Defence Legislation Amendment (Woomera Prohibited Area) Bill 2013

Bills Digest no. 37 2013–14

PDF version  [717KB]

WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Nathan Church, Foreign Affairs, Defence and Security Section
Paula Pyburne, Law and Bills Digest Section 
29 January 2014

This is a revised version of Bills Digest 150, 2012–13, prepared for an earlier version of this Bill introduced into the 43rd Parliament 

 

Contents

The Bills Digest at a glance

History of the Bill

Purpose of the Bill

Background

Committee consideration

Position of the parties

Financial implications

Key issues and provisions

Concluding comments

 

Date introduced:  12 December 2013

House:  Senate

Portfolio:  Private Senator's Bill: Senator Don Farrell

Commencement: On the day after Royal Assent

 

The Bills Digest at a glance

The Defence Legislation Amendment (Woomera Prohibited Area) Bill 2013 (the current Bill) is a response to the recommendations of the final report of the Review of the Woomera Prohibited Area. The Bill:

  • provides for the making of the Woomera Prohibited Area Rules by the Minister which will include, amongst other things, zones which are to be demarcated within that Area
  • creates a permit system for access to, and use by, non-Defence users of the Woomera Prohibited Area
  • introduces offences and penalties for entering the Woomera Prohibited Area without permission and for failing to comply with a condition of a permit and
  • provides for compensation for an acquisition of property from a person otherwise than on just terms that results from the operation of the new Part VIB of the Defence Act 1903.[1]

History of the Bill

A previous version of the Defence Legislation Amendment (Woomera Prohibited Area) Bill 2013 (the previous Bill) was introduced into the 43rd Parliament on 30 May 2013.[2] The previous Bill had been debated in the House of Representatives and had been introduced into the Senate, but had not been passed when the Parliament was prorogued on 5 August 2013. As a result, the previous Bill lapsed.

The current Bill is in equivalent terms to the previous Bill.

Purpose of the Bill

The purpose of the current Bill is to amend the Defence Act to establish a framework to allow access to the Woomera Prohibited Area by non-Defence users on a conditional basis.

Background

The 127,000 kilometre expanse of northern South Australia, known as the Woomera Prohibited Area (WPA), is the world’s largest overland long-range weapons testing facility and has been operational since 1947.[3]

The WPA is important to Defence because it is the only Australian range capable of measuring and monitoring the Australian Defence Force’s (ADF) testing and evaluation activity. This capability plays an important role in increasing the ADF’s effectiveness by supporting the development of weapons systems. Defence extends use of the WPA to international partners, which contributes to the development of Defence’s technical expertise and enhances its value as a coalition partner. Defence also occasionally uses the WPA for field training.[4]

However from the 1980s onwards, areas of the land were made increasingly available to non‑Defence users, including the resources sector. Local Indigenous groups and pastoral leaseholders also have an enduring presence across much of the WPA.[5]

In order to assess the most effective use of the WPA for both Defence and non-Defence interests, on 17 May 2010 the then Minister for Defence, Senator John Faulkner, called for a review ‘to make recommendations about the best use of the WPA in the national interest’.[6]

Review process

The review which was led by Dr Allan Hawke (the Hawke Review) was tasked to consult extensively to obtain the views of individuals and groups that may have an interest in the future use of the WPA including:

  • the South Australian Government
  • representatives from the resources sector and Defence industry
  • the Woomera community, the Woomera Board, pastoralists and South Australian Native Title Services
  • Commonwealth government agencies and
  • Defence users of the Woomera Prohibited Area from the United States and the United Kingdom.[7]

The review team published an interim report on 5 November 2010.[8] That report identified the requirements of WPA user groups, assessed the extent to which these requirements were being met, and proposed mechanisms to support better coexistence.[9] Public comment was sought on the interim report before recommendations were included in the final report.

Stakeholder interests

More than half of the submissions to the Hawke Review came from mining and exploration interests seeking clearer and expanded access, with the remainder coming from the transport industry, pastoralists and Indigenous, environmental and other community groups.[10] Furthermore, the majority of submissions came from entities with an established presence in the WPA who were keen to see their existing arrangements either be expanded or maintained, especially in regards to exploration operations.[11]

Mining/exploration interests

The South Australian Chamber of Mines and Energy acknowledged that access to the WPA and the activities within it need to be strictly controlled, but sought to have all areas of the WPA open to exploration.[12] The Association of Mining Exploration Companies agreed, noting that ‘mineral exploration is typically a low-impact activity of short duration that when managed appropriately, can harmoniously co-exist with defence activities’.[13]

