Hydrogen and Renewable Energy Bill 2023

15 June 2023


South Australia (State) is already a recognised leader in Australia’s transition towards renewable energy. The State is intending to further accelerate utilisation of its renewable resources through the introduction of the proposed Hydrogen and Renewable Energy Act 2023 (SA) (proposed Act) which will deliver a comprehensive new regulatory regime.

The proposed Act will facilitate development of hydrogen and broad scale renewable energy projects across freehold and non-freehold land and State waters. Approximately 40% of South Australia is non-freehold pastoral leasehold land owned by the Crown. The proposed Act will open the resource rich pastoral lands and waters of the State to large scale sustainable development.

The recent release of the draft Hydrogen and Renewable Energy Bill (Draft Bill) provides greater clarity on the proposed Act and its intention to facilitate a ‘one window to government’ licensing framework. The proposed framework seeks to provide a clear and sustainable approach to regulating the entire life cycle of renewable energy projects and the generation of hydrogen through the streamlining of land access and development application processes.

Scope of the proposed Act

The proposed Act does not apply to:

  • small scale localised renewable energy projects intended for domestic use;
  • power transmission lines associated with the national and local electricity grids;
  • electricity generation from non-renewable resources;
  • existing authorised transmission pipelines or other forms of transportation of hydrogen;
  • renewable energy from geothermal sources; or
  • underground geological storage of hydrogen.

Types of licences

Under the proposed Act, five types of licences are introduced:

  1. Hydrogen Generation Licence (HGL) – authorises the construction and operation of commercial facility for generating hydrogen.
  2. Renewable Energy Feasibility Licence (REFL) – authorises investigations to assess the feasibility of generating renewable energy.
  3. Renewable Energy Infrastructure Licence (REIL) – authorises the construction and operation of renewable energy infrastructure such as wind turbines and solar panels.
  4. Renewable Energy Research License (RERL) – authorises the research, testing and data collection for renewable energy technologies.
  5. Special Enterprise License (SEL) – authorises the construction and operation of commercial facilities to generate hydrogen and/or renewable energy infrastructure by special enterprises, being enterprises considered by the Minister to be of major significance to the state economy.

The grant of licences over any non-freehold land or waters subject to Native Title, will be subject to the registration of an Indigenous Land Use Agreement (ILUA) with the native title holders of the relevant land.

Entry to and use of land

The grant of a REFL, REIL, RERL and SEL will confer on the licence holder a right to enter and use the land for the licenced purpose. Unless there is an access agreement or ILUA with the landowner, the licence holder must issue a notice of entry to the landowners at least 21 days prior to entering the land.

Licence holders of an HGL are not entitled to enter the land and must arrange to acquire the rights or interests in the land sufficient to allow them to undertake operations.

The Minister is also entitled to enter and remain on the land to conduct investigations, including by taking samples from the land and installing devices onto the land.

Release Area process for REFL

The proposed Act will allow the Minister to declare designated land a ‘Release Area’ suitable for the operation of renewable energy infrastructure. The proposed Act will provide for a competitive tendering process for the granting of REFLs by releasing designated areas of pastoral lands, State waters and any other Crown land prescribed in the regulations (Release Area).

Prior to the declaration of Release Areas, the designated areas will be subject to consultations with different government bodies, Native Title holders and industry bodies, and subsequent assessment by the Minister for the Act, the Ministers for Pastoral Land Management and Conservation Act 1989 (SA), and Harbour and Navigation Act 1993 (SA). If the Ministers are unable to agree on whether the area may be declared a Release Area, the matter will be referred to the Governor.

Competitive tendering process

Once a Release Area is declared, applications for the tender of the land can be lodged to satisfy the Minister that the applicant has:

  1. a proven ability to successfully negotiate land access agreements with native title holders and other landowners;
  2. a work program in releasing the renewable energy resources potential of the relevant Release Area;
  3. a business model and plans regarding the exploitation of the renewable energy resource; and
  4. experience and ability to deliver renewable energy projects and technical and financial credentials necessary for delivering such projects.

A REIL can only be issued if the applicant has previously held a REFL for that area and has been subject to the competitive tendering process, or the REIL is only used for storing, transmitting or conveying the renewable energy.

What you can do?

The full copy of the Draft Bill can be found at the link here.

If you would like to submit your say in this reformative stage of the renewable energy sector, you can access the link here to submit your feedback to the Department of Energy and Mining.

HWL Ebsworth has a dedicated energy and resources team. If you wish to discuss opportunities or how the proposed Act may affect you, please contact us.

The Draft Bill is open for public consultation up until Monday, 26 June 2023.

This article was written by Kate Bickford, Partner, Michael Brady, Partner, Tiffany Huang, Law Graduate and Teresa Parnis, Law Graduate.

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