcement priority.

Read our comprehensive analysis on these proceedings, as well as how this action compares to the court-enforceable undertaking given by yoghurt manufacturer MOO Premium Foods Pty Ltd, here.

Federal Court orders EnergyAustralia pay penalties after it admitted contraventions in action brought by the ACCC

On 26 September 2024, the Federal Court ordered EnergyAustralia Pty Ltd (EnergyAustralia) to pay $14 million total in pecuniary penalties, in Australian Competition and Consumer Commission v EnergyAustralia Pty Ltd [2024] FCA 1126. EnergyAustralia admitted it contravened the Australian Consumer Law and the Electricity Retail Code [2]. It did so in failing to state the lowest possible price and misrepresenting the estimated annual price of electricity for an average customer in its communications to customers [32]-[35]. It also failed to state the lowest possible price and the difference between reference price and unconditional price, expressed as a percentage of the reference price, in offers on its website [38]-[40]. Initiated in September 2023, this is the first proceeding commenced by the ACCC under the Electricity Retail Code.

Read our insight here.

ACCC indicates it will take action to address the risk of insufficient competition in the energy market

The ACCC has demonstrated it will act to address the risk of insufficient competition in the energy market. As a condition of Brookfield's acquisition of Neoen, the ACCC required Brookfield to divest Neoen's renewable electricity generation and storage assets and development projects in Victoria (as reported by Project Finance International). The ACCC media release on this acquisition sets out the ACCC’s concern that Brookfield could preference its own operations in the Victorian transmission network, through its controlling interest in AusNet.

On 22 April and 24 May 2024, public hearings were held in Canberra pursuant to the Senate’s referral of an Inquiry into Greenwashing in March 2023 (Greenwashing Inquiry) (see the Greenwashing Inquiry here). The scope of the Greenwashing Inquiry is on claims made by companies, the impact of those claims on consumers, regulatory examples, advertising standards and legislative options to protect consumers. Written submissions were also received prior to the hearing, highlighting the urgent need for clarity and consistency in greenwashing definitions and regulations.

The Greenwashing Inquiry has also shed light on the Climate Active program, administered by the DCCEEW, which has faced criticism for potentially abetting corporate greenwashing. About 700 companies claim to be Climate Active certified, including major Australian corporations. However, an ACCC witness confirmed the Climate Active trademark has not been assessed by the ACCC (see the Hansard records here).

The Senate has received extensive submissions, with a report scheduled to be released on 12 February 2025. The discussions the Greenwashing Inquiry has sparked will have significant implications for Australian companies, scrutinising the validity of environmental claims made in the corporate sector. The report and outcomes of the Greenwashing Inquiry may influence future legislation and industry guidance in the space.

Offshore wind areas and licencing

2024 saw the Commonwealth Government take steps to facilitate the implementation offshore wind. The Commonwealth Government issued its first offshore wind feasibility licences in late April 2024, for the area off Gippsland’s coast in Victoria. This comes almost a year and a half after the Commonwealth Government declared the area suitable in December 2022. Six additional feasibility licences have been granted since. According to the DCCEEW, the licence holders are able to begin assessing the feasibility of their proposed renewable energy projects.

The Commonwealth Government has identified five additional areas as ‘priority areas’ for offshore wind. Progress made to these areas is outlined below:

• Hunter: An area in the Pacific Ocean off the Hunter (NSW) was declared as an offshore wind area on 12 July 2023. Under a year later, on 19 June 2024, the Commonwealth Government made a preliminary decision to progress the feasibility licence application of Novocastrian Wind Pty Ltd to the next stage, out of eight applications received;

• Southern Ocean: On 6 March 2024, the Commonwealth Government officially declared a third zone, in the Southern Ocean off western Victoria, an offshore wind area. On 26 September 2024, the Commonwealth Government made a preliminary decision to progress the feasibility licence application of Spinifex Offshore Wind Farm to the next stage;

• Illawarra: An area in the Pacific Ocean off Illawarra (NSW) was declared as an offshore wind area on 15 June 2024.

• Bunbury: An area in the Indian Ocean off Bunbury (WA) was declared an offshore wind area on 30 August 2024; and

• Bass Strait: An area in the Bass Strait Region off Northern Tasmania’s coast was declared as an offshore wind area on 12 December 2024.

The rapid pace of declarations and proposals for offshore energy projects has necessitated rapid regulatory reform to keep pace with momentum. On 12 April 2024, the Federal Government opened public consultation on draft Offshore Electricity Infrastructure Amendment Regulations 2024. The amending Regulations have been finalised and commenced on 12 December 2024. The Regulations now guide applicants who have successfully obtained a licence (see the Consultation Paper p5), for example in outlining the process for obtaining management plan approval. As the first feasibility licences were obtained in late April, the regulatory reforms are reasonably well timed to be useful for licence holders.

