We previously reported that the HRE Act was introduced into South Australian Parliament on Wednesday, 13 September 2023. The HRE Act has now passed both Houses of South Australian Parliament. This article describes the amendments which have been made to the HRE Act since it was first introduced to Parliament.

Purpose of the HRE Act

The HRE Act has adopted the same 'one window to government' approach that is used in the South Australian mining and petroleum industry via the Mining Act 1971 (SA) and the Petroleum and Geothermal Energy Act 2000 (SA). The HRE Act is intended to cover the entire life cycle of a project, starting at the investigative and land acquisitions stage and concluding at infrastructure decommissioning and rehabilitation of impacted land stage.

As previously reported, the specific type of projects that the HRE Act will regulate are:

• large-scale hydrogen projects that involve 'generating hydrogen'; and
• renewable energy projects that involve 'renewable energy resources'.

Amendments to the HRE Act since it was first introduced to Parliament

There were only a few amendments made to the HRE Act since it was introduced to Parliament to, which we outline below.

Firstly, these are firstly to broaden the HRE Act to deal with persons who hold aquaculture licences and authorisations, including by:

1. broadening the definition of owner of land to include the holder of an aquaculture lease or aquaculture licence under the Aquaculture Act 2001 (SA) (Aquaculture Act);
2. adding a new provision that explicitly adds the Minister who administers the Aquaculture Act and the Minister who administers the Fisheries Management Act 2007 (SA) (Fisheries Act) to the list of prescribed bodies who may be asked to provide their response to i. an environmental impact report; ii. a statement (or revised statement) of environmental objectives; or iii. a scoping report; and
3. providing for compensation the material diminishment of rights of holders of licences or leases under the Aquaculture Act.

The Act also inserts new common provisions, which set out the criteria for a licence application under the HRE Act and provide that the Minister must, as soon as practicable after receiving an application for a licence, give notice of the application to:

1. any owner of land in respect of land comprised in a proposed licence area; and
2. if the proposed licence area is within the area of a council – to the council.

The Greens were unsuccessful in seeking to include a number of amendments, including the exclusion of 'blue' hydrogen (i.e. hydrogen made using natural gas).

Implications for project developers

The amendments outlined in point 1 above mean that holders of aquaculture licences and authorisations are to be treated similarly to holders of pastoral leases under the HRE Act. Additionally, holders of licences or other authorities under the Fisheries Act may be entitled to compensation for any loss suffered by them in consequence of authorised operations that have materially diminished their rights. These new amendments may impact future offshore wind farms or hydrogen production plants and port infrastructure which may encroach on aquaculture licences or authorisations. This encroachment is a distinct possibility because some of the most desirable locations for hydrogen or renewable energy projects are on the Eyre Peninsula, where there are a number of aquaculture operations in existence.

Commencement of the HRE Act

Although the HRE Act will come into effect on a date to be fixed by proclamation, Minister for Energy and Mining Tom Koutsantonis stated that he intended for the HRE Act to commence sometime in 2024. Mr Koutsantonis MP has also said that regulations would be drafted once the HRE Act is passed and that there will be a consultation process on the draft regulations. We will continue to monitor the draft regulations and commencement of the HRE Act and provide further updates as they become available.

If you would like to discuss any particular concerns you have in relation to the impact of the HRE Act on existing or future projects, please contact us.