An Act to provide for the Naval and Military Defence and
Protection of the Commonwealth and of the several States
Part I—Introductory
1
Short title [see
Note 1]
This Act may be cited as the Defence
Act 1903.
3
Commencement of Act [see
Note 1]
This Act shall commence on a day to be
fixed by Proclamation.
4
Interpretation [see Note
2]
(1) In this Act, unless the contrary
intention appears:
AAT means the Administrative Appeals
Tribunal.
AAT Act means the Administrative Appeals
Tribunal Act 1975.
Aircraft—Includes aeroplanes, seaplanes,
balloons, kite balloons, airships and other machines for flying.
Aircraft Material—Includes any engines,
fittings, guns, gear, instruments, ammunition, bombs or apparatus for use in
connexion with aircraft, and any components or accessories of aircraft, and
petrol and any other substance used for providing motive power for aircraft,
and lubricating oil.
Airman—Means a member of the Air Force other
than an officer.
Australia and Commonwealth
includes the Territories.
Conscientious Objection Tribunal means a
Conscientious Objection Tribunal established under section 61CF.
exemption from service because of conscientious
beliefs means exemption from service under paragraph 61A(1)(h) or (i)
or exemption from combatant duties under subsection 61A(1A).
Federal Court means the Federal Court of
Australia.
Inspector‑General ADF means
the Inspector‑General of the Australian Defence Force referred to in
section 110B.
Member—Includes any officer, sailor, soldier
and airman.
Non‑commissioned Officer—Means a
soldier (other than a warrant officer) holding non‑commissioned rank.
Officer means:
(a) in relation to the Australian
Navy—a person appointed as an officer of the Australian Navy, including a
person who holds the rank in the Australian Navy of Acting SubLieutenant or of
Midshipman; or
(b) in relation to the Australian Army
or the Australian Air Force—a person appointed as an officer of the Australian
Army or the Australian Air Force.
Permanent Forces means the Permanent Navy,
the Regular Army and the Permanent Air Force.
Reserves means the Naval Reserve, the Army
Reserve and the Air Force Reserve.
Sailor—Means a member of the Navy other than
an officer.
Service Decoration—Means any order, medal,
badge, clasp, bar or other insignia that was or may be conferred for valour,
distinguished conduct or service, long service, good conduct, devotion to duty,
efficiency, participation in a campaign or other warlike operation or for any
other reason on a member of the Defence Force or of any armed force of any part
of the Queen’s dominions or of any Power allied or associated with Australia in
any war or warlike operations in which Australia is or has been engaged, and
includes the ribbon of any such order, medal, badge, clasp or other decoration
and any colourable imitation, representation or miniature of any such order,
medal, badge, clasp or other decoration.
Service tribunal has the same meaning as in
the Defence Force Discipline Act 1982.
Soldier—Means a member of the Army other than
an officer.
The Secretary means the Secretary to the
Department.
Time of Defence Emergency—Means the period
between the publication of a proclamation declaring that a state of defence
emergency exists in relation to Australia and the publication of a proclamation
that that state of defence emergency no longer exists.
Time of War—Means any time during which a
state of war actually exists, and includes the time between the issue of a
proclamation of the existence of war or of danger thereof and the issue of a
proclamation declaring that the war or danger thereof, declared in the prior
proclamation, no longer exists.
War—Means any invasion or apprehended
invasion of, or attack or apprehended attack on, Australia by an enemy or armed
force.
(2) Unless the contrary intention appears, in
this Act or in any other law:
(a) a reference to the Naval Forces or
the Navy shall be read as a reference to the Australian Navy;
(b) a reference to the Military Forces
or the Army shall be read as a reference to the Australian Army;
(c) a reference to the Air Force shall
be read as a reference to the Australian Air Force;
(d) a reference to the Chief of the
Defence Force shall be read as a reference to the Chief of the Defence Force
appointed under section 9;
(e) a reference to the Chief of Navy
shall be read as a reference to the Chief of Navy appointed under section 9;
(f) a reference to the Chief of Army
shall be read as a reference to the Chief of Army appointed under section 9;
(g) a reference to the Chief of Air
Force shall be read as a reference to the Chief of Air Force appointed under
section 9; and
(h) a reference to a service chief
shall be read as a reference to the Chief of Navy, the Chief of Army or the
Chief of Air Force, as the case requires.
(3) For the
purposes of Part IV, a person is taken to have a conscientious belief in
relation to a matter if the person’s belief in respect of that matter:
(a) involves a fundamental conviction
of what is morally right and morally wrong, whether or not based on religious
considerations; and
(b) is so compelling in character for
that person that he or she is duty bound to espouse it; and
(c) is likely to be of a long standing
nature.
5
Application of Act
This Act applies to, and in relation to,
the Navy, Army and Air Force, and to all members of the Navy, Army and Air
Force whether appointed or enlisted, or deemed to be enlisted, under this Act
or under any other Act and whether serving within or beyond the territorial
limits of Australia.
5A
Extension of Act to Territories
This Act extends to the external
Territories as if each of those Territories were part of Australia.
6
Application of the Criminal Code
Chapter 2 of the Criminal Code applies
to all offences against this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
7 Act
does not appropriate money
Nothing in this Act shall be taken as an
appropriation of any public moneys.
Part II—Administration
8
Powers of Minister in relation to Defence Force
The Minister shall have the general
control and administration of the Defence Force, and the powers vested in the
Chief of the Defence Force, the Chief of Navy, the Chief of Army and the Chief
of Air Force by virtue of section 9, and the powers vested jointly in the
Secretary and the Chief of the Defence Force by virtue of section 9A,
shall be exercised subject to and in accordance with any directions of the
Minister.
9
Command of Defence Force and arms of Defence Force
(1) The Governor‑General may appoint an
officer of an arm of the Defence Force to be Chief of the Defence Force and:
(a) may appoint an officer of the Navy
to be Chief of Navy;
(b) may appoint an officer of the Army
to be Chief of Army; and
(c) may appoint an officer of the Air
Force to be Chief of Air Force.
(2) Subject to section 8, the Chief of
the Defence Force shall command the Defence Force, and the service chief of an
arm of the Defence Force shall, under the Chief of the Defence Force, command
the arm of the Defence Force of which he is service chief.
(3) It is a function of the Chief of the
Defence Force to advise the Minister, in such manner as the Minister directs,
on matters relating to the command by the Chief of the Defence Force of the
Defence Force, and it is a function of the service chief of an arm of the
Defence Force to advise the Minister, in such manner as the Minister directs,
on matters relating to the command by the service chief of the arm of the
Defence Force of which he is the service chief.
(5) Subsection (2) has effect subject to
section 68 of the Constitution.
