EXPLANATORY STATEMENT
Issued by the authority of the Minister for Defence
Defence Act 1903
Woomera Prohibited Area Rule 2014
Suspension of Standing Permission to Travel on the Tarcoola to Darwin Railway Line During the Period 21 October 2021 to 21 November 2021
Purpose
Defence testing activities will take place in the Woomera Prohibited Area (WPA) during the period 8.00 am, 21 October 2021 to 11.59 pm, 21 November 2021 inclusive. During this period, the Minister’s delegate is satisfied that it is necessary under subsection 11(3) of the Woomera Prohibited Area Rule 2014 to suspend standing permission at certain times to travel between specified locations on the Tarcoola to Darwin railway line in the WPA.
Subsection 11(3) of the Woomera Prohibited Area Rule 2014 provides that the Minister for Defence may, by legislative instrument, suspend standing permission to use certain roads and railways in the WPA if the Minister is satisfied that it is necessary for:
(a) the security of defence activities; or
(b) the safety of persons in the Woomera Prohibited Area.
The Minister has delegated the power to suspend permission for travel on the access routes mentioned in subsection 11(1) of the Woomera Prohibited Area Rule 2014 within the WPA.
This instrument suspends standing permission to travel between specified locations on the Tarcoola to Darwin railway line during the specified period and during specified times while Defence testing activities are occurring in the WPA. Given the nature of these activities, the actual duration and extent of any suspension specified in this instrument may be subject to change which may result in the period of suspension progressing as promulgated, or its duration being reduced, or it being revoked.
Suspension of Standing Permission to Travel on the Tarcoola to Darwin Railway Line During the Period 21 October 2021 to 21 November 2021
Details of the suspension of standing permission are set out in Attachment 1.
This instrument is a legislative instrument for the purposes of the Legislation Act 2003.
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Consultation
Defence provides notice of the duration of testing, as well as limitations and restrictions on travel along access routes, and when it is safe to access these areas upon completion of the activity.
Notice of upcoming exclusion periods is provided to those people who hold a permit under the Woomera Prohibited Area Rule 2014 and is also made available to the public via Defence’s website and signage which is placed along public access routes to the WPA indicating 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 Suspension of Standing Permission to Travel on the Tarcoola to Darwin Railway Line During the Period 21 October 2021 to 21 November 2021
Section 11 of the Woomera Prohibited Area Rule 2014 permits travel along certain access routes in the Woomera Prohibited Area subject to the condition that the person not deviate from the access route. This standing permission may be suspended where it is necessary for the security of defence activities or the safety of persons in the Woomera Prohibited Area.
This instrument suspends the standing permission for travel on the Tarcoola to Darwin railway line in the WPA in accordance with subsection 11(3) of the Woomera Prohibited Area Rule 2014 during the period and between the locations specified in the instrument. The instrument limits the suspension of the standing permission to the times when Defence has access control points in place to prevent use of the specified part of the Tarcoola to Darwin railway line. At all other times during the period, the standing permission under section 11(3)(e) to travel on the Tarcoola to Darwin railway line is unaffected.
The Woomera Prohibited Area is the area prescribed in section 5 of the Woomera Prohibited Area Rule 2014.
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
Suspension of Standing Permission to Travel on the Tarcoola to Darwin Railway Line During the Period 21 October 2021 to 21 November 2021
This instrument under the Woomera Prohibited Area Rule 2014 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
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.
Section 11 of the Woomera Prohibited Area Rule 2014 provides a standing permission that permits travel along certain access routes in the Woomera Prohibited Area subject to the condition that the person not deviate from the access route. Subsection 11(3) of the Woomera Prohibited Area Rule 2014 provides that the Minister may, by legislative instrument, suspend permission to travel on those specified access routes if the Minister is satisfied that it is necessary for the security of defence activities; or for the safety of persons in the Woomera Prohibited Area.
This instrument made under section 11(3) of the Woomera Prohibited Area Rule 2014 exercises the power of the Minister for Defence by his delegate to suspend standing permission under section 11 of the Woomera Prohibited Area Rule 2014 to travel on the Tarcoola to Darwin railway line during the period, at times, and between locations specified in the instrument.
To minimise the impact on human rights, the instrument limits the suspension of the standing permission during a specified period and between specified locations on the Tarcoola to Darwin railway line. It is further limited to certain times when Defence has access control points established to prevent use of the specified part of the Tarcoola to Darwin railway line.
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Human rights implications
The suspension of the standing permission 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 Instrument specifies the period during which standing permission to travel on certain parts of the Tarcoola to Darwin railway line access route in the WPA will be suspended. During this 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 zones while this activity is taking place. In these circumstances, freedom of movement will be limited for the duration of the period to ensure personal safety and the security of people due to defence 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 activities and protect personal safety. The suspension of standing permission to travel on certain parts of the Tarcoola to Darwin railway line in the Woomera Prohibited Area 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 period, a person may safely resume travelling along the Tarcoola to Darwin railway line access route through the WPA.
In addition to written notice, the Woomera Prohibited Area Coordination Office informs stakeholders of the suspension of permission on its website before they come into effect, along with notices in newspapers and signage established along these routes.
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.
The suspension of standing permission to travel on certain access routes under section 11 of the Woomera Prohibited Area Rule 2014 by the Minister may limit access to parts of the WPA during the specified period when access control points are established. 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
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business activities in, or through, the WPA in addition to people and freight transiting through the area.
As noted above, during the period and times specified in the Instrument, 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 zone during the period. In these circumstances, the right to work will be limited for the duration of the suspension to ensure personal safety and the security of defence 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 preventing people from using the Tarcoola to Darwin railway line where there is a potential safety hazard caused by the testing of war materiel.
Further to this, any limits on travelling is only for the period and between locations specified in the instrument, and at the times when access control points are established with affected people given advanced notice of the duration of the suspension, 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 suspension of permission to use access routes in the WPA may limit Indigenous people’s cultural rights, including the traditional use of land in the relevant zones for hunting, food gathering and ceremonial or religious purposes. Limiting travel along the Tarcoola to Darwin railway line is for the purpose of Defence testing activities, the conduct of which could endanger human life should people be travelling along the Tarcoola to Darwin railway line 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 suspension on travel on the Tarcoola to Darwin railway line 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 suspension of standing permission to travel on the identified parts of the Tarcoola to Darwin railway line 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