Defence (Public Areas) By-laws 2018

Public area. This term is defined by subsection 116P(1) of the Defence Act 1903, not by the by‑laws themselves. In practice, it refers to areas of Defence land that are open to public access, such as certain beaches, reserves and training areas that have been formally declared. The by‑laws apply only to those areas. Without the definition in the Act, a person entering a public area may not know precisely where the boundaries lie, which creates uncertainty given the strict liability nature of the offences.

Authorised officer. The Chief of the Defence Force may appoint a member of the Defence Force or an APS employee in the Department to be an authorised officer for the purposes of the by‑laws (section 6). The appointment must be in writing and the Chief must be satisfied that the person has suitable qualifications and experience to exercise the powers. Authorised officers can issue written permits for any of the prohibited activities (section 7) and can approve the erection of signs (section 8). Only an authorised officer can arrange signs that prohibit entry under section 15.

Ranger. The term has the meaning given by subsection 116P(1) of the Act. Rangers are also able to issue written permits (section 7(2)). The by‑laws do not specify who can be a ranger; that is left to the Defence Act.

Strict liability. Every offence in the by‑laws is expressed as an offence of strict liability, with a note referencing section 6.1 of the Criminal Code. This means that the prosecution need not prove that the person intended to commit the act or was reckless or negligent. The only question is whether the person did the physical act in the public area. The person can avoid liability only by proving the existence of a defence on the balance of probabilities (evidential burden). The available defences are limited to holding a written permit (for most offences) or, for the animal offence, that the animal is a guide dog or similar assistance animal for a person with disability.

Signs. Signs play a central role. An authorised officer may approve the erection of signs at or near entrances to convey directions, warnings or requirements; designate parking areas; and designate camping areas (section 8). Signs erected under section 15 can prohibit entry entirely. The by‑laws make it an offence to contravene a direction, warning or requirement on a sign (section 16(d)), to remove or interfere with a sign (section 16(e)), and to erect a sign without approval (section 16(f)). Thus, signs are the primary mechanism for communicating regulatory expectations.

Permit. A written permit from an authorised officer or a ranger is the only general exception to the offences (apart from the guide dog exception). The by‑laws do not specify criteria for granting or refusing a permit, nor do they require the decision to be made in a particular time or to be reviewable. The absence of criteria gives decision-makers broad discretion, which may create inconsistency and uncertainty for applicants.

Island. The by‑laws impose special restrictions on public areas that are on an island: bringing a vehicle into or using a vehicle in such an area is prohibited (section 10(1)(a)), and entering or staying between sunset and sunrise is prohibited (section 14(1)). There is no definition of "island" in the by‑laws; presumably it takes its ordinary geographical meaning. The purpose appears to be to protect sensitive island environments, but the prohibition on overnight presence could affect recreational users such as campers even if they have a permit for camping.

The by‑laws primarily affect members of the public who access Defence land declared as public areas. This includes recreational users such as bushwalkers, birdwatchers, beachgoers, campers, four‑wheel‑drive enthusiasts, and local residents who use Defence reserves for exercise or leisure. It also affects anyone who engages in commercial or organised activities on such land: for example, tour operators who supply goods or services (section 16(h)), event organisers who erect temporary structures (section 16(g)), or researchers who wish to collect plant or animal specimens (section 16(j)). Anyone who brings a dog or other animal into a public area (other than a guide dog for a person with disability) is affected because section 12 creates a strict liability offence irrespective of whether the animal is well‑behaved or leashed.

The off‑duty conduct of Defence Force members is also regulated when they are not performing duties; the exemption in section 18 applies only when the act occurs in the performance of duties. Similarly, police officers and rangers are exempt only while on duty. Off‑duty personnel are subject to the same offences as any other member of the public.

Authorised officers and rangers are directly affected by the provisions that empower them to issue permits and erect signs. The Chief of the Defence Force is affected by the requirement to be satisfied as to qualifications and experience before appointing authorised officers.