The DCCEEW has also released a draft transmission and infrastructure licence guideline, to be incorporated into the current guideline on feasibility licences. Consultation on the draft guideline closed on 7 June 2024.

Despite progress, significant reform is still required to support the emergence of offshore electricity infrastructure in Australia. On 17 October 2024, the Australian Energy Market Commission (AEMC) published its Offshore Electricity Infrastructure Final Report (AEMC Report), in which it considered the suitability of the National Electricity Rules for offshore infrastructure. The AEMC outlined its preference for a “harmonised national approach… (whether onshore or offshore)” for regulation of electricity infrastructure (AEMC Report, p6). It set out this preference with the acknowledgement that some departures may be justified (AEMC Report, p6). Key regulatory gaps identified in the AEMC Report include:

• need for clarification on how access regimes will interact and apply at jurisdictional boundaries (p8);

• potential for offshore wind to attract high system security costs (p9). AEMC indicated the need to consider whether current system security arrangements are appropriate, with reform options including a bespoke framework (pp38-39); and

• applying onshore regulatory settings to offshore electricity infrastructure may not be suitable for optimising National Electricity Objectives (p9).

Drafting contracts for wind projects

With offshore wind projects in their early stages, complex contractual arrangements will be in the pipeline. The NSW Court of Appeal judgment White Rock Wind Farm Pty Ltd v Dulhunty [2024] NSWCA 202 delivered 14 August 2024 should remind parties and their representatives of the need for clarity, plain language and consistency between terms in drafting contracts (although it does not deal with offshore factors).

In this case, White Rock entered into numerous agreements, including leases and options for the grant of easements, for the construction and operation of a wind farm [4], [11], [12]. Crucially, the leases contained clauses prohibiting White Rock from dealing with its interest, rights or obligations under the lease ‘for example, by… licensing such rights’ without the lessor’s consent [53].

Ten months later, White Rock entered into a project agreement with TransGrid for the construction of related infrastructure [87]. This project agreement obliged White Rock to ensure TransGrid was granted easements for access [92]. However, the options for the grant of easements expired without White Rock exercising them [96]. When White Rock sought to provide TransGrid with access under a licence deed, the Landowners withheld consent and requested additional payment [104].

A key consideration in this case was construction of that restriction clause [132], specifically whether the restriction clause applied to the granting of the proposed licence to TransGrid. In construing the clause, the Court had regard to the object of the clause and its context in the contract [133], [137]-[138]. The Court accepted White Rock’s submission that the clause, prohibiting White Rock from dealing with its interest, rights and obligations ‘for example, by… licencing such rights’, did not apply to this proposed licence [135]-[136]. One reason supporting this finding was that if this clause did apply, the consent requirement would be duplicated when read with other provisions [138].

This case demonstrates the need for clarity, plain language and consistency between contractual terms when drafting contracts. When tasked with construing a clause containing language that ‘may leave something to be desired in terms of clarity’ [133], a Court may have regard to the object of the clause and context within the contract, seeking to construe the clause ‘harmoniously with other relevant provisions’ [138].

Central-West Orana REZ

The Central-West Orana REZ continues to pioneer progress in the renewable energy transition in New South Wales. The associated transmission project was the first REZ transmission project to receive State planning approval in Australia on 26 June 2024 (the media release is available here) and Commonwealth planning approval on 8 August 2024 (according to the media release available here). In September 2024, the NSW Government granted ACEREZ Partnership (ACEREZ) a transmission operator’s licence, subject to conditions, for the Central-West Orana REZ. According to the NSW Government’s media release, this will enable ACEREZ to “… design, construct, own and operate the Central-West Orana REZ transmission system”.

The NSW Central-West Orana REZ will deliver at least 4.5 GW of capacity via 240 kilometres of 500 kV and 330 kV transmission lines, according to the Australia New Zealand Infrastructure Pipeline’s overview. An announcement in relation to the access rights tender is expected in early 2025 and construction of the new transmission network is expected be completed in August 2028.

Updates on other REZs in New South Wales

Four other Renewable Energy Zones remain in early stages of planning in New South Wales, according to EnergyCo. Their current status is outlined below:

• Hunter-Central Coast REZ: EnergyCo has selected Ausgrid as the preferred network operator. Read our insight on advising Ausgrid here;

• New England REZ: In March 2024, EnergyCo released a revised transmission study corridor increasing use of public land after conducting consultations (according to EnergyCo). EnergyCo’s media release at the end of July revealed that the network infrastructure project scoping report, outlining the infrastructure required to connect the New England REZ to the grid had been lodged. Preparation of the Environmental Impact Statement for the New England REZ is underway and will continue throughout 2025 (according the October project update available here);

• South West REZ: Bids for the South West REZ Access Rights and Long Duration Storage LTESA took place through 2024, with the tender commencing in May 2023 and the Access Scheme declared on 12 April 2024. The AEMO Services competitive tender is now closed, with selected Bids expected to be announced in January/February 2025. The competitive access rights tender was significantly oversubscribed; and

• Illawarra REZ: Since being declared on 27 February 2023, the Illawarra REZ procurement approach remains unconfirmed with no major updates to report for 2024, according to the Australia New Zealand Infrastructure Pipeline overview, available here.

