Defence Amendment (Instrument Making)

Labor supports the proposed amendments set out in the Defence Legislation Amendment (Instrument Making) Bill 2017. The bill amends both the Defence Act 1903 and the Regulatory Powers (Standard Provisions) Act 2014 in relation to inquiries, defence aviation areas and public areas.

The amendments do not make significant changes to Defence's current operations. They are intended to enhance them and to update the regulations and make them more flexible for our 21st century.

The changes to the two acts will enable instruments created under these provisions to be remade, taking into account the updates that we talk about here today. First up, there are the sunsetting provisions. All legislative instruments are subject to the sunsetting provisions in the Legislative Instruments Act. Under those provisions, instruments that are not exempted will be automatically repealed after about 10 years unless action is taken to preserve them. In coming years, thousands of legislative instruments are due to sunset, and the amendments discussed in this bill will affect three legislative instruments that will sunset in April 2018 unless they're remade. These instruments are the Defence (Inquiry) Regulations 1985, the Defence (Areas Control) Regulations 1989 and the Defence (Public Areas) By-Laws 1987. These amendments are intended to ensure the legislative instruments remain fit for purpose, necessary, relevant and flexible. As you can see, those two regulations and that set of by-laws are around 30 years old now, so this ensures that Defence can stay up to date with the latest developments and ensure that its regulations and by-laws reflect those.

An honourable member interjecting

Ms BRODTMANN: They are very proper and very fit for purpose.

There are a significant number of inquiries that Defence can undertake—general courts of inquiry, boards of inquiry, Chief of the Defence Force commissions of inquiry and inquiry officer inquiries—that all perform a similar function, which is to assist commanders in the Defence Force to get accurate and relevant information in a timely manner to inform their decisions and actions. Similar procedures and powers apply to each of these types of inquiry. Given these similarities, the intention of the amendment bill is to remove the list of inquiry types and replace it with the general term 'an inquiry'. This consolidates the list and maintains the flexibility I mentioned before for the types of inquiries that have been undertaken previously to continue. It also creates the opportunity for a new inquiry type to be introduced, should the need arise, in the Defence (Inquiry) Regulations in the future. In addition, it means that an inquiry could be scaled to meet the circumstances of each inquiry, providing a level of tailoring that we haven't quite seen under the current framework. There are, however, some inquiries that will remain distinct from the consolidated definition of an inquiry, and these are some important ones. They include inquiries conducted by the Defence Force Remuneration Tribunal, the Inspector-General of the Australian Defence Force and the Defence Honours and Awards Appeals Tribunal.

Next are the Defence aviation areas. There are currently 12 declared Defence aviation control areas across Australia. These are areas that Defence has jurisdiction over. There are a range of them—from memory, East Sale is one of them and Pearce is another—and Defence shares a number of these aviation areas with its civilian counterparts. Although it is a civilian jurisdiction, similar regulations for the safety of the aviation area apply. The regulations maintain the safety of the aviation area by limiting building heights, prohibiting some items being brought into area and making arrangements to deal with hazardous objects, whether they're within or outside the area. Hazardous objects could be anything that may be dangerous to aviation or aviation communications—for example, an overhanging crane arm that impedes the aviation area or a smoke plume from back-burning on an adjacent industrial area.

The proposed amendments in this area do not change the existing regulations; they just give them a bit of backbone when it comes to enforcement. One of the amendments clarifies the existing regulatory power when it comes to taking action to remove or reduce existing hazards to aviation or aviation communications by stating action may be taken no matter the nature of the hazard or the nature of the action required in removing or reducing it. Existing Defence operations show that actions are generally taken as a last resort when other means—for example, other means for communicating with the owner of the crane—have failed.

It is the responsibility of authorised persons, such as inspectors for Defence aviation areas, to undertake necessary actions when it comes to identifying and taking action to remove or reduce the hazard. Under the current regulations, authorised persons are limited to the secretary of the department and the CDF. This bill will allow the function of an inspector for an aviation area to be appointed from the Public Service in Defence or from the ADF, as well as from a number of one-star or SES ranks through the ADF and the Public Service.

Finally, there are currently two public areas that have been declared on Defence land—the Beecroft public area in New South Wales and the Garden Island public area in Western Australia. These areas are national parks and there's a strong interest in preserving access to the community for recreational purposes. But public access needs to be balanced with Defence use of the land for exercises. Defence continues to use the land in the public areas for military exercises from time to time. This means members of the public who are using the area would need to be moved on at these times for their own safety. Defence has indicated there are times when members of the public refuse to move, so that requires some assistance from the local police. To help address this, the bill proposes the introduction of an infringement notice scheme. Infringement notices would be issued by a ranger in circumstances where people have refused to comply with a direction to move on from the area. Defence has indicated it is not expected that a significant number of infringement notices would be issued; however, it is intended to provide a necessary deterrent.

The proposed changes in this bill are not comprehensive; they simply consolidate and clarify existing governance arrangements and bring them up to date—because some of them are 30 years old—in relation to Defence inquiries, aviation areas and public areas. I commend the bill to the House.

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