Ursula Stephens (NSW, Australian Labor Party) Share this | Hansard source

I rise to make a contribution to the debate on the Defence Legislation Amendment (Woomera Prohibited Area) Bill 2013. I thank Senator Xenophon for his contribution. Almost everyone who has spoken this morning, other than the minister, has been a South Australian senator, so they have a very intimate knowledge of the geography and the complexity of the relationships in South Australia in relation to this bill.

I was in the chamber listening to the very calm and persuasive contribution from Senator Fawcett. I was a bit nonplussed by his suggestion that politics are being played here. In his speech he made a comment that I need to correct quite specifically. I was the chair of the committee that was considering this bill in the last parliament. The issue that led us to decide not to continue with the public hearings was that the committee never put a caveat on or discussed arrangements for the hearings to continue even if the election were called. That was never a point of discussion. It is a practice in many of the committees that I have served on in this place that, as a matter of course, when the writs are issued for an election—when the election is called and parliament is prorogued—the committee does not continue. That is the decision that was taken at the time. It had nothing to do with being political about the bill or about the hearings.

Senator Farrell is absolutely right: in those discussions there was a commitment by the then opposition spokesman, now the Minister for Defence, that he would bring the bill to the parliament and that it would be resolved by Christmas. I share Senator Farrell's frustration. It is absolutely within his political right to bring forward a private member's bill when he can see that there is such inaction on the issue. Senator Farrell is to be congratulated for his persistence in ensuring that this debate actually gets to the chamber to be debated. We know from Senator Farrell's contributions and from the discussion that has already been had that this is substantially the same bill that lapsed in the previous parliament. Senator Farrell has included some amendments to the bill to address concerns that were raised with us by some of the stakeholders prior to the proroguing of parliament.

If you have heard only the contribution from Senator Xenophon, you might think that this bill is just about the Maralinga lands. This bill is more broadly about authorising the defence minister to make Woomera Prohibited Area rules that, amongst other things, define zones that are able to be demarcated within that area and create a permit system for access to and use by non-defence users of the Woomera Prohibited Area. The bill introduces offences and penalties for entering the Woomera Prohibited Area without permission and for failing to comply with a condition of a permit—as we have heard from Senator Xenophon, the permits are managed by the Maralinga trust—and provides for compensation for acquisition of property from a person otherwise than on just terms that results from the operation of new part VIB of the Defence Act 1903.

We have heard this morning a lot of argy-bargy about the fact that the previous version of the bill was introduced into the last parliament. It was introduced on 30 May in the House of Representatives. It then came to the Senate and was referred on 18 June to the Foreign Affairs, Defence and Trade Legislation Committee. Senator Fawcett drew a fairly long bow by suggesting that Senator McEwen, the chair of the Scrutiny of Bills Committee and a South Australian, had a peculiar and particular parochial interest in this referral. In fact, the reason the Scrutiny of Bills Committee referred this was, as stated in Alert Digest No. 6 of 2013:

While the explanatory memorandum does provide information about the rationale, the committee is not persuaded that strict liability will significantly enhance the enforcement of the regime. Perhaps the appropriateness of strict liability may depend on the nature of the conditions; however the explanatory memorandum does not address these issues. The committee therefore seeks a more detailed justification from the Minister as to the possible scope of any conditions and the appropriateness of the use of strict liability.

This is a very technical reference that the Scrutiny of Bills Committee identified. The committee often refers bills because an explanatory memorandum has perhaps not been fully prepared or has been prepared in haste, because some of the regulations have perhaps been poorly or hastily drafted, because some of the definitions are not clear or because there is a lack of consistency. As someone who has been the chair of the Scrutiny of Bills Committee and of other committees where we have had to deal with these things, I understand that that committee is doing its job to ensure that the quality of the legislation's drafting passes a benchmark that allows it to be tested fairly in other jurisdictional courts. That was the reason for the referral in the first place.

