Patrick Dodson (WA, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in favour of the Defence Legislation Amendment (Instrument Making) Bill 2017. I indicate that Labor supports this bill. The purpose of the bill is to amend the primary legislation—the Defence Act 1903 and the Regulatory Powers (Standard Provisions) Act 2014—so that these amendments will be reflected in legislative instruments when they are remade. There are three legislative instruments that will sunset in 2018 unless they are remade before that date. These instruments are the Defence (Inquiry) Regulations 1985, the Defence (Areas Control) Regulations 1989 and the Defence (Public Area) By-laws 1987. I'll take the chamber through each of these.

The Defence (Inquiry) Regulations 1985 provide powers to make regulations for a range of inquiries, including general courts of inquiry, boards of inquiry, Chief of the Defence Force commissions of inquiry and inquiry officer inquiries. These inquiries 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 apply to each type of inquiry. The intention is to consolidate the different types of inquiries and refer only to one form of inquiry, which is flexible and which can scale to meet the circumstances of each inquiry. The amendments would provide greater flexibility in naming inquiries and replacing them with a general term, 'an inquiry'. Inquiries conducted by the Defence Force Remuneration Tribunal, the Inspector-General of the ADF and the Defence Honours and Awards Appeals Tribunal are excluded from this paragraph.

The Defence (Areas Control) Regulations 1989 maintain safety for defence aviation by including limits on building heights within prescribed areas; prohibitions on bringing hazardous objects within a prescribed area; the power to remove or mark hazardous objects within the prescribed area; and the power to enter a prescribed area to remove or mark hazardous objects. The regulations prescribe 12 defence aviation areas in the schedule. This 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 regulations provide that the minister may declare an area of land, sea or air space in or adjacent to Australia to be a defence aviation area by legislative instrument.

The bill will also provide regulation-making power in relation to defence aviation areas. It will give greater clarification than previously, enabling regulations to do the following: regulate or prohibit the construction or use of buildings, structures or objects within defence aviation areas; regulate or prohibit the bringing in or having of objects within the defence aviation area; and provide for the removal, in part or in whole, marking, lighting, screening, modification or relocation of buildings, structures or objects, including trees or other natural objects, within defence aviation areas. This clarifies the existing regulation-making power by ensuring that regulations can be made to allow for action to be taken to remove or reduce existing hazards to aviation or aviation communication, no matter the nature of the hazard or the nature of the action required to remove or reduce it.

Defence area control regulations provide for authorised persons, such as an inspector, to enter defence aviation land and premises for a range of purposes. These powers will need to be remade as they are an important aspect of the scheme, ensuring there is a mechanism to deal with the hazardous objects.

A new section will be inserted to address the appointment of inspectors for defence aviation areas. Subsection 117AG(1) provides that the secretary or the Chief of Defence Force may, in writing, appoint an APS employee in the department or a member of the Defence Force as an inspector. Under subsection 117AG(2) a person may not be appointed unless the appointer is satisfied that the person has the knowledge, training or experience necessary to properly exercise the powers of a defence aviation area inspector. A new section would also be included, allowing the secretary or the Chief of the Defence Force to delegate certain powers and functions from subsections 117AG(1) and (2) to an SES employee in the department, to a Navy officer of commander rank or higher, to an Army officer of brigadier rank or higher or to an Air Force officer of air commodore rank or higher.

In relation to the Defence (Public Areas) By-Laws 1987, the by-laws apply to the public area declared by Defence under part IXB of the Defence Act. There are two public areas that have been declared under the act: 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 strong interest in enabling public entry for recreational purposes. The main change to the by-law is the introduction of an infringement notice scheme. Defence advises that it needs to use the land identified for public area use for military exercises from time to time. This means that members of the public who are using the area would need to be moved on, at these times, for their own safety. Defence indicates that there are times when members of the public refuse to move and subsequently it requires the assistance of local police. The infringement notice scheme is intended to make parking, fishing or camping in the public areas a restricted liability offence at these times.

Labor welcomes the passing of this bill. I commend it to the Senate.

Kimberley Kitching (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I'm pleased to speak on the Defence Legislation Amendment (Instrument Making) Bill 2017. This is a non-controversial bill which the opposition supports. I do take a close interest in defence-related matters, so I don't think any defence bill should pass through the Senate without debate.