Potential commercial operators face the highest compliance burden. Anyone wishing to supply goods or services in a public area must obtain a written permit. The by‑laws do not specify that such a permit will be granted on commercial grounds, nor do they impose any duty on the decision-maker to consider economic impact or existing business interests. This creates scope for de facto exclusion of private enterprise, as a permit could be refused without reasons. The prohibition on erecting structures also affects businesses that might wish to set up a booth or stall for a limited period, and the prohibition on erecting or placing signs (section 16(f)) restricts advertising or information boards.

Special restrictions on island public areas affect anyone who wishes to bring a vehicle there (including boat launching vehicles) or stay overnight. These restrictions may disproportionately affect fishers, birdwatchers and other users who traditionally use island areas during twilight hours.

Duties. Users of public areas have a duty not to engage in the prohibited conduct. The duty is absolute in the sense that the offence is one of strict liability: it is not a defence that the person did not know the area was a public area, did not see a sign, or did not intend to break the rules. The only way to avoid the duty is to obtain a written permit in advance. More specific duties include: not bringing a vehicle onto an island public area (or using a vehicle outside roads, parking areas or camping areas on mainland public areas); not lighting or using a fire except a gas barbecue or a provided fireplace; not taking any animal into a public area unless it is a guide dog for a person with disability; not possessing or using a firearm; not being on an island public area between sunset and sunrise; not entering when signs prohibit entry; not leaving rubbish except in provided receptacles; parking only in parking areas; camping only in camping areas; complying with directions on signs; not interfering with signs; not erecting signs without approval; not erecting any building, booth, stall, post or other structure; not supplying goods or services; not damaging or removing natural or artificial structures or features; and not taking or harming animals or plants. The duty to comply with signs is potentially open‑ended, as an authorised officer can approve signs that convey "directions to be followed", "warnings for the guidance of" and "requirements to be observed" - a broad category that could cover almost any instruction.

Rights. The most important right is the ability to apply for a written permit from an authorised officer or a ranger to do something that would otherwise be prohibited. No fee is mentioned, though fees could be imposed under other instruments. A person with a disability has the right to bring a guide dog or other trained assistance animal into a public area without a permit, provided the animal is trained to alleviate the person's disability (section 12(2)). Rangers, Defence Force members and police have the right to engage in conduct that would otherwise be an offence if it occurs in the performance of their duties (section 18). An authorised officer has the right to erect signs that prohibit entry if reasonably satisfied of necessity based on protection of persons and property, the nature of activities, and equipment risk (section 15(1)). An authorised officer also has the right to approve signs for directions, warnings, requirements, parking and camping designations (section 8). There is no explicit right to be notified before a prohibition sign is erected, and no requirement for the sign to be published in a gazette or other official register.

Procedural rights. The by‑laws do not confer a right to reasons for a permit refusal, a right to an internal review, or a right to apply to a tribunal. An applicant refused a permit may have recourse to administrative law remedies (judicial review) under the Administrative Decisions (Judicial Review) Act 1977 or common law, but the instrument itself provides no bespoke review mechanism. Given the strict liability regime, a person charged with an offence bears the evidential burden to prove the existence of a permit or the guide dog exception.

Maximum penalty. Each offence carries a maximum of 10 penalty units. Under section 4AA of the Crimes Act 1914, a penalty unit is currently $313, making the maximum fine $3,130. No imprisonment is provided. The penalty amount has not been indexed in the by‑laws; it depends on the value of a penalty unit as amended from time to time.

Strict liability. All offences are strict liability. This means that there is no requirement for the prosecution to prove fault. The mere doing of the prohibited act in a public area is enough. The defendant must raise evidence of a defence (such as holding a permit or being a person with a disability with a guide dog) and bear the legal burden of proving it on the balance of probabilities. Strict liability is common in regulatory offences, but it reduces the protections normally available to a person accused of a criminal act. Someone who inadvertently drives a vehicle onto an island public area (perhaps because the area was not clearly marked) can be convicted even though they took reasonable care to avoid wrongdoing.