Once the committee received the reference, there was quite considerable debate among the committee members, which coincidently and for no particular reason is heavily weighted with South Australian senators. That committee has many South Australian senators on it, so a very testy kind of discussion went on. There were issues raised about the concerns of some members of that committee about whether or not the land should be opened to non-Defence users because of its integrity as an unencumbered testing area for Defence flight paths, exercises and things.

This became the way in which the discussion on this bill started to proceed. We kind of lost sight a little bit about the reason for the referral. However, it was absolutely the conviction of Senator Farrell, as a member of that committee with a specific interest, and of other members of the government, the opposition and the Greens that the bill stood on its merits more generally and should proceed as quickly as possible. Even the coalition at the time supported the bill in the House of Representatives and the shadow minister for defence science and personnel, Mr Robert, stressed that Defence's use of the Woomera Prohibited Area must remain 'of the primacy'. He said at the time:

The fact that there will now be, to use the government's term, a 'coexistence scheme' which will allow other non-Defence users to access the Woomera Prohibited Area may be acceptable if the appropriate steps are taken to ensure the area remains available and suitable for testing of defence capability. This is a unique capability that we possess and it is of the highest priority that we retain that capability. At this point, it is important to note that the bill will not alter the current arrangements as they apply to Indigenous landholders or pastoralists with an established presence or to existing mining operations. The provisions of the bill and new coexistence scheme will apply to new users—a line in the sand, if you will. Existing users will have the option of voluntarily joining the coexistence scheme established by these measures.

So there was general and overarching unanimous agreement; we were all furiously in agreement about the range of the bill. We have received now 12 substantial submissions to the inquiry, including one from the South Australian government, and every one has substantially supported the bill. Mr Robert also said at the time:

Given the Woomera Prohibited Area contains recognised traditional owners and significant Indigenous sites, it is appropriate the bill regulate how non-Defence users who gain access to it treat and protect those sites and comply with all relevant native title and Aboriginal heritage laws. The coalition is very comfortable with that. The bill ensures that Indigenous groups with current statutory and access rights expressly retain these rights and will not need to re-apply for permission under the bill. We support that; it is sensible.

That was the opposition spokesman at the time speaking to the legislation.

Earlier this week, as we know, Labor supported the motion by Senator Eggleston to extend the reporting time of the bill on the basis that the government was seeking more time to prepare the regulatory impact statement that they believed needed to be provided, even though they knew that this legislation had been listed for debate this morning. There was a certain sense of churlishness from some of the previous speakers that Senator Farrell had proceeded to list his private member's bill for debate this morning, as if somehow that was an inappropriate thing to do. Of course, it is the prerogative of every member of this Senate to pursue a private member's bill. This period of time on Thursday mornings is allocated to the debate of private member's bills. So Senator Farrell was doing nothing untoward in seeking to have this bill listed—out of frustration because it was first referred to our committee in June last year. He has obviously been frustrated by the fact that there has been no action taken.

Given the situation for the South Australian government, the job losses that have occurred there and the concern about trying to diversify the economic base of that state to continue to provide services for the people of South Australia, Senator Farrell has every right to bring the bill forward. The South Australian government has assessed that over the next decade there is potentially about $35 billion worth of iron ore, gold and other minerals available for mining from within the Woomera Prohibited Area. I think it is fair to say, given the current economic circumstances in South Australia, that the government is actively seeking ways to generate new economic activity and new revenue streams into that state—more power to their arm for doing so.

While the South Australian government has a financial interest in seeing the legislation go ahead, the other side of the coin is the other submissions that we have received to the inquiry which concern the desperate need to provide certainty for investors and the resource industry. The submissions to the inquiry indicate that there is general support for the legislation, including a strong submission from the Association of Mining and Exploration Companies as the peak national industry representative body for mineral exploration and mining companies within Australia—some of which are the small and emerging companies that are being nurtured through projects in South Australia. The AMEC strongly supports the proposed legislation which gives effect to the recommendations made in the final report of the review into the WPA, which were accepted by the previous government in 2011.

