EXPLANATORY STATEMENT
Issued by the authority of the Minister for Defence Industry and Capability Delivery
Defence Regulation 2016
Defence (Shoalwater Bay—Defence Area) Declaration 2024
The instrument is made under subsection 58(1) of the Defence Regulation 2016 (the Regulation). The instrument commences on the day after the instrument is registered and is a legislative instrument for the purposes of the Legislation Act 2003 (the Legislation Act).
Purpose
Shoalwater Bay is a large bay located in Central Queensland, north-west of Brisbane, encompassing approximately 4545 square kilometres. Since 1966, the Commonwealth has maintained ownership over the land surrounding Shoalwater Bay, with the Australian Defence Force utilising it for the purpose of military training exercises.
The purpose of the instrument is to ensure public safety in the Shoalwater Bay Training Area by expanding the current defence area framework used for authorising Defence activities, giving notification of activities and providing powers for the exclusion or removal of people, vehicles, vessels and aircraft from the Shoalwater Bay Training Area when Defence practices are conducted.
A defence area is an area of land, sea or airspace, in or adjacent to Australia, declared for use for a defence purpose. Subsection 58(1) of the Regulation empowers the Minister to declare such areas of land, sea or airspace.
Details of the instrument
Details of the instrument are set out in Attachment A.
Consultation
Consultation undertaken with relevant stakeholders throughout the drafting and development of the instrument included consultation internally with representatives from Force Posture Initiatives, Head Quarters Joint Operations Command, Defence Legal, Property Management Branch and Estate Service Delivery; and external stakeholders including Queensland Department of Resources. During development of the expanded Shoalwater Bay Training Area, the Australian-Singapore Military Training Initiative office consulted with neighbours, local businesses, industry, Livingston Shire Council and the Federal Member for Capricornia, the Hon Michelle Landry MP. As per Defence’s obligations under the Indigenous Land Use Agreement, the Darumbal People were notified of Defence’s intent to declare the defence area over the expanded Shoalwater Bay Training Area.
The purpose of this consultation was to ensure that those having relevant expertise, or those likely affected by the instrument, were consulted and that the conditions of the instrument only imposed the minimum necessary impost.
The Office of Impact Analysis was consulted in relation to this instrument and confirmed that a regulation impact analysis was not required for this instrument (OIA23-06105).
Parliamentary scrutiny
The instrument is subject to disallowance under section 42 of the Legislation Act.
A Statement of Compatibility with Human Rights has been prepared in accordance with subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement provides that the instrument is compatible with human rights because it promotes the protection of human rights, and to the extent that it may limit human rights, those limitations are necessary, reasonable and proportionate. The Statement is included at Attachment B.
The instrument was made by the Honourable Matt Thistlethwaite MP, Assistant Minister for Defence, Parliamentary Secretary for the Minister for Defence, in accordance with the requirements of section 58 of the Regulation.
Attachment A
Details of the Defence (Shoalwater Bay—Defence Area) Declaration 2024
Section 1 Name
This section provides that the title of the instrument is the Defence (Shoalwater Bay—Defence Area) Declaration 2024.
Section 2 Commencement
This section provides that the instrument will commence on the day after the instrument is registered.
Section 3 Authority
This section provides that the instrument is made under subsection 58(1) of the Defence Regulation 2016 (the Regulation).
Section 4 Schedules
This section provides that each instrument that is specified in a schedule to this instrument is amended or repealed as set out in the applicable schedules. There is only one instrument specified in schedule 2 to the instrument—the Defence Practice Area — Shoalwater Bay Declaration 2007. The effect of schedule 2 is to repeal this instrument.
This section also provides that any other item in a schedule has effect according to its terms. This is relevant for identifying the ‘Shoalwater Bay Training Area’, which is defined by reference to two maps set out in schedule 1 to the instrument.
Section 5 Declaration of Defence Area—Shoalwater Bay Training Area
This section of the instrument declares the ‘Shoalwater Bay Training Area’ as a defence area and sets out the other matters that a defence area declaration must address, as specified in section 58 of the Regulation.
Subsection 5(1) provides that the ‘Shoalwater Bay Training Area’ is declared to be a defence area to be used for the defence purpose of preparing for and conducting military exercises and post-exercise activities.
The purpose of this provision is to declare the Shoalwater Bay Training Area a defence area under subsection 58(1) of the Regulation and articulate the defence purpose for which the Defence Area is to be used for. This is because subsection 58(2) of the Regulation requires that the declaration must specify the defence purpose for which the area is required.
Subsection 5(2) provides that the Shoalwater Bay Training Area comprises the areas set out in the maps set out in Schedule 1 to this instrument, including:
- the areas of land; and
- the areas of sea, including the high water mark of the coastlines.
The purpose of this provision is to specify that the areas of land and sea set out in the two maps in Schedule 1 to the instrument (‘Map A’ and ‘Map B’) make up the ‘Shoalwater Bay Training Area’ over which the defence area is declared.
A note to subsection 5(2) clarifies that ‘Map B’ in Schedule 1 is an expanded view of a section of ‘Map A’. This is intended to clarity that the second map in Schedule 1 (‘Map B’) is an expanded view of a highlighted section of the first map (‘Map A’) and is only intended to assist with interpreting Map A.
