EXPLANATORY STATEMENT
Issued by the authority of the Minister for Defence
Defence Act 1903
Defence Regulation 2016
Defence (Defence Areas—Talisman Sabre 2021) Declaration 2021
GENERAL SUMMARY
Exercise Talisman Sabre is a biennial Australia – United States exercise, which will be conducted in July 2021. During the course of the exercise, Defence intends to undertake activities, including amphibious landings, at a site near Bowen, in Queensland.
Exercise Talisman Sabre is conducted with the cooperation of the Queensland Police Service (QPS). The ability of QPS to control the movement and activities of members of the public in the relevant area is subject to a variety of different legal authorities applicable to public and private land. In general, QPS does not have authority to remove people from the intertidal zone, where amphibious landings will be conducted. There are, accordingly, concerns for the safety of members of the public and people participating in the exercise.
To facilitate the safe conduct of Exercise Talisman Sabre, the Defence (Defence Areas—Talisman Sabre 2021) Declaration 2021 (the Instrument) declares the relevant area of land and sea to be a defence area under Part 11 of the Defence Regulation 2016. This will ensure that appropriate safety and security measures can be implemented for the conduct of amphibious landings and other activities at this location, and that there is adequate authority for the QPS and the Australian Defence Force to control the movement and activities of members of the public within the declared area. During prohibited periods, the Defence Regulation 2016 provides for the removal of people and property in a defence area without authority.
Area to be declared
The Instrument describes a single defence area: the Bowen area. The Instrument includes a map of the area. The area includes areas of sea and land, depicted by dots on the map. The area of sea is also described by reference to latitude / longitude coordinates, and by reference to the high water mark of coastlines between coordinates (and so encompassing the intertidal zone).
Authority to declare areas
Subsection 58(1) of the Defence Regulation 2016 provides that the Minister may declare an area of land, sea or airspace in or adjacent to Australia to be a defence area for use for a defence purpose. The declaration must specify the defence purpose for which the area is required, and specify whether entry is prohibited at all times or prohibited during particular periods determined under subsection 59(1).
The Minister must not declare an area unless one of the following applies:
- the area is Commonwealth land (paragraph 58(3)(a))
- for land that is not Commonwealth land, the consent in writing of the occupier of the land has been obtained (paragraph 58(3)(b))
- it is necessary or expedient, in the interests of the safety or defence of Australia, to use the area for the purpose of testing defence materiel or carrying out a defence operation or practice (paragraph 58(3)(c))
- the area is a depot, factory, laboratory, store or other facility used by or on behalf of the Commonwealth in relation to defence materiel (paragraph 58(3)(d)).
Basis for declaring areas (paragraphs 58(3)(b) and (c))
The area of land in the defence area is not Commonwealth land, but the consent in writing of all occupiers to the defence area declaration has been obtained. This includes written consent from native title holders and claimants and the relevant local council.
It is necessary or expedient, in the interests of the safety or defence of Australia, to use the areas of sea in the defence area for the purposes of carrying out a defence practice. In addition, written consent has also been provided from parties with an interest in the area of sea and associated intertidal zones, including native title holders and claimants, and the Queensland government.
Defence purpose for which areas are required (paragraph 58(2)(a))
The area is required for the defence purposes of preparing for and conducting Exercise Talisman Sabre 2021, including, but not limited to, the participation of Australian Defence Force members and United States armed forces in amphibious landings in the area.
Entry to be prohibited during particular periods (paragraph 58(2)(b))
Entry to the defence area will only be prohibited during periods determined under subsection 59(1)). Under subsection 59(1), the Chief of the Defence Force or Secretary of Defence (or a delegate), may determine when entry is prohibited. Defence does not intend to exclude residents from accessing their own properties at any time.
Period declarations are to be in effect
The Instrument will only be in effect for a limited period – from 18 July 2021 to 31 July 2021. The declaration in relation to the Bowen area will be in effect for this whole period. The declaration will cease to have effect on 31 July. This period will cover the bulk of Exercise Talisman Sabre 2021, as well as periods prior to and after the exercise in case there is a need to prohibit entry during preparations for the exercise or for any remediation activities after the exercise.
Details of the Instrument are set out in Attachment 1.
