EXPLANATORY STATEMENT
Issued by the authority of the Minister for Defence
Defence Act 1903
Woomera Prohibited Area Rule 2014
Determination of Exclusion Period for the Green Zone
for the Period 21 October 2021 to 21 November 2021
Purpose
Subsection 8(1) of the Woomera Prohibited Area Rule 2014 provides that the Minister for Defence may, by legislative instrument, determine the exclusion period for zones in the Woomera Prohibited Area (WPA) for a financial year. The Minister has delegated the power to determine these exclusion periods pursuant to subsection 63(2) of the Woomera Prohibited Area Rule 2014.
Woomera Prohibited Area Rule 2014 Determination of Exclusion Period for the Green Zone for the Period 21 October 2021 to 21 November 2021
Details of the Determination are set out in Attachment 1.
The Determination is a legislative instrument for the purposes of the Legislation Act 2003.
Consultation
Defence consulted on the general principles of exclusions periods in the WPA as part of the introduction of the Woomera Prohibited Area Rule 2014. Through this process, the persons who are directly affected by the exclusion periods were 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 Woomera Prohibited Area Rule 2014 contains a number of mechanisms to limit the potential impacts that exclusion periods have on affected persons. These include: limitations in subsection 8(1) on the number of days for exclusion periods for each zone; the capacity provided by subsection 8(4), to limit an exclusion period to a part of a zone; and notification requirements provided by section 9.
Consultation was not undertaken at the time of making this instrument on the basis that the determination of this exclusion period was undertaken based on prospective Defence testing activity requirements and mechanisms to limit the impacts on affected persons. This instrument is required to meet the notification requirements provided by subsection 9(1) and subparagraph 9(2)(a)(iii) of the Woomera Prohibited Area Rule 2014.
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This instrument therefore determines an exclusion period for a specified part of the Green Zone that Defence intends to use for testing relating to the defence of Australia during the specified period. Notification of this exclusion period is provided by post and email to all relevant stakeholders who have permission to access that part of the WPA. Given the nature of Defence testing activities in the WPA the actual duration and extent of exclusions determined by this instrument may be subject to change. This may result in an exclusion period progressing as promulgated, or its duration being reduced, or it being revoked.
When an exclusion period approaches and when the extent of any testing is known, Defence will contact those people who will be directly affected by this exclusion period including pastoralists, traditional owners and mines. Defence will provide notice of the duration of testing, as well as limitations and restrictions on their access to the specified part of the Green Zone that is subject to the exclusion period, and when it is safe to again access the specified part of the Green Zone upon completion of the activity.
Notice of upcoming exclusion periods is also made available through Defence’s website and signage which is placed along public access routes to the WPA when they are to be subject to closure. Public notices are also published in local newspapers and South Australian Government agencies responsible for roads, transport and policing are advised.
Commencement
This instrument commences on the day after registration.
Statement of Compatibility with Human Rights – Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
A statement of compatibility with Human Rights is set out at Attachment 2.
Attachment 1
Details of the Woomera Prohibited Area Rule 2014 Determination of Exclusion Period for the Green Zone for the Period 21 October 2021 to 21 November 2021
This Determination sets out an Exclusion Period that applies to a specified part of the Green Zone in the Woomera Prohibited Area for period 21 October 2021 to 21 November 2021 inclusive in accordance with subsection 8(1) of the Woomera Prohibited Area Rule 2014.
The Exclusion Period in the Schedule are the dates in which holders of a permit issued under the Woomera Prohibited Area Rule 2014 are excluded from entering the specified part of the Green Zone.
Attachment 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Woomera Prohibited Area Rule 2014 Determination of Exclusion Period for the Green Zone for the Period 21 October 2021 to 21 November 2021
The Determination of an Exclusion Period for a specified part of the Green Zone for the Period 21 October 2021 to 21 November 2021, made under subsection 8(1) of the Woomera Prohibited Area Rule 2014, (the Determination) 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 Determination
In 2014, amendments were made to the Defence Act 1903 that implemented recommendations of the Government’s review of the Woomera Prohibited Area (WPA). The amendments saw the introduction of the Woomera Prohibited Area Rule 2014, which provides for the issuing of permits to access the WPA.
The legislation established a coexistence scheme that provides non-Defence users with greater certainty over Defence activity in the WPA and access arrangements. A key feature of the 2014 legislation was the introduction of access management zones with defined exclusion periods. The access management zones of red, amber and green indicate when non-Defence users are excluded from certain areas of the WPA during certain periods of the year (exclusion periods).
