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The regulatory regime for the construction of solar farms settled… for the time being

Michael Chesterman
Michael Chesterman July 16, 2019

In a previous article entitled The construction of solar farms requires ‘Future fit’ regulation I indicated that the regulation of the construction of solar farms is going to present some unique challenges. 

I pointed out that the Queensland Supreme Court on 29 May 2019 had ruled invalid the Electrical Safety (Solar Farms) Amendment Regulation 2019 (Qld), designed to ensure that only licensed electricians could mount, locate, fix or remove solar panels on solar farms with a total rated capacity of at least 100kW.

I also mentioned that the Queensland Government had indicated an intention to appeal this decision.

Queensland Court of Appeal decision

On 25 June 2019 the Queensland Court of Appeal dismissed the government’s appeal, with costs.  In an article in the Financial Review entitled “Solar industry beats Qld in red tape battle” it is stated:

“The ruling partly flowed around definitions of “electrical work”. The Electrical Safety Act in defining “work” carved out activities such as fixing equipment in place if the task did not involve connecting the device to an electricity supply.

“The act comprehensively defines the work for which an electrical licence is required such as to leave no room for modification by delegated legislation,” Justice Hugh Fraser wrote in a decision backed by Justice Philip McMurdo and Justice David Boddice.

The new regulation “would involve ‘a new step in policy’ which cuts across that aspect of the act by requiring a licence for work that is not ‘electrical work’”, the ruling said.”

Government’s response 

In a media statement the Minister for Education and Minister for Industrial Relations, Grace Grace is quoted:

Today’s decision is about a technical legal ruling and does not deal with the substantive safety reasoning behind the making of the solar farms regulation.

The Government acted on the advice of an expert safety panel and Crown Law in relation to the making of the regulation.

My department is currently considering the full extent of the decision, including whether legislative changes are required.”

Minister Grace Grace is further quoted:

“The Electrical Safety Act has not undergone any significant changes in 17 years. A great deal of technological change and the emergence of new industries have occurred since this time,” she said.

“It is important our safety laws reflect contemporary industry and are able to respond to new and emerging industries, such as large-scale solar farms.”

The need for ‘future fit’ regulation

The need for industries and services to be the subject of ‘future fit’ regulation has been identified for some time as something all governments must have regard to.  In a report dated 19 June 2018 from the Deloitte Centre for government insights entitled “The future of regulation” the following is stated:

“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.”

I have written a number of articles on the need for governments to embrace ‘future fit’ regulation.  In the context of what has transpired in this matter, in an article entitled Governments must regulate the construction industry ‘eyes up’ I stated:

“In summing up, governments must always be surveying the industry with their ‘eyes up’ in order to develop ‘future fit’ regulation. Failure to do so may result in the collapse of a regulatory model.

The Taxi industry in Queensland is a case in point. Virtually overnight despite a long established licensing regime being in place, a disruptor called Uber reshaped the future of people transportation, with the government relegated to the role of reactively implementing new legislation to accommodate this industry disruption.”

Final thoughts

While the situation in relation to the carrying out of ‘electrical work’ in the construction of solar farms has been resolved under the current legislation, industry participants would be well served to ‘watch this space’ because it is apparent the government is committed to updating these laws.  We at Helix Legal will keep you informed of relevant developments. 

Not intended as legal advice. Read full disclaimer.
Michael Chesterman
Michael Chesterman July 16, 2019

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