IMX Resources Ltd stressed the need for more responsive communication from Defence in relation to its decision making processes so as to achieve more commercially acceptable response times.[14] Associated to this are the three submissions from transport interests, which cite the importance of rail in any mining expansion within the WPA, especially as there already exists an interstate rail corridor.[15]

Indigenous groups interests

Submissions from both the resources sector and the Antakirinja Matu- Yankunytjatjara Aboriginal Corporation highlight the in-principle financial and wider-community benefits of royalties stemming from resources-based projects.[16] However the Kokatha Uwankara Native Title Claim Group raised a concern that the 2007 Woomera Prohibited Area Indigenous Heritage Management Plan had ‘been largely ignored by Defence in conducting activities on the WPA’.[17]

Environmental interests

Bush Heritage Australia (BHA) was the only environmental group to make a submission. They sought recognition of BHA’s conservation work while supporting both multi-purpose landuse across the WPA and, more specifically, the prevailing Deed of Access protocols.[18]

Final report

The Review of the Woomera Prohibited Area—Final Report (the report) was published on 4 February 2011 and made 65 recommendations.[19] The report of the Hawke Review was endorsed by both the Minister for Defence and the Minister for Resources and Energy on 3 May 2011.[20] This Bill is intended to formalise the recommendations of the Hawke Review.

Within its numerous recommendations, the Hawke Review outlines a ‘co-existence model’ whereby Defence maintains primacy of the WPA, but non-Defence users have clarity regarding their access to specified areas of operation, incorporating both the available location and time of use.[21] Recommendation 14 suggests the division of the WPA into three zones; a ‘red’ zone for exclusive Defence use, an ‘amber’ zone for regular Defence use, and a ‘green’ zone for occasional Defence use.[22]

By implementing a zonal ‘time-share’ arrangement, Defence is allocated ‘exclusion windows’ throughout the year limiting the non-Defence use of the WPA. This ranges from new non-Defence users’ total exclusion within the red zone, to up to 56 exclusion days in the green zone, pending notice.[23] The excluded red zone comprises approximately eight per cent of the WPA, while the vast majority—some 75 per cent of the WPA area—is designated as the most accessible green zone.[24] Importantly, the Hawke Review recommended:

… that existing mining operations, environmental organisations, Indigenous groups and pastoralists with an extant presence on the WPA, should continue to operate under their current access arrangements unless they choose to be administered under the proposed coexistence model.[25]

Implications

Under the terms of reference, the Hawke Review was to ‘undertake research and analysis into … national security and economic interests in the Woomera Prohibited Area’ and make recommendations to ‘optimise Australia’s national interests as they pertain to the WPA’.[26] While the Hawke Review reinforces Defence’s contribution to national security as the primary user of the WPA, the significance of the recommendations will most likely be seen as optimising economic interests in the region.

A number of existing mines are already located within the WPA, including the Challenger Mine, Hawks Nest Mine, Cairn Hill Mine, Peculiar Knob Mine and Prominent Hill Mine. Peculiar Knob is reportedly one of the highest grade undeveloped reserve deposits of iron ore in Australia, while the Olympic Dam mine—one of the world’s largest producers of copper, gold and uranium – is in close proximity to the WPA boundary.[27]

Woomera Prohibited Area 

Source: Government of South Australia, Department of Manufacturing, Innovation, Trade, Resources and Energy, accessed 8 January 2014.

Under previous arrangements, mining companies had complained about denial of access and communication delays stifling potentially lucrative new operations.[28]

The Hawke Review indicates that further development of the WPA is likely to result in high levels of economic benefit, citing a South Australian Government assessment that iron ore, gold and uranium mining within the WPA could contribute $35 billion. This assessment is consistent with other analysis by Geoscience Australia.[29] Although determining any potential value of mineral reserves is highly speculative, the capacity for new exploration within the WPA will certainly help determine the resources potential of the area.[30]

For its part, the resources industry has been broadly welcoming of the proposed arrangements, with both the South Australian Chamber of Mines and Energy and the Association of Mining and Exploration Companies publicly supporting the Hawke report following its release and government endorsement.[31] However, the proposed six month moratorium on new access applications—announced by the Government on 3 May 2011—was not lifted until 5 October 2012.[32] During the period from 20 April to 15 June 2012, public comment was sought on proposed new Deed of Access[33] arrangements for the WPA.[34]

Regarding the potential for increased mining and exploration activity under new expanded access arrangements, the Foreign Investment Review Board will continue to make determinations about foreign ownership issues, taking into consideration national security imperatives.[35] As the WPA incorporates elements of national security as well as a Defence facility, this is likely to have some bearing on potential future decisions.