Infringement notices. Section 17 specifies that all seven offences (sections 10, 11, 12, 13, 14, 15(2) and 16(1)) are subject to the infringement notice regime under subsection 116ZCA(1) of the Defence Act. This means that an authorised officer or ranger can issue an on‑the‑spot fine, which is a civil alternative to prosecution. The amount of the infringement notice is not set in the by‑laws; it would be prescribed under the Act or another instrument. Paying the notice avoids a court conviction. Infringement notices are a common enforcement tool for park and reserve regulations, but they can lead to over‑enforcement if individuals pay rather than contest a wrongful charge due to the cost or inconvenience of defending the matter.

Enforcement personnel. The by‑laws are enforced by rangers, authorised officers, and police. Section 18 ensures that these persons do not commit an offence when performing their duties; for example, a ranger who drives a vehicle off‑road to respond to an incident is not liable under section 10. The instrument does not confer any arrest or search powers; those would be found in the Defence Act or other Commonwealth legislation.

Evidential burden on defendant. For the permit‑based defences, a defendant bears an evidential burden. This means the defendant must point to evidence that suggests a reasonable possibility that a permit exists. If the defendant cannot produce the written permit, but can show that they applied for one and had a reasonable expectation it was granted, they may still face difficulty because the permit must be in writing. The same evidential burden applies to the guide dog exception.

Defence Act 1903. The by‑laws are made under section 116ZD of the Defence Act. They are subordinate to that Act. The definition of "public area" and "ranger" are sourced from the Act, so any amendment to those definitions in the Act will automatically affect the operation of the by‑laws. The infringement notice power in section 17 is derived from subsection 116ZCA(1) of the Act.

Defence Regulation 2016, Part 11. Section 9 of the by‑laws expressly states that the by‑laws do not exclude or limit the operation of Part 11 of the Defence Regulation 2016. That Part regulates the use of areas declared as defence areas for defence purposes. The practical consequence is that a person in a public area that is also a declared defence area may be subject to two sets of regulations simultaneously. The by‑laws regulate user conduct; the Defence Regulation may impose additional restrictions on access, activity, and security. The possibility of overlapping or inconsistent requirements creates a compliance burden: a person might obtain a permit under the by‑laws for a camping event but still be prohibited from staying overnight by the Defence Regulation.

Criminal Code. The strict liability regime is expressly tied to section 6.1 of the Criminal Code, and the evidential burden references section 13.3 of the Criminal Code. These provisions apply to all Commonwealth offences. The interaction means that the standard rules for strict liability, defences of mistake of fact (if any), and the burden of proof are incorporated. The Criminal Code also provides for the physical and fault elements generally, but strict liability removes the fault element. As a result, the only available defences are those expressly provided in the by‑laws or any general defence in the Criminal Code that can operate consistently with strict liability (such as duress or necessity, but not mistake of fact unless the offence is not one of absolute liability; strict liability under the Code still allows a defence of mistake of fact - see section 6.1(2) - but the defendant bears an evidential burden).

State and territory laws. The by‑laws operate concurrently with state and territory laws. For example, a person who brings a firearm into a public area may also commit an offence under state weapons legislation. The by‑laws do not purport to exclude state law. However, the Defence Act may give the Commonwealth exclusive or primary jurisdiction over Defence land, so state laws may not be enforceable on that land without Commonwealth consent. The interaction is complex and depends on the specific land tenure arrangements. The by‑laws do not address this.

Environmental legislation. Federal environmental laws such as the Environment Protection and Biodiversity Conservation Act 1999 may also apply to public areas that contain listed threatened species or ecological communities. The by‑laws' prohibition on taking or damaging plants and animals (section 16(j)) could overlap with those laws, but the by‑laws do not provide any exemption for conduct authorised under a separate Commonwealth permit (e.g., a research permit under the EPBC Act). A person with a valid EPBC permit to collect plant specimens might still need an additional permit from an authorised officer under the by‑laws to avoid the strict liability offence.

