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Defence Legislation Amendment (Woomera Prohibited Area) Bill 2014

Schedule 1 Amendments

Part 1 General amendments

Defence Act 1903

1  Subsection 71A(1) (definition of defence premises )

Repeal the definition, substitute:

defence premises means:

                     (a)  any of the following that is in Australia, and is owned or occupied by the Commonwealth for use by the Defence Force or the Department:

                              (i)  an area of land or any other place (whether or not it is enclosed or built on);

                             (ii)  a building or other structure;

                            (iii)  a vehicle, vessel or aircraft, including any fixed or moveable ramp, stairs or other means of access to, or exit from, the vehicle, vessel or aircraft;

                            (iv)  a prohibited area, within the meaning of the Defence (Special Undertakings) Act 1952 ; or

                     (b)  the Woomera Prohibited Area.

2  Subsection 71A(1)

Insert:

Woomera Prohibited Area means the area prescribed under subsection 72TA(1).

3  After Part VIA

Insert:

Part VIB The Woomera Prohibited Area

   

72T   Definitions

                   In this Part:

Aboriginal person means a person of the Aboriginal race of Australia.

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

Anangu Pitjantjatjara Yankunytjatjara lands means the lands within the meaning of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA).

Industry Minister means the Minister administering the Offshore Petroleum and Greenhouse Gas Storage Act 2006 .

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

Maralinga Tjarutja lands means the lands within the meaning of the Maralinga Tjarutja Land Rights Act 1984 (SA).

Minister’s permission means permission under section 72TF.

pastoral lease means a lease over land in the Woomera Prohibited Area held under the Pastoral Land Management and Conservation Act 1989 (SA).

permission has the meaning given by subsection 72TC(3).

permit means a permit under the Rules.

Rules means the Woomera Prohibited Area Rules made under section 72TP.

standing permission means permission provided by the Rules under section 72TD.

this Part includes the Rules.

traditional owner :

                     (a)  in relation to the Maralinga Tjarutja lands, means a traditional owner within the meaning of the Maralinga Tjarutja Land Rights Act 1984 (SA); and

                     (b)  in relation to the Anangu Pitjantjatjara Yankunytjatjara lands, means a traditional owner within the meaning of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA).

Woomera Prohibited Area means the area prescribed under subsection 72TA(1).

72TA   The Woomera Prohibited Area

             (1)  The Rules may prescribe an area as the Woomera Prohibited Area.

             (2)  The area:

                     (a)  must be intended for use for the purposes of testing war materiel; and

                     (b)  may be used for those purposes.

             (3)  The Rules may, for the purposes of this Part:

                     (a)  prescribe zones within the Woomera Prohibited Area; and

                     (b)  make provision for exclusion periods within those zones.

72TB   Application of this Part and Part VII of the Defence Force Regulations 1952

             (1)  After the commencement of this Part, Part VII of the Defence Force Regulations 1952 applies only to the following:

                     (a)  an Aboriginal person in the Woomera Prohibited Area exercising native title rights or rights under the Native Title Act 1993 ;

                     (b)  an Aboriginal person in the Woomera Prohibited Area:

                              (i)  exercising rights under section 47 of the Pastoral Land Management and Conservation Act 1989 (SA); or

                             (ii)  exercising rights under the Aboriginal Heritage Act 1988 (SA), or involved in the protection of sites, objects or remains protected under that Act;

                     (c)  a traditional owner in the Woomera Prohibited Area for purposes related to the Maralinga Tjarutja lands;

                     (d)  a traditional owner in the Woomera Prohibited Area for purposes related to the Anangu Pitjantjatjara Yankunytjatjara lands;

                     (e)  a person in the Woomera Prohibited Area who is employed or engaged by, or is acting for, or on behalf of, a person covered by paragraphs (a) to (d);

                      (f)  a person in the Woomera Prohibited Area who is accompanied by a person covered by paragraphs (a) to (e);

                     (g)  an Aboriginal person who:

                              (i)  has been invited onto the Maralinga Tjarutja lands or Anangu Pitjantjatjara Yankunytjatjara lands; and

                             (ii)  is in the Woomera Prohibited Area for purposes related to the invitation;

                     (h)  a person in the Woomera Prohibited Area who is acting for, or on behalf of, South Australia;

                      (i)  a person in the Woomera Prohibited Area who is accompanied by a person covered by paragraph (h);

                      (j)  a person who:

                              (i)  holds a pastoral lease (whether the person’s interest in the lease was acquired before or after the commencement of this Part); and

                             (ii)  is in the Woomera Prohibited Area for purposes related to the lease;

                     (k)  a person who:

                              (i)  is employed or engaged by, or is acting for, or on behalf of, a person who holds a pastoral lease; and

                             (ii)  is in the Woomera Prohibited Area for purposes related to the lease;

