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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
DEFENCE LEGISLATION AMENDMENT (WOOMERA PROHIBITED AREA)
BILL 2014
REVISED EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Defence, Senator the Hon David Johnston)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
THE SENATE TO THE BILL AS INTRODUCED
DEFENCE LEGISLATION AMENDMENT (WOOMERA PROHIBITED AREA)
BILL 2014
GENERAL OUTLINE
This replacement explanatory memorandum takes into account the amendments to the
Bill, which was introduced into the Senate on 27 March 2014, made in response to the
recommendations of the Senate Standing Committee on Foreign Affairs, Defence and
Trade and consultation with the Government of South Australia.
The Bill gives effect to the recommendations made in the Final Report of the Review
of the Woomera Prohibited Area, released on 3 May 2011.
The Review investigated how to use the Woomera Prohibited Area in a way that
ensured its full national security and economic potential was realised and proposed
that a system be established to improve the co-existence of Defence users and non-
Defence users of the area.
The Review recommended that Defence remain the primary user of the area, but it
acknowledged that exploitation of the Woomera Prohibited Area's considerable
natural resources would likely bring significant economic benefit to South Australia
and the nation more broadly. The South Australian Government has assessed that
over the next decade about $35 billion worth of development including iron ore, gold
and other projects would be possible. Accordingly, the Review proposed that the
Woomera Prohibited Area 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.
Implementation of the Review and operation of the new legislative scheme requires
continuing close cooperation between the Defence and resources portfolios, along
with other Commonwealth agencies, South Australian Government entities and
broader stakeholders.
At the recommendation of the Review, the Woomera Prohibited Area Coordination
Office (WPACO) and an independent Advisory Board were established. The role of
WPACO is to implement the recommendations of the Review and to support the
administration of non-Defence access to the Woomera Prohibited Area, including as
the body responsible for issuing access permits, taking into account the broader
national interests in the area. The Advisory Board monitors and reports on the
balance of national security and economic interests in the Woomera Prohibited Area,
oversees the implementation of co-existence arrangements and fosters strategic
relationships between Defence and non-Defence users through its ability to seek
review of, and make recommendations on, access decisions and permit conditions.
The Board will publish a public report annually on the balance of interests in the
Woomera Prohibited Area and conduct a review of this every seven years.
The Bill establishes a framework that provides all non-Defence users within the
Woomera Prohibited Area and industry more generally with a level of certainty over
Defence activity in the area and allows users to make commercial decisions with
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some assurance as to when they will be requested to leave the area because of
Defence activity. The framework re-establishes the primacy of the WPA as a national
defence asset and sets up a co-existence scheme that allows access by non-defence
users on a conditional basis. These conditions are intended to protect the safety of all
users in the WPA and to ensure the appropriate national security protections for an
area used to test defence capability.
The Bill implements the Review recommendations relating to the management of
access to the Woomera Prohibited Area through three geographic zones - the red,
amber and green zones. Access to the red zone must not be given to new non-
Defence users, the one exception being for a geological survey conducted by the
South Australian Government in collaboration with Commonwealth agencies.
Existing users including pastoralists, Indigenous groups, the Tarcoola -Darwin
railway owner and operators and four existing mining operations in the Woomera
Prohibited Area will continue to operate under their current access arrangements
governed by the Defence Force Regulations 1952. The access regime established by
the Bill will apply to new users of the WPA only.
The WPA contains significant Indigenous sites and local Indigenous groups have
native title rights and interests in most of the area. Permit holders under this
legislation will be required to respect the rights of the local Indigenous groups and
comply with all relevant laws pertaining to native title and the protection of these
sites. Indigenous groups will retain current access rights and will not require separate
permission under this Bill.
The Bill includes the WPA in the defence premises definition in the Defence Act
1903. Accordingly, the powers in Part VIA of the Defence Act will apply to new and
existing non-Defence users of the WPA.
The Bill will insert a new Part VIB into the Defence Act 1903, and amend the
definition of defence premises at subsection 71A(1) of that Act to include the
Woomera Prohibited Area. This declares the Woomera Prohibited Area as a defence
premises for the purposes of Part VIA. Consequently, the powers included in Part
VIA will apply to all non-Defence users of the Woomera Prohibited Area.
In broad terms, the amendments:
Authorise the Minister for Defence to make, by legislative instrument and with
the agreement of the Industry Minister, the Woomera Prohibited Area Rules
prescribing certain matters, including defining the Woomera Prohibited Area,
and the zones to be demarcated within that Area.
Create a permit system for access and use by non-Defence users of the
Woomera Prohibited Area.
Introduce offences and penalties for entering the Woomera Prohibited Area
without permission and for failing to comply with a condition of a permit. An
infringement notice scheme and demerit point system will apply to the offence
for failing to comply with a permit condition.
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Provide for compensation for any acquisition of property from a person
otherwise than on just terms that result from the operation of the new Part VIB
of the Defence Act 1903.
Include a technical provision that provides that any declaration or action taken
under regulation 35 of the Defence Force Regulations 1952 in relation to the
Woomera Prohibited Area is taken to have always been valid.
Provide that the Rules may limit the amounts of compensation payable by the
Commonwealth for loss or damage in the Woomera Prohibited Area arising
from a breach of common law or statutory duty of care in relation to the use of
the area for the testing of war materiel.
The Defence Legislation Amendment (Woomera Prohibited Area) Bill 2014 was
introduced in the Senate in 27 March 2014. The Bill was referred to the Senate
Foreign Affairs, Defence and Trade Legislation Committee (the Committee) for
inquiry and report.
The Government of South Australia raised concerns, in its submission to the
Committee and in the course of consultation, that the Bill amendments to regulation
36 of the Defence Force Regulations 1952 will limit individual's ability to claim
compensation for loss or damage caused by Defence testing in the Woomera
Prohibited Area.
The Committee report tabled on 13 May 2014 acknowledged the concerns expressed
by the SA Government and noted that the Bill amendment regulation 36 `appears
limited compared to the existing regulation 36 which provides a broader scope of
compensation to those persons who `suffer loss or damage' as a result of the use of
regulation 34 and 35'.
The Committee recommended that Schedule 1, Part 2, Item 5 of the Bill be removed
from the Bill or amended to maintain existing rights to compensation under regulation
36 of the Defence Force Regulations 1952.
The amendment addressed the Committee's recommendation and confirmed that
compensation will be available in the event that loss or damage is caused by Defence
testing, or where there is an acquisition of property.
Financial Impact Statement
This Bill creates a system for the administration of access to the Woomera Prohibited
Area (WPA) including a permit system for the different types of non-Defence users of
the WPA. 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.
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The Bill provides that the Woomera Prohibited Area Rules may provide for the
introduction of a cost recovery model, at some point in the future, to recover the
expenses Defence incurs in managing non-Defence access to the WPA.
The estimated $5.0 million annual costs associated with the new administrative
arrangements required through implementing these amendments to enable access to
the WPA will continue to be met from within the existing appropriation to the
Department of Defence.
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DEFENCE LEGISLATION AMENDMENT (WOOMERA PROHIBITED AREA)
BILL 2014
Section 1 - Short title
This clause provides for the citation of the Act as the Defence Legislation Amendment
(Woomera Prohibited Area) Act 2014.
Section 2 - Commencement
This clause provides that the Bill commences on the day after the Bill receives the
Royal Assent.
Section 3 - Schedule
This clause is a formal provision specifying that amendments or repeals are made to
the provisions set out in the sections in the schedule.
Schedule 1 - Amendments
Part 1 - General amendments
Defence Act 1903
Item 1 amends subclause 71A(1) of the Defence Act 1903 to include the Woomera
Prohibited Area, as defined in this Bill (see subsection 72TA), in the definition of
defence premises.
Including the WPA in the defence premises definition will ensure that the powers in
Part VIA of the Defence Act will apply to new and existing non-Defence users of the
WPA.
Item 2 includes the definition of Woomera Prohibited Area in the definitions for Part
VIA - Security of Defence Premises of the Defence Act 1903.
Item 3 inserts a new Part VIB - The Woomera Prohibited Area which sets out the
measures relating to the administration of new non-defence use of the Woomera
Prohibited Area.
