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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
DEFENCE LEGISLATION AMENDMENT (WOOMERA PROHIBITED AREA) BILL 2014
REPLACEMENT EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Defence, Senator the Hon David Johnston)
DEFENCE LEGISLATION AMENDMENT (WOOMERA PROHIBITED AREA) BILL 2014
GENERAL OUTLINE
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 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.
. 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.
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.
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.
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 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:
- 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 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 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.
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|
|(Minister's permissions) |of 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|
|(Minister may give directions to|of substantive or acting EL2 or |
|protect human life) |equivalent or 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|
|(Review decisions under: |of substantive or acting SES |
|72TF to give or not give |Band 2 or equivalent or higher |
|permission |in the Department of Defence. |
|72TJ(1)(b) to give directions to| |
|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.
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 modernises the existing compensation provisions in regulation 36 of
the Defence Force Regulations 1952 so that it reflects modern drafting
terminology by providing for reasonable compensation where the operation of
regulation 34 or 35 would result in an acquisition of property otherwise
than on just terms. In the event that the Commonwealth and a potential
claimant do not agree on an amount of compensation, a person my institute
proceedings in a court for the recovery of reasonable compensation as
determined by a Court.
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 2013
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 2013
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:
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
- 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.
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 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
- 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.
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
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 2013 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.
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.
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.
- 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 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/Forei
gn_Affairs_Defence_and_Trade/Completed_inquiries/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. 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.
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 |Option 1 |Option 2 |
|users) | | |
|Resources companies |For a new mine, a |Mining and production|
| |negotiated deed of |permit required and |
| |access required and |conditions apply. |
| |conditions apply. |Approval required for|
| |Approval required for|all personnel. |
| |all personnel. |Approval required for|
| |Approval required for|any specific period |
| |any specific period |of access. |
| |of access. |Notification of |
| |Notification of |changes of |
| |changes of |circumstances, eg |
| |circumstances, eg |ownership/control |
| |ownership/control | |
|Opal/precious stones |Access permit |Access permit |
|miners and |required and |required and |
|prospectors |conditions apply. |conditions apply. |
| |Approval required for|Approval required for|
| |any specific period |any specific period |
| |of access. |of access. |
|Tourists and tourism |Access permit |Access permit |
|operators (to use |required and |required and |
|other than specified |conditions apply. |conditions apply. |
|roads) | | |
|Environmental, etc |Deed of access |Permit required and |
|researchers |required 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 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 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:
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 | | |$174,00|
| | | |0 |
- 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.
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:
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 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.
Woomera Prohibited Area Rules 2013
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.
Regulatory Burden and Cost Offset (RBCO) Estimate Table
|Average Annual Compliance Costs (from Business as usual) |
|Sector/Cost |Business |Not-for-prof|Individuals |Total by cost |
|Categories |(Resource|it | |category |
| |s sector)| | | |
|Administrative Costs |-69,100 |N/A |N/A |-69,100 |
|Substantive |0 |N/A |N/A |0 |
|Compliance 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.
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