Relevant to the development of REZs are the key priority transmission projects (PTIPs) currently under development in NSW: the Waratah Super Battery and the Hunter Transmission Project (HTP). Notably, the HTP involves building a new above-ground 500 kV transmission line of around 100 kilometres in the Hunter region to enable the connection and delivery of electricity supply from the Central-West Orana and New England REZs to major use areas in Sydney and Newcastle. HTP is currently in the planning phase and EnergyCo has indicated that it will lodge the Environmental Impact Statement in mid-2025 (read EnergyCo’s information page here).

Also relevant is the recently introduced NSW Renewable Energy Planning Framework, discussed in further detail below.

Progress towards REZs in other Australian states

(a)        Queensland

The Queensland Government released its REZ Roadmap in March 2024, which sets out the planned framework for development of REZs and potential REZ locations to be incorporated into the Queensland SuperGrid Infrastructure Blueprint. The Energy (Renewable Transformation and Jobs) Act 2024 (Qld) was granted assent on 26 April 2024, providing legislative force to the REZ framework.

The Queensland Government has identified 12 potential REZ locations, grouped into the Southern Queensland, Central Queensland and North and Far North Queensland regions. Most progress has been made to the Central Queensland region, having completed initial community sessions in 2024. Information on Queensland’s REZs is available here.

(b)        Victoria

In September 2024, the Victorian Government, through VicGrid, published the 2024 Victorian Transmission Plan Guidelines (the Guidelines). The Guidelines outline how VicGrid will develop the 2025 Victorian Transmission Plan (p21), which will be published mid-2025 and provide a 15-year outlook of REZs in Victoria (p3), including the identification of REZ locations. The Guidelines clarify that although AEMO has already identified six REZs in Victoria, the REZs that will be declared by the Victorian Minister for Energy are “… more refined areas that will be prioritised for renewable energy development” (p4). Further information is available here.

(c)         South Australia

The Mid North South Australia REZ Expansion project was progressed to ‘actionable’ status in AEMO’s 2024 Integrated Systems Plan, as set out in the Australia New Zealand Infrastructure Pipeline overview. On 26 June 2024, AEMO opened consultation for non-network options, with submissions closing on 18 September 2024. 

(d)        Tasmania

In July 2024, the Tasmanian Government published a consultation draft of its Energy Co-ordination and Planning Amendment (Renewable Energy Zones) Bill 2024 (Tas). The Bill has not yet been introduced into parliament, despite the planned timeline intending introduction into parliament in 2024, with public submissions having closed in September 2024 (per the ReCFIT information page available here). Read more here.

Public consultations on the proposed North West REZ in Tasmania were open from May to 30 September 2024. The outcomes of this consultation and next steps have not yet been announced. Read more here.

(a)        Introduction

The Western Australian Government has taken steps to develop multi-user common infrastructure corridors within the State in a bid to decarbonise industry, minimise physical impact on Country and deliver meaningful outcomes for Traditional Owners and streamline proponent application processes, with an initial focus on electricity transmission networks.

(b)        Pilbara transmission project

The Pilbara transmission project forms part of the Pilbara Energy Transition Plan and is intended to assist in achieving State-wide goals such as decarbonising the Pilbara, delivering meaningful outcomes for Traditional Owners, facilitating common use infrastructure, increasing reliability and security of power through diverse renewable sources and increasing private investment, including by providing access to $3 billion in funding which was allocated under the Rewiring the Nation initiative.

In September 2024, the WA Government announced an expression of interest process, whereby proponents could apply for priority project status in respect of some or all of the four corridors designated as priority multi-user areas, being the Burrup (Murujuga) Corridor, the Chichester Range Corridor, the Hamersley Range Corridor and the Great Sandy Desert Corridor. The Pilbara transmission project will be managed via a new entity to be identified, for now referred to as CorridorCo.

In early December 2024, it was announced that priority project status has been awarded to APA Group in respect of the Hamersley Range Corridor and Burrup (Murujuga) Corridor and Yindjibarndi Energy Corporation in respect of the Chichester Range Corridor. It is yet to be announced who has been awarded priority project status in respect of the Great Sandy Desert Corridor.