Senator Fawcett also had a bit of a go about the expectations of Dr Hawke, the author of the report, that there would be legislation drafted within a very short time frame to enact the recommendations of his report. I think it was a little disingenuous of Senator Fawcett to refer to a 15-month time frame for drafting a complex bill and negotiating with a myriad of stakeholders—including with the traditional owners about the very sensitive issue of the Maralinga lands following the five years of consultation that has already taken place—and to any expectation by Dr Hawke or by the parliament that the legislation could be drafted in haste. The idea that that was an unreasonable time frame is, as I say, pretty disingenuous.

The AMEC raised some concerns. I was really pleased to see that the combined government response to the inquiry quite seriously took on board many of the concerns that had been raised in the submissions. Additional changes, modifications and proposals to the draft rules reflect the consultation and the concerns that were raised. I want to briefly quote from the submission of the South Australian Chamber of Mines and Energy. That organisation represents over 340 members in the resources and energy sector in South Australia. The submission makes the point:

The Defence Legislation Amendment (Woomera Prohibited Area) Bill 2013 currently before the Senate is the final step in delivering a co-existence model for Resources, other stakeholders, and Defence industries to operate in this well regarded test range and highly prospective area. The Bill enables the Defence and Resources Ministers to develop a set of rules to allow permitted access to the Woomera Prohibited Area for a variety of new stakeholders.

It is SACOME’s opinion and that of the wider industry that the legislative framework as written is sufficient in outlining the detail for a permitting system to exist and for access arrangements to be organised through the Woomera Prohibited Area Rules 2013.

A further SACOME submission states:

The current draft as tabled by Senator Farrell contains amendments to the 2013 Bill that are acceptable and within the scope of the Hawke Review especially as it relates to the principles of co-existence. SACOME recommended in a previous submission on the bill that there be no amendments to section 72TP. The amendment to include the Resources Minister in creating Rules for the WPA is welcomed. Furthermore the refining of the definitions of Indigenous land owners is acceptable, and provides surety for these important land owners.

In our committee discussions this morning we had a robust to-and-fro debate again. The Chair, Senator Eggleston, indicated that the government was not going to support this bill and was going to bring forward its own bill. We had a robust discussion about whether the bill was going to be substantially different. We got some varied indications but were told that it was going to be substantially the same. I am interested that Senator Xenophon is looking to move some amendments to this bill, because the suggestion this morning was that the way forward would be for the government to introduce amendments to the bill that reflected its concerns and issues, be what they may. We are very unsure of what they are. That suggestion was rejected again, adding to Senator Farrell's frustration, and I cannot blame him.

One of the contributions to the discussions this morning was about the lack of consultation. I would refer everyone to the joint submission by the Department of Defence and the Department of Industry, which addresses that issue.

Since July 2013—

after the bill was referred to us—

Defence has been continuing consultation with different stakeholders of the WPA.

Indigenous groups

Defence has continued consultations with Indigenous groups around the proposed new arrangements. Indigenous groups sought formal written confirmation of their existing access permissions under the Defence Force Regulations, including confirmation that any entitlement to compensation would be on ‘just terms’. This has been provided by Defence.

Some Indigenous groups have also sought agreements to formalise working level consultation and communication as part of range administration. Defence is working with them on the shape and detail of these arrangements.

That submission goes on to address issues that have been raised in submissions by railway owners and operators, the Northern Territory government, the South Australian government and the WPA Advisory Board, and it addresses future activities. It concludes with a section on amendments made to the bill after stakeholder consultation.

I recommend that everyone take a deep breath, read the submission carefully and acknowledge that, for everyone in South Australia, as part of its economic development, this is a critical issue. We are furiously in agreement about how important it is to bring this bill forward. I encourage those who are trying to play the party politics of replacing this bill with substantially the same bill, but a government bill, to reconsider the option of bringing forward their own amendments in the second reading debate.