Defence Creates Federal Militarised Zones to Supersede State and Territory Laws

The Department of Defence introduced a bill last week that reforms defence legislation to accelerate the capability development needed to progress the 2026 National Defence Strategy (NDS). The bill establishes two key reforms that would end the need to seek approval from states and territories when developing capabilities across jurisdictions, via frameworks that supersede certain laws.

Tabled on 27 October 2026, the Defence Legislation Amendment (Accelerating Capability and Protecting Bases) Bill 2026 creates a Defence Capability Framework to cover multi-site operations to override certain state and territory laws, as well as Defence Security Zones, which cover mobile activities, and this will all be oversighted by the Inspector General of the Australian Defence Force (IGADF).

“Capability development is no longer confined to traditional Defence establishments or undertaken solely by Defence personnel,” assistant minister for defence Peter Khalil explained. “The bill responds to these changes by replacing fragmented and uncertain arrangements across states and territories with a clear Commonwealth statutory framework, defined safeguards and strengthened oversight.”

Released in April, the National Defence Strategy 2026 marks a shift to heightened military spending, so that it comprises 3 percent of GDP by 2033, due to pressure from the US Trump administration. Defence minister Richard Marles announced an additional $53 billion spend for the next decade, along with $14 billion over the next four years, to achieve a total spend of $887 billion by 2025-26.

This massive defence spend on pressure of the MAGA White House further comes as United States military expansion is continuing apace locally, especially in northern Australia, as well as with the US nuclear capable submarine base that’s commenced operating on Noongar land south of Perth in Western Australia. So, the military zones that supersede state laws will also benefit the Americans.

Capability declarations

The explanatory memorandum related to the Accelerating Capability and Protecting Bases Bill explains that these days, the development of defence capabilities may take place across multiple ADF bases in several jurisdictions and exemptions to state or territories laws must be sought to facilitate development activity not just via the one authority, which can led to significant delays.

The major frameworks in the bill involve amendments to the Defence Act 1903 (Cth). The legislation initially creates a framework to facilitate ‘capability declarations’, which the defence minister can grant to facilitate ‘defence capability activities’ without contravening certain other laws.

Defence capability activities can involve development, building, testing or the sustaining of things. Such activities can be in the service of the Commonwealth, or a foreign country, a foreign authority, or an international body.

Capability declarations can affect certain state and territory laws, and some Commonwealth laws.

Another effect that capability declarations can have is that certain laws apply differently to defence officials or other personnel involved in the operation of defence capability activities, so that these laws are stymied in order to permit certain ‘declared conduct’.

Capability declarations must detail the ‘declared defence capability activity’ being carried out, as well as the ‘declared conduct’ covered. It must too list the laws that aren’t contravened by the conduct. This can include specified state and territory laws or classes of state and territory law, or a specific Commonwealth law, but only if the federal legislation permits that to happen.

The declaration must state who is empowered to engage in declared conduct, which may include specified defence officials or a specified class of defence officials, or specified foreign defence officials, or a specified class of foreign defence official, along with the Commonwealth or a specified Commonwealth entity, or a specified person engaged as a consultant or contractor to perform services for, or supply goods to Defence.

Declarations are legislative instruments, which must specify whether they are standing or temporary. Standing declarations last until they are revoked, while temporary declarations will usually expire within 12 months. However, temporary declarations don’t have to be registered if it is thought it “could prejudice the defence of Australia or the international relations of the Commonwealth”.

A separate instrument may stipulate conditions that personnel permitted to undertake special conduct must follow and failure to do so is a crime. But certain conduct cannot be covered, which includes use of force or its threat, acts covered by sexual offences, offences against any law not specified in a declaration and it forbids personnel from engaging in civilian policing conduct.

A number of offences are to be enacted to cover a failure to follow the conditions of a capability declaration. The first is the criminal offence of failing to follow the conditions of a declaration, which then results in a death or serious injury of a person in Australia, or that causes a person in Australia to suffer a serious illness. This criminal offence would carry up to 15 years imprisonment.

A failure to follow a condition of a declaration that results in serious property damage, will become an offence that carries 4 years gaol time.

Further, an electronic capability declaration must be progressed if declared conduct involves any use of telecommunications or computers. These must be temporary and can last for 6 months. Information and records related to this activity that’s no longer needed must be destroyed. The Australian attorney general must oversight any specified conduct covered by these declarations.

The offence of use or disclosure of any personal information obtained under capability declarations is also slated for enactment, and it would see officials covered by a declaration and breaching this rule, facing up to 2 years prison and/or a fine of $43,680.