The instrument was made on 16 March 2018 by Darren Chester, then Minister for Defence Personnel. It commenced on 26 March 2018 as specified in the table in section 2. The source text does not include any subsequent amendments; it appears as originally made. The instrument repealed and replaced the Defence (Public Areas) By‑laws 1987 in their entirety (Schedule 1). Transitional provisions in Part 3 ensure that existing designations of commanding officers (under the old by‑law 3) become appointments as authorised officers, that existing approvals for signs under old by‑law 4 become approvals under section 8, that existing signs remain valid, and that existing consents become permits under the new instrument. This was a machinery update rather than a substantive policy change; the structure of offences and the penalty level remained similar. No amending instruments are referenced in the source. Users should check the Federal Register of Legislation for any later amendments, but as at the date of the instrument none are noted.

The source text does not refer to any litigation. The by‑laws themselves have not, on the face of the instrument, been the subject of judicial interpretation in any case cited in the document. However, general principles of administrative law may apply to decisions made under the by‑laws. For example, a refusal by an authorised officer to grant a permit could be challenged on grounds of procedural fairness or unreasonableness under the Administrative Decisions (Judicial Review) Act 1977. Similarly, the erection of a sign prohibiting entry under section 15 could be challenged if the authorised officer could not demonstrate that they were "reasonably satisfied" of necessity. Because the by‑laws create strict liability offences, any prosecution would have to comply with the Criminal Code and the Director of Public Prosecutions' prosecution policy. No reported decisions on this particular instrument are known to this analysis, but the predecessor 1987 by‑laws may have been considered in cases involving Defence public areas. Without source material, no conclusions can be drawn.

Strict liability without a knowledge requirement. The most significant trap is that all offences are strict liability. A person can be convicted even if they did not know that the area was a public area, did not see a sign, or did not intend to break any rule. This places a high burden on users to inform themselves about the status of the land and the applicable signs. Signage may be at entrances only, so a person who enters at a point without a sign may later find themselves in a restricted zone.

Permit must be written. The exceptions for permits require a written permit. Verbal permission from an authorised officer or ranger will not suffice. If a person relies on an oral grant and cannot produce a written document when asked, they will face a difficult evidential burden. The by‑laws do not specify how the permit must be issued or carried; but in practice, a person should carry the permit at all times in the public area.

No criteria for permit decisions. The by‑laws give authorised officers and rangers the power to issue permits but set out no criteria to guide the decision. There is no requirement to consider the applicant's interests, the public benefit, or any competing uses. This creates a risk of arbitrary or inconsistent treatment. A permit may be refused for reasons unrelated to the management of the public area. There is no right to reasons and no internal review.

Island restrictions are broad. The prohibition on vehicles and on entry between sunset and sunrise in island public areas applies to all islands, regardless of size or the nature of the area. This may affect popular recreational islands used for day trips where people launch small boats or kayaks. The definition of "island" is not given; it could include a small rock outcrop that is above high water mark. A person who arrives on an island before sunset and departs after sunrise the next day commits two separate offences (entering and staying) unless they have a permit.

Guide dog exception is narrow. The animal exception applies only to animals trained to assist a person to alleviate the effect of a visual, hearing or other disability. It does not extend to emotional support animals, therapy dogs, or pets that the owner claims are necessary for mental health. The person must have a disability of the kind the animal is trained to alleviate. The by‑laws do not require the person to produce any identification or proof of training, but the evidential burden would be on the defendant to prove the exception.

Section 16(d) - contravening a direction on a sign. The sign can convey "directions to be followed", "warnings for the guidance of" or "requirements to be observed". This is extraordinarily broad. A sign that says "Do not walk on the dunes" creates an offence for anyone who walks on the dunes, regardless of whether they saw the sign. A direction need not be reasonable; it is enough that it is on a sign approved by an authorised officer. There is no requirement for the sign to be clearly legible or placed in a prominent location.