Part VIB - The Woomera Prohibited Area
72T Definitions
Clause 72T provides the definitions that apply to the Part.
72TA The Woomera Prohibited Area
Clause 72TA provides that the Rules made under section 72TP may stipulate the area
of land, known as the Woomera Prohibited Area, to which this Part applies. The
Woomera Prohibited Area may only include land that is intended for activities
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relating to the testing of war materiel. The Rules may define different zones within
the Woomera Prohibited Area and prescribe periods of time in relation to the zones,
referred to as exclusion periods, when non-Defence users may be excluded from the
area.
72TB Application of this Part and Part VII of the Defence Force Regulations
1952
Clause 72TB sets out the instances in which Part VII of the Defence Force
Regulations 1952 will continue to apply to the Woomera Prohibited Area, instead of
this Part, after this Part commences.
The Defence Force Regulations will apply in relation to the Woomera Prohibited Area
if a person has authority under Part VII of the Regulations and that authority was
granted before the commencement of this Part. If Part VII of the Regulations applies
to a person, then this Part does not apply to that person.
Subclause 3 provides that a person who has authority under Part VII of the
Regulations may apply for a permit to access the Woomera Prohibited Area under this
Part.
Subclause 4 provides that if a permit is obtained under this Part, that person's
authority under Part VII of the Regulations is revoked to the extent of the permit
under this Part.
72TC Offence - being in the Woomera Prohibited Area without permission
Clause 72TC introduces an offence to be in the Woomera Prohibited Area without
permission if the person is not a member of the Australian Defence Force, the
Secretary of the Department of Defence or an Australian Public Servant in the
Department of Defence. Permission includes any standing permission issued under
clause 72TD, a permit issued under section 72TE or a permission given by the
Minister under section 72TF.
The maximum penalty for committing the offence is 120 penalty units or 2 years
imprisonment, or both.
72TD Standing permission
Clause 72TD provides that the Woomera Prohibited Area Rules may include
provision for a standing permission to be made, which may be subject to conditions
and/or other matters. Standing permissions will enable a free right of access to the
places included in the permission.
72TE Permits
Subclause 72TE(1) provides that the Woomera Prohibited Area Rules may include
provision to issue permits that allow lawful access to the Woomera Prohibited Area.
Subclause 2 provides that, in respect of permits, the Rules may set out:
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purposes for which permits may be issued;
processes for applying for a permit, issuing and renewing permits, suspending
and cancelling permits; and
conditions to which permits are subject.
The issuing of a permit under subsection 1 is not limited by the criteria included in
subclause 2.
72TF Minister's permission
Clause 72TF makes provision for the Minister to give a person permission to be at a
place in the Woomera Prohibited Area. Permission to access the Woomera Prohibited
Area would be granted under this section in instances where it would not be
appropriate for a permit to be granted. Examples of when permission under this
section would be granted are:
to allow emergency access to areas of the WPA,
for dignitaries visiting the WPA, and
for Commonwealth government employees who need to access the area to
perform their duties.
A person must request permission before the Minister may give permission to the
person. Permission issued under this section must be written. Subclause 2 specifies
that permission must identify by name the person to whom the permission applies and
must comply with any requirements prescribed by the Rules. Subclause 3 provides
that the permission may be subject to conditions set out in the permission and
conditions set out in the Rules. Subclause 4 provides that the Rules may prescribe
any other matters the Minister believes is necessary in relation to the permission.
72TG Offence - failing to comply with conditions
Clause 72TG creates an offence for failing to comply with a condition of a permission
issued under clause 72TD, clause 72TE or clause 72TF. This is a strict liability
offence, however, the defence of honest and reasonable mistake of fact may be raised
(Criminal Code Act 1995 section 9.2).
Permit holders are granted access to the Woomera Prohibited Area on a conditional
basis. As the area is used for testing Defence materiel, including weapons, adherence
to permit conditions by permit holders is essential to protect the security of Defence
activities and to protect the safety of all users of the range. Access to the Woomera
Prohibited Area is only possible on a conditional basis and for this reason it is
considered reasonable that breaching a condition of a permission should attract a strict
liability offence. A strict liability offence provides a solid deterrent to breaching
permit conditions and ensures the integrity of the permit regime, which aims to allow
access to the Woomera Prohibited Area by non-Defence users in a safe and secure
manner.
Breaching a permit condition will attract a minor penalty of a maximum of 60 penalty
units. The conditions that will be attached to each type of permit are set out in
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Division 3 of the Woomera Prohibited Area Rules 2014. 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.
72TH Minister may suspend permission
Clause 72TH provides that the Minister may suspend a permission issued under
clause 72TD, clause 72TE and clause 72TF when the Minister considers it is
necessary for the purposes of the defence of Australia; for example, when there is an
urgent national Defence requirement. In such circumstances, the Minister has the
power to remove non-defence users from the Woomera Prohibited Area.
Subclause 2 provides that a suspension of permission must be in writing and made in
accordance with the requirements prescribed by the Rules.
Subclause 3 provides that a suspension under subsection 1 is not a legislative
instrument for the purposes of the Legislative Instruments Act 2003. The suspension
is exempt from the Legislative Instruments Act 2003 because it would be issued in
circumstances where the removal of non-defence users from the Woomera Prohibited
Area was necessary for the defence of Australia; for example, to support an urgent
national Defence requirement. As a suspension would have to be complied with
immediately to have the intended effect, the normal processes for a legislative
instrument would make a suspension unworkable.
72TJ Minister may give directions
Clause 72TJ provides that the Minister may direct a person to do or not do an activity
in relation the Woomera Prohibited Area when the Minister considers it necessary for
purposes of the defence of Australia or to protect the safety of people.
A direction issued by the Minister may order a person to leave a place or an area on
the Woomera Prohibited Area, move or remove property or livestock or secure
buildings.
For example, this power would allow the Minister to evacuate the Woomera
Prohibited Area of non-defence users in situations where evacuation is necessary to
protect the safety of non-defence users.
Subclause 3 provides that the directions listed in subclause 2 are not exhaustive and a
direction issued under subclause 1 may be different to the directions listed in
subclause 2.
Subclause 4 provides that a direction issued under subsection 1 is not a legislative
instrument for the purposes of the Legislative Instruments Act 2003. A direction is
exempt from the Legislative Instruments Act 2003 because it would be issued in
circumstances where non-defence users in the Woomera Prohibited Area must do
certain activities with immediate effect. A direction would be issued to ensure non-
defence activity did not interfere with defence activity in the Woomera Prohibited
Area in, for instance, a time of war, or to protect the safety of non-defence users. As a
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direction would have to be complied with immediately to have the intended effect, the
normal processes for a legislative instrument would make a direction unworkable.
Subclause 5 creates an offence for failing to comply with a direction under subclause
1 when a person is given such a direction. The maximum penalty for the offence is
300 penalty units or 5 years imprisonment. The severe penalty is intended to act as a
strong deterrent, as failing to comply with a direction has the potential to place human
life in danger or prejudice national security. Further, failure to comply with a
direction may delay defence activity at a time of heightened Australian Defence Force
operations or, more significantly, at a time of national emergency when defence
activity at Woomera may need to be intensified.
72TK Compensation for the acquisition of property
Clause 72TK provides that if the operation of the Bill results in an acquisition of
property to which paragraph 51(xxxi) of the Constitution applies, and the acquisition
is otherwise than on just terms, then the Commonwealth is liable to pay a reasonable
amount of compensation to the person whose property is acquired.
Subclause 2 provides that if the Commonwealth and the person cannot agree on a
reasonable amount of compensation, then the person may seek resolution in a court
for the recovery of compensation from the Commonwealth - the amount to be
determined by the court.
72TL Compensation for loss or damage
Clause 72TL provides that the Rules may provide a limit on the amount of
compensation payable by the Commonwealth in respect of loss or damage in the
Woomera Prohibited Area that is caused because of a breach of common law or a
statutory duty of care due to the use of the Woomera Prohibited Area for the purposes
of testing war materiel.
The limit does not apply to loss or damage resulting in death or personal injury.
