EXPLANATORY STATEMENT
Woomera Prohibited Area Rule 2014
Woomera Prohibited Area Rule 2014 (Determination of Exclusion Period for the Green Zone) Repeal Determination 2021
Authority
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.
The Determination of Exclusion Period for the Green Zone for the Period 21 October 2021 to 21 November 2021 (the Original Instrument) was made by the Director Woomera Prohibited Area Coordination Office as a delegate of the Minister for Defence on 24 September 2021.
Subsection 33(3) of the Acts Interpretation Act 1901 relevantly provides that, 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. This instrument is made in accordance with that provision.
Purpose and operation of the Repealing Instrument
The purpose of the Woomera Prohibited Area Rule 2014 (Determination of Exclusion Period for the Green Zone) Repeal Determination 2021 (the Repealing Instrument) is to repeal the exclusion period for a specified part of the Green Zone in the Woomera Prohibited Area that Defence used for testing relating to the defence of Australia. During the prescribed 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.
Given the nature of Defence testing activities in the Woomera Prohibited Area, the actual duration of an exclusion period and the extent of exclusion areas are subject to change. Defence testing activities in the specified part of the Green Zone have concluded and there is no requirement to continue excluding permit holders from the specified part of the Green Zone any longer.
Legislative Instrument
The Repealing Instrument is a legislative instrument for the purposes of the Legislation Act 2003.
Commencement
The Repealing Instrument commences on the day it is signed by the Director Woomera Prohibited Coordination Office.
Regulatory Impact Statement
There is no regulatory impact.
Consultation
Consultation was not undertaken at the time of making the Repealing Instrument on the basis that the repeal of the Original Instrument will have a beneficial impact on those permit holders who have, since 21 October 2021, been excluded from the specified part of the Green Zone. Upon the exclusion period ceasing, the affected permit holders will once again be able to access the specified part of the Green Zone, enjoy their usual freedoms of movement, work and participation in cultural life. In addition to registration of the repealing Instrument, Defence will ensure that the cessation of the exclusion period and lifting of restrictions on access to the specified part of the Green Zone is made public by giving written notice to affected permit holders and by publication on the Woomera Prohibited Area Coordination Office website as soon as practicable.
Details of Amending Instrument
Details of the Amending Instrument are set out at Attachment 1.
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) Repeal Determination 2021
Section 1 – Name
This section provides that the name of the Repealing Instrument is the Woomera Prohibited Area Rule 2014 (Determination of Exclusion Period for the Green Zone) Repeal Determination 2021.
Section 2 – Commencement
This section provides that the whole of the Repealing Instrument commences on the day it is signed by the Director Woomera Prohibited Area Coordination Office.
Section 3 – Authority
This section provides that the legislative authority for making the Amending Instrument is subsection 8(1) of the Woomera Prohibited Area Rule 2014.
Section 4 Schedules
Section 4 provides that each instrument that is specified in a Schedule to the Amending Instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument has effect according to its terms.
Schedule 1 – Repeals
Schedule 1 Determination of Exclusion Period for the Green Zone for the Period 21 October 2021 to 21 November 2021
Item 1 – The whole of the instrument
Item 1 repeals the whole of the instrument.
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) Repeal Determination 2021
The Repealing 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 Repealing Instrument
The Determination of Exclusion Period for the Green Zone for the Period 21 October 2021 to 21 November 2021 (the Original Instrument) was made by the Director Woomera Prohibited Area Coordination Office as a delegate of the Minister for Defence on 24 September 2021. During the prescribed 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.
The purpose of the Woomera Prohibited Area Rule 2014 (Determination of Exclusion Period for the Green Zone) Repeal Determination 2021 (the Repealing Instrument) is to repeal the exclusion period for the specified part of the Green Zone in the Woomera Prohibited Area. Defence testing activities in the specified part of the Green Zone have concluded and there is no requirement to continue excluding permit holders from the specified part of the Green Zone any longer.
Human rights implications
The Repealing Instrument 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 Original Instrument specified 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. Freedom of movement was 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 Woomera Prohibited Area. Although the exclusion period was 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, now that the Defence testing activities have concluded, there is no requirement to continue excluding permit holders from the specified part of the Green Zone any longer. Repealing the exclusion period will ensure that 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 – Article 6 of 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.
During the exclusion period specified in the Original Instrument, permit holders were unable to work and/or conduct business activities in the specified part of the Green Zone of the Woomera Prohibited Area. The right to work was 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 Woomera Prohibited Area. Although the exclusion period was 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, now that the Defence testing activities have concluded, there is no requirement to continue excluding permit holders from the specified part of the Green Zone any longer. Repealing the exclusion period will ensure that the limitation on the right to work is reasonable, proportionate and necessary in these circumstances.
The right to enjoy and benefit from culture – Article 27 of the ICCPR and the right to take part in cultural life – Article 15 of the 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. During the exclusion period specified in the Original Instrument, indigenous Australians were unable to fully enjoy their culture life in the specified part of the Green Zone WPA. The right to enjoy culture and take part in cultural life was 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 Woomera Prohibited Area. Although the exclusion period was 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, now that the Defence testing activities have concluded, there is no requirement to continue excluding permit holders from the specified part of the Green Zone any longer. Repealing the exclusion period will ensure that the limitation on the right to enjoy culture and take part in cultural life is reasonable, proportionate and necessary in these circumstances.
Conclusion
The Repealing Instrument is compatible with international human rights instruments to which Australia is a signatory. It helps ensure that limitations that were placed on human rights were reasonable and proportionate by ceasing the limitations when they were no longer necessary to achieving legitimate objectives.
Kathleen Leane, Director Woomera Prohibited Area Coordination Office