EXPLANATORY MEMORANDUM

Minute No. 7 of 2005 – Minister for Defence

Subject -   Control of Naval Waters Act 1918

   Proclamation revoking and declaring naval waters

Section 3B of the Control of Naval Waters Act 1918 (the Act) authorises the               Governor-General, by Proclamation, to declare waters within 5 nautical miles of an installation or within 2 nautical miles of defence land without an installation, as naval waters for the purposes of the Act.

Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make an instrument it may be revoked and this power of revocation is exercisable in a like manner.

The purpose of section 3B of the Act is to provide for the protection of facilities and/or lands used or owned by the Department of Defence. In particular, the declaration of naval waters allows for access control to be invoked in times of heightened security, when active policing of the water approaches to a facility is likely to be required.

It is proposed that all past instruments, variously made by the Governor-General pursuant to section 3B of the Act, which declared naval waters in various States and Territories of Australia be revoked and a single instrument be made to incorporate the proposed changes.

A recent review of waters to which section 3B applies has highlighted the inconsistent application of the Act to these waters around Australia, especially the absence of declared naval waters in certain strategic geographic locations. The changes proposed would ensure a consistent approach to the declaration of naval waters throughout Australia, by revoking those no longer required and establishing naval waters necessary around key defence facilities. It is the Royal Australian Navy’s (RAN) policy to maintain naval waters only around facilities and lands required for Defence’s strategic needs.

Resulting from the revocation of some naval waters, the states of Tasmania and South Australia will not have naval waters. The attachment lists the defence facilities in respect of which there are current declarations of naval waters for which no change is proposed and identifies those declarations to be revoked.

It is also proposed that other declarations of naval waters be amended or made in respect of existing facilities. HMAS STIRLING, in Western Australia, requires an amendment to its naval water boundaries. An investigation by the Department of Land Administration (WA) revealed that the naval waters boundary does not align with the adjoining Fremantle Port Authority Boundary. The RAN was asked to realign the naval water boundary, which was approximately 1 degree out of alignment.  It is also proposed to extend naval waters in the vicinity of the Armament Jetty in Sulphur Bay, WA. There is a requirement under the explosive ordnance service licence in HMAS STIRLING, to provide an explosive exclusion zone of 1300m, centred on the eastern end of the jetty, during ammunitioning. This exclusion zone will impinge approximately 1000m into the Port of Fremantle limits on the western extremity of Cockburn Sound. The Fremantle Port Authority has agreed to accommodate the RAN’s requirement.

Secondly, the naval waters around Fleet Base East at Garden Island in New South Wales have been slightly extended to incorporate the western face of the Woolloomooloo Bay finger wharf. This extension will allow the RAN to prohibit, restrict and regulate any activity conducted in the area more efficiently.

Thirdly, the submarine buoy in the Port of Darwin lay in close proximity to the newly constructed pipelines in the Darwin Harbour and restricted access to the new LNG Plant. At the request of the Darwin Port Corporation, the submarine buoy, around which naval waters existed, was moved to a new location in the Harbour, thus providing greater security and safety for RAN submarines and vessels to be tied. The new location of the submarine buoy thus requires a new declaration of its naval waters boundary.

Finally, to ensure adequate protection of the waters around the Darwin Naval Base in the Northern Territory, and the Point Wilson Ammunition Facility in Port Philip Bay Victoria, these facilities require appropriate declarations of naval waters.

The relevant State and Territory authorities have been consulted and agree with these changes to the declaration of naval waters.

The Act specifies no conditions that need to be satisfied before the power to make the proposed Proclamation may be exercised.

The proposed Proclamation would be a legislative instrument for the purpose of the  Legislative Instruments Act 2003.

The Proclamation would commence on the day it is gazetted.

The Minute recommends approval be given in the form proposed.

    Authority: Section 3B of the                                                                          Control of Naval Waters Act 1918                                                       

Attachment

Currently declared naval waters

The following facilities are no longer in use by the RAN and it is therefore proposed to revoke the related declarations of naval waters:

The proposed Proclamation would preserve the existing declarations of naval waters relating to the following facilities: