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Defence Legislation Amendment (Woomera
Prohibited Area) Bill 2014
Portfolio:
Defence
Introduced: Senate,
27 March 2014
Purpose
2.1
The Defence Legislation Amendment (Woomera Prohibited Area) Bill 2014
(the bill) seeks to establish a framework intended to provide all non-Defence
users within the Woomera Prohibited Area (WPA) and industry more generally with
a level of certainty over Defence activity in the area; and to allow users to
make commercial decisions with some assurance as to when they will be requested
to leave the area because of Defence activity. The bill is said to give effect
to the recommendations in the Final Report of the Hawke Review of 3 May 2011,
which included a recommendation that the WPA 'be opened up for resources
exploration and mining to the maximum extent possible within the confines of
its primary use for defence of Australia purposes.'[1]
Background
2.2
The committee reported on the bill in its Sixth Report of the 44th
Parliament.
Committee view on compatibility
Right to privacy
Search and request powers
exercisable without consent
2.3
The committee requested the Minster for Defence's further advice as to
the necessity for non-consensual powers to search and request information from
a person at defence access control points, and particularly:
-
whether the proposed limitation on the right to privacy is aimed
at achieving a legitimate objective;
-
whether there is a rational connection between the limitation and
that objective; and
-
whether the limitation is proportionate to that objective.
Minister's response
The Woomera Prohibited Area (WPA) has been the site of
weapons testing since the 1950s and contains unexploded ordnance and the debris
from weapons testing. The WPA is an extremely large remote land area and it is
difficult for the Department of Defence to monitor the movements and activities
of people on the WPA.
The non-consensual search powers under Part VIA of the Defence
Act 1903 will only apply generally where a person does not have
authorisation to be on Defence premises, where they constitute a threat to
safety or have committed or may commit a criminal offence in relation to the
Defence premises. These powers may also apply at Defence access control points.
These powers are required to ensure that people and vehicles
leaving the WPA through Defence access control points are not removing war
materiel or equipment. If a person attempting to enter the WPA through an
access point refuses a consensual search, it is within the power of a Defence
security official to refuse to allow that person to enter the WPA. In
circumstances where the person is intending to leave the WPA and refuses a
consensual search, a special Defence security official requires the proposed
powers to conduct a non-consensual search to ensure that no materiel, including
unexploded ordnance, debris from weapons testing or war materiel is removed
from the WPA.
In light of the sensitive nature of testing activities and
the potential hazards associated with materiel that may be present in the WPA,
a mechanism to control access and ensure people's safety is compatible with
this limitation on the right to privacy.[2]
Committee response
2.4
The committee thanks the Minister for Defence for his response
and has concluded its examination of this matter.
Right to security of persons and freedom
from arbitrary detention
Arrest and detention powers
2.5
The committee requested the Minister for Defence's advice as to the
compatibility of the requirement that a detained person be brought 'as soon as
practicable' before a member or special member of the AFP, or member of a state
or territory police force, with the right to be brought promptly before a
court.
2.6
The committee also sought the Minister for Defence's advice as to what
protections may apply more generally to the right to security of the person and
freedom from arbitrary detention, such as restrictions on the time a person may
be detained without being brought before a relevant AFP or state or territory
police force member, and provision for a person to access legal advice while
detained.
Minister's response
The committee has requested advice as to the compatibility of
the requirement that a detained person be brought 'as soon as practicable'
before a member or special member of the Australian Federal Police or member of
a state or territory police force, with the right to be brought promptly before
a court. In addition, advice has been requested on what protection may apply to
the right to security of the person and freedom from arbitrary detention.
Defence advises the arrest and detention powers in this Bill
already apply to 'Defence Premises' through Pt VIA of the Defence Act 1903,
this Bill will only extend the application of these existing powers to the WPA.
The vast and remote nature of the WPA combined with safety
concerns associated with testing may give rise to a situation where it may take
time for a detained person to be brought before a member of the police force
which in any event will be done as soon as practicable. This is compatible with
the right to be brought promptly before a court in that a detained person will
be brought before a member of a police force as soon as circumstances allow
this to occur.[3]
Committee response
2.7
The committee thanks the Minister for Defence for his response
and has concluded its examination of this matter.
Right to enjoy and benefit from
culture and the right to self determination
Impact of increased economic
activity on Indigenous people
2.8
The committee requested further information from the Minister for
Defence as to the compatibility of the bill with the right to enjoy and benefit
from culture and the right to self-determination, with particular attention to
native title and whether the increased economic activity in the WPA enabled by
this bill might limit Indigenous groups' enjoyment of these rights.
Minister's response
The committee sought advice on the compatibility of the Bill
with the right to enjoy and benefit from culture and the right to
self-determination, with particular attention to native title and whether the
increased economic activity in the WPA enabled by the Bill might limit
Indigenous groups' enjoyment of these rights.
Indigenous groups will retain current access rights and will
not require permission under this Bill. I note that section 72TB of the Bill
specifically excludes existing users of the WPA from the application of the
Bill. This includes Indigenous groups with an interest in the land.
Additionally, permit holders under the Bill will be required to respect the
rights of the local Indigenous groups and comply with all relevant laws and
pertaining to native title and the protection of these sites. Defence engages
in ongoing consultation and discussion with all stakeholders, including
Indigenous groups, to ensure there is minimal disruption caused by Defence
testing.
With respect to economic activity, the Bill only creates a
permission system to access a prohibited area. Any economic activity that takes
place in the WPA, specifically mining activity, is regulated by the South
Australian Government under its Mining Act 1971.[4]
Committee response
2.9
The committee thanks the Minister for Defence for his response
and has concluded its examination of this matter.
Right to a fair trial and fair
hearing rights
Validation of declaration and past
acts in relation to the Woomera Prohibited Area
2.10
The committee requested the Minister for Defence's advice on the
compatibility of the retrospective validation proposed by new section 121A with
human rights, and particularly whether the measure will engage or limit the
right to a fair trial and fair hearing, and the prohibition on retrospective
criminal laws.
Minister's response
The inclusion in the Bill of the proposed s 121A is designed
to ensure there can be no doubt about the validity of the 1989 declaration of
the WPA. The purpose of s 121A is to address technical arguments that could be
raised in relation to the 1989 declaration and some acts taken pursuant to it.
The only perceived basis for this is that the Defence Force Regulations 1952
did not fully provide for just terms compensation for any acquisitions of
property consequent on that declaration or those acts for the purposes of s 51
(xxxi) of the Constitution (although Defence is not aware of any particular
cases in which this may have occurred). Section 121A rectifies any
constitutional deficiencies by providing just terms compensation in accordance
with s 51 (xxxi).
There are no pending or completed proceedings
that would be affected by the proposed s 121A. Nor is Defence aware of any
circumstances that would give rise to new proceedings in relation to the period
covered by the proposed s 121A.
Even if there were such proceedings s 121A would merely
prevent a person from attempting to indirectly escape liability by arguing that
he or she could not have been in the WPA because the declaration of that area
as a prohibited area was invalid as it effected an acquisition of property
other than on just terms. Further, any such liability would not be imposed on a
person who could not have reasonably known of the liability at the time the
conduct constituting the offence was committed.
In any case, Defence is not aware of any information that
suggests any person is likely to be prosecuted for an offence against reg 35
for conduct occurring before this Bill. There are no current investigations or
prosecutions. Accordingly, to the best of Defence's knowledge, the proposed s
121A will not operate in practice so as to cause, indirectly, any retrospective
imposition of criminal liability.[5]
Committee response
2.11
The committee thanks the Minister for Defence for his response
and has concluded its examination of this matter.
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