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Defence Legislation Amendment (Woomera Prohibited Area) Bill 2013

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2013

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

THE SENATE

 

 

 

 

 

 

 

 

 

 

 

DEFENCE LEGISLATION AMENDMENT (WOOMERA PROHIBITED AREA) BILL 2013

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of Senator Don Farrell)



 

DEFENCE LEGISLATION AMENDMENT (WOOMERA PROHIBITED AREA) BILL 2013

 

 

GENERAL OUTLINE

 

The Bill gives effect to the recommendations made in the Final Report of the Review of the Woomera Prohibited Area, which were accepted by the former Labor Government in 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 Industry 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.

 

The zoning and timeshare arrangements are subject to a seven-yearly review (due in 2018), to ensure continued maximisation of the national value of the WPA.  Any amendments to the coexistence framework will be recommended by the WPA Advisory Board and approved by the Minister for Defence in consultation with the South Australian Premier and the Commonwealth Minister for Industry.

 

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

 

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, including specifically the Anangu Pitjantjatjara Yankunytjatjara traditional owners under the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 and the Maralinga Tjarutja traditional owners under the Maralinga Tjarutja Land Rights Act 1984 , and other Aboriginal people in the WPA exercising their native title rights or rights under the Native Title Act 1993 , 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, 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 results from the operation of the new Part VIB of the Defence Act 1903 .

 

  • 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.

 

 



DEFENCE LEGISLATION AMENDMENT (WOOMERA PROHIBITED AREA) BILL 2013

 

Section 1 - Short title

 

This clause provides for the citation of the Act as the Defence Legislation Amendment (Woomera Prohibited Area) Act 2013 .

 

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

 

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

 

Definitions

 

Clause 72T provides the definitions that apply to the Part.

 

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.

 

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 includes persons to whom Part VII of the Regulations applies and subclause 4 provides that subclause 3 does not limit subclause 1.

 

Subclause 5 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 6 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.

 

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.

 

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.

 

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.

 

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.

 

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

 

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.

 

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.

 

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.

 

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.

 

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.

 

 

 

 

Delegation

 

Clause 72TN provides that the Minister may delegate, in writing, his or her powers as follows:

 

Power

Delegation

Clause 72TF

(Minister’s permissions)

 

To a person who holds a position 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)

(Minister may give directions to protect human life)

To a person who holds a position of substantive or acting EL2 or 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

(Review decisions under:

-           72TF to give or not give permission

-           72TJ(1)(b) to give directions to protect human life)

 

To a person who holds a position of substantive or acting SES Band 2 or equivalent or higher in the Department of Defence.

 

 

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 Minister for Industry.

 

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.

 

 



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 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, existing pastoralists 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 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 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 associated 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.

 

Senator Don Farrell