Defence angling to exempt itself from state laws that ‘constrain’ its activities

May 19, 2023
ADF firing point-bunker, erected for training purposes. Lake Hart. Woomera Prohibited Area. May 2022. (Image: John Rodsted)
ADF firing point-bunker, erected for training purposes. Lake Hart. Woomera Prohibited Area. May 2022. (Image: John Rodsted)

Far more transparency is required about which ‘important public policy objectives’ Defence wants to subvert to its needs.

Part two of a two-part series. Read part one.

The Defence Department wants to exempt itself from some state and territory laws saying ‘unintended consequences’ of the laws have ‘constrained’ its activities. This follows news of a high-level radioactive waste facility to be built on remote Indigenous land.

The laws are likely to be those that protect First Nations cultural heritage and the environment, and those that ban the transportation and storage of radioactive waste, according to experts.

The Greens’ defence spokesperson, Senator David Shoebridge, said in a submission, ‘the failure of the discussion paper to even indicate the nature of state and territory laws from which it is proposed to exempt Defence is especially disturbing’.

The push for exemptions appears in a consultation paper released by assistant defence minister Matt Thistlethwaite that outlined changes to Australia’s defence laws, needed for AUKUS and to cover modern warfighting situations more broadly.

The Defence Department wants the exemptions despite admitting in the paper that the unidentified state and territory laws deliver ‘important public policy objectives’.

Dr Alexandra Wawryk, a specialist in environmental and natural resources law, is also concerned by Defence’s claims. ‘If Defence is seeking to act in a way that is unconstrained by state laws, there needs to be far more transparency around which policy objectives or laws will be subservient to defence/national security,’ says Wawryk, a senior lecturer at Adelaide Law School.

Transparency and accountability are the bedrock of democracy. When it comes to AUKUS, the public has received neither. Defence’s ‘consultation’ paper is another example:

  • The paper is full of defence jargon and contains little detail.
  • It was released in March under cover of other major defence announcements that dominated headlines, ensuring the paper received little attention.
  • Just six weeks were allowed for public consultation.

All three points indicate a government intent on avoiding scrutiny.

Wawryk says Aboriginal and Torres Strait Islander peoples deserve transparency from Defence. ‘This is particularly so given the impacts of colonisation on Australia’s First Peoples, and events such as atomic testing at Maralinga in South Australia.’

Assistant minister Thistlethwaite’s office was contacted. He did not respond to questions.

Defence occupies more than 12 per cent of South Australia. Its territories encompass swathes of Indigenous land and contain hundreds of registered heritage sites. The vast Woomera Prohibited Area is used for weapons testing and military training and is the largest such site in the world. Cultana, an army training area, is on the Spencer Gulf between Port Augusta and Whyalla.

I had the rare privilege of visiting significant Kokatha heritage sites inside Woomera last year at the invitation of Andrew and Bob Starkey, Kokatha senior lawmen and traditional owners. During the two-day visit we were accompanied by Wing Commander Gary Rains, Woomera’s affable commanding officer.

Defence is testing high explosive munitions at one of the heritage sites I visited. The site links Kokatha people into the Seven Sisters Dreaming, a well-known songline covering thousands of kilometres throughout the Western Desert region.

The spiritually significant grove of trees at the site has been enclosed within a blast wall of rubble-filled HESCO barrier bags and old shipping containers, while the land surrounding the enclosure has been flattened and hard packed. The nearby orange sand dunes are an integral part of the site and are unprotected.

Establishing a high explosive target zone within this heritage site represents ‘a comprehensive failure’ by Defence says Neale Draper, an Adelaide-based senior consultant on Indigenous cultural heritage, after seeing the footage.

‘It’s breathtakingly bad,’ he says, and ‘so far from best practice it’s not funny’. Draper dismisses Defence’s circle of HESCO and shipping containers as a ‘token gesture’.

Defence is aware of the site’s significance. Its heritage management plan, a copy of which I have seen, says the site has a ‘high level of Aboriginal heritage value’ and is a place of ‘sensitive cultural significance that can be easily impacted’.

Andrew says the dunes have been hit twice by bombs that missed the concrete targets Defence has erected on the site.

I viewed the tree enclosure with the Starkeys and other Kokatha people while listening to Rains concede that the blast wall is ‘not a perfect solution’, but, he said, ‘it’s the best one we’ve got’.