Implementation

The previous Government decided to implement the recommendations of the Hawke Review in three phases:

  • a moratorium on the granting of new non-Defence entrants access to the WPA (now concluded)
  • a transition phase involving the development and implementation of enabling legislation and
  • a steady-state phase where transitional arrangements are implemented and where permanent arrangements are put in place.[36]

Committee consideration

Senate Foreign Affairs, Defence and Trade Legislation Committee

On 18 June 2013 the previous Bill was referred to the Foreign Affairs, Defence and Trade Legislation Committee (the Committee) for inquiry and report by 20 August 2013.[37] When the 43rd Parliament was prorogued on 5 August 2013, the Committee decided not to continue with its inquiry stating:

In particular, some members felt that to continue with a scheduled public hearing on 7 August, during the election period, would not do justice to the inquiry. The committee therefore cancelled the hearing. Should the bill be reintroduced in the 44th Parliament and referred to the committee, the committee will resume its consideration of the legislation.[38]

On 12 December 2013, the Senate referred the current Bill to the Committee for inquiry and report by 11 February 2014.[39]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) considered the previous Bill and noted the imposition of an offence of strict liability for failure to comply with conditions placed on a permission to be at a place in the WPA.[40] According to the Scrutiny of Bills Committee:

While the explanatory memorandum does provide information about the rationale, the committee is not persuaded that strict liability will significantly enhance the enforcement of the regime. Perhaps the appropriateness of strict liability may depend on the nature of the conditions; however the explanatory memorandum does not address these issues. The committee therefore seeks a more detailed justification from the Minister as to the possible scope of any conditions and the appropriateness of the use of strict liability.[41]

At the time of writing this Bills Digest it does not appear that the Scrutiny of Bills Committee has received a response to its request of the Minister.

Parliamentary Joint Committee on Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), Senator Farrell has assessed the current Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[42] Senator Farrell considers that the Bill is compatible.

The Parliamentary Joint Committee on Human Rights considered that the previous Bill did not give rise to any human rights concerns.[43]

Position of the parties

Australian Labor Party

This Bill is a Private Senator’s Bill introduced by an Australian Labor Party (Labor) Senator, which is in equivalent terms to a Bill which was introduced by Labor when it was in Government.

Coalition

In relation to the previous Bill, the Coalition’s Shadow Minister for Defence Science, Technology and Personnel, Stuart Robert, stressed that Defence’s use of the Woomera Prohibited Area must ‘remain of the primacy’:

The fact that there will now be, to use the government's term, a 'coexistence scheme' which will allow other non-Defence users to access the Woomera Prohibited Area may be acceptable if the appropriate steps are taken to ensure the area remains available and suitable for testing of Defence capability. This is a unique capability that we possess and it is of the highest priority that we retain that capability. At this point, it is important to note that the Bill will not alter the current arrangements as they apply to Indigenous landholders or pastoralists with an established presence or to existing mining operations. The provisions of the Bill and new coexistence scheme will apply to new users—a line in the sand, if you will. Existing users will have the option of voluntarily joining the coexistence scheme established by these measures.

Given the Woomera Prohibited Area contains recognised traditional owners and significant Indigenous sites, it is appropriate the Bill regulate how non-Defence users who gain access to it treat and protect those sites and comply with all relevant native title and Aboriginal heritage laws. The coalition is very comfortable with that. The Bill ensures that Indigenous groups with current statutory and access rights expressly retain these rights and will not need to re-apply for permission under the Bill. We support that; it is sensible.[44]

Australian Greens

Adam Bandt of the Australian Greens (Greens) expressed the Greens’ position in relation to the previous Bill stating:

The Greens have been consistent in identifying the lack of fairness in whom this mining boom benefits, and this Bill will simply amplify the problem. Our mineral resources are finite, and the wealth generated from exploiting these resources needs to be shared appropriately among the community while the opportunity remains. The mineral wealth potential of the area should be subject to a reconfigured mining tax, similar to that originally proposed by Treasury, to fund investments to benefit Australians for generations.

This area has an estimated 75 per cent of Australia's known uranium reserves. If uranium is mined in this area, this Bill will amplify the irresponsibility of exporting dangerous radioactive materials …

While the Greens are absolutely opposed to mining uranium anywhere in Australia, we are not opposed outright to other mineral exploration in the Woomera Prohibited Area if negotiations with the traditional owners can reach agreement and if strict environmental guidelines for exploration are also strictly applied inside the Commonwealth area. The Greens … will seek to ensure that the environment in this area is not further degraded and that the rights of Aboriginal people are upheld.[45]

Financial implications

According to the Explanatory Memorandum to the current Bill:

It is anticipated that there will be increased non-Defence access to the WPA as a result of the introduction of new access arrangements which will require increased management and coordination by Defence.

