EXPLANATORY STATEMENT
Issued by authority of the Minister for Defence
Defence Act 1903
Woomera Prohibited Area (Exclusion Periods for Amber Zone 1 and Amber Zone 2 for 1 July 2026 to 31 December 2026) Determination 2026
Authority
The Woomera Prohibited Area (Exclusion Periods for Amber Zone 1 and Amber Zone 2 for 1 July 2026 to 31 December 2026) Determination 2026 (the Determination) is made under subsection 8(1) of the Woomera Prohibited Area Rule 2014 (Rule).
Subsection 8(1) of the Rule provides that the Minister may, by legislative instrument, determine exclusion periods for a financial year for amber zone 1 and amber zone 2 in the Woomera Prohibited Area (WPA). Relevantly, subsection 8(4) of the Rule also provides that an exclusion period may apply to a part of a zone within the WPA.
Under subsection 63(2) of the Rule, the Minister may delegate the power to determine exclusion periods, including to an APS employee who holds or performs the duties of an Executive Level 1 position, or an equivalent or higher position, within the Department of Defence (Defence). On
12 September 2022, the Minister delegated this power by written instrument, to the Director of the Woomera Prohibited Area Coordination Office.
Purpose and Operation
The purpose of the Determination is to set exclusion periods for amber zone 1 and amber zone 2 within the WPA for the 2026-2027 financial year.
The Determination covers exclusion periods for these zones for the first half of the 2026-2027 financial year between 1 July 2026 and 31 December 2026. Considering the scheduled sunset date of the Rule on 1 October 2026, this approach of setting exclusion periods for the first half of the 2026-2027 financial year is intended to provide operational continuity and certainty for non-Defence persons across this transition period, while avoiding the setting of exclusion periods significantly beyond that date.
Background
In 2014, the Defence Legislation Amendment (Woomera Prohibited Area) Act 2014 amended the Defence Act 1903. These amendments gave effect to the recommendations made in the Final Report of the Review of the Woomera Prohibited Area, released on 3 May 2011.
The amendments empower the Minister to make, by legislative instrument, rules in relation to the WPA. Accordingly, on 25 August 2014, the Minister exercised this power and made the Rule. Relevantly, the Rule allows for the issuing of permits for non-Defence members to access the WPA. Under the Rule, the Minister may prescribe zones within the WPA, and make provision for exclusion periods within those prescribed zones.
The legislative framework governing the WPA is predicated upon a coexistence model. It provides non-Defence users with greater certainty over Defence activity taking place within the WPA. It allows users to make commercial decisions with some assurance as to when they will be requested to leave the area due to scheduled Defence activity.
Details of the instrument
Details of the instrument are set out in Attachment A.
Consultation
Defence consulted on the general principles of exclusion periods in the WPA as part of the drafting of the Rule. Through this process, the persons who are directly affected by the exclusion periods were consulted, and given the opportunity to comment on the Minister's power to determine exclusion periods, including detailing the direct or indirect impact an exclusion period would have on them or their business.
The Rule contains a number of mechanisms to limit the potential impacts that exclusion periods have on affected persons, including the notification requirements provided under section 9 and limitations on the number of days that persons may be excluded from the WPA under section 8.
The exclusion periods specified in the Determination are based on prospective Defence testing requirements. As these exclusion periods are contingent on Defence operational requirements, the actual duration and extent of exclusions under this Determination may be subject to change. Where operationally feasible, exclusion zones may be reduced or revoked to minimise disruption to non-Defence users. This approach ensures flexibility for Defence operations while maintaining the security and safety required to undertake Defence testing.
When an exclusion period approaches and when the extent of any testing is known, Defence contacts people who will be directly affected by these exclusion periods, including pastoralists, traditional owners and mines. Defence provides timely and clear information about the exclusion period and area to ensure that affected persons are aware of any potential disruptions. Engagement with affected persons is conducted via email and relevant updates are conducted on Defence’s official website to provide broader public accessibility to the information.