72TM Review of decisions
Internal review
Clause 72TM provides for an internal review process to allow the Minister to review
decisions made under clauses 72TF, 72TH and 72TJ. A person affected by a decision
made under those clauses may apply in writing to the Minister seeking to have the
decision reviewed. The Minister must review the decision and confirm, vary or
revoke the original decision. The Minister must notify the applicant of the reviewed
decision within 20 days of receiving the person's application.
AAT review
Clause 72TM provides that a person may apply to the Administrative Appeals
Tribunal to review a decision made by the Minister under clause 72TF.
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Decisions made under clauses 72TH and 72TJ are exempt from review by the
Administrative Appeals Tribunal because they are decisions that:
affect the safety of people in the Woomera Prohibited Area and will need to be
complied with immediately, or
affect the defence of Australia; for example, where there is an urgent national
Defence requirement. In such an instance, the Minister for Defence is best
placed to determine use of a national defence asset and review of such a
decision could put national security at risk.
72TN Delegation
Clause 72TN provides that the Minister may delegate, in writing, his or her powers as
follows:
Power Delegation
Clause 72TF To a person who holds a position of
(Minister's permissions) substantive or acting APS6 or equivalent
or higher, in the Department of Defence
or an Australian Defence Force officer
holding the rank of Commander,
Lieutenant Colonel, Wing Commander or
higher.
Clause 72TJ(1)(b) To a person who holds a position of
(Minister may give directions to protect substantive or acting EL2 or equivalent or
human life) higher in the Department of Defence or
an Australian Defence Force officer
holding the rank of Navy Captain,
Colonel, Group Captain or higher.
Clause 72TM To a person who holds a position of
(Review decisions under: substantive or acting SES Band 2 or
- 72TF to give or not give permission equivalent or higher in the Department of
- 72TJ(1)(b) to give directions to Defence.
protect human life)
72TP The Woomera Prohibited Area Rules
Clause 72TP provides that the Minister may make, by legislative instrument, the
Woomera Prohibited Area Rules and that the Rules may prescribe certain matters
required or permitted by the Part or necessary or convenient for carrying out or giving
effect to this Part.
Subclause 2 sets out some of the matters to which the Rules may make provision, but
this list is not exhaustive and matters outside this list may be prescribed in the Rules.
Provision can be made for fees, the review of decisions made under the Part and -
review of decisions made under the Rules.
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Subclause 3 provides that a fee prescribed under paragraph 2(a) must not be such as to
amount to taxation.
The Minister for Defence will agree the Rules with the Industry Minister.
Infringement Notices
Subclause 4 provides that the Rules may provide for an Infringement Notice Scheme
that may apply to the offence at subclause 72TG. This scheme will allow a person to
pay a penalty to the Commonwealth instead of being prosecuted for that offence.
Subclause 5 provides that an infringement notice penalty must not exceed one fifth of
the maximum fine that a court could require a person to pay as a penalty for that
offence.
Demerit points
Subclause 6 provides that the Rules may establish a demerit point system whereby a
person who has permission to be in the Woomera Prohibited Area may have that
permission suspended or cancelled because a certain number of demerit points have
been accrued.
Part 2 - Amendments relating to the operation of Part VII of the Defence Force
Regulations 1952
Defence Act 1903
Item 4 inserts a new section 121A. The new section is a technical provision that
ensures that any declaration or past act taken under regulation 35 of the Defence
Force Regulations 1952 in relation to the Woomera Prohibited Area is taken to have
always been valid. This section is inserted to avoid any doubt on the past
applicability of the Defence Force Regulations to Woomera Prohibited Area which
may arise as a result of the establishment of the new access regime by the Bill.
In order to meet the constitutional requirements to provide just terms compensation,
subclause 3 has been inserted to provide that where the declaration or past act would
be invalid because of an acquisition of property otherwise than on just terms; the
Commonwealth is liable to pay reasonable compensation. In the event that the
Commonwealth and a potential claimant do not agree on an amount of compensation,
a person may institute proceedings in a court for the recovery of reasonable
compensation as determined by a court.
Defence Force Regulations 1952
Item 5 retains regulation 36 of the Defence Force Regulations 1952 in its current
form. This regulation provides an entitlement to compensation where:
a. a person with a legal or equitable interest in any land or water suffers loss
or damage as a result of defence testing, pursuant to regulation 34; or
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b. a person ordinarily resident in a prohibited area suffers loss or damage as
a result of the operation of regulation 35.
In addition regulation 36A is inserted which will ensure that any person whose
property is acquired by the operation of regulation 34 or 35 of the Defence Force
Regulations 1952 will be entitled to just terms compensation.
In the event that the Commonwealth and a person cannot agree on the amount of
compensation, a person may institute proceedings in the Federal Court of Australia or
other court of competent jurisdiction for the recovery of a compensation amount
determined by the court.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Defence Legislation Amendment (Woomera Prohibited Area) Bill 2014
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Defence Legislation Amendment (Woomera Prohibited Area) Bill 2014
establishes a framework for allowing non-Defence users to access the Woomera
Prohibited Area (WPA) at times outside the set `exclusion periods' which allow
Defence to use the area for the testing of war materiel. A permit or permission to
access the WPA will have conditions that must be met by the permit or permission
holder. An offence is introduced for breaching a permit condition, but the conditions
are intended to protect the permit holder's safety and the security of defence activity.
The Bill also sets out appropriate compensation mechanisms for any acquisition of
property resulting from the operation of the Bill to which paragraph 51(xxxi) of the
Constitution applies, where that acquisition is otherwise than on just terms. The Bill
retains a person's right to compensation for loss or damage suffered by a person in the
WPA caused by Defence activity subject to a cap on compensation as set out in the
Woomera Prohibited Area Rules.
The Bill has provision for issuing a standing permission that will allow free right of
access to the Woomera Village and major transport routes in the WPA. The Minister
may also suspend permission or direct permit holders to do an activity, including, but
not limited to, evacuating the area. These provisions are intended to be invoked for
the purposes of the defence of Australia or to protect human life.
Access to the area is currently restricted under the Defence Force Regulations 1952
and people who have existing permissions (existing users) to enter the WPA under
these Regulations will not need permission for access under this legislation. Existing
users include the South Australian Government, indigenous people, pastoralists, the
Darwin-Tarcoola railway owner and operators and some existing mining entities.
The Bill also amends the definition of defence premises at section 71A of the Defence
Act 1903 to include the WPA. This will extend the powers of defence security
officials in that Part to apply to the WPA.
The overall intent of the Bill is to implement a regulatory framework to allow access
to the WPA, which is primarily a prohibited area for defence purposes, so that the
area's economic potential can be realised in addition to it being used for the testing of
war materiel.
Human Rights Implications
The amendments are likely to engage the following human rights:
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Right to Life - Article 6(1) of the International Covenant on Civil and Political
Rights
The right to life provides that countries and agents of the country must not deprive a
person of life arbitrarily or unlawfully. Countries also have a duty to take appropriate
steps to protect the right to life and to investigate arbitrary or unlawful killings and
punish offenders.
The amendment to Part VIA of the Defence Act 1903 - Security of defence premises
- is being proposed so that the powers may be exercised in respect of the WPA. These
powers allow appropriately authorised members of the Australian Defence Force to
use reasonable and necessary force, including lethal force, to prevent the death of, or
serious injury to, a person in connection with an attack on Defence premises. The
powers are subject to strict limitations and are in accordance with the Department of
Defence's objective of enhancing the security of defence bases, facilities, assets and
personnel in response to the changing nature of security threats.
A security authorised member of the Defence Force may use reasonable and
necessary force, up to lethal force, if the member believes that it is necessary to
prevent death or serious injury to themselves or others in taking action to protect
persons from an actual or imminent attack on defence premises. A security authorised
member of the Defence Force may use reasonable and necessary force, up to lethal
force, against a person who is attempting to escape being detained by fleeing only if
the person has first been called on to surrender and the member believes on
reasonable grounds the person can not be apprehended in another manner. Only a
security authorised member of the Defence Force - which is a particular, specially
trained class of defence security official - may exercise force likely to cause death or
serious injury under Part VIA of the Defence Act 1903.