9A
Administration of Defence Force
(1) Subject to section 8, the Secretary
and the Chief of the Defence Force shall jointly have the administration of the
Defence Force except with respect to:
(a) matters falling within the command
of the Defence Force by the Chief of the Defence Force or the command of an arm
of the Defence Force by the service chief of that arm of the Defence Force; or
(b) any other matter specified by the
Minister.
(2) Instructions issued by or with the
authority of the Secretary and the Chief of the Defence Force in pursuance of
the powers vested in them jointly by virtue of subsection (1) shall be
known as Defence Instructions (General).
(3) The powers vested in the Secretary and
the Chief of the Defence Force by virtue of subsection (1) extend to
authorizing a service chief of an arm of the Defence Force to administer, in
accordance with that authority, matters relating to that arm of the Defence
Force, and instructions or orders issued or made by or with the authority of a
service chief in relation to the administration of an arm of the Defence Force
shall be known as:
(a) in the case of the Navy—Defence
Instructions (Navy);
(b) in the case of the Army—Defence
Instructions (Army); and
(c) in the case of the Air
Force—Defence Instructions (Air Force).
(4) Where Defence Instructions (Navy),
Defence Instructions (Army) or Defence Instructions (Air Force) are
inconsistent with Defence Instructions (General), the Defence Instructions
(General) prevail and the Defence Instructions (Navy), the Defence Instructions
(Army) or the Defence Instructions (Air Force), as the case may be, shall, to
the extent of the inconsistency, be of no effect.
(5) Evidence of Defence Instructions
(General), Defence Instructions (Navy), Defence Instructions (Army) or Defence
Instructions (Air Force) may be given in any proceedings in or before a Court,
a service tribunal, the Defence Force Discipline Appeal Tribunal, or any other
tribunal, by the production of a document purporting to be a copy thereof.
(6) Defence Instructions (General), Defence
Instructions (Navy), Defence Instructions (Army) or Defence Instructions (Air
Force) may make provision in relation to a matter by applying, adopting or
incorporating, with or without modification, any matter contained in an
instrument or other writing, whether as in force at a particular time, or as
amended and in force from time to time.
9AA
Vice Chief of the Defence Force
(1) The Governor‑General may appoint an
officer of an arm of the Defence Force to be Vice Chief of the Defence Force.
(2) Subject to section 8, the Vice Chief
of the Defence Force shall, under the Chief of the Defence Force, be
responsible for such part of the administration of the Defence Force in respect
of which the Chief of the Defence Force has responsibility, whether alone or
jointly with the Secretary, as the Chief of the Defence Force specifies in
writing, and shall have such other functions as the Chief of the Defence Force
determines in writing.
9B
Remuneration and allowances
(1) An officer who is the Chief of the
Defence Force, the Vice Chief of the Defence Force or a service chief shall be
paid such remuneration as is determined by the Remuneration Tribunal.
(2) An officer who is the Chief of the
Defence Force, the Vice Chief of the Defence Force or a service chief shall be
paid such allowances as are fixed by determination under Part IIIA.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
9BA
Tenure of office
(1) Subject to subsection (2) and the
regulations, a person appointed under subsection 9(1) or 9AA(1) holds office
for the period specified in the document of appointment, but is eligible for re‑appointment.
(2) If a person appointed under subsection
9(1) or 9AA(1) ceases to be an officer of an arm of the Defence Force, the
person ceases to hold office under subsection 9(1) or 9AA(1).
9C
Acting appointments
(1) The Minister may appoint an officer who
is eligible for appointment to the office of Chief of the Defence Force, Vice
Chief of the Defence Force or an office of service chief of an arm of the
Defence Force to act in that office:
(a) during a vacancy in that office;
or
(b) during any period, or during all
periods, when the holder of that office is absent from duty or from Australia
or is, for any other reason, unable to perform the functions of his office;
but an officer appointed to act during a vacancy shall not
continue so to act for more than 12 months.
(2) Anything done by or in relation to an
officer purporting to act under an appointment under subsection (1) is not
invalid merely because:
(a) the occasion for the appointment
had not arisen;
(b) there was a defect or irregularity
in connection with the appointment;
(c) the appointment had ceased to have
effect; or
(d) the occasion for the person to act
had not arisen or had ceased.
28
Council of Defence
(1) The Governor‑General may constitute
a Council of Defence, which shall have such powers and functions as are prescribed.
Part III—The Defence Force
Division 1—Constitution of the Defence Force
30
Defence Force
The Defence Force consists of 3 arms,
namely, the Australian Navy, the Australian Army and the Australian Air Force.
31
Australian Army
The Australian Army consists of 2 parts:
(a) the Regular Army; and
(b) the Army Reserve.
32
Regular Army
The Regular Army consists of:
(a) officers appointed to, and
soldiers enlisted in, the Regular Army; and
(b) officers and soldiers transferred
to the Regular Army from:
(i) the Army Reserve; or
(ii) the Australian Navy;
or
(iii) the Australian Air
Force.
32A
Army Reserve
The Army Reserve consists of:
(a) officers appointed to, and
soldiers enlisted in, the Army Reserve; and
(b) officers and soldiers transferred
to the Army Reserve from:
(i) the Regular Army; or
(ii) the Australian Navy;
or
(iii) the Australian Air
Force.
32B
Attachment etc. of members of an arm of the Defence Force to another arm
A member of an arm of the Defence Force
may, under such conditions (if any) as are prescribed, be attached or loaned
to, or seconded for service with, another arm of the Defence Force.
Division 2—The raising of the Army
34
Voluntary entry
Except as provided by Part IV of
this Act or by any other Act, the Army shall be kept up by the appointment to
the Army, or the enlistment in the Army, of persons who volunteer and are
accepted for service in the Army.
Division 3—The service of the Army
45
Service of the Regular Army
Members of the Regular Army are bound to
render continuous full time military service.
50
Service of the Army Reserve
(1) A member of the Army Reserve is not bound
to render continuous full time service otherwise than:
(a) as provided in this section; or
(b) as a result of a call out order
under section 50D, 51A, 51AA, 51AB, 51B, 51C or 51CA.
(2) The regulations must set, or provide for
the setting of, training periods for the Army Reserve.
Note: Different training periods may be set for
different parts of the Army Reserve or for different classes of members of the
Army Reserve: see subsection 33(3A) of the Acts Interpretation Act 1901.
(2A) A member of the Army Reserve is bound to
render, in each training period, military service (other than continuous full
time military service) for such periods as are set by or under the regulations.
However, a member may be exempted by or under the regulations from the
obligation to render all, or a specified part, of that service.
Note: Different service may be required of different
parts of the Army Reserve, or of different classes of members of the Army
Reserve, or in different periods: see subsection 33(3A) of the Acts
Interpretation Act 1901.