Additional consultation was not undertaken in relation to the making of this specific Determination. Considering the comprehensive consultation that was previously conducted during the development of the Rule and the ongoing consultation that Defence has with affected users in relation to exclusion periods, it was not considered necessary to consult further. This Determination operates within the framework established by the Rule, and does not introduce new impacts or changes that would warrant additional consultation.
Commencement
The instrument commences on the day after the instrument is registered on the Federal Register of Legislation.
Repeal
This Determination will be repealed on 1 January 2027.
Parliamentary scrutiny
The Determination is a legislative instrument for the purposes of the Legislation Act 2003.
The Determination is subject to disallowance under section 42 of the Legislation Act 2003.
A Statement of Compatibility with Human Rights has been prepared in accordance with subsection 9(2) 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 of Compatibility with Human Rights is set out at Attachment B.
Attachment A
Details of the Woomera Prohibited Area (Exclusion Periods for Amber Zone 1 and Amber Zone 2 for 1 July 2026 to 31 December 2026) Determination 2026
Section 1 – Name
Section 1 provides that the name of the instrument is the Woomera Prohibited Area (Exclusion Periods for Amber Zone 1 and Amber Zone 2 for 1 July 2026 to 31 December 2026) Determination 2026 (the Determination).
Section 2 – Commencement
Section 2 provides that the Determination commences on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
Section 3 provides that the Determination is made under subsection 8(1) of the Woomera Prohibited Area Rule 2014 (the Rule). This section sets out the legislative authority for this Determination.
Section 4 – Definitions
Section 4 sets out the meanings for key terms used throughout the Determination.
Section 5 – Exclusion Periods
Section 5 determines the exclusion periods for the amber zone 1 and amber zone 2.
Subsection 5(1) provides that for the purposes of paragraph 8(1)(a) of the Rule, the exclusion periods in the table in Schedule 1 are determined for amber zone 1. The effect is that non-Defence persons are prohibited from entering amber zone 1 during the periods specified.
Subsection 5(2) provides that for the purposes of paragraph 8(1)(b) of the Rule, the exclusion periods in the table in Schedule 2 are determined for amber zone 2. The effect is that non-Defence persons are prohibited from entering amber zone 2 during the periods specified.
These exclusion periods set out in Schedules 1 and 2 are consistent with subsections 8(2) and (3) of the Rule, which respectively provide that an exclusion period for a zone may commence immediately after the end of a previous exclusion period for that zone and where an exclusion period for amber zone 1 or amber zone 2 does not commence immediately, a minimum break of six weeks is required.
Section 6 - Repeal
Section 6 provides that the Determination is repealed on 1 January 2027.
Schedule 1—Exclusion Periods for Amber Zone 1
Schedule 1 details, in a table, the exclusion periods for amber zone 1.
Schedule 2—Exclusion Periods for Amber Zone 2
Schedule 2 details, in a table, the exclusion periods for amber zone 2.
Attachment B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Woomera Prohibited Area (Exclusion Periods for Amber Zone 1 and Amber Zone 2 for 1 July 2026 to 31 December 2026) Determination 2026
This Disallowable Legislative 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 Disallowable Legislative Instrument
Under subsection 8(1) of the Woomera Prohibited Area Rule 2014 (Rule) the Minister may, by legislative instrument, determine exclusion periods for amber zone 1 and amber zone 2. Subsection 8(4) of the Rule allows for an exclusion period to apply to part of a zone within the Woomera Prohibited Area (WPA). In accordance with section 10 of the Rule, a person who holds a WPA permit must not be at a place in the prescribed zone during an exclusion period.
This Disallowable Instrument, made under subsection 8(1) of the Rule, exercises the Minister’s power, conferred to his delegate, to determine exclusion periods for amber zone 1 and amber zone 2 in the WPA. The holders of a permit issued under the Rule are excluded from entering the part of amber zone 1 and amber zone 2 to which the exclusion period applies, during the periods specified in the Disallowable Instrument.
Human rights implications
This Disallowable Instrument engages the following human rights:
- the freedom of movement in Article 12 of the International Covenant on Civil and Political Rights (ICCPR);
- the right to work under Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);
- the right to the enjoyment of just and favourable conditions of work under Article 7 of ICESCR;
- the right to enjoy and benefit from culture in Article 27 ICCPR; and
- the right to take part in cultural life under Article 15 ICESCR.
