EXPLANATORY STATEMENT
STATUTORY RULES 1989 NO. 290
ISSUED BY THE AUTHORITY OF THE MINISTER FOR DEFENCE SCIENCE AND PERSONNEL DEFENCE FORCE REGULATIONS (AMENDMENT)
The Defence Force Regulations (“the Regulations”) made under the Defence Act 1903 prescribe various matters relating to Defence administration.
Part XI of the Defence Force Regulations prescribes a scheme for Defence operations and practices where it is necessary to exclude members of the public. The steps to invoke Part XI are the declaration of a practice area under Regulation 49, authorisation of an operation or practice under Regulation 51 and notification of that operation or practice under Regulation 52.
Part XI has been generally satisfactory for Defence practices. However, there is a new Navy requirement which was not anticipated when Part XI was developed and was not adequately covered by that Part.
In a program to test mine detecting equipment, it is necessary for objects to be left undisturbed on the sea bed for a period up to 2 years in order to ensure the proper testing of the equipment. To avoid disturbance of the objects, it is necessary to exclude the public from certain activities such as bottom trawling for the whole period the objects are in place.
The Statutory Rule enables a chief of staff to authorise, for defence purposes in a declared practice area, the installation of equipment in the sea or on the sea bed for up to 2 years. Adequate notice of the installation is required to advise members of the public who may be in reasonable proximity to the equipment.
The Statutory Rule also makes it an offence for unauthorised persons to disturb the equipment or interfere with the equipment’s operation.
Defence Force Regulations (Amendment)
Regulation 1 defines the Defence Force Regulations as the Principal Regulations.
Regulation 2 amends regulation 48 by including definitions of the terms “equipment” and “install”.
Regulation 3 amends regulation 49, which deals with the declaration of practice areas, by adding a new subregulation 49(4). The new provision empowers a chief of staff to authorise the installation of equipment in the sea or on the seabed of a declared practice area, or in superjacent waters, for a period of up to 2 years.
Regulation 4 omits subregulations 51(2), (3) and (4) which provided for delegation by a chief of staff. Subregulation 51(2) is replaced by new subregulation 57B(2). Subregulations 51(3) and (4), which dealt with the formal effect of delegations, were no longer required as those matters are now dealt with by section 34AB of the Acts Interpretation Act 1901.
Regulation 5 amends regulation 52, which deals with notice to the public of a defence operation or practice, by adding a new subregulation (2). The new provision requires a person authorising installation of equipment under the new subregulation 49(4) to give such notice as is reasonably required to advise persons in the proximity of the equipment. Notice is required of the place where the equipment is installed and activities that might disturb the equipment or interfere with its operation. The new provision also sets out criteria for determining the most appropriate form of notice.
Regulation 6 amends regulation 53, which prohibits the entry of persons into practice areas, by inserting a new subregulation (2A). The new provision creates an offence of disturbing equipment, or interfering with the operation of equipment, where installation has been authorised under new subregulation 49(4).
Regulation 7 amends regulation 57B, which provided for delegation by the Secretary, to make minor drafting amendments, to omit the formal drafting provisions now dealt with in the Acts Interpretation Act, and to substitute the new subregulation (2). The substitute provision enables a chief of staff to delegate his or her powers under the new subregulation 53(2A), as well as regulation 51.
The Statutory Rule comes into operation on the date of gazettal.
Overview
The Defence Force Regulations (Amendment) Statutory Rules 1989 were introduced to address a specific need in Defence operations that was not adequately covered by existing provisions in the Defence Force Regulations. Enacted under the authority of the Minister for Defence Science and Personnel, these amendments aim to facilitate a new Navy requirement for testing mine detection equipment, which necessitates leaving objects undisturbed on the sea bed for up to two years. To protect these objects from disturbances such as bottom trawling, the Regulations now allow a chief of staff to authorise the installation of such equipment in the sea or on the sea bed for the duration of the testing period, with a requirement for adequate public notification. Additionally, these Statutory Rules criminalise the unauthorised disturbance or interference with the installed equipment, thereby ensuring the integrity of Defence operations. This amendment was intended to provide a clear legal framework for these activities, reflecting the evolving needs of Defence practices.
Scope and Application
The Defence Force Regulations (Amendment) Statutory Rule 1989 No. 290 addresses a specific need within the Defence Force Regulations, which are made under the Defence Act 1903 and pertain to Defence administration. This amendment is particularly targeted at practices requiring the exclusion of the public from certain areas during the testing of mine detecting equipment, where objects must be left undisturbed on the sea bed for periods up to 2 years. The rule applies to Defence operations where exclusion of the public is necessary to avoid disturbing equipment installed in the sea or on the sea bed within a declared practice area. The amendment introduces provisions that empower a chief of staff to authorise such installations and require that adequate notice be given to the public regarding the equipment's location and activities that might disturb it. Additionally, it criminalises the disturbance or interference with the equipment by unauthorised persons. This amendment is applicable nationally, as it pertains to Defence operations across Australia, and it extends the application of the Defence Force Regulations to cover this new requirement effectively. The Statutory Rule itself does not explicitly state exclusions or thresholds, but its application is contingent on the specific conditions of each Defence operation.
Key Provisions
The Defence Force Regulations (Amendment) Statutory Rule 1989 No. 290 primarily amends Part XI of the Defence Force Regulations to accommodate a new Navy requirement for testing mine detecting equipment. Regulation 3 introduces a new subregulation 49(4), which allows a chief of staff to authorise the installation of equipment in the sea or on the sea bed of a declared practice area, or in superjacent waters, for a period of up to 2 years. This amendment is designed to ensure that objects used in the testing of mine detecting equipment are left undisturbed on the sea bed to facilitate proper testing. To prevent public interference, such as bottom trawling, which could disturb these objects, it is necessary to exclude the public from certain activities during the installation period.
Under the amended Regulations, entities and individuals involved in Defence operations must adhere to specific obligations. A chief of staff, upon authorising the installation of equipment under the new subregulation 49(4), must ensure that adequate notice is given to the public. This notice must inform members of the public in reasonable proximity to the equipment about the location of the installation and the activities that might disturb or interfere with the equipment’s operation. The notice must be provided in a form deemed most appropriate under the new subregulation 52(2). Additionally, the Regulations mandate that any delegation of powers under the new provisions must comply with section 34AB of the Acts Interpretation Act 1901.
The Statutory Rule imposes several obligations and penalties for breaches. Firstly, it creates an offence for unauthorised persons to disturb or interfere with equipment that has been installed under the authority of a chief of staff. This is stipulated in the new subregulation 53(2A) of the amended Regulations. The offence carries potential criminal consequences, with penalties not specified in the text but typically falling under the Defence Force Discipline Act 1983. The severity of the penalties would depend on the nature and circumstances of the offence. Failure to provide adequate notice to the public, as required by subregulation 52(2), may also result in administrative consequences, although specific penalties are not detailed in the text.