(3) A member of the Army Reserve may, at any
time, voluntarily undertake to render continuous full time military service for
a period specified by him and, if that undertaking is accepted, he is bound to
render that form of service for that specified period or for such period or
periods within that specified period as the Chief of Army directs.
(4) A member of the Army Reserve may at any
time voluntarily undertake to render military service, other than continuous
full time military service, for a period or periods specified by him, and, if
that undertaking is accepted, the member is bound to render military service in
accordance with that undertaking or for such period or periods within that
specified period, or within those specified periods, as the case may be, as the
Chief of Army directs.
50C
Territorial limits of service of Army
Members of the Army may be required to
serve either within or beyond the territorial limits of Australia.
Division 4—The calling out of the Forces
50D
Calling out the Reserves
Governor‑General may call out the Reserves
(1) The Governor‑General may, by
publishing a written order in the Gazette, call out for continuous full
time service:
(a) the Reserves; or
(b) one or more of the following:
(i) a specified part or
parts of the Reserves;
(ii) a specified class or
classes of members in the Reserves;
(iii) a specified member or
members of the Reserves.
Circumstances required for call out
(2) However, the Governor‑General may
only make an order in circumstances (whether within or outside Australia)
involving any one or more of the following:
(a) war or warlike operations;
(b) defence emergency;
(c) defence preparation;
(d) peacekeeping or peace enforcement;
(e) assistance to Commonwealth, State,
Territory or foreign government authorities and agencies in matters involving Australia’s
national security or affecting Australian defence interests;
(f) support to community activities
of national or international significance;
(g) civil aid, humanitarian
assistance, medical or civil emergency or disaster relief.
Advice to Governor‑General
(3) In making or revoking an order, the
Governor‑General is to act with the advice of:
(a) the Executive Council; or
(b) if, after the Minister has
consulted the Prime Minister, the Minister is satisfied that, for reasons of
urgency, the Governor‑General should act with the advice of the Minister
alone—the Minister.
When order takes effect
(4) An order takes effect on:
(a) the day specified in the order; or
(b) if no day is specified—the day on
which the order is published in the Gazette.
When revocation of order takes effect
(5) A revocation of an order takes effect on:
(a) the day specified in the
revocation; or
(b) if no day is specified—the day on
which the revocation is published in the Gazette.
Effect of revocation of order
(6) To avoid doubt, if an order is revoked
the call out under that order ends.
Further orders
(7) The fact that an order has been published
under this section in relation to particular circumstances does not prevent
further orders being published under this section in relation to the same
circumstances.
50E
Period of service during call out
Direction by Chief of the Defence Force or a service
chief
(1) A member of the Reserves who is covered
by a call out order under section 50D is bound to render the period of
continuous full time naval, military or air force service (as appropriate) that
the Chief of the Defence Force or a service chief directs in relation to the
member.
Directions may be specific or general
(2) Such a direction may apply to the member
specifically, by reference to a part or class of the Reserves that includes the
member, or by reference to the Reserves as a whole.
Length of period of service
(3) The period of service specified in a
direction under subsection (1):
(a) must start on the day on which the
relevant call out order takes effect; and
(b) may be indefinite or limited.
However, a direction has no effect to the extent that it
specifies a period of service after the day on which the call out under the
order ends.
Direction must be in writing
(4) A direction under this section must be in
writing.
Further directions
(5) The fact that a direction has been given
in relation to an order under section 50D does not prevent further
directions being given in relation to the same order.
Continuous full time service otherwise than under this
section
(6) Nothing in this section prevents a member
of the Reserves from being bound to render continuous full time naval, military
or air force service otherwise than under this section.
Part IIIAAA—Utilisation of Defence Force to protect Commonwealth
interests and States and self‑governing Territories
Division 1—Calling out and directing utilisation of Defence Force
51
Interpretation
Definitions
(1) In this Part:
Australian offshore area means:
(a) Australian waters; or
(b) the exclusive economic zone of Australia
(including its external Territories); or
(c) the sea over the continental shelf
of Australia (including its external Territories); or
(d) an area prescribed by the
regulations;
and includes the airspace over an area covered by paragraph (a),
(b), (c) or (d).
Australian waters means:
(a) the territorial sea of Australia;
and
(b) the waters of the sea on the
landward side of the territorial sea of Australia; and
(c) the territorial sea of each
external Territory; and
(d) the waters of the sea on the
landward side of the territorial sea of each external Territory;
but does not include the internal waters of a State or
self‑governing Territory.
authorising Ministers means the Prime
Minister, the Minister and the Attorney‑General.
continental shelf has the same meaning as in
the Seas and Submerged Lands Act 1973.
criminal act means an act or omission that
would, if done or omitted to be done in the Jervis Bay Territory, contravene
the substantive criminal law of the Jervis Bay Territory.
dangerous thing means a gun, knife, bomb,
chemical weapon or any other thing that is reasonably likely to be used to
cause serious damage to property or death or serious injury to persons.
designated area means an area in relation to
which a declaration is in force under section 51Q.
designated critical infrastructure means
infrastructure, or a part of infrastructure, that is declared under section 51CB.
domestic violence has the same meaning as in
section 119 of the Constitution.
exclusive economic zone has the same meaning
as in the Seas and Submerged Lands Act 1973.
general security area means an area in
relation to which a declaration is in force under section 51K.
infrastructure includes physical facilities,
supply chains, information technologies and communication networks or systems.
internal waters, in relation to a State or
self‑governing Territory, means the waters of the sea within the limits
of the State or Territory and includes the airspace over those waters.
means of transport means a vehicle, vessel,
aircraft that is not airborne, train or other means of transporting persons or
goods.
member in charge, in relation to a search
authorisation, has the meaning given by paragraph 51L(2)(c).
offshore designated area means an area in
relation to which a declaration is in force under section 51SL.
offshore general security area means an area
in relation to which a declaration is in force under section 51SF.
offshore member in charge, in relation to an
offshore search authorisation, has the meaning given by paragraph 51SG(2)(c).
offshore search authorisation means an
authorisation under section 51SG.
offshore search members, in relation to a
search authorisation, has the meaning given by paragraph 51SG(2)(d).
premises includes a place that is private
property.