Subsection 5(3) provides that the Shoalwater Bay Training Area does not include the following:
- Stanage Bay Road
- Stoodleigh Road
- Glenprairie Road
- Bald Hills Road
- Pine Mountain Road
- Hennessy Road
The purpose of this provision is to specify that the roads mentioned above are not included as part of the Shoalwater Bay Training Area. This is because these roads provide public access to private properties that adjoin, or sit adjacent to, the Shoalwater Bay Training Area. The effect of this is that access to these roads is not prohibited, as they do not form part of the Shoalwater Bay Training Area.
Subsection 5(4) provides that entry into the Shoalwater Bay Training Area is prohibited at all times. The purpose of this provision is to restrict access to the defence area in accordance with the requirements of subparagraph 58(2)(b)(i) of the Regulation. This is because the Shoalwater Bay Training Area is used for military exercises and related purposes, which may pose a health and safety risk to members of the public. For this reason, it will not be appropriate or safe for the general public to be able to access the Shoalwater Bay Training Area. Accordingly, entry to the Shoalwater Bay Training Area will need to be prohibited to ensure safety and security. However, subsection 59(4) of the Regulation provides that a person may be given permission to enter a defence area in accordance with the requirements of section 62 of the Regulation.
Schedule 1—Shoalwater Bay Training Area
Schedule 1 contains two maps depicting the area comprising the ‘Shoalwater Bay Training Area’ as referred to in subsection 5(2) of the instrument. These maps are referred to as ‘Map A’ and ‘Map B’. Relevantly, Map B is an enlarged view of a small highlighted section in Map A, near the town of Marlborough. It has been included to assist readers with viewing Map A and identifies roads that will remain open to the public, these being: Pine Mountain Road and Hennessy Road. Map B does not include any additional sections of the Shoalwater Bay Training Area not already displayed in Map A.
Schedule 2—Repeals
Schedule 2 repeals the Defence Practice Area — Shoalwater Bay Declaration 2007. Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Attachment B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Defence (Shoalwater Bay—Defence Area) Declaration 2024
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 the Instrument
Shoalwater Bay is a large bay located in Central Queensland, north-west of Brisbane, encompassing approximately 4545 square kilometres. Since 1966, the Commonwealth has maintained ownership over the land surrounding Shoalwater Bay, with the Australian Defence Force utilising it for the purpose of military training exercises.
The purpose of the instrument is to ensure public safety in the Shoalwater Bay Training Area by expanding the current defence area framework for authorising Defence activities, giving notification of activities and providing powers for the exclusion or removal of people, vehicles, vessels and aircraft from the Shoalwater Bay Training Area when Defence practices are conducted.
A defence area is an area of land, sea or airspace, in or adjacent to Australia, declared for use for a defence purpose. Subsection 58(1) of the Defence Regulation 2016 (the Regulation) empowers the Minister to declare such areas of land, sea or airspace.
Human rights implications
This Disallowable Legislative Instrument engages the right to freedom of movement under article 12 of the International Covenant on Civil and Political Rights (ICCPR).
Under international human rights law, any limitation on rights and freedoms must be reasonable, necessary and proportionate for the pursuit of a legitimate objective. For an objective to be legitimate, it must address a pressing or substantial concern, and not simply seek an outcome regarded as desirable or convenient.
The legitimate objective of the Disallowable Legislative Instrument is to ensure national security and public safety before, during and after military exercises undertaken in the Shoalwater Bay Training Area.
Article 12(1) of the ICCPR provides that everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. This instrument places restrictions on who may enter the Shoalwater Bay Training Area, thereby limiting the right to move freely within a country.
Article 12(3) of the ICCPR provides that the above-mentioned right shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
This instrument ensures that Defence can undertakes activities required to meet the future needs of the Australian Defence Force, Singapore Armed Forces and other partner nation forces training within Shoalwater Bay Training Area. Under section 5 of the instrument, the Shoalwater Bay Training Area is declared to be a defence area for use for the defence purpose of preparing for and conducting military exercises and post-exercise activities.
The Shoalwater Bay Training Area is set out in a map in Schedule 1 to the instrument and subsection 5(4) of the instrument provides that entry into the area is prohibited at all times. Under subsection 59(3) of the Regulation, a person commits an offence if they are in a defence area where entry is prohibited. Under subsection 63(1) of the Regulation, a person in a defence area unlawfully can be removed from the area. Accordingly, this measure of the instrument limits the right to freedom of movement under Article 12(1) of the ICCPR.
However, in order to ensure the security of military exercises carried out in the Shoalwater Bay Training Area, as well as provide for the safety of the general public during these exercises, the most appropriate regulatory option is to prohibit access to the defence area at all times. Accordingly, there is a rational connection between the measure implemented by this instrument and the legitimate objective intended to be achieved.
The scope of the measure implemented by this instrument is reasonable and proportionate, as the number of people impacted by the prohibition of access to the Shoalwater Bay Training Area will likely be minimal, noting that the defence area will be declared over Commonwealth-owned land that is characterised by dry forests, low woodlands, mangroves, grasslands, mudflats and wetland environments. Where required, the defence area excludes certain public roads from the scope of its application for the purpose of maintaining public access to private properties that adjoin, or sit adjacent to, the defence area. This demonstrates that the scope of the defence area measure is not construed broadly.
Conclusion
In summary, limiting Article 12(1) of the ICCPR is appropriate, as the limitation is permissible under Article 12(3) of the ICCPR and is for the purposes of achieving a legitimate objective of ensuring national security and public safety before, during and after military training exercises are undertaken in the Shoalwater Bay Training Area.
Accordingly, the Disallowable Legislative Instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.