Freedom of movement
Article 12 of the ICCPR ensures the right to freedom of movement which includes the right for those who are lawfully within a country to move freely within that country.
The Disallowable Instrument specifies exclusion periods for a part of amber zone 1 and amber zone 2 in the WPA, during which time permit holders are prohibited from entering. During these exclusion periods, the WPA is used by Defence for testing activities relating to the defence of Australia. Accordingly, being physically in the part of amber zone 1 and amber zone 2 during the exclusion period could endanger human life.
Therefore, any limitation on freedom of movement imposed by the Disallowable Instrument is considered reasonable, proportionate and necessary in these circumstances to maintain the security of Defence activities and protect personal safety. The Disallowable Instrument, achieves this objective as the exclusion periods prevent the movement of people through an area when Defence is undertaking its testing activities.
To ensure the Disallowable Instrument is reasonable and proportionate in the circumstances, the exclusion periods declared are for finite periods of time. Further, and in accordance with subparagraphs 9(2)(a)(i) of the Rule, permit holders must be given at least three months’ notice before the beginning of the financial year in which the exclusion period begins for amber zone 1 and amber zone 2. The Woomera Prohibited Area Coordination Office complies with these notification requirements and informs stakeholders of the exclusion periods on Defence’s official website before they come into effect. Defence also communicates regularly with affected permit holders who are contacted in the lead up to upcoming exclusion periods.
The above mechanisms ensure the limitation on the right to freedom of movement is reasonable, proportionate and necessary in these circumstances.
The right to work and the right to just and favourable working conditions
The right to work is protected under Article 6 of ICESCR, and Article 7 recognises the right to the enjoyment of just and favourable conditions of work, including a right to safe and healthy working conditions.
As raised above, exclusion periods determined by the Minister under section 8 of the Rule remove the right of persons to access parts of the WPA for the duration of the exclusion periods due to Defence testing activities. This may prevent permit holders from being able to work, and prevent a body corporate from conducting its business activities in the WPA. In these circumstances, the right to work will be limited for the duration of the exclusion period to ensure personal safety and the security of permit holders.
Any limitations on the right to work and the right to just and favourable working conditions are considered reasonable, proportionate and necessary to ensure the security of Defence activities and protect personal safety. The limitations will achieve this objective by allowing Defence to undertake its testing activities while ensuring that people will not be put in danger. This includes evacuating people from places if their working conditions become dangerous or unfavourable (i.e. where there is a potential hazard caused by the testing of war materiel).
Further, the exclusion periods are only for the specified timeframes in the Disallowable Instrument, with affected stakeholders given advance notice of the duration of the exclusion periods, ensuring the limitation on the right to work is reasonable and proportionate.
The right to enjoy and benefit from culture and the right to take part in cultural life
Article 27 of the ICCPR protects the rights of all people to enjoy and benefit from culture. Article 15 of the ICESCR protects the right to take part in cultural life.
For First Nations people, enjoying and benefiting from culture and taking part in cultural life may include traditional, social and economic activities such as fishing or hunting and the right to live on traditional lands. The Disallowable Instrument of exclusion periods in the WPA may limit First Nations people's cultural rights, including the traditional use of land in the relevant zones for hunting, food gathering and ceremonial or religious purposes. Limiting access to the relevant zones will be for the purpose of Defence testing activities, the conduct of which could endanger human life should people be in the zone while this activity is taking place.
The limitation on these rights is reasonable, proportionate and necessary to maintain the security of Defence activities and ensure the safety of people who have access to this area. Once the exclusion periods have ceased, First Nations people are able to access the WPA and enjoy and take part in cultural life as recognised in the ICCPR and ICESCR.
Conclusion
The Disallowable Instrument is compatible with the international human rights instruments to which Australia is a signatory. While recognising that freedom of movement, the right to work and the right to enjoy and benefit from culture may be limited for certain periods in the WPA, these limitations are reasonable, necessary and proportionate to achieving legitimate objectives.