The construction of solar farms requires ‘Future fit’ regulation

Michael Chesterman June 13, 2019
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What is ‘future fit’ regulation?

In a report dated 19 June 2018 from the Deloitte Centre for government insights entitled “The future of regulation” the following is stated:

“Sweeping technological advancements are creating a sea change in today’s regulatory environment, posing significant challenges for regulators who strive to maintain a balance between fostering innovation, protecting consumers, and addressing the potential unintended consequences of disruption.

Emerging technologies such as artificial intelligence (AI), machine learning, big data analytics, distributed ledger technology, and the Internet of Things (IoT) are creating new ways for consumers to interact — and disrupting traditional business models. It’s an era in which machines teach themselves to learn; autonomous vehicles communicate with one other and the transportation infrastructure; and smart devices respond to and anticipate consumer needs.

In the wake of these developments, regulatory leaders are faced with a key challenge: how to best protect citizens, ensure fair markets, and enforce regulations, while allowing these new technologies and businesses to flourish?

The assumption that regulations can be crafted slowly and deliberately, and then remain in place, unchanged, for long periods of time, has been upended in today’s environment. As new business models and services emerge, such as ridesharing services and initial coin offerings, government agencies are challenged with creating or modifying regulations, enforcing them, and communicating them to the public at a previously undreamed-of pace. And they must do this while working within legacy frameworks and attempting to foster innovation.”

Regulatory set back in Queensland

Based on an article entitled “It’s not easy to build a solar farm in Australia any more” it is apparent that the regulation of the construction of solar farms is going to present some unique challenges.

The author of this article referred to the Queensland Government introducing the Electrical Safety (Solar Farms) Amendment Regulation 2019 (Qld) on 13 May 2019, with a press release issued by the responsible Minister stating:

“A new code of practice and electrical safety regulations will be put in place next month to enhance safety in the growing commercial solar farm industry.

The new regulations mean only licensed electricians can mount, locate, fix or remove solar panels on solar farms with a total rated capacity of at least 100kW.”

The author of the article stated:

“It is generally agreed that the new rules will bring new investment to a halt, cause delays (because it will be so hard to find that many electricians willing to do manual labour), and increase costs. Some installers that specialise in large scale rooftop installations fear that business will dry up altogether.

So dire is the situation that the Clean Energy Council is predicting the state will not meet its 50 per cent renewable energy target, and some in the industry fear that their may be a contagion to other states.”

There has been some very significant developments in this matter.

In an article in the Courier Mail entitled “Supreme Court finds Queensland’s new solar laws “invalid”” it is stated:

“The regulation, which allowed only licensed electricians to mount, locate, fix or remove solar panels on farms larger than 100kW, came into effect on May 13.

However Justice Thomas Bradley on Wednesday afternoon ruled that Section 73A was invalid, declaring it to be beyond the regulation-making powers of Queensland’s Electrical Safety Act.

It comes after Maryborough Solar Pty Ltd challenged the regulation less than two weeks ago, following concerns its budget for its Brigalow Solar Farm in Queensland would blow out by more than $2.6 million.”

This decision was handed down on 29 May 2019.

It should be pointed out that in this same article the Industrial Relations Minister, Grace Grace, is quoted as saying:

“My department and their legal advisors have reviewed the written judgement overnight and advised me that there are solid grounds for appealing the decision”

In a further development it has been reported by the Courier Mail in an article entitled “Government did not get analysis of controversial solar regulations” that:

“The Courier-Mail can reveal the Government never obtained a regulatory impact statement (RIS) for its regulations that were deemed invalid by the Supreme Court last month.

An RIS is not mandatory but is recommended.”

The Industrial Relations Minister Grace Grace is quoted as saying:

because of the immediate health and safety risks to workers, and the more than eight months of stakeholder consultation, the Government decided not to undertake an RIS.”

The “Office of Best Practice Regulation (OBPR)” states on its website that:

“If the agency (and OBPR) determines the proposal is likely to result in significant adverse impacts, a RIS should be prepared. The purpose of a RIS is to identify the case for government intervention and provide decision makers with the information they need to make an assessment of the benefits and costs of regulatory intervention on the affected stakeholders including business, community, employment, environment and the economy.”

However there are exemptions for the obtaining of a RIS:

If there are exceptional circumstances where a Minister considers an exemption from preparing a RIS is appropriate, Cabinet may exempt the proposal from requiring a RIS. Such circumstances may include the need to urgently implement government policy priorities or situations where public consultation on a proposal would not be appropriate and may compromise the public interest.”

Governments must regulate the construction industry “eyes up’’

In an article entitled the same as the above heading I stated:

“My favourite footballer is the great Johnathan Thurston or ‘JT’ as he is affectionately known as.

JT plays with his ‘eyes up’. This means that as a playmaker, while he is always looking to do something when he has the ball in his hands like make a break, put another player through a gap or score a try himself, at the same time he is also conscious of the need to direct the team around the field in such a manner so as to ensure that the game is played as much as possible, on his terms.

JT plays football like great chess players play chess.

Unfortunately governments of all persuasions often fall into the trap of not having their ‘eyes up’ when developing regulation of the construction industry.

Four year election cycles and 24 hour news coverage means that governments are seemingly always scrambling to address emerging issues. In football terms they are playing with their ‘eyes down’ and therefore only addressing immediate industry issues.

Regulation developed through such a prism, while it might serve an immediate political purpose and perhaps even be effective in the short term, will never be ‘future fit’ regulation of the industry.”

Final thoughts

The challenge for all governments, developing regulations governing the construction and infrastructure industry is getting the balance right between ensuring adequate ‘now’ protections are in place, particularly relating to safety, but at the same time ensuring any regulations will not act as a handbrake on the construction industry. The construction of solar farms requires ‘future fit’ regulation.

Not intended as legal advice. Read full disclaimer.
Michael Chesterman June 13, 2019

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