Some of the key factors upon which the success of the Pilbara transmission project will rest are:

• integration with the finance regime through the Clean Energy Finance Corporation’s Rewiring the Nation program;

• the terms and obligations proposed by CorridorCo through the formal agreements to be developed to permit the development of transmission projects, being a Corridor Development Agreement and Corridor Tenure Agreement; and

• the practicalities around the transfer of existing tenure to CorridorCo, which is a requirement for any proponent obtaining priority status, including managing existing agreements with third parties which impose consent requirements.

(c)         Goldfields Regional Network

With the Minister for Energy’s approval, a study commenced in mid-2024 to consider the feasibility of a Goldfields Regional Network which would connect renewable energy to industry and communities, helping to decarbonise the region.

The Goldfields Region Electricity Forum was held in November for consultation on the proposed project and further planning is expected to occur into early 2025. No announcement has been made as to whether an expression of interest process such as the one utilised for the Pilbara transmission project will occur in respect of the Goldfields region.

The AER State of the energy market report (AER Report) provides an outline of the current position of Australia’s energy markets. Key takeaways from the 2024 AER Report include:

(a)        Wholesale electricity price decline was not effectively passed on to consumers

From a consumer’s perspective, the observed reduction in wholesale prices from the “extreme levels of 2022-23” (p1) in the second half of 2023 may invite optimism. However, this wholesale price reduction was not effectively passed on to customers, who experienced an increase to their electricity bills over 2023-24 in all NEM regions (p12). This is a result of retail electricity prices being made up of numerous components, other factors including network costs and environmental costs (pp 243-244). While wholesale costs are projected to account for a lower portion of electricity bills over 2024-25 although not in South East Queensland (p245), whether this will offset the upward pressure from rising network costs, including from higher inflation and cost of capital, is uncertain (p250).

(b)        Consumers are contributing to Australia’s energy transition, but consumer protections continue to lag

Consumer energy resources are supporting Australia’s energy transition by providing additional generation capacity, with ability to offset some system security gaps (p34). The AER reported that residential solar PV now accounts for 25% of registered generation capacity in the NEM (p12). Despite this, consumers are still not adequately protected, with AER Chair Clare Savage commenting "… our current protections framework is designed for the one-way supply of electricity… not a world in which a customer can use multiple energy services to consume, trade and produce energy" (p2). There may be some grounds for optimism in consumer protections, as the Energy Minsters endorsed consumer-focused rule change requests in July 2024 (p2).

(c)         Price volatility remains

Volatility in electricity prices remains a feature of the NEM. Although frequency of 5-minute prices above $300 per MWh fell in 2023-24, the rate of prices above $300 per MWh still remains higher than the years prior to winter 2022 (p21). In addition, the increased frequency of negative prices since the introduction of renewable energy continued, with a record number of negative price events observed in 2023-24 for the fifth year in a row (p22).

(d)        Increasing storage is essential

In this 2024 report, the AER emphasised that increasing storage will be ‘essential’ to manage the output variations that come with solar and wind energy (p45). The AER observed record lows in electricity demand in all NEM regions (except Queensland) demonstrates the ‘urgent need’ for increased storage, together with consumer energy resources (p15). While this may represent an investment opportunity, AER Chair Clare Savage has called for discipline and ‘creative’ use of existing assets, before new assets are built (p2).

Each year, AEMO publishes an Electricity Statement of Opportunities (AEMO ESOO) setting out investment opportunities and requirements in the NEM over the next ten years. In 2024, AEMO emphasised that ‘timely delivery’ of expected investments will be crucial to manage reliability (p3). Key takeaways from the AEMO ESOO include:

• reliability outlook has improved (p4). Factors contributing to this improvement include:

  • 5.7 GW of generation capacity and 365 km of transmission progressing to 'committed' or 'anticipated' status since 2023 (pp 3-4);

  • consumer investment in larger in rooftop solar systems (p4); and

  • lower projected growth in energy consumption and maximum demand in most regions (p4).

• if Federal and State Government programs are delivered ‘on time and in full’, the NEM will have sufficient generation capacity to reliably meet demand over most of the next 10 years (p3). AEMO has stressed that timely delivery is critical (p3); and

• if further investment 'is delayed or does not materialise', parts of the NEM will experience reliability gaps in the coming years, although the forecasted gaps have reduced (p3).

Access the 2024 AEMO ESOO here and the AEMO’s ESOO overview here.

On 1 November 2024, the Federal Government commenced its second public consultation as part of its ‘Carbon Leakage Review’. The Federal Government commissioned the expert review to assess future carbon leakage risks (including materiality of such risk for individual commodities), analyse different policy options to address carbon leakage (including an Australian carbon border adjustment mechanism (CBAM)) and assess the feasibility of those options.

Notably, a consultation paper published finds a CBAM could be applied to imports of selected Safeguard-covered commodities with high carbon leakage risk from imports of the following commodities: cement, clinker and lime; ammonia and derivatives; steel; and glass.