                      (l)  a person in the Woomera Prohibited Area who is accompanied by a person covered by paragraph (j) or (k);

                    (m)  a person who:

                              (i)  is the owner or operator of the Tarcoola to Darwin railway; and

                             (ii)  is in the Woomera Prohibited Area for purposes related to the operation of the railway;

                     (n)  a person who:

                              (i)  is employed or engaged by, or is acting for, or on behalf of, a person who is the owner or operator of the Tarcoola to Darwin railway; and

                             (ii)  is in the Woomera Prohibited Area for purposes related to the operation of the railway;

                     (o)  a person in the Woomera Prohibited Area who is accompanied by a person covered by paragraph (m) or (n);

                     (p)  a person who has authority for the purposes of Part VII of the Defence Force Regulations 1952 to be at a place in the Woomera Prohibited Area and the authority was given before the commencement of this Part.

             (2)  If Part VII of the Defence Force Regulations 1952 applies to the person, this Part does not apply to the person.

Effect of permit on existing authority

             (3)  Subsections (1) and (2) do not prevent a person from applying for a permit.

             (4)  Authority for the purposes of Part VII of the Defence Force Regulations 1952 for a person to be at a place in the Woomera Prohibited Area is revoked to the extent that a permit provides (or provided) permission for the person to be at the place.

72TC   Offence—being in the Woomera Prohibited Area without permission

             (1)  A person commits an offence if:

                     (a)  the person is not:

                              (i)  a member of the Defence Force; or

                             (ii)  the Secretary; or

                            (iii)  an APS employee in the Department; and

                     (b)  the person is at a place in the Woomera Prohibited Area.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

             (2)  Subsection (1) does not apply if the person has permission to be at the place.

             (3)  The person has permission to be at the place if:

                     (a)  a standing permission provides permission for the person to be at the place; or

                     (b)  a permit provides permission for the person to be at the place; or

                     (c)  the person has the Minister’s permission to be at the place.

72TD   Standing permission

             (1)  The Rules may provide permission for a person to be at a place in the Woomera Prohibited Area.

             (2)  The permission may be subject to conditions set out in the Rules.

             (3)  The Rules may make provision for, and in relation to, other matters in relation to standing permission.

72TE   Permits

             (1)  The Rules may make provision for, and in relation to, permits that provide permission for persons to be at places in the Woomera Prohibited Area.

             (2)  The Rules may make provision in relation to the following:

                     (a)  the purposes for which permits may be issued;

                     (b)  applying for permits;

                     (c)  issuing and renewing permits;

                     (d)  suspending and cancelling permits;

                     (e)  conditions to which permits are subject.

             (3)  Subsection (2) does not limit subsection (1).

72TF   Minister’s permission

             (1)  The Minister may, on request, give written permission for a person to be at a place in the Woomera Prohibited Area.

             (2)  The permission must:

                     (a)  specify the person by name; and

                     (b)  be given in accordance with any requirements set out in the Rules.

             (3)  The permission may be subject to one or more of the following:

                     (a)  conditions imposed by the Minister and set out in the permission;

                     (b)  conditions set out in the Rules.

             (4)  The Rules may make provision for, and in relation to, other matters in relation to Minister’s permission.

72TG   Offence—failing to comply with conditions

             (1)  A person commits an offence if:

                     (a)  the person has permission to be at a place in the Woomera Prohibited Area; and

                     (b)  the person does, or refuses or fails to do, an act or thing; and

                     (c)  doing, or refusing or failing to do, the act or thing results in a failure to comply with a condition of the permission.

Penalty:  60 penalty units.

             (2)  Subsection (1) is an offence of strict liability.

72TH   Minister may suspend permission

             (1)  The Minister may suspend a permission if the Minister considers it necessary for the purposes of the defence of Australia.

             (2)  The suspension must be:

                     (a)  in writing; and

                     (b)  in accordance with any requirements set out in the Rules.

             (3)  A suspension under subsection (1) is not a legislative instrument.

72TJ   Minister may give directions

             (1)  The Minister may direct a person to do, or not to do, one or more specified acts or things in relation to the Woomera Prohibited Area if the Minister considers it necessary:

                     (a)  for the purposes of the defence of Australia; or

                     (b)  to protect human life.

             (2)  The direction may include one or more of the following:

                     (a)  a direction to leave a place or an area;

                     (b)  a direction to move, or remove, property or livestock;

                     (c)  a direction to secure buildings.

             (3)  Subsection (2) does not limit subsection (1).

             (4)  A direction made in writing under subsection (1) is not a legislative instrument.

Offence—failing to comply with direction

             (5)  A person commits an offence if:

                     (a)  the person is given a direction under subsection (1); and

                     (b)  the person refuses or fails to comply with the direction.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both .