The right to life includes a duty on governments to take appropriate steps to protect
the right to life of those within its jurisdiction and to investigate arbitrary or unlawful
killings and punish offenders. The measures in Part VIA are appropriate as they only
authorise reasonable and necessary force in limited circumstances and by authorised
and appropriately trained personnel. A security authorised member of the Defence
Force who exercises the powers outside of the limits imposed by Part VIA outside of
the limits imposed could be investigated and prosecuted under relevant State or
Commonwealth law.
Security of the Person and Freedom from Arbitrary Detention - Article 9 of the
International Covenant on Civil and Political Rights
The right to personal liberty requires that persons not be subject to arrest and
detention except as provided for by law and provided neither the arrest or detention is
arbitrary. Under Part VIA a suitably qualified defence security official may restrain
and detain a person if:
a person refuses an identification or search request; or
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the defence official reasonably believes that the person is not authorised to be
on the premises or constitutes a threat to the safety of persons on the premises,
or has or may commit a criminal offence in relation to the defence premises.
Additionally, section 72M provides that security authorised members of the Defence
Force may use a dog to assist with the conduct of searches and other functions and
powers under Part VIA. This includes a power to restrain and detain a person, remove
a person from defence premises or arrest a person under 72P (which deals with
trespass). Section 72 provides that a member of the Defence Force, a civil police
officer or an Australian Federal Police protective service officer may, without
warrant, arrest a person for unauthorised entry on defence premises or
accommodation.
Under Part VIA, detention is lawful in certain circumstances and the provisions
outline the circumstances to be satisfied to ensure detention is not arbitrary.
Freedom of Movement - Article 12 of the International Covenant on Civil and
Political Rights
The right to freedom of movement includes the right to move freely within a country
for those who are lawfully within the country. The Bill places restrictions on who
may enter the WPA, thereby limiting the right to move freely within a country. The
WPA is a large area of land located in remote northern South Australia. The Bill
introduces an offence for a person who is not a member of the Australian Defence
Force, an Australian Public Service employee of the Department of Defence or the
Secretary of Defence to be in the WPA without permission.
Limiting the right to freedom of movement is reasonable and necessary as the
legislative measures are intended to protect national security and human safety. The
WPA is used by Defence for activities relating to the testing of war materiel, the
conduct of which could endanger human life should people be in the WPA while an
activity is taking place. Therefore, freedom of movement is limited to allow the
Government to undertake activity necessary to maintain a modern defence force and
protect national security, while also allowing non-Defence users to safely access the
WPA to realise the area's economic potential.
The Bill provides the Minister with the power to suspend a permission to be on the
WPA, and to direct people with permission to leave the WPA. These powers are
intended to ensure that non-Defence users can be evacuated from the WPA in a time
of national emergency to allow the area to be used for national defence purposes. The
powers are intended to be used for the purposes of protecting national security or to
protect human safety, for example to be able to evacuate the WPA when a defence
activity suddenly and unexpectedly poses a threat to those in the area.
The Bill provides that a person may seek a review of a decision by the Minister to
allow or refuse access to the WPA by way of an internal review process and/or review
by the Administrative Appeals Tribunal.
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Presumption of Innocence - Article 14(2) of the International Covenant on Civil
and Political Rights
The right to the presumption of innocence provides that everyone charged with a
criminal offence shall have the right to be presumed innocent until proved guilty
according to law. It imposes on the prosecution the burden of proving a criminal
charge and guarantees no guilt can be presumed until the charge has been proven
beyond reasonable doubt. The Bill contains offences that apply strict liability or a
`reverse burden', which amount to a limitation on the presumption of innocence.
Clause 72TG of the Bill provides a strict liability offence to fail to comply with the
conditions of a permission to enter the WPA. The offence carries a relatively low
penalty of 60 penalty units and does not impose imprisonment. The defence of honest
and reasonable mistake of fact may be raised as per the Criminal Code Act 1995
section 9.2. A permission issued under the Bill will clearly state the conditions with
which the permit holder must comply and the potential consequences of non-
compliance. Permission holders will be clearly informed that their access to the WPA
is conditional and that failure to comply with the conditions will be an offence of
strict liability. The intention of the conditions will be to protect those accessing the
WPA (for example, reporting the discovery of war materiel) as well as protecting the
security of Defence activity in the area (for example, a permission holder must not
enter any cordoned off area). The imposition of a strict liability offence is appropriate
because it is likely to significantly enhance the effectiveness of the enforcement
regime in deterring a breach of conditions - conditions that are intended to protect the
safety of permission holders and the security of defence activity in the WPA.
Clause 72TC provides an offence to be in the WPA without permission if a person is
not a member of the Australian Defence Force, an APS employee of the Department
of Defence or the Secretary of the Department of Defence. The offence places an
evidential burden on the defendant to prove that he/she had permission under one of
clause 72TD, clause 72TE or clause 72TF. The shift of the evidential burden of proof
is justified because it is clearly more practical and less burdensome for the accused to
prove that he/she had permission than for the prosecution to prove that he/she did not
have permission. That is, a person can easily show evidence of permission to be in the
WPA and in doing so the issue is resolved without the involvement of the police or
prosecution.
In these circumstances, reversing the onus of proof is practical and not burdensome.
Protection from arbitrary and unlawful interferences with privacy - Article 17
of the International Covenant on Civil and Political Rights
Article 17 accords everyone the right to protection against arbitrary or unlawful
interference with privacy.
Enforcement Powers
Division 3 of Part VIA of the Defence Act 1903 contains powers to request
information or request permission to search a person, vehicle, vessel or aircraft. The
powers are intended to prevent or reduce the risk of unauthorised entry to defence
17
premises (including the WPA), to detect and deal with trespassers and to prevent or
reduce the risk of dangerous items entering defence premises or material being
unlawfully removed.
Defence security officials must not exercise the powers unless they have produced an
identity card for inspection by the person of whom the request is made and unless
they have informed the person of the consequences of any refusal to comply with a
request. If a person refuses consent, the defence security official may refuse to allow
the person, vehicle, vessel or aircraft to pass a defence access control point. Even if a
person consents, access may still be refused if the defence security official reasonably
believes the person, vehicle, vessel or aircraft is not authorised to pass the access
control point, constitutes a threat to the safety of persons on the defence premises, or
has committed, or may be used in the commission of a criminal offence on, or in
relation to, the defence premises. The defence security official may also restrain and
detain the person. This is a limited power for the purpose of placing the person, at the
earliest practicable time, in the custody of the a member or special member of the
Australian Federal Police, a member of the police force of a State or Territory or
protective service officer.
Defence security officials may request a person who is on defence premises to
provide evidence of their name, residential address and authority to be on the defence
premises in circumstances where he or she reasonably believes that the person is not
authorised to be on them. Defence security officials are authorised to restrain and
detain a person where the person refuses the request or where the defence security
official forms a reasonable belief as set out above.
It is an offence for a defence security official to conduct a limited search of a person
or vehicle, vessel or aircraft under Division 3 of Part VIA if the person did not
consent to the search.
Division 4 of Part VIA contains powers which specially trained (special) defence
security officials can be exercised without consent. The powers operate when a
person, vehicle, vessel or aircraft is on defence premises or about to pass an access
control point. The powers under Division 4 are the same as those in Division 3 but are
framed as requirements rather than requests. If a person refuses to comply with the
requirements, or hinders or obstructs a search, or the security official reasonably
believes the person does not have authority or has a malicious intent, the special
defence security official may refuse to allow the person, vehicle, vessel or aircraft to
pass the access control point. Additionally, the special defence security officer may
restrain and detain a person, or request that they leave the defence premises. If the
person refuses to leave the special defence security official may remove the person.
A special defence security official may use `such force against a person or thing as is
reasonable and necessary' in exercising the powers under Part VIA. The limitations
on `reasonable and necessary' force are that:
a defence security official must not subject the person to greater indignity than
is `reasonable and necessary'; and
18
a defence security screening official or a contract defence security guard must
not do anything that is likely to cause the death of, or grievous bodily harm, to
a person.
The enforcement powers in Part VIA are intended to protect the lives of those who
work and live on defence premises, as well as protecting national security
information, equipment and capability stored on defence premises. The powers may
only be used in the maintenance of these objectives.