It is important to note the Australian Government has not formally responded to the Carbon Leakage Review paper, meaning the recommendations do not reflect official government policy.

On 17 September 2024, the Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Act 2024 (Cth) (the Act) received Royal Assent. A significant amendment is the introduction of an obligation to prepare annual sustainability reports (Corporations Act 2001 (Cth) (CA) s 292A). The Act sets out the content that must be included in sustainability reports and introduces a related obligation on entities to keep sustainability records (CA ss 286A, 296A).

On 7 November 2024, ASIC published a draft regulatory guidance on this sustainability disclosure regime. Submissions for feedback were due by 19 December 2024.

The Act operates by amending and adding to the existing financial reporting regime prescribed by Chapter 2M of the Corporations Act 2001 (Cth). It is being phased in from 1 January 2025 (CA ss 1707, 1707B), initially applying to entities which meet at least two of the following standards (set out in CA s 1707B(2)(a)):

• consolidated FY revenue of the entity and its controlled entities is $500 million or more;

• value of consolidated gross assets at EOFY of the entity and its controlled entities is $1 billion or more; and

• the entity and its controlled entities have 500 employees or more at EOFY.

However, the provisions will only apply if the entity is not a registered scheme, registrable superannuation entity or retail CCIV (CA s 1707B(2)(b)). The Act will also apply to entities which are registered corporations, or required to apply to be registered, meeting thresholds under section 13(1)(a) of the National Greenhouse and Energy Reporting Act 2007 (Cth) (according to CA s 1707B(4)).

Read our analysis of the climate-related financial disclosure Bill as it passed the Senate here.

In addition, on 20 September 2024 the Australian Accounting Standards Board (AASB) approved two sustainability reporting standards:

• AASB S1 General Requirements for Disclosure of Sustainability-related Financial Information: A voluntary Standard under which entities disclose “… information about all sustainability-related risks and opportunities that could reasonably be expected to affect the entity’s cash flows, its access to finance or cost of capital over the short, medium or long term” [3]; and

• AASB S2 Climate-related Disclosures: A mandatory Standard requiring entities to disclose “… information about climate-related risks and opportunities that could reasonably be expected to affect the entity’s cash flows, its access to finance or cost of capital over the short, medium or long term” [2].

These come after the International Sustainability Standards Board (ISSB) introduced two global sustainability and climate-related reporting standards on 26 June 2023. ISSB is now working on projects to research disclosure about risks and opportunities associated with biodiversity, ecosystems and ecosystem services, as well as human capital. We expect to see this lead to increased global attention and adoption of reporting and disclosure standards in respect of these key issues.

2024 saw significant legislative activity in the Australian State and Federal Parliaments. Key legislative developments are outlined below.

Commonwealth

(a)        Net Zero Economy Authority Act 2024 (Cth)

The Net Zero Economy Authority Act 2024 (Cth) received assent on 17 September 2024, establishing and setting out the functions of the Net Zero Economy Authority (see the simplified outline in section 4). These functions are set out in section 16 and include:

• facilitating achievement of Australia’s emissions reduction targets and transition to a net zero emissions economy by promoting coordination and consistency of policies, consulting other persons, organisations and governments, and providing recommendations to the Minister (section 16(1)(a));

• facilitating public and private sector participation and investment in greenhouse gas emissions reduction and net zero initiatives in Australia (section 16(1)(b)); and

• supporting affected workers in emissions-intensive industries to access employment and acquire skills (section 16(1)(c)).

(b)        Future Made in Australia reforms

In November 2024, the Federal Government passed a significant legislative package aimed at building a “… stronger, more diversified and more resilient economy powered by clean energy, in a way that creates secure, well-paid jobs and delivers benefits to communities across the country” (according to the Budget 2024-25 A Future Made in Australia Fact Sheet p1). This legislation includes a new National Interest Framework to guide government investment and decision-making, an assessment process to identify opportunities in key sectors, community benefit principles and additional guaranteed funding for ARENA.

The legislative package also established the ‘Guarantee of Origin’ scheme – aimed at measuring and certifying the emissions intensity across the supply chain of key products, such as hydrogen, and renewable electricity. The certificates record information about the products and their associated emissions, and details about the renewable electricity facilities. The certification process aims to support the global transition to net zero by “… enabling more confident and informed investment choices”, according to its Explanatory Memorandum.

In addition, production tax credits for renewable hydrogen and critical minerals projects have been introduced as part of the Future Made in Australia reforms.

(c)         Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 (Cth)

The Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 (Cth) was introduced into Parliament on 3 August 2023. The Bill recognised that the cost of slow action, or lack of action, on climate change “… will be greater for today’s children and greater still for future generations” (as described in the Explanatory Memorandum, p2). The Bill would amend the Climate Change Act 2022 (Cth) by inserting a new object of promoting intergenerational equity and adding a statutory duty to “… consider the health and wellbeing of current and future children” (Explanatory Memorandum, p4).