Subsection 8(1) of the Woomera Prohibited Area Rule 2014 provides that the Minister for Defence may, by legislative instrument, determine exclusion periods for zones in the Woomera Prohibited Area (WPA) for a financial year. This Determination, made under subsection 8(1) of the Woomera Prohibited Area Rule 2014, exercises the power of the Minister for Defence by his delegate to determine an exclusion period for a specified part of the Green Zone for the period 21 October 2021 to 21 November 2021 inclusive.
In accordance with paragraph 8(4)(b) and section 10 of the Woomera Prohibited Area Rule 2014, a permit does not provide permission for a person to be in a specified part of a zone during an exclusion period.
During this exclusion period, the holders of a permit issued under the Woomera Prohibited Area Rule 2014 are excluded from entering the specified part of the Green Zone for the period 21 October 2021 to 21 November 2021 inclusive.
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Human rights implications
The Determination is likely to engage the following human rights:
Freedom of Movement – Article 12 of the International Covenant on Civil and Political Rights (ICCPR)
The right to freedom of movement includes the right, for those who are lawfully within a country, to move freely within that country.
The Determination specifies an exclusion period for a specified part of the Green Zone for the period 21 October 2021 to 21 November 2021 inclusive, during which time permit holders are unable to enter the specified part of the Green Zone. During this exclusion period, the WPA is used by Defence for testing activities relating to the defence of Australia, the conduct of which could endanger human life should people be in the specified part of the Green Zone while this activity is taking place. In these circumstances, freedom of movement will be limited for the duration of the exclusion period to ensure personal safety and the security of people due to Defence testing activities taking place within the WPA.
Any limitation on freedom of movement is considered reasonable, proportionate and necessary in these circumstances to maintain the security of Defence testing activities and protect personal safety. The Determination of an exclusion period for a specified part of the Green Zone of the WPA achieves this objective as the exclusion period will prevent the movement of people through an area when Defence is undertaking its testing activities. This will allow the activity to be conducted in a safe and secure manner and at the end of the exclusion period, a person may safely resume accessing that part of the Green Zone in the WPA in accordance with their permit or standing permission. Further to this, the exclusion period is for a finite period of time and only for that part of the Green Zone considered reasonably necessary to conduct the testing activities in a safe and secure manner. Under the Woomera Prohibited Area Rule 2014, permit holders must be given at least 21 days’ notice (where the permit is not for resource production). In addition to this written notice, the Woomera Prohibited Area Coordination Office will inform stakeholders of the exclusion period and specified part of the Green Zone on its website before it comes into effect. 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 International Covenant on Economic, Social and Cultural Rights (ICESCR)
The right to work is protected in Article 6 of the ICESCR while Article 7 recognises the right to just and favourable conditions of work including a right to safe and healthy working conditions.
Exclusion periods determined under section 8 of the Woomera Prohibited Area Rule 2014 by the Minister will remove the right to access parts of the WPA for the duration of the exclusion periods. This may prevent permit holders under the Woomera Prohibited Area Rule 2014 from being able to work and prevent a body corporate from conducting its business activities in the WPA.
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As noted above, during the exclusion period specified in the Determination, the specified part of the Green Zone in the WPA is used by Defence for testing activities relating to the defence of Australia, the conduct of which could endanger human life should a person be in a the specified part of the Green Zone during the exclusion period. In these circumstances, the right to work will be limited for the duration of the exclusion period to ensure personal safety of permit holders and the security of the testing activities.
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. This limitation will achieve this objective by allowing Defence to undertake its testing activities and ensuring that people will not be put in danger as a result of being in the area at the relevant time. This includes evacuating people if their working conditions become dangerous or unfavourable; where there is a potential hazard caused by the testing of war materiel.
Further to this, exclusion from the area is only for the finite period specified in the instrument and only for that part of the Green Zone considered reasonably necessary to conduct the testing activities in a safe and secure manner with affected stakeholders given advance notice of the duration of the exclusion period, ensuring the limitation on the right to work is reasonable and proportionate.
The right to enjoy and benefit from culture – ICCPR and the right to take part in cultural life - ICESCR
Article 27 of the ICCPR protects the rights of all people to enjoy and benefit from culture, while Article 15 of the ICESCR protects the right to take part in cultural life.
For Indigenous Australians, 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 Determination of an exclusion period in the Green Zone of the WPA may limit Indigenous people’s cultural rights, including the traditional use of land in the relevant part of the Green Zone for hunting, food gathering and ceremonial or religious purposes. Limiting access to the relevant part of the Green Zones will be for the purpose of Defence testing activities, the conduct of which could endanger human life should people be in the specified part of the Green 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 period has ended, Indigenous people are able to again access that part of the WPA and enjoy and take part in cultural life as recognised in the ICCPR and ICESCR.
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Conclusion
The Determination 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.
Kathleen Leane
Director Woomera Prohibited Area Coordination Office