Defence (Areas Control) Regulations (Amendment) 1991 No. 245
EXPLANATORY STATEMENT
STATUTORY RULES 1991 No. 245
ISSUED BY THE AUTHORITY OF THE MINISTER FOR DEFENCE SCIENCE AND PERSONNEL
DEFENCE (AREAS CONTROL) REGULATIONS (AMENDMENT)
The Defence (Areas Control) Regulations ("the Regulations"), made under the Defence Act 1903 by Statutory Rules 1989 No. 337, restrict the heights of buildings and other objects in the vicinity of Defence airfields. These restrictions are necessary for safe aircraft operations, and the effective operation of radar installations and other air navigation aids, which require obstruction-free approaches to airfields. The Regulations confer powers in association with the restrictions (such as a right of entry on land). Provision is made for compensation to the owners of interests in land where the value of those interests is diminished by reason of the land becoming affected by the restrictions. Provision is also made for the approval of buildings etc which would otherwise infringe the restrictions.
The Senate Standing Committee on Regulations and ordinances (the Committee) expressed concern at certain provisions of the Regulations: the width of a provision requiring the furnishing of further information by owners; provisions that give rise to strict liability offences; the width of certain powers of entry; and a provision preventing multiple payments of compensation for the same interest in a property. (The concern with the compensation provision was that it might exclude a later legitimate claim where an earlier payment was made to someone who was, in effect, the wrong person.)
To meet the Committee's concerns, the Statutory Rule makes various amendments which provide additional safeguards for affected persons.
The Statutory Rule amends subregulation 8(2), which requires the furnishing of further information relating to an application for approval of a building, so that the provision is limited to such information as is reasonably required for proper consideration of an application.
The Statutory Rule also amends regulation 12 and subregulations 15(4) and (5), which prohibit certain activities and conduct, so that they do not give rise to strict liability offences. This is achieved by inserting "without reasonable excuse" and "wilfully" respectively in the provisions.
In addition, the Statutory Rule meets the Committee's concern over powers of entry by qualifying subregulations 15(1) and (2), which authorise entry on land for the purpose of ascertaining whether the Regulations are being complied with or taking specified action required for preventing a contravention of, or securing compliance with, the Regulations. New subregulation 15(3A) ensures that entry for the purposes of subregulations 15(1) and (2) requires a minimum of 7 days' prior notice to be given to persons believed to have an interest in the property (other than by way of a mortgage or other security). The notice must set out particulars of the intended exercise of power.
The Statutory Rule meets the Committee's concern over subregulation 17(12), the provision preventing multiple compensation payments for the same interest in land, by ensuring that it excludes payment to a later claimant only where an earlier payment has been made to a person actually holding (as distinct from merely claiming) an interest in the land.
The Statutory Rule also makes a minor drafting amendment to subregulation 13(1).
The Statutory Rule comes into operation on the date of gazettal.
Overview
The Defence (Areas Control) Regulations (Amendment) 1991 No. 245 was introduced to address specific concerns raised by the Senate Standing Committee on Regulations and Ordinances regarding the original Defence (Areas Control) Regulations, which were made under the Defence Act 1903. The primary aim of these amendments was to enhance the safeguards for affected persons by modifying certain provisions to ensure clarity and fairness in the application of the Regulations, which are designed to restrict the heights of buildings and other objects near Defence airfields to ensure safe aircraft operations. The amendments were made by the Minister for Defence Science and Personnel in response to identified gaps and issues, ensuring that the Regulations do not inadvertently lead to strict liability offences, excessively broad powers of entry, or complications in compensation claims. This Statutory Rule was enacted to refine the original Regulations and came into operation on the date of its gazettal.
Scope and Application
The Defence (Areas Control) Regulations (Amendment) 1991 No. 245 applies to the restrictions on the heights of buildings and other objects in the vicinity of Defence airfields as mandated by the Defence Act 1903. These regulations are designed to ensure the safety of aircraft operations and the effective functioning of radar installations and other air navigation aids, which require unobstructed approaches to airfields. The Regulations confer powers, such as the right of entry on land, and provide for compensation to the owners of interests in land where their value is diminished due to the restrictions. The scope of this amendment is specifically targeted at providing additional safeguards to address concerns raised by the Senate Standing Committee on Regulations and Ordinances, ensuring that the provisions are neither overly broad nor overly restrictive. The amendments include limiting the requirement for further information to what is reasonably needed for proper consideration of an application, modifying certain provisions to avoid strict liability offences by incorporating elements of intent, and ensuring that entry on land for regulatory purposes requires a minimum of 7 days' prior notice to interested parties. This amendment extends to the entire Commonwealth of Australia and operates as subordinate legislation under the Defence Act 1903, with the amendments coming into effect on the date of gazettal.
Key Provisions
The Defence (Areas Control) Regulations (Amendment) 1991 No. 245 primarily amends existing regulations to address concerns raised by the Senate Standing Committee on Regulations and Ordinances. The original Defence (Areas Control) Regulations, made under the Defence Act 1903, aim to restrict the heights of buildings and other objects in the vicinity of Defence airfields to ensure safe aircraft operations and effective radar and air navigation aids. These Regulations also confer powers related to these restrictions, including the right of entry on land, and provide for compensation to owners whose land interests are diminished by the restrictions. The amendment addresses specific concerns regarding the width of information requirements, strict liability offences, powers of entry, and compensation payments.
The amended Regulations impose certain obligations on affected parties and entities. For instance, subregulation 8(2) now specifies that only information reasonably required for proper consideration of an application for approval of a building must be furnished. This change ensures that the requirement for further information is not overly burdensome. Furthermore, regulations 12, and subregulations 15(4) and (5), now include the phrases "without reasonable excuse" and "wilfully," respectively, to prevent strict liability offences and ensure that any prohibited activities are conducted intentionally. Additionally, the amendment mandates that any entry on land for the purposes of ascertaining compliance with the Regulations or taking specified actions must be preceded by a minimum of 7 days' prior notice, detailing the intended exercise of power, to the persons believed to have an interest in the property.
In terms of potential consequences, the amended Regulations ensure that any offence under the provisions that previously gave rise to strict liability now requires proof of intent, specifically "without reasonable excuse" or "wilfully." This means that individuals or entities found in breach of these provisions must demonstrate a lack of reasonable excuse or intentional wrongdoing to be held liable. Moreover, the amendment ensures that compensation for the same interest in land is not paid to a later claimant if an earlier payment was made to someone actually holding the interest. This provision prevents the exclusion of legitimate claims where an earlier payment was mistakenly made to an incorrect party. The Regulations do not specify maximum penalties for breaches but outline the civil and criminal consequences of non-compliance, which would be determined by the courts or relevant authorities.
The Statutory Rule comes into operation on the date of gazettal, ensuring that the amendments take immediate effect. This means that the changes to the Defence (Areas Control) Regulations are enforced without delay, providing clarity and additional safeguards to all parties involved. The amendments aim to balance the need for strict adherence to safety regulations with fair treatment of landowners and other stakeholders affected by the restrictions.