The Bill provides that the Woomera Prohibited Area Rules may provide for the introduction of a cost recovery model, as some point in the future, to recover the expenses Defence incurs in managing non-Defence access to the WPA.[46]

Key issues and provisions

Item 3 of the Bill inserts proposed Part VIB—The Woomera Prohibited Area into the Defence Act. The operation of proposed Part VIB is set out below. Proposed section 72TP provides that the Minister may, by legislative instrument, and with the agreement of the Resources Minister, make the Woomera Prohibited Area Rules (the Rules). The previous Government released an exposure draft of proposed Rules.[47] Of course, if this Bill passes the decision as to whether to make Rules, and what they will contain, will rest with the current Government. The Rules will prescribe those matters that are required or permitted by Part VIB to be prescribed, or are necessary or convenient to be prescribed for carrying out or giving effect to Part VIB of the Defence Act.

Legislative instruments must be tabled in each House within six sitting days following registration on the Federal Register of Legislative Instruments, even in cases where the instrument is not disallowable.[48] Unless laid before each House within this time limit, a legislative instrument ceases to have effect.[49] In this case, the Rules (when finally drafted) will be a disallowable instrument. This means that a Senator or Member of the House of Representatives may move a motion of disallowance within 15 sitting days of the day that the legislative instrument is tabled. The motion to disallow must be resolved or withdrawn within a further 15 sitting days of the day that the notice of motion is given. If the motion to disallow has not been dealt with during that 15 day period, the legislative instrument is taken to have been disallowed and will cease to have effect.[50]

Zones in the Woomera Prohibited Area

Proposed section 72TA of the Defence Act provides that the Rules may prescribe an area as the Woomera Prohibited Area (WPA). That area must be intended for use for the purposes of testing war materiel and may be used for those purposes. This ensures that Defence is the primary user of the WPA. Item 1 of the Bill amends subsection 71A(1) of the Defence Act so that the WPA is included in the definition of defence premises. This means that the exercise of the powers in Part VIA of the Defence Act is authorised within the WPA.[51]

The Rules may prescribe zones within the WPA and make provision for exclusion periods within those zones.

Exposure Draft of the Rules

Proposed rule 6 of the Exposure Draft of the Rules released by the previous Government prescribes four zones within the WPA:

  • the red zone, being the area described as ‘Defence continuous use zone’
  • amber zone 1, being the area described as ‘Defence periodic use zone 1’
  • amber zone 2, being the area described as ‘Defence periodic use zone 2’ and
  • the green zone, being the area described as ‘Defence infrequent zone’.

According to proposed rule 7 of the Exposure Draft of the Rules, the Minister must not issue a permit that provides permission for a person to be in the red zone. The Minister may, by legislative instrument, determine the following exclusion periods for a financial year:

  • for amber zone 1—up to 20 periods of up to 7 days each
  • for amber zone 2—up to 10 periods of up to 7 days each and
  • for the green zone—up to 8 periods of up to 7 days each.[52]

Permission to be in the WPA

Proposed subsection 72TC(3) of the Defence Act provides that a person has permission to be at a place in the WPA if:

  • a standing permission provides permission for the person to be at the place
  • a permit provides permission for the person to be at the place or
  • the person has the Minister’s permission to be at the place.

According to the Explanatory Memorandum:

… pastoralists, with an extant presence, Indigenous groups, other extant uses, and existing mining operation in the Woomera Prohibited Area will continue to operate under their current access arrangements. The access regime established by the Bill will only apply to new users of the WPA. Existing users of the WPA have the option of voluntarily joining the access regime established by these measures.[53]

Standing permission

According to proposed section 72TD of the Defence Act, the Rules may provide permission for a person to be at a place in the WPA and that the permission may be subject to certain conditions.

Exposure Draft of Rules

Under proposed rule 11 of the Exposure Draft of the Rules a person has permission to be in the WPA if they are travelling on specified access routes—on the condition that the person does not deviate from the access route. The specified access routes are:

  • the Darwin to Adelaide North-South Rail Link
  • the Stuart Highway
  • the William Creek Road
  • the Lake Cadibarrawirracanna Road and
  • the Pimba Road.

Similarly, a person has permission to be in an area that is identified as the Woomera Village under proposed subrule 12(1) of the Exposure Draft of the Rules. The Minister may, by legislative instrument, suspend a standing permission if it is necessary for the security of defence activities or the safety of persons in the WPA.[54] In that case, the Minister is required to set up access control points to prevent the use of the access routes or the entry of persons into the Woomera Village and to take reasonable steps to inform persons of the suspension.

Permits

Under proposed section 72TE of the Defence Act, the Rules may make provision for the granting of permits which give permission for persons to be at places in the WPA. The Rules may include provisions about the purpose of a permit, how to apply for a permit and matters such as the issuing and renewal of permits, when permits may be suspended or cancelled and any conditions which apply to a permit.

Exposure Draft of Rules

Applying for a permit

Proposed subrule 13(1) of the Exposure Draft of the Rules lists the purposes for which a person may apply to the Minister for a permit to be at a place in the WPA. They are for resource purposes, opal mining and precious stone prospecting purposes, pastoral purposes, research, tourism, environmental purposes and other purposes. Proposed subrule 13(2) of the Exposure Draft of the Rules specifies the permit application requirements. The Minister is not required to consider an application which does not comply with those requirements.[55]

According to proposed rule 17 of the Exposure Draft of the Rules the Minister must issue the permit unless the Minister is satisfied that doing so would prejudice the security of defence activities or that the applicant is unlikely to comply with the conditions of the permit. Proposed subrule 18(1) of the Exposure Draft of the Rules sets out the time frames within which the Minister is to decide an application. The times allowed for decision making vary from 10 days (for example, for a permit for environmental purposes) to 25 days (for example, for a permit for resource purposes), depending on the nature of the permit being sought.

A permit remains in force for the period of not more than seven years specified in the permit.[56]

Renewing a permit

Proposed rules 22–28 of the Exposure Draft of the Rules provide for the making and deciding of an application for renewal of a permit. Importantly, the Minister must renew a permit unless the Minister is satisfied that doing so would prejudice the security of defence activities or that the applicant is unlikely to comply with the conditions of the permit.[57]

Conditions of permits

Proposed rule 29 of the Exposure Draft of the Rules sets out the conditions which will apply to all permits. Importantly, the holder of a permit must give the Secretary at least ten business days’ notice before a person enters the WPA under the permit.[58] In addition, the permit holder must take reasonable steps to ensure that persons who are in the WPA under permit comply with the conditions of the permit.[59]

Under proposed subrule 29(3) of the Exposure Draft of the Rules, a person in the WPA under a permit must not take any of the actions which are listed below:

  • be at a place that is not covered by the permit or be in a zone during an exclusion period for the zone
  • carry out activities other than those for which the permit was issued
  • intentionally remove, touch, interfere or tamper with, any Commonwealth equipment, material or installation
  • enter any area that is enclosed by the Commonwealth or protected by a member of the Defence Force
  • without the written approval of the Minister have in his or her possession, or operate, an unmanned aerial vehicle or
  • erect a building or any other structure that is more than 7.5 metres high without the written approval of the Minister.

Proposed rules 30, 31, 36 and 37 of the Exposure Draft of the Rules provide for the imposition of additional conditions in certain circumstances.

Cancelling a permit

Proposed rule 38 of the Exposure Draft of the Rules empowers the Minister, by written notice given to the holder of a permit, to cancel a permit if the Minister considers it is necessary for the purposes of the defence of Australia. In that case, the Minister must give the permit holder 30 days’ written notice of the Minister’s intention and the ground, or grounds, on which the Minister intends to act. In addition, the Minister must give the permit holder a reasonable opportunity to provide information in relation to any matters that the permit holder wishes the Minister to take into account in making his, or her, decision.[60]

Minister’s permission

Proposed subsection 72TF of the Defence Act provides that the Minister may, on request, give written permission for a person to be at a place in the WPA. That permission must include the person’s name and be given in accordance with the Rules. The permission may be subject to any conditions imposed by the Minister or by the Rules.

Exposure Draft of Rules

A person may request the Minister to give written permission for the person to be at a place, or places, in the WPA for a specified purpose.[61] Upon receipt of such a request in writing, proposed rule 40 of the Exposure Draft of the Rules provides that the Minister may give written permission if he or she is satisfied of all of the following:

  • doing so would not prejudice the security of defence activities
  • the person is likely to comply with any conditions to which the permission is subject and
  • it would be safe for the person to be in the WPA under the permission.