Consultation
Extensive consultation was undertaken with land occupiers, local residents, local businesses, the Whitsunday Regional Shire Council, various Queensland Government departments and agencies, the Great Barrier Reef Marine Park Authority and representatives of the Jura People (in relation to the Bowen area).
Commencement and repeal
The Instrument will commence on 18 July 2021. The Instrument will be repealed on 31 July 2021.
Statement of Compatibility with Human Rights
A statement of compatibility with human rights, prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, is at Attachment 2.
Attachment 1
Details of the Defence (Defence Areas—Talisman Sabre 2019) Declaration 2019
Section 1 – Name
This section sets out the name of the instrument to be the Defence (Defence Areas—Talisman Sabre 2021) Declaration 2021.
Section 2 – Commencement
This section sets out the commencement date for the instrument. All sections commence on 18 July 2021.
Section 3 – Authority
This section states that the authority for the instrument is section 58 of the Defence Regulation 2016.
Section 4 – Declaration of defence area – Bowen
Subsection 4(1) sets out that the Bowen area is declared to be a defence area for the defence purpose of preparing and conducting Exercise Talisman Sabre 2021, and post-exercise activities. This will include, but is not limited to, the participation of members of the Australian Defence Force and United States armed forces in amphibious landings in the area.
Subsection 4(2) states that entry into the Bowen area will be prohibited during particular periods determined under subsection 59(1) of the Defence Regulation 2016.
Subsection 4(3) states that the Bowen area is the areas of land and sea depicted with dots on the Bowen map set out in Schedule 1.
Subsection 4(4) describes the areas of sea that are included in the Bowen area. The area is depicted by dots on the map in Schedule 1, with the boundaries determined by reference to geographic coordinates represented on the map. Each area of sea has straight-line boundaries between geographic coordinates, as well as a coastal boundary, determined by reference to the high water mark along the coastline between two coastal coordinates depicted on the map.
Section 7 – Repeal of this instrument
This section provides that the instrument will be automatically repealed at the end of 31 July 2021. That is midnight on that day. After that time, the defence area will no longer exist.
Attachment 2
Statement of Compatibility with Human Rights
Prepared in accordance with the Human Rights (Parliamentary) Scrutiny Act 2011
Defence (Defence Areas—Talisman Sabre 2021) Declaration 2021
This instrument 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 instrument
The purpose of this instrument is to declare the defence area in the vicinity of Bowen for the defence purpose of preparing and conducting Exercise Talisman Sabre 2021 and for post-exercise activities. During the period the area is declared, delegates in Defence will be able to determine that entry to an area is prohibited.
Human rights engaged by instrument
The instrument engages the following human rights:
- the freedom of movement (article 12 of the International Covenant on Civil and Political Rights)
- the right to freedom of assembly (article 21 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 in that country. The right to freedom of assembly includes the right of people to gather as a group for a specific purpose. This instrument places restrictions on who may enter the defence area, thereby limiting the right to freely move within a country and the right to freedom of assembly within those areas.
The limitations on these rights is reasonable and necessary, for the legitimate objective of military training. The instrument is intended to protect national security and human safety. The defence area will be used in a biennial combined Australia and United States training activity. The exercise will incorporate force preparation exercises, Special Forces activities, amphibious landings, parachuting, land force manoeuvres, urban, maritime and air operations, and naval vessels and aircraft.
The declaration of the defence area is proportionate. Entry to the defence area will not be prohibited at all times. Delegates in Defence may determine that entry to a defence area is prohibited for a particular period. During a prohibited period, there will be restrictions on who can enter an area. Police and the Australian Defence Force will have authority to control the movement and activities of members of the public within a defence area, including by removing unauthorised members of the public or movable property from the area. This is a critical legal component for the safe and secure conduct of the exercise, and the safety and security of the public and exercise participants.
Even during prohibited periods, people may be authorised to enter the area. For example, residents of the area will be able to access their own properties if required.
The declarations will be in force for a limited period only, covering the period of Exercise Talisman Sabre, as well as some days before and after the exercise so that exercise preparation and remediation can be conducted safely.
Conclusion
This instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are for a legitimate purpose, and are reasonable, necessary and proportionate.