Ministerial Directions
Clause 72TJ of the Bill provides that the Minister may issue a direction to do, or not
do, specified things in relation to the WPA for the purposes of the defence of
Australia or to protect human life. The direction may include, but is not limited to, a
direction to leave a place or an area, move or remove property and livestock, and to
secure buildings.
A number of pastoralists live in residential houses in the WPA, and while a clause TJ
direction would not currently apply to an existing pastoralist, a future holder of a
pastoral lease may be affected. It is also possible that the Woomera Village, which is
located in the WPA, may need to be evacuated.
Clause 72TJ is intended to be used for the purposes of the defence of Australia or to
protect human life in the WPA. For instance, if a Defence activity unexpectedly and
suddenly posed a risk to the life of those on the WPA, the Minister would issue a
direction to evacuate the WPA. In this instance the right would be limited only to
protect life or because the WPA was needed for defence purposes in a national
emergency situation.
Right to security of the person and freedom from arbitrary detention - Article 9
of the International Covenant on Civil and Political Rights
Section 72P authorises a member of the Defence Force, a member or special member
of the Australian Federal Police, a protective services officer or a member of the
police force of a State or Territory to arrest a person, without warrant, if the member
reasonably believes that the person is on defence premises or accommodation and is
not authorised to be there. The power of arrest in this section is limited by section
72K in that if a member arrests a person under section 72P, he or she must bring the
person to a member of the Federal, State or Territory police force as soon as
practicable after the arrest.
The right to enjoy and benefit from culture - Article 27 of the International
Covenant on Civil and Political Rights
The right to enjoy and benefit from culture is contained in Article 27 of the
International Covenant on Civil and Political Rights (ICCPR) and Article 15 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR). Article
27 of the ICCPR protects the rights of individuals belonging to minorities within a
country to enjoy their own culture. Article 15 of the ICESCR protects the right of all
persons to take part in cultural life.
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The United Nations Human Rights Committee has stated that culture can manifest
itself as a particular way of life associate with the use of land resources, especially in
the case of Indigenous peoples, which may include such traditional activities as
fishing or hunting and the right to live on lands protected by law.
The United Nations Committee on Economic, Social and Cultural Rights has stated
that Indigenous peoples' cultural values and rights associated with their ancestral
lands and their relationship with nature should be regarded with respect and
protected.
The Bill has not altered the rights of Indigenous people to access their traditional
lands in the Woomera Prohibited Area. Clause 72TB clarifies the pre-existing rights
under the Defence Force Regulations 1952 for specified Indigenous people; or
someone employed, engaged by, or acting for, or on behalf of those people; or
someone accompanied by those people, to continue to access their traditional lands in
the Woomera Prohibited Area. Additionally, all new non-Defence users of the
Woomera Prohibited Area must comply with all relevant laws, including those related
to Indigenous land and sites, as a condition of access.
Conclusion
The provisions of the Bill engage a number of human rights and do so in order to
allow a prohibited defence area to be used for non-defence purposes in a manner that
protects the safety of the non-defence users and maintains the necessary security for
carrying out activities for defence of Australia purposes. To the extent that it may limit
human rights, those limitations are reasonable, necessary and proportionate.
David Johnston
Minister for Defence
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Regulation Impact Statement - Implementation of
Non-Defence User Management Arrangements for the
Woomera Prohibited Area
Introduction
A review to make recommendations about the best use of the Woomera Prohibited
Area (WPA) in the national interest was announced by the then Minister for Defence
in May 2010 (Review into Security and Economic Interests in the Woomera
Prohibited Area). The review was established in response to increasing demand for
access to the WPA by the resources sector and the challenge this posed to Defence
activity. The review was led by Dr Allan Hawke AC, supported by a small inter-
departmental secretariat.
The review consulted extensively to obtain the views of individuals and groups that
had an interest in the future use of the WPA. The final review report was released on
4 February 2011 and made a number of recommendations aimed at improving the co-
existence of the various parties that had an interest in the WPA. The focus of the
recommendations was to improve the management of the WPA in a way that would
meet Defence's testing requirements while also creating conditions to make it
commercially viable for other sectors, particularly resources, to invest in operations in
the WPA.
The then Government agreed to the implementation of the Hawke Review
recommendations for management of non-Defence use of the WPA via three phases: a
moratorium on access for a period while new management arrangements were
established, a transition phase based on standard deeds of access and a final legislated
permit system.
The transition phase is currently operating.
Draft legislation to implement the final phase in the form of the Defence Legislation
Amendment (Woomera Prohibited Area) Bill 2014 was introduced into the last
Parliament, but lapsed when Parliament was prorogued.
A RIS was not conducted for this previous bill as the then Prime Minister granted an
exemption on the basis of exceptional circumstances from the RIS requirements for
the Government's response to the Final Report of the Review of the Woomera
Prohibited Area (Hawke Review) in 2011.
Background to the WPA
The Woomera Prohibited Area (WPA) is a globally unique military testing range. It
covers nearly 124,000 square kilometres in north-west South Australia, approximately
450 kilometres NNW of Adelaide. It is the largest land range in the world,
comparable in size to England, with a centre line of over 600 kilometres. The WPA's
size, remote location and quiet electromagnetic environment make it an ideal test and
evaluation site for Australia and its allies and partners.
21
The WPA was established in 1947 as a long-range weapons testing facility by the
United Kingdom and Australia under the Anglo-Australian Joint Project, which
wound down during the 1970s. The use of the WPA by Defence declined during the
1980s and 1990s and it was opened up to non-Defence users including the resources
sector. Changes in the strategic environment since the late 1990s have resulted in an
increasing requirement for access to WPA facilities for the testing and evaluation of
weapons systems. The range is now, in parts, in near constant use. The South
Australian Government advised the Hawke Review that the Woomera Test Range
contributes around $16 million (at 2007-08 prices) a year to the SA economy. The
overall value to the Australian community of testing activity is difficult to value.
Existing regulation
The WPA was most recently declared a Prohibited Area under the Defence Force
Regulations 1952 (DFRs) on 12 July 1989 for the `testing of war material' under the
control of the Royal Australian Air Force. Under Regulations 34 and 35 of the DFRs
the Commonwealth has the authority to control access to the WPA and place
conditions on access to protect persons, property and official secrets. This provides
the authority for the existing test range management arrangements, which include the
deeds of access issued since the moratorium period ended on 5 October 2012.
Competing interests in the WPA
The majority of the WPA is South Australian Crown land and is covered by pastoral
leases and resources tenements granted by the South Australian Government.
Additionally, several other groups other than Defence have an interest in the WPA.
Managing access by non-Defence parties to a weapons testing range comes with a
high level of risk. Working or residing on a weapon testing range presents significant
safety issues that need to be carefully managed, and Defence needs to prevent
unauthorised people from being able to witness or access testing activities or
equipment for security reasons. To ensure these risks are properly managed, non-
Defence users need to be certain of their responsibilities, and Defence requires
adequate authority to enforce conditions of access.
Prior to the Hawke Review, access to the WPA was granted to non-Defence users on
an ad hoc basis. Indigenous groups and pastoralists had an established presence on the
WPA before it was declared a prohibited area. The WPA is of cultural and spiritual
significance to several Indigenous groups and Indigenous people regularly access the
range with Defence's permission. There are currently 26 pastoral leases, issued by the
South Australian Government, in the WPA. Details of pastoralist activities that impact
on Defence's use of the range are shared with Defence and factored into Defence's
testing schedule. Defence excludes pastoralists from areas of their leasehold and
Indigenous people from the WPA for specified periods so it can carry out testing
safely and securely.
Four mines - Prominent Hill, Challenger, Cairn Hill and Peculiar Knob - operate in
the WPA and key transport infrastructure, including the Stuart Highway and the
Adelaide to Darwin railway, bisect the WPA.
22
The WPA is highly prospective and the South Australian Government estimated at the
time of the Hawke Review that more than $35 billion in developments - iron ore, gold
and uranium projects - could be possible over the next decade. The south-east corner
of the WPA hosts the same geological providence as the adjacent Olympic Dam mine
(the world's largest uranium deposit) and could potentially be one of the most
prospective areas in Australia.