Presiding Officer means the President of the
Senate or the Speaker of the House of Representatives.
search of a person means:
(a) a search of a person or of things
in the possession of a person that may include:
(i) requiring the person
to remove his or her overcoat, coat or jacket and any gloves, shoes and hat;
and
(ii) an examination of
those items; or
(b) a search of a person conducted by
quickly running the hands over the person’s outer garments and an examination
of anything worn or carried by the person that is conveniently and voluntarily
removed by the person;
but does not include:
(c) requiring the person to remove all
of his or her garments; or
(d) an examination of the person’s
body cavities.
search authorisation means an authorisation
under section 51L.
search members, in relation to a search
authorisation, has the meaning given by paragraph 51L(2)(d).
self‑governing Territory means the Australian
Capital Territory, the Northern Territory or Norfolk Island.
substantive criminal law means law (including
unwritten law):
(a) creating offences or imposing
criminal liability for offences; or
(b) dealing with capacity to incur
criminal liability; or
(c) providing a defence or providing
for the reduction of the degree of criminal liability; or
(d) providing for the confiscation of
property used in, or derived from, the commission of an offence; or
(e) dealing with other subjects
declared by regulation to be within the ambit of the substantive criminal law
of the Jervis Bay Territory; or
(f) providing for the interpretation
of laws of the kinds mentioned above.
territorial sea has the same meaning as in
the Seas and Submerged Lands Act 1973.
threat concerned means:
(a) for the purposes of the
application of section 51IB or subsection 51T(2A)—the threat of damage or
disruption in relation to which the authorising Ministers make a declaration
under section 51CB; or
(b) for the purposes of the
application of one or more of the provisions of Division 3A—the threat to
Commonwealth interests in relation to which an order under section 51AA is
made that causes Division 3A to apply.
Police force etc. of certain Territories
(2) If the Australian Federal Police provides
police services in relation to a Territory:
(a) the expression police force
of the Territory means the Australian Federal Police, so far as it provides
police services in relation to the Territory; and
(b) the expression member of the
police force of the Territory means a member or special member of the
Australian Federal Police providing police services in relation to the
Territory.
51A
Order about utilising Defence Force to protect Commonwealth interests against
domestic violence
Conditions for making of order
(1) Subsection (2) applies if the
authorising Ministers are satisfied that:
(a) domestic violence is occurring or
is likely to occur in Australia; and
(aa) the domestic violence would, or
would be likely to, affect Commonwealth interests; and
(b) if the domestic violence is
occurring or is likely to occur in a State or self‑governing
Territory—the State or Territory is not, or is unlikely to be, able to protect
Commonwealth interests against the domestic violence; and
(c) the Defence Force should be called
out and the Chief of the Defence Force should be directed to utilise the
Defence Force to protect the Commonwealth interests against the domestic
violence; and
(d) one or more of Divisions 2,
2A, 3 and 3B, and Division 4, should apply in relation to the order.
Power of Governor‑General to make order
(2) If this subsection applies, the Governor‑General
may, by written order, call out the Defence Force and direct the Chief of the
Defence Force to utilise the Defence Force to protect the Commonwealth
interests against the domestic violence.
Provided always that the Emergency
Forces or the Reserve Forces shall not be called out or utilized in connexion
with an industrial dispute.
Involvement of State or Territory
(3) If paragraph (1)(b) applies:
(a) the Governor‑General may
make the order whether or not the Government of the State or the self‑governing
Territory requests the making of the order; and
(b) if the Government of the State or
the self‑governing Territory does not request the making of the order, an
authorising Minister must, subject to subsection (3A), consult that
Government about the making of the order before the Governor‑General
makes it.
Exception to paragraph (3)(b)
(3A) However, paragraph (3)(b) does not
apply if the authorising Ministers are satisfied that, for reasons of urgency,
it is impracticable to comply with the requirements of that paragraph.
Content of the order
(4) The order:
(a) must state that it is made under
this section; and
(b) must specify the State or
Territory in which the domestic violence is occurring or likely to occur, the
Commonwealth interests and the domestic violence; and
(c) must state that one or more of
Divisions 2, 2A, 3 and 3B, and Division 4, apply in relation to the
order; and
(d) must state that the order comes
into force when it is made and that, unless it is revoked earlier, it ceases to
be in force after a specified period (which must not be more than 20 days).
When order is in force
(5) The order is in force as stated in
accordance with paragraph (4)(d).
Revocation of order
(6) If the authorising Ministers cease to be
satisfied as mentioned in subsection (1), the Governor‑General must
revoke the order.
Advice to Governor‑General
(7) In making or revoking the order, the
Governor‑General is to act with the advice of:
(a) except where paragraph (b)
applies—the Executive Council; or
(b) if an authorising Minister is
satisfied that, for reasons of urgency, the Governor‑General should, for
the purposes of this subsection, act with the advice of the authorising
Minister—the authorising Minister.
Effect of revocation of order etc.
(8) To avoid doubt, if the order is revoked
or ceases to be in force, the call out of the Defence Force under the order
ends and the Chief of the Defence Force must cease utilising the Defence Force
as mentioned in subsection (2).
Notice to State or self‑governing Territory
(8A) As soon as is reasonably practicable after
the order is made or revoked, an authorising Minister must arrange for the
Government of the State or the self‑governing Territory specified in the
order to be notified of the making or revocation of the order. However, if this
is not done, the validity of the making or revocation of the order is not
affected.
Further orders
(9) The fact that the order has been made
does not prevent further orders being made in relation to the same matter.
51AA
Order about utilising Defence Force in the offshore area etc. to protect
Commonwealth interests
Conditions for making of order utilising the Defence
Force in the offshore area
(1) Subsection (2) applies if the
authorising Ministers are satisfied that:
(a) there is a threat in the
Australian offshore area to Commonwealth interests (whether in that area or
elsewhere); and
(b) the Defence Force should be called
out and the Chief of the Defence Force should be directed to utilise the
Defence Force in the Australian offshore area to protect the Commonwealth
interests against the threat; and
(c) either Division 2A or 3A, or
both, and Division 4 should apply in relation to the order.
Power of Governor‑General to make order utilising
the Defence Force in the Australian offshore area
(2) If this subsection applies, the Governor‑General
may, by written order, call out the Defence Force and direct the Chief of the
Defence Force to utilise the Defence Force in the Australian offshore area to
protect the Commonwealth interests against the threat concerned.
(3) However, the Reserves must not be called
out or utilised in connection with an industrial dispute.
Conditions for also utilising the Defence Force in the
internal waters
(4) Subsection (5) applies if the
authorising Ministers are satisfied that:
(a) in relation to the threat
mentioned in paragraph (1)(a), domestic violence is occurring or is likely
to occur in the internal waters of a State or self‑governing Territory;
and
(b) the State or Territory is not, or
is unlikely to be, able to protect the Commonwealth interests against the
domestic violence; and
(c) the Chief of the Defence Force
should be directed to utilise the Defence Force in the internal waters of the
State or Territory to protect the Commonwealth interests against the domestic
violence.
Power of Governor‑General to direct utilising the
Defence Force in the internal waters
(5) If this subsection applies, the Governor‑General
may, in the order under subsection (2), also direct the Chief of the
Defence Force to utilise the Defence Force in the internal waters of the State
or Territory to protect the Commonwealth interests against the domestic
violence.
