Restrictive Queensland solar farm regulation quashed

Queensland v Maryrorough Solar Pty Ltd [2019] QCA 129

On 5 April 2019, the Queensland government made the Electrical Safety (Solar Farms) Amendment Regulation 2019 (Qld).  The regulation required that only licensed electrical workers could perform work on solar panels at a solar farm.  The regulation was immediately objected to by solar farm developers as unnecessarily restrictive, as the prohibited work extended to mounting and fixing solar panels:  this was work that had been regularly done by labourers rather than licensed electricians, and would significantly add to the costs of the burgeoning solar generation sector in Queensland.

The regulation commenced from 13 May 2019.  Maryrorough Solar, a solar farm developer, moved quickly to commence a proceeding in the Supreme Court of Queensland contending that the new regulation was invalid.  The matter was tried, and judgment given, on 29 May 2019.

The decisions at first instance and on appeal

Bradley J upheld Maryrorough’s objection, and dismissed the State’s arguments for the validity of the legislation Maryrorough Solar Pty Ltd v Queensland [2019] QSC 135.  An appeal was heard within little over a week, and judgment was given on 25 June 2019.  The Court of Appeal unanimously confirmed that the regulation was invalid: Queensland v Maryrorough Solar Pty Ltd [2019] QCA 129.

The central point in issue in the proceeding was whether the new regulation was inconsistent with its principal legislation, the Electrical Safety Act 2002 (the Act).  The Act authorised the making of regulations prescribing “ways of ensuring the electrical safety of persons or property”, as well as regulations in relation to matters “necessary or convenient” for giving effect to the Act.  The stated purpose of the Act was to eliminate death, injury and destruction caused by electricity, and that this was to be achieved by “imposing duties on persons who may affect the electrical safety of others” and by “establishing benchmarks for industry and the community generally”.  In broad terms, the State contended that the regulation was justified as a safety measure, and was therefore validly made in furtherance of the Act’s objectives.

Both Bradley J and the Court of Appeal rejected the State’s arguments that the regulation imposed a duty or established a benchmark in a manner that the Act envisaged.   The State’s argument that the Regulations were supported as being “necessary or convenient” to the Act ran into the fatal obstacle that the scheme of the Act was directed to licensing of persons to do “electrical work” in relation to “electrical equipment”.  However, each of those expressions was defined in the Act in terms that excluded the mounting and fixing of solar panels.  The Regulations therefore sought to extend the scope of regulation under the Act in a way that was inconsistent with the terms of the Act itself.

Maryrorough Solar shows a hastily introduced regulation coming unstuck in the face of a promptly-commenced and well-targeted challenge.  In the current era of fast-moving and volatile regulatory change, it is also a salutary lesson to rule-makers to tread carefully, to ensure that proposed amendments will not be at risk of being undone as a result of inadvertent inconsistency with the primary legislation or some other applicable body of law or regulation.

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