The resources boom (in particular, rising resources prices up until 2011) prompted
increasing interest in the resources potential of the WPA. This coincided with the
increasing Defence use of the WPA for war materiel testing. Although resources
prices have begun falling they are still at relatively high levels as is demand,
historically, so resources sector interest can be expected to continue in the immediate
future, if at slightly dampened levels.
The presence of unauthorised people in the WPA where weapons testing is taking
place gives rise to public safety and national security issues. The Hawke Review
addressed how to manage the potentially competing national security and economic
interests in the WPA.
Administration of the WPA since the Hawke Review
The Final Report of the Hawke Review was accepted by the then Government in May
2011. The Woomera Prohibited Area Coordination Office (WPACO) was set up in
the Department of Defence. Since the moratorium ended in October 2012, WPACO
has implemented the recommendations of the Hawke Review, under the authority of
the DFRs, through an administrative regime of deeds of access for resources
companies and permits for opal miners and tourists. This period since the moratorium
is known as the transition phase and continues to operate today.
Users that had permission to access the WPA before the acceptance of the Hawke
Review - the South Australian Government, Indigenous groups, pastoralists, rail
owners and operators, and the four existing mines - continue to access the WPA
under these permissions and there is no requirement for them to transition to the
proposed new arrangements, although they can choose to opt in.
The Review recommended introducing a comprehensive range management
framework to increase use of the WPA in Australia's national interest by better
balancing national security and economic interests. Several measures were
recommended to improve administration of the range and to provide non-Defence
users and potential users with a greater level of certainty regarding their access rights
and responsibilities while operating within a prohibited area.
Defence has implemented a number of administrative changes to the way it manages
the range to better meet the needs of non-Defence users including:
Developed, in consultation with the resources sector, a standard deed of access
for exploration activity in the WPA. The deed is publicly available and can be
accessed at http://www.defence.gov.au/woomera/docs/Deed-of-Access-
template.pdf.
23
Developed standard permits for opal mining and tourist activities.
Divided the WPA into four zones, allocated each zone a maximum period in
which Defence may conduct testing and set out the notification requirements
for Defence use of each zone. This provides non-Defence users forewarning
about when they will be required to evacuate the range due to Defence testing.
The zones and Defence time allocation for each zone are as follows:
1. A red zone in the south-east corner of the WPA to be reserved for
continuous and exclusive Defence use (apart from existing pastoral leases).
2. An amber zone 1, which would provide a buffer zone around the red zone
where co-existence would occur subject to a high level of Defence use
(Defence use can take place for up to 140 days a year in blocks of seven
days duration, during these times new non-Defence users will need to
evacuate completely).
3. An amber zone 2, which would provide a corridor for long range Defence
testing extending from the red zone to the north-west corner of the WPA,
but also subject to co-existence (Defence use can take place for up to 70
days a year in blocks of seven days duration).
4. A green zone, which would comprise the remainder of the WPA and
would be subject to only occasional Defence use of up to 56 days each
year. Six months notice of any exclusion period would be given for non-
Defence users with a permanent presence in the WPA.
Part of the comprehensive range management framework recommended by the
Hawke Review was to provide non-Defence users with access to the WPA through a
permit system with conditions that could be enforced through an offence and penalty
regime. Such a scheme would require a legislative basis. The Hawke Review stated
that a legislative scheme would provide non-Defence users with certainty around their
access rights and responsibilities and would provide Defence with the certainty it
needs to enforce access conditions to ensure the safety and security of testing
activities.
Problem
Under authority provided for by Regulations 34 and 35 of the DFRs, Defence has
established a more comprehensive range management regime by improving its
administration practices. This has provided non-Defence users with a greater level of
certainty around their ability to access and use the WPA than previous arrangements.
However, due to the current administrative nature of Defence's range management
procedures, non-Defence users are still seeking longer-term increased certainty,
through legislation, of these arrangements.
Given the scale of investment and the period of operation of mines, the resources
sector in particular requires long-term certainty around its ability to access the WPA
and the conditions attached to that access. Without this certainty around the
conditions of access, it is difficult for the resources sector to justify the high level of
investment required to conduct mining or other activity in the WPA. Indeed, in
24
submissions to the Senate Inquiry into the lapsed bill, Arrium Mining submitted the
following:
First, Arrium strongly supports this proposed new scheme to regulate access to, and
coexistence within, the WPA. It is Arrium's submission that this legislation-based scheme is
characterised by the following major advantages:
it strongly implements the co-existence principles of the Hawke Report, including a
conditional presumption of access to the WPA for non-Defence users (see Section 17
of the Rules);
it has high levels of transparency about the issue of access to the WPA which is very
positive for investment confidence and perceptions about regulatory certainty;
it is a scheme that has a high level of flexibility which enables the multitude of
stakeholders and circumstances in the WPA to be managed appropriately and on a
case-by-case basis; and
it contains thorough merits review mechanisms which should help ensure that the
inherent, but reasonable, flexibility of the scheme can always be tested (if necessary)
to ensure that it is being administered reasonably in all the then-current
circumstances.
(source:http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defence_and_Trade/Completed_in
quiries/2010-13/woomera2013/submissions)
All resources companies that currently have a known interest in the WPA have been
consulted throughout the Review and legislation development process. Submissions
from these companies have not raised any concerns around the implementation of the
legislative framework. Feedback from the resources sector has been supportive of a
legislative scheme, particularly as it provides a greater level of regulatory certainty
and introduces a merits review mechanism for decisions made that impact on the
sector.
Objectives
The overall policy objective is to maintain an effective Defence testing facility while
accommodating economic interests in the WPA. The objective is to provide increased
certainty and transparency for non-Defence users regarding conditions of their access
to the WPA, particularly to support significant long-term investment, while also
protecting national security and public safety.
Options
This RIS assesses the relative merits of two options for implementing the
recommendations of the Hawke Review. The first option is to retain the range
management arrangements as administrative procedures under the authority of the
DFRs, which is the status quo. The second option is to proceed to introduce these
arrangements as legislative provisions along with appropriate enforcement
mechanisms.
Option 1 (Status quo option) - Non-Defence access to WPA managed
administratively under authority of Defence Force Regulations 1952
Non-Defence access to the WPA is granted on a case-by-case basis according to
Defence's ability and requirement to monitor compliance with access conditions.
25
Permission for access is granted either by a standardised deed of access or a permit,
depending on the activity the user wants to undertake. The only exception is a deed of
access for mining, which is not standard and is negotiated with each company.
The DFRs contain enforcement powers and offence provisions including:
a power to remove a person from the WPA who does not have permission;
an offence to be on the WPA without authority; and
an offence to breach a condition of an authority granting access to the WPA.
Option 2 (Legislative option) - Non-Defence access to WPA managed under a
permit and enforcement system set out in legislation
Option 2 provides for management of non-Defence access to the WPA through a
legislated permit and enforcement system. This would be implemented through
legislation, including statutory rules.
The proposed bill would:
Authorise the Minister for Defence, with the agreement of the Minister for
Industry, to make, by legislative instrument, the WPA Rules prescribing
certain matters, including defining the WPA, and the zones to be demarcated
within that Area.
Create a permit system for access and use by non-Defence users of the WPA.
Declare the WPA as a defence premise. Consequently, the powers included in
Part VIA will apply to the WPA. This means Defence will have powers to
refuse entry, stop and search persons and vehicles entering or in the WPA,
remove persons from the WPA and seize things within the WPA.
Introduce offences and penalties for entering the WPA without permission and
for failing to comply with a condition of a permit. An infringement notice
scheme and demerit point system will apply to the offence for failing to
comply with a permit condition.
Provide for compensation for acquisition of property from a person otherwise
than on just terms in the application of Part VIB of the Bill.
Provide for compensation for loss or damage suffered by a person who has
permission to be on the WPA caused by negligent use of the area for Defence
purposes.
The proposed rules would provide for the detailed arrangements to give effect to the
proposed bill, including prescribing an area as the WPA and the provision for zones
and exclusion windows limiting access to new non-Defence users within those zones.
The access arrangements proposed within the rules reflect the recommendations of the
Hawke Review and, for the resources sector, are based on those developed for the
Minerals Exploration Deed of Access, providing long-term certainty for non-Defence
users of the WPA.