The purpose of the bill is to amend the primary legislation, the Defence Act 1903, and the Regulatory Powers (Standard Provisions) Act 2014, so that these amendments will be reflected in legislative instruments made under these acts when they are re-made. There are three legislative instruments that will sunset in 2018 unless they are re-made before this date. These are the Defence (Inquiry) Regulations 1985, the Defence (Areas Control) Regulations 1989 and the Defence (Public Areas) By-Laws 1987.

I turn first to the Defence (Inquiry) Regulations 1985. The power to make these regulations is at paragraph 124(1)(gc) of the Defence Act. This section provides the power to make regulations for a range of inquiries, including general courts of inquiry, boards of inquiry, Chief of the Defence Force commissions of inquiry, and inquiry officer inquiries. The intention is to consolidate the different types of inquiries—and some may say, 'Thank goodness for that!'—and refer only to one form of inquiry which has flexibility and can scale to meet the circumstances of each inquiry. The amendment would provide greater flexibility in naming inquiries and replace them with the general term 'an inquiry'.

Secondly, I turn to the Defence (Areas Control) Regulations 1989. These regulations maintain safety for defence aviation by including limits on building heights within the prescribed areas, prohibitions on bringing hazardous objects within a prescribed area, the power to remove or mark hazardous objects within prescribed areas and the power to enter a prescribed area to remove or mark hazardous objects—and I think we can all see why they are necessary.

Thirdly, we have the Defence (Public Areas) By-Laws 1987. These by-laws apply to the public areas declared by Defence under part IXB of the Defence Act. There are two public areas that have been declared under the act: 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. The main change to the by-laws is the introduction of an infringement notice scheme.

This bill was considered by the scrutiny of bills committee. The committee raised concerns about the extent to which it allows laws to be made by regulations and not by way of primary legislation. I quote from the committee's comments in relation to the Defence (Inquiry) Regulations.

The committee's view is that significant matters, such as these, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. The explanatory memorandum simply states that the bill does not make any changes to the ability to make regulations to compel a person to appear before and answer questions at an inquiry. It does not state whether consideration was given as to whether the details regarding commissions of inquiry would be more appropriate for inclusion in the primary legislation.

The committee reiterates its view that the power to appoint a commission of inquiry and the detail of the inquiry's procedures and powers contain matters that go beyond mere technical detail. The committee's longstanding view is that significant matters such as these should be included in primary legislation unless a sound justification for the use of delegated legislation is provided.

The Minister for Defence, in response to the committee's comments, said:

Matters relating to the appointment, procedures and powers of inquiries concerning the Defence Force have been dealt with under Regulations for many decades … The current arrangements permit a necessary degree of flexibility for the Australian Government to determine forms of inquiry in the Defence Force, having regard to administrative, organisational and operational changes that occur from time to time. At the same time, appropriate Parliamentary oversight of the content of such regulations is maintained by the Senate Standing Committee on Regulations and Ordinances, as well as sunsetting arrangements under the Legislation Act 2003.

The committee did not find this to be a particularly enlightening response. It said:

The committee notes that the fact that certain powers have been contained in delegated legislation for many years without any recommendation that they be moved to primary legislation does not address the question of whether they would be more appropriate for inclusion in primary legislation.

In relation to the Defence (Areas Control) Regulations, the scrutiny of bills committee said:

… the committee notes that the regulation of all types of hazards to aviation and aviation-related communications, which includes prohibiting the construction or use of buildings, structures or objects within a defence aviation area, is a significant matter that may be more appropriate for inclusion in primary legislation, noting that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

Once again, also, the committee noted that just because this area has been regulated in this way for many years does not, of itself, justify continuing this practice.

I think the scrutiny of bills committee has raised some valid concerns about the extent to which government departments—not just Defence, as in this case, but all departments—are given power to make legislative instruments without these being subject to adequate parliamentary scrutiny. This is particularly so when these instruments give departmental officers quite sweeping powers to regulate the use of property and the actions of people. Despite these concerns, the opposition will be supporting this bill because it has the merit of simplifying and bringing up to date the regulations under which Defence operates in these three areas.

Anne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | Link to this | Hansard source

I'd like to thank all senators for their contributions to the debate on this bill. The proposed bill will amend instrument-making powers in the Defence Act 1903 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. As outlined during the debate, there are several instruments made under the Defence Act which are scheduled to sunset on 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 subject matters, and it will be necessary to remake them in some form before they sunset. Where possible, the intention is to improve the instruments by consolidating like provisions, improving consistency and making some amendments to enhance their operation. The proposed amendments to the Defence Act will ensure there is a clear authority to remake the contents of instruments, as intended. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.