Diamond (Ashton Joint Venture) Security Regulations 1982

The regulations bind three distinct groups: the Owners, security officers, and all other persons entering or interacting with a designated area. The Owners bear the heaviest burden. They must design, erect, and maintain perimeter barriers; install and maintain signs; provide and man controlled access points; conduct regular boundary inspections; keep records of any agreement under section 17(7) of the Act for three years; provide search and detention facilities; arrange safe custody of surrendered property; maintain records of consent searches for three years; obtain Health Department approval for cabinet x‑ray equipment; and keep copies of the Act and regulations at each active controlled access point. These obligations are ongoing and apply regardless of whether the area is currently operational.

Security officers are the actors exercising statutory powers on the ground. They must not search persons by x‑ray apparatus; must conduct consent searches in private with a third person present and by a security officer of the same sex; must issue receipts for surrendered or detained property; must supply food and drink to detained persons; and must carry out property searches within a reasonable time. Officers are not personally liable for penalties under the regulations, but obstruction of an officer is an offence.

Other persons include employees, contractors, visitors, and anyone who approaches or enters a designated area without authority. They must not damage, deface, remove, or destroy any fence, wall, gate, barrier, or sign erected under the regulations. They must not obstruct, hinder, or interfere with a security officer. They are subject to search of their person (by consent or under the Act) and of their property. If they refuse to surrender property before entry, they may be denied access or detained. Unlawful entry or exit from a designated area attracts the penalties stated on the signs: $5,000 or imprisonment for one year, which is a penalty under the Act, not the regulations. People who would otherwise have a right to access under general law are effectively excluded unless they comply with the security regime. This creates a legal barrier to freedom of movement on land that is privately owned but might previously have been accessed informally.

Owners’ duties. Enclose designated land: regulation 3 requires a security fence or wall, or equivalent, on all boundaries except where a building, structure, geographical formation, waste dump over 30 m high, or pre‑existing lake or dam already provides equivalent security. Enclose designated premises: regulation 4 requires fences, walls, or other physical barriers, or if impracticable, adequate security controls of some other nature. Provide and designate controlled access points: regulation 5 requires signposted points for entry, egress, property movement, and vehicles, manned by a security officer when in use, and locked or physically blocked when not. Erect perimeter signs: regulation 6 requires Form 3 signs at intervals of no more than 500 m along boundaries, and every 250 m along waste dump or lake portions. Inspect boundaries regularly: regulation 7 requires the Owners to cause regular inspections to ensure compliance with fences and signs. Maintain records: regulation 9 requires a record of any agreement under section 17(7) for three years. Provide facilities: regulation 15 requires search facilities with due regard to privacy, and detention facilities with comfort and privacy for interviews.

Security officers’ powers and duties. Under regulation 10, an officer may require a person to surrender property before entering and must issue a receipt and arrange safe custody. Under regulation 11, searches under section 21 must be in a place provided by the Owners; x‑ray apparatus must not be used. Under regulation 12, if a person agrees to a search, the officer must be the same sex, with a third person present, and must preserve privacy, modesty, and comfort; no x‑ray. Under regulation 13, property searches under section 20 may be physical or by cabinet x‑ray approved by the Health Department; if practicable, in the presence of the person in control and a third person; a receipt must be issued for property removed; detained property must be searched within a reasonable time. Under regulation 14, the officer having charge of a detained person must supply food and drink at each recognised meal time.

Rights of persons. A person who surrenders property before entry is entitled to a receipt and safe custody. A person subject to a consent search is entitled to be searched in private, by an officer of the same sex, with a third person present, with due regard to privacy, modesty, and comfort, and not by x‑ray. A person whose property is searched is entitled to be present if practicable. A detained person is entitled to food and drink. A person who is not entering, or who is exiting, has no right to avoid a search if the Act authorises it; the regulations only prescribe the manner.

Regulation 17 creates a catch‑all offence: any person who contravenes or fails to comply with a provision of the regulations commits an offence and is liable to a fine not exceeding $500. This applies to the Owners for failing to erect fences or signs, failing to man access points, failing to keep records, failing to provide facilities. It also applies to any person who damages barriers (regulation 8) or obstructs a security officer (regulation 16). The $500 maximum penalty is low, especially for corporate operators. It may not deter a large mining company from cutting corners on fence maintenance, though the reputational and contractual consequences of a security breach involving high‑value diamonds are likely far more significant. For individuals, the penalty is modest; a $500 fine for damaging a fence or obstructing a security officer is unlikely to be a strong deterrent, especially if the person is motivated by protest or theft.

The signs displayed at controlled access points and along perimeters warn of a much higher penalty for unlawful entry or exit: $5,000 or imprisonment for one year. That penalty flows from the Act, not the regulations. The regulations do not specify who prosecutes or what procedure applies. Enforcement is presumably by police or through summary prosecution. The regulations also do not create a private right of action; only criminal penalties exist.

Record‑keeping duties (agreements for three years, consent searches for three years) support enforcement by allowing verification of compliance. The Owners must also keep copies of the Act and regulations at each active access point, which aids transparency but also ensures that the legal basis for search and detention is available for inspection.

The regulations are subordinate legislation under the Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981. That Act is the primary source of powers for search, seizure, and detention. The regulations confine those powers: they prohibit x‑ray searches of persons, require same‑sex searches for consent searches, mandate that searches be conducted in designated places with regard to privacy, and require food and drink for detainees. The Act also creates the offence of unlawful entry or exit with a penalty of $5,000 or one year imprisonment, which appears on the signs. The regulations do not replicate that offence; they provide only a $500 penalty for regulatory breaches.

The regulations also interact with general criminal law. Damaging a fence could also constitute criminal damage under the Criminal Code (WA). Obstructing a security officer could also be obstructing a person acting under statutory authority, potentially an offence under other legislation. The regulations do not oust those laws; they add a specific, lower‑penalty offence that may be easier to prove because it does not require proof of damage value or intent beyond the act itself.

The requirement for cabinet x‑ray apparatus to be approved by the Public Health Department of the State brings in public health and radiation safety regulation. The Department’s approval is a condition precedent to lawful use of such equipment for property searches. The regulations do not specify the criteria for approval.

The regulations also interact with industrial relations and occupational health and safety laws. The requirement to provide search and detention facilities with due regard to privacy and comfort, and to supply food and drink to detainees, overlaps with workplace health and safety obligations and potentially with industrial agreements covering security staff and mine workers. The regulations do not create any civil liability for breach; they are criminal only.

The original regulations were gazetted on 29 October 1982 and commenced on the same day. They were titled the Diamond (Ashton Joint Venture) Security Regulations 1982, reflecting the original name of the Act (Diamond (Ashton Joint Venture) Agreement Act 1981). The Act’s short title was changed to the Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 by the Diamond (Ashton Joint Venture) Agreement Amendment Act 1983 section 2. The regulations’ citation was not formally changed to match; the reprint uses the original name but cross‑references the changed Act name.

The only substantive amendment occurred via the Diamond (Argyle Diamond Mines Joint Venture) Security Amendment Regulations 2004, gazetted 3 December 2004 and commencing the same day. That amendment did several things. It inserted the definition of “waste dump” into regulation 2. It amended regulation 3 to add a new subregulation (4) exempting the Owners from fencing where a portion of the boundary is covered by a waste dump and the entire edge of the waste dump extending beyond the boundary is greater than 30 m in height. It also renumbered the old subregulation (4) (pre‑existing lake or dam) as (5). It amended regulation 6 to add a new subregulation (2) requiring signs in Form 3 at intervals of no more than 250 m along those boundary portions that are exempt from fencing due to a waste dump or pre‑existing lake or dam. The 2004 amendment regulations incorrectly referred to the principal regulations as the Diamond (Argyle Diamond Mines Joint Venture) Security Regulations 1982, even though the principal regulations still bore the “Ashton” name. The reprint notes this error.

The compilation table shows only one reprint: as at 18 March 2005. No further amendments are evident from the source.

The source text contains no references to any litigation concerning these regulations. No cases are cited in the regulations, the schedules, or the notes. Given the narrow geographic scope (the Argyle diamond mine in the East Kimberley region of Western Australia) and the specialised industry, published litigation is likely rare. The regulations are administrative in character; disputes are more likely to arise under the Act (e.g., challenges to search or detention powers, or prosecutions for unlawful entry) than under the regulations themselves. Because the regulations impose duties primarily on the Owners, and the penalty is only $500, there is little incentive for formal legal challenge. A prosecution for failing to maintain a fence would be unusual, and a person charged with damaging a fence or obstructing a security officer would likely defend on factual grounds rather than challenge the validity of the regulations. No information in the source suggests any judicial consideration of the regulations.

Low penalty for obstruction. Regulation 16 makes it an offence to obstruct, hinder, or interfere with a security officer acting under Part IV of the Act or these regulations. The penalty is only $500 under regulation 17. This is far lower than the Act’s penalty for unlawful entry (up to $5,000 or one year imprisonment). A person who refuses to submit to a search and physically obstructs the officer risks a comparatively trivial fine, which may weaken the deterrent effect. However, the officer may also have powers under the Act to use reasonable force to detain, and the person could face additional charges under general criminal law.

Cabinet x‑ray approval requirement. Regulation 13(1) allows property searches by cabinet x‑ray apparatus of a type approved by the Public Health Department. The regulations do not specify how approval is obtained, what criteria apply, or what happens if the Department refuses approval. The Owners must seek out this approval and maintain it. Using unapproved apparatus would make the search unlawful, and evidence obtained might be inadmissible.

No definition of “regular inspections”. Regulation 7 requires the Owners to cause “regular inspections” of boundaries. The term is not defined. How often is regular? Once a week? Once a month? After a storm? This ambiguity creates compliance risk: if a fence is breached and the Owners cannot show they inspected within a reasonable period, they could be charged under regulation 17. The lack of a prescribed interval also gives a prosecutor flexibility but creates uncertainty for the Owners.

Waste dump exception could be exploited. Under regulation 3(4), if a waste dump’s entire edge extending beyond the boundary is greater than 30 m in height, no fence or wall is needed on that portion. The dump itself must provide security not less than a security fence or wall. A 30 m vertical drop is formidable, but it assumes the edge remains stable and is not climbable via erosion, vegetation, or dumping. If the dump is later raised, the edge height might change. The regulation does not require monitoring of edge height; it only applies at the time of compliance. The Owners need not maintain the 30 m height; they only need to show the edge was over 30 m when they decided not to fence.

Sign intervals on waste dump boundaries. Regulation 6(2) requires signs at intervals of not more than 250 m along portions exempt under regulation 3(4) or (5). This is half the normal 500 m interval. The denser sign placement acknowledges that without a physical barrier, better warning is needed. But the regulation does not specify what happens if the boundary is kilometres long; the cost of signs and posts may be significant.

Record‑keeping period for agreements and searches. Regulation 9 requires records of agreements under section 17(7) to be kept for three years. Regulation 12(3) requires records of consent searches for three years. The regulations do not say what form the records must take, nor do they impose a penalty for failing to keep them beyond the general $500 fine. In practice, the Owners probably already maintain such records, but the three year period might be too short for some purposes such as defending a later civil claim or responding to a government audit.

Detention facilities must permit interviews with due regard to comfort and privacy. Regulation 15(3) requires that detention facilities enable the person to be interviewed with due regard to his comfort and privacy. This may be interpreted to require a quiet, private room rather than a holding cell. The Owners must provide a space that meets both security and comfort. Failure could lead to an offence, but also could be used in a civil claim for false imprisonment or breach of statutory duty.

For the Owners, compliance is a multi‑step operational process. First, identify every designated area under the Act. For each area, survey the boundaries to determine which portions are land, which are buildings or structures, which are geographical formations, which are covered by a waste dump with an edge over 30 m, and which are submerged by a pre‑existing lake or dam. For land boundaries, design and construct a security fence or wall meeting Schedule 1 Part I or Part II specifications, or an alternative that offers equivalent security. For portions where a building, structure, or formation provides equivalent security, document that assessment. For waste dump portions, verify the edge height and document it; erect signs every 250 m. For lake or dam portions, erect signs every 250 m. For all other boundaries, erect signs every 500 m. Signs must be in or to the effect of Forms 1, 2, and 3 in Schedule 2. Form 1 must specify the type of access permitted (e.g., entry of persons). Form 2 must specify the type of exit. Form 3 must be placed along perimeters.

Next, provide and designate controlled access points for entry, egress, property, and vehicles. Install gates that comply with fence specifications. Post signs. When an access point is available for use, have a security officer present and keep a copy of the Act and these regulations there. When not in use, lock gates or take physical measures to prevent passage.

Conduct regular boundary inspections. The frequency should be determined based on risk; at minimum, monthly inspections are prudent. Document each inspection with a date and findings. Keep those records for at least three years, though longer is better to demonstrate a pattern of compliance.

Obtain Health Department approval for any cabinet x‑ray apparatus used for property searches. Keep the approval on file. Ensure any person searches are conducted only in the provided facilities, not by x‑ray, and if by consent, follow the same‑sex and privacy requirements. Train security officers on these limitations.

Provide search facilities that enable searches with due regard to privacy, modesty, and comfort. Provide detention facilities that enable comfortable and private interviews. Ensure detained persons are fed at each recognised meal time. Maintain a log of all searches (both person and property) and all detentions, and keep records for three years.

Maintain a record of any agreement entered into under section 17(7) of the Act for three years. That section deals with agreements concerning security or access. Ensure any such agreement is in writing and retained.

Finally, ensure that no officer or contractor damages, defaces, removes, or destroys any barrier or sign without authority. The Owners should have internal policies that any alterations to the security infrastructure must be approved and recorded. The Owners themselves are also subject to the $500 fine for non‑compliance, so internal audits should verify that all fences, signs, and access points remain in good order.