Defence security zones

The second major legislative framework in the bill involves ‘defence security zones’. Such zones can be areas of land or other places or buildings or other structures, owned by the Commonwealth or Defence, as well as extending to similar sites not under government control. Prohibited defence areas, the Woomera Prohibited Area and Pine Gap are also defence security zones.

Further defence security zones can involve a vehicle, vessel or aircraft in Australia owned by the Commonwealth or Defence.

Under the new law, the defence minister would be able to declare new defence security zones, via legislative instruments. This may be for an area of land, or sea adjacent to land, as well as airspace, or a place, building or structure. These zones can be made permanent or temporary, mobile or for emergency purposes. And some of these areas are declared to be ‘special defence security zones’.

Temporary and mobile declared security zones can be used to store assets, equipment or supplies on behalf of Defence, the Australian Defence Force (ADF), a foreign force or the Australian Signals Directorate (ASD), or as areas to locate personnel related to Defence, the ADF, a foreign force or the ASD, as well as use of areas for Defence, the ADF, a foreign force or the ASD to carry out activities.

Emergency declared security zones are permitted in circumstances where Defence, the ADF, a foreign force or the ASD are posed a risk to their safety or security, which can include via drone surveillance, or for incidents involving assets, equipment, supplies or any activities.

The minister is then empowered to grant permissions to provide a person or a class of person with the ability to engage in conduct that would otherwise be prohibited or regulated. Those prohibited and regulated behaviours are set out in a series of offences under this part, which the legislation creates. Permission can only be granted if no unacceptable risk is posed to defence security.

Specific permission may be subject to tailored conditions or those set out in the defence security ground rules. And defence and agency officials who require access to various defence security zones as part of their duties or functions may have a ‘standing permission’, which is subject to the prescribed rules.

The bill lists a series of separate offences dealing with ordinary, mobile or emergency declared zones that can see a person imprisoned for up to 2 years and/or fined S43,680.

These offences include unauthorised entry, unauthorised presence, undertaking controlled activities, unauthorised making, capturing, recording or transmission of images relating to the zone, undertaking restricted activities, dealing with restricted items or contravening the conditions of a permission or permit.

This same process occurs for emergency declared security zones, which can be declared at Pine Gap or any other zone declared as “special”. These separate offences apply to ordinary, mobile and emergency special declared security zones and can see a person imprisoned for up to 7 years and/or fined up to $152,880.

The offences applying to special declared security zones include unauthorised entry, unauthorised presence, undertaking controlled activities, unauthorised dealing with materials related to the special zone, undertaking restricted activities, dealing with restricted items or contravening the conditions of a permission or permit.

Defence security officials, equipped with law enforcement gear by Defence, and regular Australian law enforcement officers will be empowered to patrol defence security zones.

Officers will be empowered to search people, require identification, refuse entry, remove people, detain people, stop and enter vehicles, vessels and aircraft, search and inspect things, seize things, require things to be moved, protect persons from serious harm, use of force, the use of dogs and will further have the power to use vehicles or vessels in emergency situations.

Shooting down surveillance drones

“A significant element of the reforms… is responding to the growing threat posed by drones and other uncrewed systems,” Khalil continued in the chamber last week. “These systems can conduct surveillance, collect intelligence, or carry out physical or cyberattacks. These risks are particularly acute around sensitive Defence capabilities.”

“This bill provides clear authority to detect, identify, monitor, track and respond to unauthorised systems where necessary for Defence security purposes,” he added. “This will enable Defence to act before an unauthorised system compromises sensitive information, disrupts an activity or causes harm. The powers are accompanied by training, authorisation, decision-making and oversight.”

The defence legislation then sets out a framework to allow defence security officials and law enforcement officers to shoot down UXS devices, which are more commonly referred to as drones. The bill makes clear that these can either be autonomous or remotely controlled drones, capable of moving on the ground or under the ground, or on water or under water or through the air.

The new laws would provide that officers can identify and track drones, interfere, manipulate, take control of and seize and destroy drones, as well as damage and neutralise these devices. This can only be done if a drone is in a defence security zone or adjacent to one.

“The bill will give Defence an enduring legislative authority… and allow Defence to conduct counter-UXS measures it cannot already,” the explanatory memorandum relating to the bill sets out. “This includes an ability to take kinetic action against UXS devices where it is safe to do so and with appropriate safeguards in place.”

“This follows a number of recent UXS incursions at Defence bases, and at military bases in other similar jurisdictions globally,” the document further adds.

The Defence Legislation Amendment (Accelerating Capability and Protecting Bases) Bill 2026 is now before the Parliamentary Joint Committee on Defence for review.

Image: Trump on red carpet from Shutterstock. Official portrait of Anthony Albanese and official portrait of Richard Marles by Australian government is licensed under CC BY 4.0.