Such permission is subject to the condition that the person must not carry out activities under the permission other than those for which the permission is given. The Minister is required to keep a written record of all permissions given.[62]

The Minister may suspend a permission in writing, if the Minister considers it necessary for the purposes of the defence of Australia.[63] The Exposure Draft of the Rules provides for the cancellation of the Minister’s permission on equivalent grounds.[64]

Offences

The Bill provides for two offences in relation to being in the WPA. First, proposed subsections 72TC(1) and (2) of the Defence Act create a criminal offence where a person who is not a member of the Defence Force, the Secretary or an APS employee of the Department is at a place in the WPA and does not have permission to be in that place. The maximum penalty for the offence is imprisonment for two years or 120 penalty units, or both.[65]

Second, proposed section 72TG of the Defence Act creates an offence of strict liability (that is, state of mind is irrelevant) where a person is at a place in the WPA and the person does, or refuses or fails to do, an act or thing and as a result fails to comply with a condition of the permission.[66] The defence of honest and reasonable mistake of fact is available for strict liability offences. This means that the imposition of strict liability will not criminalise honest errors and no person can be held liable if he or she had an honest and reasonable belief that they were complying with relevant obligations. The maximum penalty for the offence is 60 penalty units.[67]

As noted above (under Committee Consideration) the Senate Scrutiny of Bills Committee considered the previous Bill and sought an explanation from the Minister as to the appropriateness of the use of strict liability despite the comment in the Explanatory Memorandum that:

It is considered reasonable that breaching a condition of a permission should attract a strict liability offence to provide an adequate deterrent to breaching permit conditions which will attract a minor penalty of a maximum of 60 penalty units. A permission issued under this Part will clearly advise the conditions with which the permission holder will need to comply, including the potential consequences of non‑compliance.[68]

Compensation

Under proposed section 72TK of the Defence Act, the Commonwealth is liable to pay a reasonable amount of compensation to a person if the operation of proposed Part VIB of the Defence Act would result in an acquisition of property, other than on just terms. This is consistent with section 51(xxxi) of the Constitution.[69]

In addition, proposed section 72TL of the Defence Act provides that the Rules may limit amounts payable by the Commonwealth for loss or damage in the WPA arising from a breach of a duty of care (whether statutory or at common law) in relation to the use of the WPA for testing war materiel.

Exposure Draft of Rules

Proposed rule 61 of the Exposure Draft of the Rules sets the limit at $2 million. However, this does not apply to loss or damage resulting in death or personal injury.

Review of decisions

Proposed section 72TM of the Defence Act provides for a two tiered review process. Proposed subsection 72TM(1) of the Defence Act allows a person whose interests are affected by certain decisions to apply to the Minister for a review. However this internal review only applies to:

  • a decision under section 72TF to give, or not to give, written permission for a person to be at a place in the WPA
  • a decision of the Minister to suspend a permission under section 72TH if the Minister considers it necessary for the purposes of the defence of Australia and
  • a decision of the Minister to give a direction under section 72TJ if the Minister considers it necessary for the purposes of the defence of Australia or to protect human life.

Proposed subrule 62(1) of the Exposure Draft of the Rules provides a more comprehensive list of decisions which are able to be reviewed internally.

Proposed subsection 72TM(4) of the Defence Act authorises an application to be made to the Administrative Appeals Tribunal (AAT) for a review of a decision by the Minister on the review of a decision under section 72TF to give, or not to give, written permission for a person to be at a place in the WPA.

Proposed subrule 62(4) of the Exposure Draft of the Rules provides that the Minister’s decisions on the review of any of the decisions listed at proposed subrule 62(1) are also reviewable by the AAT.

Infringement notices and demerit points

Under proposed subsections 72TP(4) and (6) of the Defence Act, the Rules may provide for a regime of financial penalties as an alternative to prosecution and for a system of demerit points, respectively. The purpose of the demerit point system is that a permit may be suspended or cancelled if the holder of the permit accrues a prescribed number of demerit points.

Exposure Draft of the Rules

Proposed rules 42–49 of the Exposure Draft of the Rules set out a regime for the issuing of infringement notices. In particular, proposed rule 44 lists the circumstances in which an infringement notice may be given.

Proposed rules 50–57 of the Exposure Draft of the Rules sets out the system of demerit points including when demerit points are incurred and the consequences for a permit holder of incurring demerit points.

Concluding comments

The Bill provides a broad rule making power which will give access to the WPA by new non-Defence users, whilst maintaining the primacy of the WPA for testing defence materiel. Whilst the Bill itself and the Exposure Draft of the Rules released by the previous Government set out a relatively benign scheme for providing access to the WPA, the inclusion of the WPA in the definition of defence premises gives rise to a range of powers which may be exercised by defence security officials, including the use of force which is reasonable and necessary.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.



[1].     Defence Act 1903, accessed 8 January 2014.

[2].     Parliament of Australia, ‘Defence Legislation Amendment (Woomera Prohibited Area) Bill 2013 homepage’, Australian Parliament website, accessed 8 January 2014.

[3].     Australian Government, Government review of the Woomera Prohibited Area: interim report, p. 9, accessed 8 January 2014.

[4].     Ibid., p. 1.

