23 May 2013

Proposed legislation to unlock $35bn mineral resources in South Australia's Woomera Prohibited Area

by Stuart MacGregor, Mark Boydell

Proposed legislation aims to open up the Woomera Prohibited Area to mining exploration and development to develop an estimated $35billion in resources, however specific details remain to be seen.

In April the Australian Government Department of Defence announced that it will introduce a legislative package to implement the recommendations of the Review of the Woomera Prohibited Area report finalised in May 2011. The report contained a number of recommendations relating to access to and use of the Woomera Prohibited Area by non-Defence parties, with an emphasis on mining exploration and development proponents.

Implementation of the recommendations is stated to be via a three-phase process:

  • phase 1: a moratorium on the granting of new non-Defence entrants access to the Woomera Prohibited Area (now concluded);
  • phase 2: a transition phase involving the development and implementation of enabling legislation (underway); and
  • phase 3: a steady-state phase where transitional arrangements are implemented and where permanent arrangements are put in place.

During phase 1, access arrangements for new non-Defence users and standardised deeds of access to the Woomera Prohibited Area for minerals exploration were developed after a two-month public consultation process. The Minister for Defence and Minister for Resources and Energy then lifted the moratorium on the Woomera Prohibited Area on 5 October 2012 claiming that it was "open for resources development".

Phase 2 is now underway and on 8 May 2013, the Minister for Defence and the Minister for Resources and Energy announced the release of draft legislation relating to the Woomera Prohibited Area .

The Defence Legislation Amendment (Woomera Prohibited Area) Bill 2013 (Cth) was released last week with a 5 day window within which to provide comments – the closing date for initial submissions on the bill was 13 May 2013.

In a joint media release by the Minister for Defence and Minister for Resources and Energy, the Ministers stated that the proposed legislation will enable the development of an estimated $35 billion of mineral resources in the Woomera Prohibited Area .

How does the Bill affect the Woomera Prohibited Area?

The Bill proposes amendments to the Defence Act 1903 (Cth) in order to more specifically deal with the Woomera Prohibited Area in the Act. The Bill seeks to amend part VIA of the Act, being the "Security of Defence Premises" section.

"Defence premises" would now expressly include the Woomera Prohibited Area and new "Part VIB – The Woomera Prohibited Area" section is proposed. This section would give the Minister the power to create and implement Rules for the Woomera Prohibited Area that include:

  • issuing of permits (and determining the purposes for which permits may be used), for entry to and activities in the Woomera Prohibited Area as well as any conditions of such permits;
  • the applicable fees for carrying out certain activities in the Woomera Prohibited Area;
  • infringement notices and penalty provisions for offences with respect to the Woomera Prohibited Area; and
  • establishment of a demerits points system under which a permit (access/use permit within the Woomera Prohibited Area) may be suspended or cancelled if the holder of the permit accrues a certain number of demerit points.

The Bill, however, apart from providing the Minister with the broad power to create and implement the Rules, does not prescribe in any detail the extent and/or nature of the Rules. It states that the Rules may make provisions regarding the purpose for which any permits may be issued and the conditions to which permits may be subject. Accordingly, the Bill itself does not provide any prescriptive guidelines that could be used to assist a potential proponent in determining whether it could obtain a permit for access and the restrictions that may be placed on such permit.

Perhaps more important than the Bill, therefore, will be the Rules, when they are made available.

The Bill also incorporates the existing provisions in section 72R of the Defence Act that require compensation to be paid to a person whose property is acquired otherwise than on just terms by operation of the Act. If the Commonwealth and the person do not agree on the amount of compensation, the person may institute court proceedings against the Commonwealth for a reasonable amount of compensation.


In the 8 May 2013 joint media release by the Minister for Defence and Minister for Resources and Energy, it is stated that the "new framework will also provide greater certainty to the resources sector and clarify user access arrangements". Until the Rules are published, however, it is not possible to ascertain the practical impact of the proposed amendments and whether they will, in fact, facilitate resources development of $35 billion and certainty for resources proponents wishing to undertake activities in the Woomera Prohibited Area.


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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.