Defence is spending almost $1 billion upgrading its facilities at Woomera. The range covers 122,000km2. Yet bombing a HESCO-bagged ancient heritage site is its best solution?

The disturbance or damage of any Aboriginal site without prior authority from the state minister is prohibited under South Australia’s Aboriginal Heritage Act (1988). However, ‘Defence has never sought or received an authorisation under South Australia’s Aboriginal Heritage Act’, according to a spokesperson for SA Aboriginal Affairs and Reconciliation.

The lack of a single ministerial authorisation suggests serious flaws in the state’s engagement with Defence and with the Act’s effectiveness or the state’s willingness or ability to enforce its own legislation.

Furthermore, in the 35 years of the Act’s existence, there has been just one (failed) prosecution – in 1994 – according to the spokesperson.

SA’s Act is under review. Minor amendments have been made but the SA government is awaiting new federal heritage protection legislation before undertaking further reform.

Minister Tanya Plibersek, whose Environment portfolio encompasses heritage protection, has reaffirmed that reforms are coming. She said heritage protection is currently considered ‘at the last minute’ but ‘that’s exactly the wrong approach’. Cultural heritage impacts must be identified ‘from the very beginning’.

Two decades ago, in 2003, three South Australian native title groups (Kokatha, Barngarla, Kuyani) were each offered $90,000 by the federal government to extinguish their rights to a site near Woomera that the government wanted for a national nuclear waste dump.

‘It was just shameful,’ Andrew Starkey said at the time. ‘They were wanting people to sign off their cultural heritage rights for a minuscule amount of money. We would not do that for any amount of money.’

The Howard government later compulsorily acquired the site, with federal science minister Peter McGauran saying it was in the public interest for waste to be stored centrally. ‘That’s what the Woomera site offers Australians.’ McGauran threatened to reduce South Australia’s science allocation if it continued to fight the waste dump. But SA Labor premier Mike Rann was undeterred, eventually winning the fight in the Federal Court. The Howard government abandoned its plan to build a single national waste dump in South Australia.

In the 20 years since, Andrew Starkey has not stopped fighting for his country.

South Australia’s Labor government, eight years ago, laid out a comprehensive nuclear-based business plan through its Nuclear Fuel Cycle Royal Commission. It included processing uranium into fuel rods, leasing them overseas, and accepting a large fraction of the world’s nuclear waste for disposal in remote South Australia.

Despite high level political enthusiasm, including PM Malcolm Turnbull, South Australians comprehensively rejected the plan.

Accepting defeat, premier Jay Weatherill said valuable things had still emerged: ‘There was an expression of solidarity by the wider community with the Aboriginal community.’

At the start of the Royal Commission in 2015, Kokatha people told the Commissioner in their submission he was re-examining issues they had considered repeatedly:

It seems that each generation of Kokatha People are required to oppose the use, transport or storage of nuclear materials, and their opposition is not heard. Kokatha consider the raising of this issue again when it was resolved only a short period of time ago is disrespectful.

Press ‘repeat’.

On 14 March 2023, deputy prime minister Richard Marles announced another plan for a nuclear waste dump in remote Australia, this time for AUKUS.

Ten days later, Marles appeared on the Today Show supporting the Voice to Parliament, saying it meant the federal government would be ‘actually listening to our First Nations People about the critical policies that affect them’.

Also in March, Marles and SA Labor premier Peter Malinauskas signed a lucrative deal for South Australia under the AUKUS nuclear-powered submarine project.

Malinauskas supports the Barngarla people’s right to veto the former federal government’s national radioactive waste dump, at Kimba. That fight is before the courts. Will the premier’s veto support extend to Marles’ new proposal?

Labor MP Jayne Stinson, chair of South Australia’s Environment, Resources and Development Committee, has said of Kimba: ‘[W]hen we’re talking about Voice, Treaty and Truth, we can’t just turn around and say, “Oh, well, those are our values but in this particular instance, we’re going to ignore the voice of Aboriginal people”. I think that’s just preposterous…’


* The website for South Australia’s 2015 Nuclear Fuel Cycle Royal Commission has been taken down in recent weeks. The site can be accessed via the Wayback Machine web archive

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