Involvement of State or Territory
(6) If subsection (5) applies:
(a) the Governor‑General may
make the direction referred to in subsection (5) whether or not the
Government of the State or the self‑governing Territory requests the
making of the direction; and
(b) if the Government of the State or
the self‑governing Territory does not request the making of the direction
referred to in subsection (5), an authorising Minister must, subject to subsection (7),
consult that Government about the making of the direction.
Exception to paragraph (6)(b)
(7) However, paragraph (6)(b) does not
apply if the authorising Ministers are satisfied that, for reasons of urgency,
it is impracticable to comply with the requirements of that paragraph.
Content of the order
(8) The order:
(a) must state that it is made under
this section; and
(b) must specify:
(i) the threat to which
the order relates; and
(ii) the Commonwealth
interests; and
(iii) if the order includes
a direction mentioned in subsection (5)—the State or Territory to which
the direction relates and the domestic violence; and
(c) must state that Division 2A
or 3A, or both, and Division 4 apply in relation to the order; and
(d) must state that the order comes
into force when it is made and that, unless it is revoked earlier, it ceases to
be in force after a specified period (which must not be more than 20 days).
When order is in force
(9) The order is in force as stated in
accordance with paragraph (8)(d).
Revocation of order
(10) If the authorising Ministers cease to be
satisfied as mentioned in subsection (1), the Governor‑General must
revoke the order.
Advice to Governor‑General
(11) In making or revoking the order, the
Governor‑General is to act with the advice of:
(a) except where paragraph (b)
applies—the Executive Council; or
(b) if an authorising Minister is
satisfied that, for reasons of urgency, the Governor‑General should, for
the purposes of this subsection, act with the advice of the authorising
Minister—the authorising Minister.
Effect of revocation of order etc.
(12) To avoid doubt, if the order is revoked or
ceases to be in force, the call out of the Defence Force under the order ends
and the Chief of the Defence Force must cease utilising the Defence Force as
mentioned in subsection (2) or (5).
Notice to State or self‑governing Territory
(13) If the order includes a direction
mentioned in subsection (5), then as soon as is reasonably practicable
after the order is made or revoked, an authorising Minister must arrange for
the Government of the State or the self‑governing Territory specified in
the order to be notified of the making or revocation of the order. However, if
this is not done, the validity of the making or revocation of the order is not
affected.
Further orders
(14) The fact that the order has been made does
not prevent further orders being made in relation to the same matter.
51AB
Order about utilising Defence Force to protect Commonwealth interests against
violence if specified circumstances arise
Conditions for making of order
(1) Subsection (2) applies if the
authorising Ministers are satisfied that:
(a) if specified circumstances were to
arise:
(i) domestic violence
would occur or would be likely to occur in Australia that would, or would be
likely to, affect Commonwealth interests; or
(ii) there would be, or it
is likely there would be, a threat in the Australian offshore area to
Commonwealth interests (whether in that area or elsewhere);
and, for reasons of urgency, it
would be impracticable for the Governor‑General to make an order under
section 51A or 51AA (as the case requires); and
(b) if subparagraph (a)(i)
applies—the domestic violence would occur or would be likely to occur in a
State or self‑governing Territory that would not be, or is unlikely to
be, able to protect the Commonwealth interests against the domestic violence;
and
(c) the Chief of the Defence Force
should be directed to utilise the Defence Force to protect the Commonwealth
interests against the violence, or the threat in the Australian offshore area,
if the specified circumstances arise; and
(d) Divisions 3B and 4 should
apply in relation to the order.
Power of Governor‑General to make order
(2) If this subsection applies, the Governor‑General
may, by written order, direct the Chief of the Defence Force to utilise the
Defence Force to protect the Commonwealth interests against the domestic
violence, or the threat in the Australian offshore area, if the specified
circumstances arise.
Involvement of State or Territory
(3) If paragraph (1)(b) applies:
(a) the Governor‑General may
make the order whether or not the Government of the State or the self‑governing
Territory requests the making of the order; and
(b) if the Government of the State or
the self‑governing Territory does not request the making of the order, an
authorising Minister must consult that Government about the making of the order
before the Governor‑General makes it.
Content of the order
(4) The order:
(a) must state that it is made under
this section; and
(b) must specify:
(i) the circumstances to
which the order relates; and
(ii) if paragraph (1)(b)
applies—the State or Territory in which the domestic violence would occur or
would be likely to occur; and
(iii) the Commonwealth
interests; and
(iv) the domestic violence,
or the threat in the Australian offshore area, as the case requires; and
(c) must state that Divisions 3B
and 4 apply in relation to the order; and
(d) must state that the order comes
into force when it is made and that, unless it is revoked earlier, it ceases to
be in force at the end of the period specified in the order.
When order is in force
(5) The order is in force as stated in
accordance with paragraph (4)(d).
Revocation of order
(6) If the authorising Ministers cease to be
satisfied as mentioned in subsection (1), the Governor‑General must
revoke the order.
Advice to Governor‑General
(7) In making or revoking the order the
Governor‑General is to act with the advice of the Executive Council.
Effect of revocation of order etc.
(8) To avoid doubt, if the order is revoked
or ceases to be in force, the Chief of the Defence Force must cease utilising
the Defence Force as mentioned in subsection (2).
Notice to State or self‑governing Territory
(9) If the order specifies a State or
Territory under subparagraph (4)(b)(ii), as soon as is reasonably
practicable after the order is made or revoked, an authorising Minister must
arrange for the Government of the State or Territory to be notified of the
making or revocation of the order. However, if this is not done, the validity
of the making or revocation of the order is not affected.
Further orders
(10) The fact that the order has been made does
not prevent further orders being made in relation to the same matter.
51B
Order about utilising Defence Force to protect State against domestic violence
Conditions for making of order
(1) Subsection (2) applies if a State
Government applies to the Commonwealth Government to protect the State against
domestic violence that is occurring or is likely to occur in the State and the
authorising Ministers are satisfied that:
(a) the State is not, or is unlikely
to be, able to protect itself against the domestic violence; and
(b) the Defence Force should be called
out and the Chief of the Defence Force should be directed to utilise the
Defence Force to protect the State against the domestic violence; and
(c) one or more of Divisions 2,
2A, 3 and 3B, and Division 4, should apply in relation to the order.
Power of Governor‑General to make order
(2) If this subsection applies, the Governor‑General
may, by written order, call out the Defence Force and direct the Chief of the
Defence Force to utilise the Defence Force to protect the State against the
domestic violence.
Provided always that the Emergency Forces or the Reserve
Forces shall not be called out or utilized in connexion with an industrial dispute.
Content of the order
(3) The order:
(a) must state that it is made under
this section; and
(b) must specify the State and the
domestic violence; and
(c) must state that one or more of
Divisions 2, 2A, 3 and 3B, and Division 4, apply in relation to the
order; and
(d) must state that the order comes
into force when it is made and that, unless it is revoked earlier, it ceases to
be in force after a specified period (which must not be more than 20 days).
When order is in force
(4) The order is in force as stated in
accordance with paragraph (3)(d).
Revocation of order
(5) If:
(a) the State Government withdraws its
application to the Commonwealth Government; or
(b) the authorising Ministers cease to
be satisfied as mentioned in subsection (1);
the Governor‑General must revoke the order.
Advice to Governor‑General
(6) In making or revoking the order, the
Governor‑General is to act with the advice of:
(a) except where paragraph (b)
applies—the Executive Council; or
(b) if an authorising Minister is
satisfied that, for reasons of urgency, the Governor‑General should, for
the purposes of this subsection, act with the advice of the authorising
Minister—the authorising Minister.
Effect of revocation of order etc.
(7) To avoid doubt, if the order is revoked
or ceases to be in force, the call out of the Defence Force under the order
ends and the Chief of the Defence Force must cease utilising the Defence Force
as mentioned in subsection (2).
Further orders
(8) The fact that the order has been made
does not prevent further orders being made in relation to the same matter.
51C
Order about utilising Defence Force to protect self‑governing Territory
against domestic violence
Conditions for making of order
(1) Subsection (2) applies if the
Government of a self‑governing Territory applies to the Commonwealth
Government to protect the Territory against domestic violence that is occurring
or is likely to occur in the Territory and the authorising Ministers are
satisfied that:
(a) the Territory is not, or is unlikely
to be, able to protect itself against the domestic violence; and
(b) the Defence Force should be called
out and the Chief of the Defence Force should be directed to utilise the
Defence Force to protect the Territory against the domestic violence; and
(c) one or more of Divisions 2,
2A, 3 and 3B, and Division 4, should apply in relation to the order.
Power of Governor‑General to make order
(2) If this subsection applies, the Governor‑General
may, by written order, call out the Defence Force and direct the Chief of the
Defence Force to utilise the Defence Force to protect the Territory against the
domestic violence.
Provided always that the Emergency
Forces or the Reserve Forces shall not be called out or utilized in connexion
with an industrial dispute.
Content of the order
(3) The order:
(a) must state that it is made under
this section; and
(b) must specify the Territory and the
domestic violence; and
(c) must state that one or more of
Divisions 2, 2A, 3 and 3B, and Division 4, apply in relation to the
order; and
(d) must state that the order comes
into force when it is made and that, unless it is revoked earlier, it ceases to
be in force after a specified period (which must not be more than 20 days).
When order is in force
(4) The order is in force as stated in
accordance with paragraph (3)(d).
Revocation of order
(5) If:
(a) the Government of the Territory
withdraws its application to the Commonwealth Government; or
(b) the authorising Ministers cease to
be satisfied as mentioned in subsection (1);
the Governor‑General must revoke the order.
Advice to Governor‑General
(6) In making or revoking the order, the
Governor‑General is to act with the advice of:
(a) except where paragraph (b)
applies—the Executive Council; or
(b) if an authorising Minister is
satisfied that, for reasons of urgency, the Governor‑General should, for
the purposes of this subsection, act with the advice of the authorising
Minister—the authorising Minister.
Effect of revocation of order etc.
(7) To avoid doubt, if the order is revoked
or ceases to be in force, the call out of the Defence Force under the order
ends and the Chief of the Defence Force must cease utilising the Defence Force
as mentioned in subsection (2).
Further orders
(8) The fact that the order has been made
does not prevent further orders being made in relation to the same matter.
51CA
Expedited call out
Expedited call out by the Prime Minister
(1) The Prime Minister may make an order of a
kind that the Governor‑General is empowered to make under section 51A,
51AA, 51AB, 51B or 51C if the Prime Minister is satisfied that:
(a) because a sudden and extraordinary
emergency exists, it is not practicable for an order to be made under that
section; and
(b) the circumstances referred to in
subsection 51A(1), 51AA(1), 51AB(1), 51B(1) or 51C(1) (as the case requires)
exist.
Expedited call out by the other 2 authorising Ministers
(2) The other 2 authorising Ministers may
jointly make an order of a kind that the Governor‑General is empowered to
make under section 51A, 51AA, 51AB, 51B or 51C if those authorising
Ministers are satisfied that:
(a) because a sudden and extraordinary
emergency exists, it is not practicable for an order to be made under that
section; and
(b) the Prime Minister is unable to be
contacted for the purposes of considering whether to make, and making, an order
under subsection (1) of this section; and
(c) the circumstances referred to in
subsection 51A(1), 51AA(1), 51AB(1), 51B(1) or 51C(1) (as the case requires)
exist.
Expedited call out by an authorising Minister and
another Minister
(2A) An authorising Minister, together with the
Deputy Prime Minister, the Minister for Foreign Affairs or the Treasurer, may
make an order of a kind that the Governor‑General is empowered to make
under section 51A, 51AA, 51AB, 51B or 51C if the Ministers are satisfied
that:
(a) because a sudden and extraordinary
emergency exists, it is not practicable for an order to be made under that
section; and
(b) the Prime Minister is unable to be
contacted for the purposes of considering whether to make, and making, an order
under subsection (1) of this section; and
(c) the remaining authorising Minister
is unable to be contacted for the purposes of considering whether to make, and
making, an order under subsection (2) of this section; and
(d) the circumstances referred to in
subsection 51A(1), 51AA(1), 51AB(1), 51B(1) or 51C(1) (as the case requires)
exist.
Orders applying in internal waters
(3) If the order is an order of a kind that
Governor‑General is empowered to make under section 51AA, the order
must not direct the Chief of the Defence Force to utilise the Defence Force in
the internal waters of the State or self‑governing Territory unless:
(a) if the order is made under subsection (1)
of this section—the Prime Minister is satisfied that the circumstances referred
to in subsection 51AA(4) exist in relation to that State or Territory; or
(b) if the order is made under subsection (2)
or (2A) of this section—the other 2 Ministers are satisfied that the circumstances
referred to in subsection 51AA(4) exist in relation to that State or Territory.
Order not in writing
(4) An order under this section need not be
in writing. If it is not in writing, the Prime Minister or the other 2
Ministers (as the case requires), and the Chief of the Defence Force, must
each:
(a) make a written record of the
order; and
(b) sign the record; and
(c) cause the signing of the record to
be witnessed; and
(d) in the case of the Prime Minister
or another Minister—as soon as practicable:
(i) cause the record to be
given to the Chief of the Defence Force; and
(ii) cause a copy of the
record to be given to the Governor‑General; and
(e) in the case of the Chief of the
Defence Force—as soon as practicable:
(i) cause the record to be
given to the Prime Minister; or
(ii) cause the record to be
given to one of the other 2 Ministers, and cause a copy of the record to be
given to the other Minister;
as the case requires.
However, a failure to comply with paragraph (d) or
(e) does not affect the validity of the order.
The effect of the order
(5) Subject to subsections (7) and (8)
of this section, an order made under this section has effect, for all purposes
(other than this section), as if it were an order made by the Governor‑General
under section 51A, 51AA, 51AB, 51B or 51C (as the case requires). In
particular:
(a) subsection 51A(4), 51AA(8),
51AB(4), 51B(3) or 51C(3) (as the case requires) applies to the order; and
(b) the Governor‑General may
revoke the order in the same way, and in the same circumstances, as he or she
may revoke an order under section 51A, 51AA, 51AB, 51B or 51C (as the case
requires).
(6) For the purposes of paragraph (5)(b),
the reference in subsection 51A(6), 51AA(10) or 51AB(6) or paragraph 51B(5)(b)
or 51C(5)(b) (as the case requires) to the authorising Ministers ceasing to be
satisfied is taken to be a reference to them not being satisfied.
Content of the order
(7) An order made under this section:
(a) must state that it is made under
this section, and that it has effect as if it were an order made by the
Governor‑General under section 51A, 51AA, 51AB, 51B or 51C (as the
case requires); and
(b) despite paragraph 51A(4)(d),
51AA(8)(d), 51AB(4)(d), 51B(3)(d) or 51C(3)(d) (as the case requires), must
state that, unless it is revoked earlier, it ceases to be in force after a
specified period (which must not be more than 5 days).
When order is in force
(8) The order:
(a) comes into force when it is made,
or (if it is not in writing) when:
(i) the Prime Minister, or
the other 2 Ministers; and
(ii) the Chief of the
Defence Force;
have complied with paragraph (4)(c);
and
(b) ceases to be in force as stated in
accordance with paragraph (7)(b).
Authorisations and declarations during an expedited
call out
(9) If:
(a) one or more authorising Ministers
have the power to give an authorisation or make a declaration under a provision
of Division 2, 3, 3A or 3B; and
(b) that Division applies because of
an order made under this section;
the authorisation or declaration need not be in writing,
despite any requirement of the provision to the contrary.
(10) If the authorisation or declaration is not
in writing, the authorising Minister or authorising Ministers, and the Chief of
the Defence Force, must each:
(a) make a written record of the
authorisation or declaration; and
(b) sign the record; and
(c) cause the signing of the record to
be witnessed; and
(d) in the case of an authorising
Minister—as soon as practicable cause the record to be given to the Chief of the
Defence Force; and
(e) in the case of the Chief of the
Defence Force—as soon as practicable:
(i) cause the record to be
given to the authorising Minister; or
(ii) cause the record to be
given to one of the authorising Ministers, and cause a copy of the record to be
given to the other authorising Minister;
as the case requires.
However, a failure to comply with paragraph (d) or
(e) does not affect the validity of the authorisation or declaration.
(11) If the authorisation or declaration is not
in writing, it comes into force when the authorising Minister or authorising
Ministers, and the Chief of the Defence Force, have complied with paragraph (10)(c).
References to certain circumstances
(12) To avoid doubt, a reference in this
section to the circumstances referred to in subsection 51A(1), 51AA(1),
51AB(1), 51B(1) or 51C(1):
(a) does not include a reference to
the authorising Ministers being satisfied as to particular matters; and
(b) in relation to section 51B,
includes a reference to a State Government having made an application of a kind
referred to in subsection 51B(1); and
(c) in relation to section 51C,
includes a reference to a State Government having made an application of a kind
referred to in subsection 51C(1).
Involvement of State or Territory under subsection
51A(3) not required
(13) To avoid doubt, paragraph 51A(3)(b) does
not apply to an order under this section that would have effect as if it were
an order made by the Governor‑General under section 51A.
51CB
Declaration of designated critical infrastructure
(1) The authorising Ministers may, in
writing, declare that particular infrastructure, or a part of particular
infrastructure, in Australia or in the Australian offshore area is designated
critical infrastructure.
(2) However, the authorising Ministers may do
so only if they believe on reasonable grounds that:
(a) there is a threat of damage or
disruption to the operation of the infrastructure or the part of the
infrastructure; and
(b) the damage or disruption would
directly or indirectly endanger the life of, or cause serious injury to, other
persons.
(3) If the authorising Ministers no longer
believe those matters, they must revoke the declaration.
(4) To avoid doubt, the authorising Ministers
may make a declaration under this section whether or not an order is in force
under this Division.
(5) If the infrastructure, or the part of the
infrastructure, is in a State or a self‑governing Territory:
(a) the authorising Ministers may make
the declaration referred to in subsection (1) whether or not the
Government of the State or the self‑governing Territory requests the
making of the declaration; and
(b) if the Government of the State or
the self‑governing Territory does not request the making of the
declaration referred to in subsection (1), an authorising Minister must,
subject to subsection (6), consult that Government about the making of the
declaration.
(6) However, paragraph (5)(b) does not
apply if the authorising Ministers are satisfied that, for reasons of urgency,
it is impracticable to comply with the requirements of that paragraph.
51D
Chief of Defence Force to utilise Defence Force as directed
Order under section 51A
(1) If the Governor‑General makes an
order under section 51A, the Chief of the Defence Force must, subject to
sections 51E, 51F and 51G, utilise the Defence Force, in such manner as is
reasonable and necessary, for the purpose of protecting the Commonwealth
interests specified in the order, in the State or Territory specified in the
order, against the domestic violence specified in the order.
Order under section 51AA
(1A) If the Governor‑General makes an
order under section 51AA, the Chief of the Defence Force must, subject to
sections 51E, 51F and 51G, utilise the Defence Force, in such manner as is
reasonable and necessary:
(a) in the Australian offshore area,
for the purpose of protecting the Commonwealth interests specified in the order
against the threat concerned; and
(b) if the order includes a direction
mentioned in subsection 51AA(5)—in the internal waters of the State or
Territory to which the direction relates, for the purpose of protecting the
Commonwealth interests specified in the order against the domestic violence
specified in the order.
Order under section 51AB
(1B) If:
(a) the Governor‑General makes
an order under section 51AB; and
(b) the circumstances specified in the
order arise;
the Chief of the Defence Force must, subject to sections 51E,
51F and 51G, utilise the Defence Force, in such manner as is reasonable and
necessary:
(c) for the purpose of protecting the
State or Territory specified in the order against the domestic violence
specified in the order; or
(d) for the purpose of protecting the
Commonwealth interests specified in the order against the threat specified in
the order;
as the case requires.