72TK   Compensation for acquisition of property

             (1)  If the operation of this Part would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

72TL   Compensation for loss or damage

                   The Rules may limit amounts payable by the Commonwealth in respect of loss or damage in the Woomera Prohibited Area arising from a breach of a common law or statutory duty of care in relation to the use of the Woomera Prohibited Area for the purposes of testing war materiel.

72TM   Review of decisions

Internal review

             (1)  A person whose interests are affected by any of the following decisions may, by writing, apply to the Minister for a review of the decision:

                     (a)  a decision under section 72TF to give, or not to give, written permission for a person to be at a place in the Woomera Prohibited Area;

                     (b)  a decision to suspend a permission under section 72TH;

                     (c)  a decision to give a direction under section 72TJ.

             (2)  On application for review of the decision, the Minister must:

                     (a)  review the decision; and

                     (b)  confirm, vary or revoke the decision.

             (3)  Within 20 business days after receiving the application, the Minister must give the person written notice of the decision on the review.

AAT review

             (4)  Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Minister on the review of a decision under section 72TF to give, or not to give, written permission for a person to be at a place in the Woomera Prohibited Area.

             (5)  To avoid doubt, a decision under section 72TF to give written permission for a person to be at a place in the Woomera Prohibited Area includes a decision to give such permission subject to conditions imposed by the Minister.

72TN   Delegation

             (1)  The Minister, by writing, may delegate his or her power under section 72TF (Minister’s permission) to:

                     (a)  an APS employee who holds or performs the duties of an APS 6 position, or an equivalent or higher position, in the Department; or

                     (b)  an officer of the Navy who holds the rank of Commander or a higher rank; or

                     (c)  an officer of the Army who holds the rank of Lieutenant- Colonel or a higher rank; or

                     (d)  an officer of the Air Force who holds the rank of Wing Commander or a higher rank.

             (2)  The Minister, by writing, may delegate his or her power under paragraph 72TJ(1)(b) (direction to protect human life) to:

                     (a)  an APS employee who holds or performs the duties of an Executive Level 2 position, or an equivalent or higher position, in the Department; or

                     (b)  an officer of the Navy who holds the rank of Captain or a higher rank; or

                     (c)  an officer of the Army who holds the rank of Colonel or a higher rank; or

                     (d)  an officer of the Air Force who holds the rank of Group Captain or a higher rank.

             (3)  The Minister, by writing, may delegate his or her power under section 72TM to review the following decisions to an APS employee who holds or performs the duties of an SES Band 2 position, or an equivalent or higher position, in the Department:

                     (a)  a decision under section 72TF to give, or not to give, written permission for a person to be at a place in the Woomera Prohibited Area;

                     (b)  a decision to give a direction under paragraph 72TJ(1)(b) (direction to protect human life).

72TP   The Woomera Prohibited Area Rules

             (1)  The Minister may, by legislative instrument and with the agreement of the Industry Minister, make Woomera Prohibited Area Rules prescribing matters:

                     (a)  required or permitted by this Part to be prescribed by the Rules; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Part.

             (2)  Without limiting subsection (1), the Rules may:

                     (a)  prescribe fees for doing any act or providing any service for the purposes of this Part and prescribe the circumstances and ways in which fees can be refunded, waived or reduced; and

                     (b)  make provision for, and in relation to, the review of decisions made under this Part or the Rules.

             (3)  A fee prescribed under paragraph (2)(a) must not be such as to amount to taxation.

Infringement notices

             (4)  The Rules may provide for a person who is alleged to have committed an offence against subsection 72TG(1) to pay a penalty to the Commonwealth as an alternative to prosecution.

             (5)  The penalty must not exceed one-fifth of the maximum fine that a court could impose on the person as a penalty for that offence.

Demerit points

             (6)  The Rules may establish a demerit points system under which a permit may be suspended or cancelled if the holder of the permit accrues a prescribed number of demerit points.

Part 2 Amendments relating to the operation of Part VII of the Defence Force Regulations 1952

Defence Act 1903

4  After section 121

Insert:

121A   Validation of declaration and past acts in relation to the Woomera Prohibited Area

             (1)  This section applies in relation to:

                     (a)  the declaration of the Woomera Prohibited Area under regulation 35 of the Defence Force Regulations 1952 by notice published in the Gazette on 12 July 1989; and

                     (b)  things done (the past acts ) by the Commonwealth under regulation 35 of the Defence Force Regulations 1952 as a result of the declaration.

             (2)  The declaration and past acts are taken always to have been valid.

             (3)  To the extent that , apart from subsection (2) and this subsection, the declaration and past acts would be invalid because they would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (4)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia or another court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

             (5)  In this section:

valid includes having full force and effect.

Defence Force Regulations 1952

5  After regulation 36

Insert:

36A   Compensation for acquisition of property

             (1)  If the operation of regulation 34 or 35 would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia or another court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.