Kelly O'Dwyer (Higgins, Liberal Party, Minister for Revenue and Financial Services) Share this | Hansard source

I move:

That this bill be now read a second time.

The proposed bill will amend instrument-making powers in the Defence Act 1903 ('Defence Act') to ensure that, when remaking certain instruments made under the Defence Act in the future, the instruments can reflect modern policy requirements and approaches to drafting.

Several instruments made under the Defence Act are scheduled to sunset in April 2018, including the Defence (Inquiry) Regulations 1985, the Defence (Areas Control) Regulations 1989 and the Defence (Public Areas) By-Laws 1987. These instruments deal with important issues and it will be necessary to remake them in some form before they sunset.

As is the purpose of sunsetting, the intention is to improve the instruments by consolidating duplications, improving consistency and providing clarity where possible.

Defence inquiries

At present, the Defence (Inquiry) Regulations 1985 ('Defence (Inquiry) Regulations') establish a range of inquiries that can be undertaken in Defence, including General Courts of Inquiry, Boards of Inquiry, Combined Boards of Inquiry, Chief of the Defence Force Commissions of Inquiry and Inquiry Officer inquiries.

The different types of inquiries outlined in the Defence (Inquiry) Regulations all perform a similar function, which is to assist commanders in the Defence Force to obtain accurate and relevant information in a timely manner to inform their decisions and actions. Similar procedures and powers also apply to each type of inquiry.

When remaking this instrument, the intention is to consolidate the different types of inquiries, instead articulating one form of inquiry that would be flexible and scalable to suit the relevant circumstances.

To achieve this, the bill will amend the regulation-making power in the Defence Act as it relates to inquiries. Instead of listing different types of inquiries, the new provision will simply enable the making of regulations relating to inquiries concerning the Defence Force.

Defence Aviation Areas

The Defence (Areas Control) Regulations 1989 ('Defence (Areas Control) Regulations') prescribe affected land, in which buildings and other objects hazardous to aviation can be regulated.

The regulations include limits on building heights within prescribed areas, prohibitions on bringing hazardous objects within a prescribed area, powers to require the removal or marking of hazardous objects within prescribed areas, and powers to enter a prescribed area to remove or mark hazardous objects.

The power to make these regulations is at paragraph 124(1)(na) of the Defence Act, which enables the making of regulations for 'the regulation, control or prohibition of the construction or use of buildings, erections or installations, the use of apparatus, machines or vehicles, and the removal in whole or in part of buildings, erections, installations, apparatus, trees or other natural obstacles, within prescribed areas…'.

The scheme established in the Defence (Areas Control) Regulations is important to maintain safety for defence aviation, prescribing areas in the surroundings of 12 defence airfields.

The bill will repeal the regulation-making power in paragraph 124(1)(na), and insert a new part IXD relating to the establishment of defence aviation areas in which buildings and objects can be regulated for the purposes of removing and reducing hazards to defence aviation.

Rather than being prescribed in the regulations, the minister may declare an area to be a defence aviation area by legislative instrument. This will significantly reduce the length of the regulations, enable changes to maps of the areas to be incorporated in the instrument more quickly, and will be consistent with the approach taken to the declaration of defence areas under part 11 of the Defence Regulation 2016. This will not reduce the ability for the parliament to provide oversight to these regulations.

The bill will also improve the clarity of the regulation-making power more generally in the new part. In line with current drafting practice, the new part will trigger the standard provisions in part 2 of the Regulatory Powers (Standard Provisions) Act 2014 ('Regulatory Powers Act') for monitoring whether legislation is being complied with, or whether information given to the Commonwealth in compliance, or purported compliance, is correct.

Defence Public Areas

The Defence (Public Areas) By-Laws 1987(by-laws) apply in public areas declared under part IXB of the Defence Act.

There are currently two existing public areas: the Beecroft public area in New South Wales, and the Garden Island public area in Western Australia. Each public area is a significant tract of Defence land, where there is a strong interest in enabling public entry for recreational purposes where this can be achieved consistently with defence requirements.

The by-laws apply in the public areas, and regulate the public's use of the areas. For example, they provide for offences relating to parking, camping and fishing in public areas.

When remaking the by-laws, the intention is to enable some of the offences to be enforced through an infringement notice scheme. At present, paragraph 116ZD(2)(r) enables the by-laws to include this type of scheme for some offences. However, the by-laws do not currently include an infringement notice scheme.

In line with current drafting practice, the preference is to establish infringement notice schemes by reference to standard provisions in the Regulatory Powers Act. Accordingly, this bill will amend the Defence Act to enable the by-laws to specify strict liability offences as subject to an infringement notice under part 5 of the Regulatory Powers Act.

The sunsetting and remaking process of these Defence instruments have provided Defence with the opportunity to update its policies and practices in a number of important subject matter areas.

The bill provides Defence not only with the opportunity to modernise the language of its legislation, but also assist the regulation-making process in the future.

I commend the bill to the House.

Debate adjourned.

See this speech in context