[5].     Department of Defence, ‘Government review of the Woomera protected area’, Department of Defence website, accessed 8 January 2014.

[6].     S Smith (Minister for Defence), ‘Second reading speech: Defence Legislation Amendment (Woomera Prohibited Area) Bill 2013’, House of Representatives, Debates, 30 May 2013, p. 4518, accessed 8 January 2014.

[7].     Department of Defence website, Government review of Woomera prohibited area’, op. cit.

[8].     Australian Government, Government review of the Woomera Prohibited Area: interim report, op. cit.

[9].     Australian Government, Government review of the Woomera Prohibited Area: final report, 4 February 2011, p. i, accessed 8 January 2014.

[10].  Department of Defence website, Government review of Woomera prohibited area’, op. cit.

[11].  For example, Flinders Exploration, Submission to the Government, Review of the Woomera Prohibited Area, accessed 8 January 2014.

[12].  South Australian Chamber of Mines and Energy (SACOME), Submission to the Government, Government review of the Woomera Prohibited Area, 7 August 2010, p. 4, accessed 8 January 2014.

[13].  The Association of Mining and Exploration Companies (AMEC) Inc., Submission to the Government, Government review of the Woomera Prohibited Area, accessed 8 January 2014.

[14].  IMX Resources Ltd., Submission to the Government, Government review of the Woomera Prohibited Area, 15 July 2010, accessed 8 January 2014.

[15].  Asia Pacific Transport, Submission to the Government, Government review of the Woomera Prohibited Area, 13 July 2010, accessed 8 January 2014; Australian Rail Track Corporation Ltd., Submission to the Government , Government review of the Woomera Prohibited Area, accessed 8 January 2014; Australasia Railway Corporation, Submission to the Government, Government review of the Woomera Prohibited Area, 12 August 2010, accessed 8 January 2014.

[16].  Ahava Group of Companies, Submission to the Government, Government review of the Woomera Prohibited Area, 16 July 2010, accessed 8 January 2014; SACOME, Submission to the Government, Review of the WPA, op. cit.; Antakirinja Matu- Yankunytjatjara Aboriginal Corporation, Submission to the Government, Australian Government review of the Woomera Prohibited Area, 15 July 2010, accessed 8 January 2014.

[17].  Kokatha Uwankara Native Title Claim Group, Submission to the Government, Australian Government review of the Woomera Prohibited Area, accessed 8 January 2014.

[18].  Bush Heritage Australia, Submission to the Government, Government review of the Woomera Prohibited Area, 3 August 2010, p. 4, accessed 8 January 2014.

[19].  Australian Government, Government review of the Woomera Prohibited Area: final report, op. cit., p. iii.

[20].  S Smith (Minister for Defence) and M Ferguson (Minister for Resources and Energy), Woomera Prohibited Area opened to miners, joint media release, 3 May 2011, accessed 8 January 2014.

[21].  Australian Government, Review of the Woomera Prohibited Area: final report, op. cit., pp. i–x.

[22].  Ibid., p. 17.

[23].  Ibid.

[24].  S Smith (Minister for Defence), Woomera Protected Area, press conference, 5 October 2012, accessed 8 January 2014.

[25].  Australian Government, Review of the Woomera Prohibited Area: final report, op. cit., recommendation 11, p. 13.

[26].  Australian Government, Review of the Woomera Prohibited Area: terms of reference, accessed 8 January 2014.

[27].  C Russell, ‘WPG mine opens up Woomera’, The Adelaide Advertiser, 9 July 2011, p. 75, accessed 8 January 2014; Australian Government, Review of the Woomera Prohibited Area: final report, op. cit., p. 15; Macmahon Holdings Ltd., ‘Underground mining: Olympic dam’, website, accessed 8 January 2014.

[28].  M McGuire, ‘Barriers: Saturday insight’, The Adelaide Advertiser, 18 October 2008, p. 25, accessed 8 January 2014.

[29].  Australian Government, Review of the Woomera Prohibited Area: final report, op. cit., p. 5.

[30].  Ibid., p. 6.

[31].  SACOME, Woomera mining–defence agreement still needs timeline on finalising detail: SA mining lobby, media release, 3 May 2011, accessed 8 January 2014; AMEC, AMEC supports the Woomera coexistence model for mining and defence pending further detail, media release, 4 May 2011, accessed 8 January 2014.

[32].  S Smith (Minister for Defence) and M Ferguson (Minister for Resources and Energy), Woomera Prohibited Area opened to miners, op. cit.; S Smith (Minister for Defence) and M Ferguson (Minister for Resources and Energy), Woomera Prohibited Area open to resources development, joint media release, 5 October 2012, accessed 8 January 2014.