The Bill was referred to the Environment and Communications Legislation Committee for inquiry on 3 August 2023. In June 2024 the Report was published, recommending that:

• the Bill is not passed [2.135]; and

• the Australian Government consider the Australian Human Rights Commission’s Child Rights Impact Assessment Tool be used in policy and decision making [2.137].

These recommendations were made despite a Dissenting Report from Senator David Pocock, describing the need for a legislated duty of care as “urgent” [1.4] and expressing that there is “overwhelming support” for the Bill [1.2].

New South Wales

(a)        Energy Legislation Amendment (Clean Energy Future) Act 2024 (NSW)

On 24 June 2024, the Energy Legislation Amendment (Clean Energy Future) Act 2024 (NSW) (the Amending Act) received assent. Key changes introduced include amendments to the following Acts:

• Electricity Supply Act 1995 (NSW), to permit regulations to create a scheme limiting recovery of charges by network services providers from a person who uses electricity for the production of green hydrogen (the Amending Act, Schedule 2 [2]);

• Electricity Supply Act 1995 (NSW), to set out an offence for operating a transmission system subject to a network operator’s authority (to carry out a REZ network infrastructure project) without a transmission operator’s licence (the Amending Act, Schedule 2 [1]);

• Electricity Infrastructure Investment Act 2020 (NSW), to provide that the Minister must not direct network operators to carry out priority transmission infrastructure project unless satisfied that this is an appropriate response, now including in response to forecast system shortfalls identified by AEMO (the Amending Act, Schedule 1 [1]); and

• Electricity Supply Act 1995 (NSW), to provide that strategic benefit payments to which a person is entitled, required to be made by the holder of a transmission operator’s licence, must be disregarded in determining compensation to that person for acquisition of land (the Amending Act, Schedule 5 [1]).

(b)        Energy Security Corporation Act 2024 (NSW)

Having received assent on 24 June 2024, the Energy Security Corporation Act 2024 (NSW) established the Energy Security Corporation (section 4). The objects of the Energy Security Corporation include the acceleration of private sector investment in clean energy projects and achievement of government-mandated rates of return (section 6), with the goal being to “co-finance and crowd in additional private investment in clean technology projects with funding gaps” according to the Second Reading speech by Minister Dib.

To achieve this, the Act provides that $1 billion may be paid from the Restart NSW Fund into the newly established Energy Security Corporation Fund (sections 38 and 39) and provides the Energy Security Corporation with an investment function (section 33).

(c)         Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Act 2024 (NSW) 

The Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Act 2024 (NSW) received assent on 3 April 2024. The Act amends various NSW Acts and Regulations to strengthen environmental protections, including by increasing penalties for environmental-related offences (Explanatory Note, p1).

Victoria

(a)        Climate Change and Energy Legislation Amendment (Renewable Energy and Storage Targets) Act 2024 (Vic)

The Climate Change and Energy Legislation Amendment (Renewable Energy and Storage Targets) Act 2024 (Vic) received assent on 26 March 2024. As set out in section 1 outlining the main purposes, this Act amends the following legislation:

• Climate Change Act 2017 (Vic), to bring forward Victoria’s net zero greenhouse gas emissions target to 2045 and set interim emissions reduction targets (Part 2);

• Renewable Energy (Jobs and Investment) Act 2017 (Vic), to raise the 2030 renewable energy target, as well as introduce a 2035 renewable energy target and introduce energy storage and offshore wind energy targets (Part 4); and

• Planning and Environment Act 1987 (Vic), to require emissions reduction targets and climate change impacts to be considered (Part 3).

(b)        Energy and Public Land Legislation Amendment (Enabling Offshore Wind Energy) Act 2024 (Vic)

The Energy and Public Land Legislation Amendment (Enabling Offshore Wind Energy) Act 2024 (Vic) received assent on 7 May 2024. This Act was introduced to support the Victorian offshore wind energy industry, according to the Explanatory Memorandum (p1). It does so by, among other things:

• amending various Acts to enable the grant of licences to assess feasibility of constructing offshore electricity transmission infrastructure (Energy and Public Land Legislation Amendment (Enabling Offshore Wind Energy) Act 2024 (Vic) s 1(a), Explanatory Memorandum p2); and

• amending the National Parks Act 1975 (Vic) to enable the Minister to enter agreements with offshore wind energy generation companies (Energy and Public Land Legislation Amendment (Enabling Offshore Wind Energy) Act 2024 (Vic) s 1(b)(ii), Explanatory Memorandum p2).