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The draft rules would also provide for:
the process to obtain and renew permission to be at a place within the WPA;
the process by which permits may be subject to suspension or cancellation
including the ability for a permit holder to have the Minister for Defence
review a decision in relation to a cancellation of a permit;
the Secretary of the Department of Defence to be able to appoint people to be
authorised officers to give infringement notices;
demerit points which may be incurred when a person pays the penalty
contained in an infringement notice or is convicted or found guilty of an
offence; and
a cap on compensation payable to a person for loss or damage suffered in the
Woomera Prohibited Area, not resulting in death or personal injury, of
$2 million.
Summary of main requirements by user group:
User group (new users) Option 1 Option 2
Resources companies For a new mine, a Mining and production
negotiated deed of access permit required and
required and conditions conditions apply.
apply.
Approval required for all
Approval required for all personnel.
personnel.
Approval required for any
Approval required for any specific period of access.
specific period of access. Notification of changes of
Notification of changes of circumstances, eg
circumstances, eg ownership/control
ownership/control
Opal/precious stones Access permit required Access permit required
miners and prospectors and conditions apply. and conditions apply.
Approval required for any Approval required for any
specific period of access. specific period of access.
Tourists and tourism Access permit required Access permit required
operators (to use other and conditions apply. and conditions apply.
than specified roads)
Environmental, etc Deed of access required Permit required and
researchers and conditions apply conditions apply.
Existing non-Defence users of the WPA - Indigenous groups, pastoralists, rail owners
and operators and the four existing mines - will retain their existing permissions and
continue to access the WPA under the provisions contained in the DFRs. The
proposed bill provides that these existing groups would be exempt from the
application of the proposed legislation.
Minor amendments to the DFRs are proposed to include a change of control provision
to require Ministerial consent for any transfer of ownership or change in the
27
ownership of the shares of the company. This would apply where a change in
ownership would result in a controlling interest in the company being held by a
person other than the present holder of such an interest.
This requirement for businesses is of minor and machinery nature and would not
represent a significant cost to businesses - that is, any cost associated with complying
with this requirement would be significantly below $1,000.
Impact Analysis
From the table above, it is clear that the requirements on users to comply with either
option 1 or 2 are very similar. This is because the regulatory requirements are similar
- what this proposal is seeking to do is not impose additional requirements on non-
Defence users of the WPA, but rather to provide a more certain basis for the
administrative procedures that are currently in place. The overall objective is to
provide non-Defence users with a greater level of long-term certainty around their
access to the WPA, and the conditions attached to that access.
Regardless of whether option 1 or 2 is taken, there are going to be compliance costs
associated with allowing non-Defence access to a prohibited area used for weapons
testing. Having conditions placed on non-Defence users' access is necessary in any
circumstance to ensure safety of people and security of Defence activity. The aim is
to ensure that all users - Defence and non-Defence alike - have the greatest level of
certainty around these access conditions.
Option 2 offers businesses involved in mining an overall cost saving as applying for a
mining production permit will cost substantially less than negotiating an individual
deed of access, which is the current requirement. Saving would be made through a
reduction in the time and administration involved in applying for and receiving a
permit, compared with negotiating a deed of access.
An estimate has been included of the likely reduction in time and resources involved
in negotiating access to the WPA in Option 2. Defence estimates a cost to individual
companies of $174,000 as an upfront cost to negotiate a deed of access for mining
production. It is estimated that applying for a permit, which involves completing a
standard form, would be a minor cost (Defence has estimated $500). This estimate
takes account of the fact that Option 2 provides a set timeframe for Defence to
determine the application, whereas negotiating a deed of access for mining would take
a longer period of time as Defence would be involved earlier and for longer in the
process. Having the set period for determining a permit application would reduce
costs from delays in decision making for applicants.
For the purposes of costing the options, Defence has assumed that four new mines
might begin operation in the WPA over the next decade. This assumption has been
estimated from the past decade in which three mines opened in the WPA. Defence has
estimated that with the improved access arrangements provided for in the proposed
legislation there would be a 25% increase in active mining operations in the area in
the first decade. This estimate is made factoring in the long lead time involved in
mining investments and the increase in mining over the last 10 years. The estimated
28
increase of 25% in the next 10 years is subject to the economic conditions in the
mining sector.
Costs for other groups, including opal miners, environmental groups, tourists and
other recreational users would remain the same as the requirements for these groups
under each option are the same. Under both options 1 and 2, these groups would be
required to apply for a permit to access the WPA.
Impact groups
The main groups affected by the options are:
Business: mineral and energy resources companies (both exploration and
mining companies), opal miners.
Government: Defence, as both the principal user of the WPA and the
administrator of the access arrangements.
Community: tourists, other recreational users.
Option 1 - Benefits
The benefits of continuing the current administrative management of non-Defence
access to the WPA are:
Business
Defined periods, under administrative arrangements, when non-Defence users
might be excluded from the WPA, and forward notification about the timing of
the exclusion periods.
Certainty over conditions of access, which are included in the deed of access
or the permit depending on the type of user.
Government
Provides Defence with a timetable for when it may conduct testing activity in
the WPA.
Although not the intent, in theory, Defence retains more flexibility to alter the
exclusion period timetable if required as it is an administrative process only
(that is, there is no legal requirement for Defence to have exclusion periods or
give notification about when they will occur).
Community
Provides opal miners, environmental groups, tourists and other recreational
users with forewarning about the WPA exclusion periods for Defence activity.
Option 1 - Costs
The costs of continuing the current administrative management of non-Defence access
to the WPA are:
29
Business
Negotiating a mining deed of access is the one area where a cost will be
different between the two options as there will be an up-front cost to negotiate
the deed under Option 1 (Option 2 is a standard permit). In consultation with
the South Australian Department of Manufacturing, Industry, Trade,
Resources and Energy, Defence estimates that it will involve a team of mining
specialists and lawyers. We estimate the costs to be approximately $174,000,
which is based on the following:
Costs to negotiate a deed of access for mining production in the WPA
Service Daily Number Total
Rate of Days
Mining expertise $2,400 20 $48,000
(a geotechnical
engineer and
assistant technical
support)
Legal: partner $4,800 15 $72,000
Legal: senior $2,700 20 $54,000
associate
Total $174,000
The conditions of all other deeds of access are not negotiable and are publicly
available in a template; however, business remains concerned that Defence
may change the conditions of the template deed for future non-Defence users,
theoretically without consultation with potential users, and this presents a
potential risk of unknown additional costs.
Being a contractual arrangement, businesses have no right of review for
decisions made by Defence in relation to access, as they would under option 2.
Although the exclusion periods are currently notified by Defence with
forewarning, the requirement for the exclusion periods and the notification
timeframe are administrative processes only and so there is less certainty in
the arrangements. Without a legislative basis, it is more difficult for business
to make significant long-term investments in the WPA.
Government
It is expected to cost more to administer a deed of access for mining than a
resources production permit, due to the cost to the Australian Government to
have legal negotiators.
There is no administrative enforcement scheme to manage compliance with
access conditions. All non-compliance must currently be dealt with through
the courts, which is an expensive and resource-intensive process.
30
Community
Applying for a permit has a minimal time cost for opal miners, environmental
groups, tourists and other recreational users. There would be no financial cost
to submit an access application.
Option 2 - Benefits
The benefits of implementing non-Defence user access arrangements to the WPA in
legislation are:
Business
The exclusion periods and notification periods would be set out in legislation -
giving business greater investment certainty on the legislated exclusion
periods and notification deadlines.
Conditions of an access permit are set out in legislation - any amendment to
the conditions would need to go through normal Parliamentary processes,
including consultation with affected groups.
The proposed legislation contains a right of review - both internal review by
the Minister for Defence and external review by the Administrative Appeals
Tribunal - for many decisions that can be made under the proposed legislation.
This provides business with avenues to appeal decisions not favourable to it.
A defined enforcement scheme for compliance with conditions will provide
greater certainty of outcomes than the current court-based approach.
It is expected that applying for a permit may cost business less than entering
into a deed of access.
Government
Reduces administrative effort associated with negotiating and executing
individual deeds.