Section 16(j) - taking or harming animals or plants. This provision prohibits taking, damaging, injuring or destroying any animal or plant or the nest or dwelling of an animal. It does not distinguish between native and introduced species, nor between common weeds and rare orchids. Picking a flower, kicking over a wasp nest, or removing a piece of seaweed could theoretically ground a prosecution. There is no de minimis exception and no exemption for actions that are accidental or necessary for self‑preservation (unless a general defence like necessity applies, which would be for the defendant to prove).

Concurrent operation of Defence Regulation 2016. The by‑laws explicitly do not exclude Part 11 of the Defence Regulation. That Part may contain additional restrictions, such as prohibitions on photography, requirements to carry identification, or closure notices. A person who complies fully with the by‑laws may still be in breach of the Regulation.

Transitional provisions may not cover all situations. Part 3 saves existing authorisations from the 1987 by‑laws, but only if they were "in force immediately before the commencement". If an old permit had a fixed expiry date and had lapsed before 26 March 2018, it is not saved and the person must apply for a new permit. Also, designations of commanding officers become appointments as authorised officers, but only if they were in force; if the person was no longer serving in that role, the appointment does not carry over.

Determine the status of the land. Before entering a Defence area, ascertain whether it has been declared a public area under the Defence Act. This may not be obvious on the ground. Contact the relevant Defence base or check the Commonwealth Gazette for declarations. If in doubt, assume the by‑laws apply and act conservatively.

Read all signs at entrances. Signage approved under sections 8 and 15 is the primary source of site‑specific rules. Look for signs at or near each entrance. They may designate parking and camping areas, give directions about where to walk or drive, warn of hazards, or prohibit entry entirely. Follow all directions, warnings and requirements exactly. Remember that you are bound even if you enter through a different point and later see a sign.

Obtain a written permit for any prohibited activity. If you intend to bring a vehicle onto an island public area, camp outside a designated camping area, bring an animal (other than a guide dog), possess a firearm, conduct commercial activities, erect a structure, or take or harm any plant or animal, you must apply for a written permit from an authorised officer or a ranger. Do not rely on verbal permission. The application should be in writing and you should keep a copy of the permit with you at all times. There is no prescribed form; an email from the officer may suffice, but a signed document is safer. Allow sufficient time for processing as there are no statutory time limits.

Obey general prohibitions without a permit. If you do not have a permit, do not: drive a vehicle off‑road or on an island public area; light any fire except a gas barbecue or a fireplace provided by the Commonwealth; bring any animal (dog, cat, horse) into the area; possess or use any firearm; enter or stay on an island public area between sunset and sunrise; enter an area where signs prohibit entry; leave rubbish except in bins; park outside a parking area; camp outside a camping area; contravene any sign; interfere with signs; erect any signs; erect any building, booth, stall, post or structure; supply goods or services; damage or remove any natural or artificial feature; or take, damage or destroy any animal or plant.

If you have a disability and need an assistance animal. You may bring a guide dog or other animal trained to assist with a visual, hearing or other disability without a permit. It is advisable to carry identification of the animal's training and your disability, because you bear the evidential burden if charged. The exception applies only to trained assistance animals, not to pets, emotional support animals or service animals in training.

If you are a ranger, Defence member or police officer. Ensure that the conduct occurs in the performance of your duties. If you are off‑duty, you are subject to the same rules as the public.

Monitor for changes. The by‑laws may be amended or replaced. Check the Federal Register of Legislation for the current version. Also monitor any site‑specific signage, which can be changed at any time by an authorised officer without prior notice. If you have an ongoing activity requiring a permit, check whether the permit remains in effect if the area or the sign designations change.

Keep records. If you apply for a permit or receive any written communication from an authorised officer, keep a copy. If you are issued with an infringement notice, you have the option to pay or contest it in court. Legal advice should be sought before contesting. If you are charged with an offence, you will need to produce evidence of any permit or exception to discharge the evidential burden.