[33].  Department of Defence website, ‘Deeds of access: minerals exploration’, accessed 8 January 2014.

[34].  S Smith (Minister for Defence) and M Ferguson (Minister for Resources and Energy), Government seeks comment on interim access arrangements for the Woomera Prohibited Area, joint media release, 20 April 2012, accessed 8 January 2014.

[35].  S Smith (Minister for Defence), Woomera Protected Area, press conference, op. cit.

[36].  Australian Government, Legislative framework to implement the co-existence model for the Woomera Prohibited Area, April 2013, accessed 8 January 2014.

[37].  Details of the terms of reference, submissions to the Committee and the final report are on the inquiry homepage, accessed 8 January 2014.

[38].  Foreign Affairs, Defence and Trade Committee, Defence Legislation Amendment (Woomera Prohibited Area) Bill 2013, The Senate, Canberra, 20 August 2013, accessed 8 January 2014.

[39].  Selection of Bills Committee, Report No. 11 of 2013, 11 December 2013, accessed 8 January 2014.

[40].  The offence is set out in proposed section 72TG of the Defence Act.

[41].  Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 6 of 2013, The Senate, 19 June 2013, p. 27, accessed 8 January 2014.

[42].  The Statement of Compatibility with Human Rights can be found at pages 12–18 of the Explanatory Memorandum to the Bill.

[43].  Parliamentary Joint Committee on Human Rights, Eighth Report of 2013, The Senate, Canberra, June 2013, p. 69, accessed 8 January 2014.

[44].  S Robert, ‘Second reading speech: Defence Legislation Amendment (Woomera Prohibited Area) Bill 2013’, House of Representatives, Debates, 6 June 2013, p. 5708, accessed 8 January 2014.

[45].  A Bandt, ‘Second reading speech: Defence Legislation Amendment (Woomera Prohibited Area) Bill 2013’, House of Representatives, Debates, 6 June 2013, p. 5711, accessed 8 January 2014.

[46].   Explanatory Memorandum, p. 4.

[47].  Exposure Draft of the Woomera Prohibited Area Rules 2013, accessed 8 January 2014.

[48]Legislative Instruments Act 2003, section 38, accessed 8 January 2014.

[49].  See BC Wright ed., House of Representatives practice, sixth edn, Department of the House of Representatives, Canberra, 2012, pp. 410–18, accessed 8 January 2014.

[50]Legislative Instruments Act 2003, section 42.

[51].  See P Pyburne, Defence Legislation Amendment (Security of Defence Premises) Bill 2010, Bills Digest, 29, 2010–11, Parliamentary Library, Canberra, 2010, accessed 8 January 2014, for information about the powers exercisable to maintain the security of defence premises—in particular the use of force which is reasonable and necessary including the use of lethal force.

[52].  Exposure Draft of the Woomera Prohibited Area Rules 2013, proposed rule 8.

[53].  Explanatory Memorandum, p. 3.

[54].  Exposure Draft of the Woomera Prohibited Area Rules 2013, proposed subrules 11(3) and 12(2).

[55].  Exposure Draft of the Woomera Prohibited Area Rules 2013, proposed rule 14.

[56].  Exposure Draft of the Woomera Prohibited Area Rules 2013, proposed rule 20.

[57].  Exposure Draft of the Woomera Prohibited Area Rules 2013, proposed rule 26.

[58].  Exposure Draft of the Woomera Prohibited Area Rules 2013, proposed paragraph 29(2)(a).

[59].  Exposure Draft of the Woomera Prohibited Area Rules 2013, proposed paragraph 29(2)(c).

[60].  Exposure Draft of the Woomera Prohibited Area Rules 2013, proposed subrule 38(2).

[61].  Exposure Draft of the Woomera Prohibited Area Rules 2013, proposed rule 39.

[62].  Exposure Draft of the Woomera Prohibited Area Rules 2013, proposed subrule 40(6).

[63]Defence Act, proposed section 72TH.

[64].  Exposure Draft of the Woomera Prohibited Area Rules 2013, proposed rule 41.

[65].  Section 4AA of the Crimes Act 1914 provides that a penalty unit is equivalent to $170. This means that the maximum pecuniary penalty is $20,400.

[66].  For an offence of strict liability created under a law there are no fault elements for any physical elements of the offence and the defence of mistake of fact is available. See sections 6.1 and 9.2 of the Criminal Code Act 1995 (Cth).

[67].  This means that the maximum penalty is $10,200.

[68].  Explanatory Memorandum, p. 7.

[69]Commonwealth of Australia Constitution Act, accessed 8 January 2014.

 

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