Provides an administrative enforcement scheme for compliance with
conditions by non-Defence users. This offers a more efficient and defined way
of managing compliance than the court system (particularly for minor
breaches). A defined scheme to manage non-compliance is expected to result
in better adherence by non-Defence users to their access conditions, increasing
safety and security of all users and minimising potential disruption to Defence
activity.
Community
Provides opal miners, environmental groups, tourists and other recreational
users with forewarning about the WPA exclusion periods for Defence activity.
Option 2 - Costs
The costs of implementing non-Defence user access arrangements to the WPA in
legislation are:
31
Business
Applying for a permit, in an approved form; although these costs are expected
to be less than entering into a deed of access.
Government
Managing an administrative enforcement scheme would likely cost more than
one that relies only on the court process, due the amount of administrative
effort involved.
Community
Applying for a permit would have a minimal time cost for opal miners,
environmental groups, tourists and other recreational users. There would be no
financial cost to submit an access application.
Consultation
Defence has prepared a single-stage RIS for this proposal as the legislation introduced
into the previous parliament lapsed with the 2013 election. As no decision had been
previously announced by the current Government an options-stage RIS is not
required. It is also noted that extensive consultation on the proposal was undertaken
prior to the introduction of the legislation into the previous Parliament, with a
summary provided below.
Hawke Review
The Hawke Review team consulted extensively with stakeholders to obtain the views
of individuals and groups with an interest in the WPA, including representatives from
the South Australian Government, the Australian Government, the resources industry,
pastoralists, Indigenous groups, the Woomera community, and Defence and its
international partners. The secretariat advertised nationally inviting interested parties
to make a submission to the review and maintained a public website.
Twenty five submissions were received from a range of contributors in addition to
input from the South Australian Government and key Australian Government
stakeholders. Key themes that emerged from the submissions were the importance of
the WPA to a variety of users, the amount invested by industry groups and Defence,
the differing approaches to managing non-Defence users' access and the challenges
involved in communicating requirements and expectations between user groups.
The Review's analysis of the key themes and preliminary observations arising from
the consultations and submissions are contained in the Review's Interim Report which
can be accessed at:
http://www.defence.gov.au/woomera/review/papers/WoomeraInterimReport.pdf.
The Interim Report identified the requirements of WPA user groups, assessed the
extent to which these requirements were being met, and proposed mechanisms to
support better co-existence. It concluded that introducing a comprehensive range
management framework would increase use of the WPA in the national interest by
32
better balancing national security and economic interests. Public comment was sought
on the Interim Report before recommendations were finalised for inclusion in the
Final Report, which can be accessed at:
http://www.defence.gov.au/woomera/review/papers/WoomeraFinalReport.pdf.
Three organisations provided written comment on the Interim Report.
Consultation on the proposed legislation
As part of the public consultation process, an information paper on the proposed
legislative framework for the WPA was released and distributed widely to
stakeholders and interested parties in April 2013. The paper provided a general
overview of the policy framework proposed for implementation in the legislative
package. Concurrently, the draft bill was developed and referred to Australian
Government and South Australian Government stakeholder agencies for review and
comment, with proposed amendments being incorporated where appropriate.
The proposed legislation built upon the consultation activities that occurred during the
conduct of the Hawke Review in 2010-2011, together with the public consultation
regarding the Minerals Exploration Deed of Access developed during the moratorium
period in 2012. The then Ministers for Defence and Resources and Energy released an
exposure draft of the bill for stakeholder and other public consultation on 8 May
2013. The draft was also brought to the attention of all other identified stakeholders
and interested parties, and published on the WPACO website.
The South Australian Government hosted a public consultation workshop, chaired by
WPACO, on 10 May 2013, to discuss the bill. Stakeholders and interested parties
provided feedback through the workshop and by written submission.
Feedback was considered and, where appropriate, the exposure bill was amended to
take feedback into account. This led to amendments which included express and
specific recognition of the existing authorities for existing users, including Indigenous
groups.
Consultation with Indigenous groups
Many of the concerns raised by Indigenous stakeholders relate to their existing
arrangements and are not directly related to, or caused by, provisions in the proposed
bill and require other forms of resolution. Defence is working to resolve these
concerns.
Defence is responding seriously to issues about existing arrangements that have been
raised through this consultation process, and is committed to working cooperatively
with Indigenous stakeholders on a continuing basis into the future. Defence
acknowledges that open communication, mutual respect and trust will be key
elements of the successful management of the WPA, and it is working with
Indigenous groups to develop working level agreements to guide successful co-
operation in the WPA.
33
Woomera Prohibited Area Rules 2014
Section 72TP to the proposed bill provides for the Minister for Defence to make
Woomera Prohibited Area Rules, with the agreement of the Minister for Industry.
This provision ensures that the rules may only be amended by the Minister for
Defence with the agreement of the Minister for Industry.
Senate inquiry during the previous Parliament into the Defence Legislation
Amendment (Woomera Prohibited Area) Bill 2013 and Woomera Prohibited Area
Rules 2013
The bill introduced into the last Parliament was referred to the Senate Foreign Affairs
Defence and Trade Legislation Committee for inquiry. Only one mining company
provided a submission to the inquiry and this was positive about both the proposed
legislation and the way the co-existence management regime had been implemented
to date.
The railway owners and operators made submissions identifying concerns about lack
of certainty over the standing permission to be granted in the bill and also over the
length of any possible suspension of access.
Indigenous and conservation groups identified concerns over lack of protection for
Indigenous sacred sites and conservation areas with the increased mining and Defence
activity expected to occur.
Conclusion/Recommendation
The proposed change is to implement existing administrative procedures for non-
Defence users to access the WPA in legislation. The reason for this regulatory change
is to provide non-Defence users with long-term certainty around their ability to access
the WPA and the conditions attached to that access. The consultation process has
shown that affected non-Defence users support the proposed regulatory change.
The Departments of Defence and Industry support the proposed amendments.
Implementation and Review
Should Government agree to the policy proposal, Defence has bid for a place on the
2014 Autumn Parliamentary sittings to re-introduce the Defence (Woomera
Prohibited Area) Legislation Amendment Bill.
In implementing legislation, Defence will make use of the existing management
arrangements as far as possible, including updating the website to provide access to
permit applications and to make available information on the rights and
responsibilities of permit holders under the legislation.
As recommended by the Hawke Review, the Woomera Prohibited Area Advisory
Board will review all aspects of the coexistence arrangements, including any
legislation, in 2018. Additionally, Defence is working to establish a Reference Group
as a consultative body and working level agreements with Indigenous groups will be
established. Protocols with the railway operators will also be developed.
34
Regulatory Burden and Cost Offset (RBCO) Estimate Table
Average Annual Compliance Costs (from Business as usual)
Sector/Cost Categories Business Not-for-profit Individuals Total by cost
(Resources category
sector)
Administrative Costs -69,100 N/A N/A -69,100
Substantive Compliance 0 N/A N/A 0
Costs
Delay Costs 0 N/A N/A 0
Total by Sector -69,100 N/A N/A -69,100
Annual Cost Offset
Agency Within Outside Total by sector
portfolio portfolio
Business 0 0 0 0
Not-for-profit 0 0 0 0
Individuals 0 0 0 0
Total by source 0 0 0 0
Proposal is cost neutral? yes no
Proposal is deregulatory yes no
Balance of cost offsets $69,100
Defence has estimated that the cost of maintaining option 1 as the regulatory basis for
access to the WPA for the resources sector would be $69,100 per year for 10 years.
This figure is based on the assumption that four mines would begin operation in the
WPA within the next decade and that it would cost each mine $174,000 total to gain
access to the WPA for mining production by negotiating a deed of access for mining
production with Defence. Applying for a permit instead of a deed of access would
save time and administration costs as discussed in the Impact Analysis for Option 2.
Defence estimates that the cost for applying for a permit for mining production in the
WPA under Option 2 would be $500, which would include the cost of filling out the
permit application form and clearing it through the necessary authorities within a
company. For the estimated four companies (see Impact Analysis section on page 8
for an explanation of how Defence extrapolated this figure) this would be a total cost
of $2000 over 10 years, or $200 per year for 10 years. This figure deducted from the
overall cost saving offered by option 2 produces a total saving of $69,100 per year
over 10 years for the mining production sector.
35
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