Queensland

(a)        Energy (Renewable Transformation and Jobs) Act 2024 (Qld)

The Energy (Renewable Transformation and Jobs) Act 2024 (Qld) received assent on 26 April 2024. According to the Queensland Government, this legislation was a ‘key step’ in the implementation of the Queensland Energy and Jobs Plan (as set out in the Queensland Government Energy and Climate page here). Among other things, this Act:

• legislates Queensland’s renewable energy targets (section 9);

• sets out a framework for the development of the ‘Queensland SuperGrid Infrastructure Blueprint’ (section 15); and

• provides frameworks for the development of REZs in Queensland (Part 6).

(b)        Environmental Protection (Power and Penalties) and Other Legislation Amendment Act 2024 (Qld)

Assented to on 18 June 2024, this Act amended the Environmental Protection Act 1994 (Qld). According to the Explanatory Note (p1), this amending Act sought to “… facilitate a more proactive approach to environmental risk management” and to “… streamline timely and effective regulatory responses” to environmental harm. Key changes introduced include:

• setting out principles of environmental protection, which are to be regarded in administering the Act (by the insertion of section 6A). These principles include the precautionary principle and the preference for prevention over remedial measures;

• establishing that contravention of the general environmental duty (under section 319) is an offence, if the contravention causes, or is likely to cause, serious or material environmental harm (except in circumstances set out); and

• introducing a duty to restore the environment (by the insertion of section 319C).

Western Australia

(a)        Environmental Protection Amendment Act 2024 (WA)

Assented to on 22 October 2024, this Act amends the Environmental Protection Act 1986 (WA) (EP Act) to implement, in whole or in part, a number of the 39 recommendations produced from the independent Vogel-McFerran Review into WA environmental approval processes. Notable changes introduced by this Act include:

• implementing parallel decision-making, to enable the EP Act assessment process to run parallel to other government approval processes (meaning that many projects will receive requisite approvals in a shorter overall period);

• removing the right to lodge an appeal against a decision of the Environmental Protection Authority (EPA) that a proposal is not to be assessed (by the deletion of EP Act s 100(1)(a));

• strengthening standards for EPA personnel: The Minister is only able to recommend a person for the EPA if satisfied the person has a suitable level of knowledge, skills, experience or qualitifcations in at least one of the prescribed areas (EP Act s 7(2A)); and

• increasing penalties where the EPA has decided a proposal must be assessed and a person takes steps to implement the proposal before particular actions have been completed by the Minister (EP Act s 99AA, Schedule 1).

This Act does not implement all relevant Vogel-McFerran Review recommendations nor implement all recommendations in full. For example, the Act implements a modified version of recommendation 36(c) “Government consider removing all appeal rights under Part IV of the EP Act and moving appeal rights under Part V to the State Administrative Tribunal”.

The Act only removes the right to appeal a decision of the EPA to not assess a proposal. Various other appeal rights in respect of decisions under Part IV will remain in section 100 of the EP Act. This includes appeal rights regarding EPA assessment reports. Further, appeal rights under Part V of the EP Act have not been amended to be dealt with by the State Administrative Tribunal, but instead will continue to be dealt with by the Appeals Convenor under the EP Act.

On the one hand, environmental groups, Traditional Owners and other stakeholders will likely view this as a ‘win’ because these appeal rights give these stakeholders opportunity to be heard in relation to the EPA’s decision-making processes. Conversely, minimising lengthy appeal processes has been seen as a key potential area of reform.

Further, Minister Sanderson correctly noted in her Second Reading speech that most of the Vogel-McFerran Review recommendations do not require legislative reform. However, there are still several outstanding recommendations that do require legislative reform. This includes recommendation 37(a), being “Review how the ‘social surroundings’ definition in the EP Act (including subsection 2) interacts with other relevant pieces of legislation so as deliver holistic consideration of potential impacts to aboriginal cultural values from proposed development and their protection”. The EP Act does not contain any amendments regarding the definition of ‘social surroundings’. While unclear, such amendments may be forthcoming depending on the outcome of the review under this recommendation.

Our previous article identifies the issues with environmental approval processes (as they existed in April), examines the likely effect that the implementation of key recommendations from the Vogel-McFerran Review will have on project proponents and industry, and also sets out how these recommendations align WA’s regulatory focus with topics of national and global importance.

The Vogel-McFerran Review and the above-mentioned reforms to the EP Act reflect a widespread recognition that previous environmental approval mechanisms in Western Australia have been inadequate and hindering investment across various industries. Further to the negative economic impact resulting from protracted approval processes, the establishment of a strong and streamlined environmental approval process is essential to attracting domestic and international investments in key projects that will drive the renewable energy transition.

(b)        Petroleum Legislation Amendment Act 2024 (WA)

The Petroleum Legislation Amendment Act 2024 (WA) received assent on 14 May 2024. Read our insight into Western Australia’s carbon capture and storage Bill here and our consideration of legal and policy perspectives here.

South Australia

In July 2024, the Hydrogen and Renewable Energy Regulations 2024 (SA) was introduced under the Hydrogen and Renewable Energy Act 2023 (SA). Among other things, the Regulations prescribe further information required to accompany applications for renewable energy feasibility permits (section 5), outline reporting requirements (Part 5) and set out that the Minister should aim to review environmental impact assessment criteria at least once every five years (section 31(1)).

Environmentally Sustainable Procurement Policy

From 1 July 2024, the Environmentally Sustainable Procurement Policy (ESP Policy) came into effect for construction services procurements of $7.5 million or above, as part of Phase One (p9). According to the DCCEEW, the ESP Policy will reduce the environmental impact of Commonwealth Government procurement projects, which it achieves by guiding decision-making and setting out a reporting framework (ESP Policy, p6). Under the ESP Policy, covered entities must demonstrate their procurements achieve climate, environment and circularity outcomes (ESP Policy, p7).

From 1 July 2025, in Phase Two, the ESP Policy will be extended apply to procurements of $1 million or more in furniture, fittings and equipment, ICT goods and textiles (ESP Policy, p9). Find out further information here.

Victoria: accelerated renewable energy project approvals

On 14 March 2024, the Victorian Government announced new renewable energy projects would be considered to be significant economic development. As a result, renewable energy projects that satisfy the threshold of 1 megawatt installed capacity within regional or metropolitan areas may be eligible for an accelerated assessment pathway under the Development Facilitation Program.

Read our coverage of the decision here.

New South Wales finalised its Renewable Energy Planning Framework (the Framework) in November 2024. The draft Energy Policy Framework was released in November 2023 (read our article on it here).

The Framework includes the following three development specific guidelines, which apply to relevant development declared State significant development (SSD) or critical State significant infrastructure (CSSI) under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act):

• Wind Energy Guideline – this guideline applies to onshore wind energy development declared as SSI or CSSI, providing key planning considerations and guidance on key issues of the technology. The Wind Energy Guideline is supported by the Wind Energy Visual Technical Supplement and Wind Energy Noise Technical Supplement;

• Transmission Guideline – this guideline applies to the development of major transmission projects and the development of high-voltage electricity lines declared as SSI or CSSI. This will typically include all transmission projects delivered under the Electricity Infrastructure Investment Act 2020 (NSW) and major transmission projects identified in AEMO’s Integrated System Plan. The guideline provides directions for proponents on the planning and development of transmission infrastructure and common issues, including relating to undergrounding, bushfire risk, electric and magnetic fields and aviation. The Transmission Guideline is supported by a Technical Supplement for Landscape and Visual Impact Assessment; and

• Large-Scale Solar Energy Guideline – this guideline applies to the development of large-scale solar energy projects declared SSD or CSSI. It identifies the key planning considerations relevant to these types of development and provides policy and technical guidance on key issues. To provide further guidance with respect to assessing, evaluating and mitigating visual and landscape impacts, the guideline is supported by the Large-Scale Solar Energy Guideline: Technical Supplement for Landscape and Visual Impact Assessment.

The Wind Energy Guideline and Large-Scale Solar Energy Guideline are to be read in conjunction with two additional guidelines, which also form part of the Framework:

• Private Agreement Guideline – this guideline applies to all solar and wind energy generation projects (large-scale renewable energy projects or proposals) that are declared SSD or CSSI. The guideline concerns the role of landholder and neighbour agreements, relevant issues relating to these agreements and provides model clauses for use in private agreements; and

• Benefit-Sharing Guideline – this guideline applies to solar, wind and BESS projects (where BESS projects are on rural zoned land only) that are declared SSD or CSSI. The guideline provides guidance on the incorporation of benefit sharing in large-scale renewable projects, including outlining benefit-sharing strategy, mechanisms and models. Applicants (or proponents) of applicable renewable projects are required to develop a proposed model for community benefit-sharing, including neighbourhood and local community benefits where applicable.

The Hydrogen Guideline, which was released in March 2023 and provides guidance on the characterisation, permissibility and planning pathways relating to hydrogen development, also forms a part of the Framework.

Relevant key changes since the issue of the draft Framework in November 2023 include:

• the application of the Benefit-Sharing Guideline to BESS projects;

• additional guidance in the Benefit-Sharing Guideline, including what should and should not be included in benefit-sharing arrangements;

• consideration of the impacts on dwellings under parts of the Framework is now only relevant to dwellings that are built or under construction at the time the Secretary’s Environmental Assessment Requirements are issued;

• simplified guidance on Private Agreements, including suggested model clauses rather than a template agreement; and

• amendments to the visual impact assessment process, including slightly reduced visual setbacks and revised magnitude thresholds and view sensitivity levels (including an additional scenic quality class).