Order under section 51B or 51C
(2) If the Governor‑General makes an
order under section 51B or 51C, the Chief of the Defence Force must,
subject to sections 51E, 51F and 51G, utilise the Defence Force, in such
manner as is reasonable and necessary, for the purpose of protecting the State
or Territory specified in the order against the domestic violence specified in
the order.
51E
Ministerial directions
Subject to section 51G, in
utilising the Defence Force in accordance with section 51D, the Chief of
the Defence Force must comply with any direction that the Minister gives from
time to time as to the way in which the Defence Force is to be utilised.
51F
Assistance to, and cooperation with, State etc.
(1) Subject to subsections (2) and (3)
and to sections 51E and 51G, in utilising the Defence Force in accordance
with section 51D, the Chief of the Defence Force must, as far as is
reasonably practicable, ensure that:
(a) the Defence Force is utilised to
assist the State or Territory specified in the order and cooperates with the
police force of the State or Territory; and
(b) the Defence Force is not utilised
for any particular task unless a member of the police force of the State or the
Territory specified in the order requests, in writing, that the Defence Force
be so utilised.
(2) Subsection (1) does not require or
permit the Chief of the Defence Force to transfer to any extent command of the
Defence Force to the State or the Territory, or to a police force or member of
the police force of the State or the Territory.
(3) This section does not apply in relation
to an order under section 51AA to the extent that the Defence Force is
being utilised in the Australian offshore area.
Note: This section will still apply in relation to
an order under section 51AA to the extent that the Defence Force is being
utilised in the internal waters of a State or self‑governing Territory.
51G
Restriction on certain utilisation of Defence Force
In utilising the Defence Force in
accordance with section 51D, the Chief of the Defence Force must not stop
or restrict any protest, dissent, assembly or industrial action, except where
there is a reasonable likelihood of the death of, or serious injury to, persons
or serious damage to property.
Division 2—Powers to recapture locations or things, prevent or end acts
of violence and protect persons from acts of violence
51H
Application of this Division and Division 4
If an order states in accordance with
paragraph 51A(4)(c), 51B(3)(c) or 51C(3)(c) that this Division and Division 4
apply in relation to the order, the following provisions of this Division, and
the provisions of Division 4, apply.
51I
Special powers of members of the Defence Force
Special powers
(1) Subject to this section, a member of the
Defence Force who is being utilised in accordance with section 51D may,
under the command of the Chief of the Defence Force do any one or more of the
following:
(a) take any one or more of the
following actions:
(i) recapture a location
or thing;
(ii) prevent, or put an end
to, acts of violence;
(iii) protect persons from
acts of violence;
(b) in connection with taking any such
action, do any one or more of the following:
(i) free any hostage from
a location or thing;
(ii) if the member finds a
person whom the member believes on reasonable grounds to have committed an
offence against a law of the Commonwealth, a State or Territory—detain the
person for the purpose of placing the person in the custody of a member of a
police force at the earliest practicable time;
(iii) control the movement
of persons or of means of transport;
(iv) evacuate persons to a
place of safety;
(v) search persons or
locations or things for dangerous things or other things related to the
domestic violence that is occurring or is likely to occur;
(vi) seize any dangerous
thing, or other thing related to the domestic violence that is occurring or is
likely to occur, found in such a search; and
(c) do anything incidental to anything
in paragraph (a) or (b).
Note: Subdivision B of Division 4 sets out what
is to happen if a thing is seized under this subsection.
Ministerial authorisation
(2) However, the member must not:
(a) take any action mentioned in paragraph (1)(a);
or
(b) do any of the things mentioned in paragraph (1)(b)
or (c) in connection with taking that action;
unless an authorising Minister has in writing authorised
taking that action.
Exception
(3) Subsection (2) does not apply if the
member believes on reasonable grounds that there is insufficient time to obtain
the authorisation because a sudden and extraordinary emergency exists.
Definitions
(4) In this section:
location includes any premises or place.
thing includes any means of transport, but
does not include an aircraft that is airborne.
Division 2A—Powers to
protect designated critical infrastructure
51IA
Application of this Division and Division 4
(1) If an order states in accordance with
paragraph 51A(4)(c), 51AA(8)(c), 51B(3)(c) or 51C(3)(c) that this Division and
Division 4 apply in relation to the order, the following provisions of
this Division, and the provisions of Division 4, apply.
(2) In relation to an order under section 51AA,
this Division and Division 4 (in its operation in relation to this
Division) apply only in:
(a) the Australian offshore area; and
(b) if the order includes a direction
mentioned in subsection 51AA(5)—the internal waters of the State or self‑governing
Territory specified in the order.
51IB
Powers to protect designated critical infrastructure
A member of the Defence Force who is
being utilised in accordance with section 51D may, under the command of
the Chief of the Defence Force, do any one or more of the following for the
purpose of protecting designated critical infrastructure:
(a) take one or both of the following
actions:
(i) prevent, or put an end
to, damage or disruption to the operation of the designated critical
infrastructure;
(ii) prevent, or put an end
to, acts of violence;
(b) in connection with taking any such
action, do any one or more of the following:
(i) if the member finds a
person whom the member believes on reasonable grounds to have committed an
offence against a law of the Commonwealth, a State or Territory—detain the
person for the purpose of placing the person in the custody of a member of a
police force at the earliest practicable time;
(ii) protect persons from
acts of violence;
(iii) control the movement
of persons or of means of transport;
(iv) evacuate persons to a
place of safety;
(v) search persons or
things for dangerous things or other things related to the threat concerned;
(vi) seize any dangerous
thing or other thing related to the threat concerned found in such a search;
(c) do anything incidental to anything
in paragraph (a) or (b).
Note: Subdivision B of Division 4 sets out what
is to happen if a thing is seized under this section.
Division 3—General security area powers
Subdivision A—Application of this Division and Division 4
51J
Application of this Division and Division 4
If an order states in accordance with
paragraph 51A(4)(c), 51B(3)(c) or 51C(3)(c) that this Division and Division 4
apply in relation to the order, the following provisions of this Division, and
the provisions of Division 4, apply.
Subdivision B—Powers that may be exercised anywhere in a general security
area
51K
Declaration of general security area
(1) The authorising Ministers may, in
writing, declare that a specified area, being a part of the State or Territory
specified in the order, is a general security area for the purposes of the
application of this Division and Division 4 in relation to members of the
Defence Force who are being utilised in accordance with section 51D.
Statement to be published
(2) If they do so, they must arrange for a
statement that:
(a) summarises the content of the order,
but without including any reference to any statement in accordance with
paragraph 51A(4)(c), 51B(3)(c) or 51C(3)(c) that Division 2 applies in
relation to the order; and
(b) states that the declaration has
been made; and
(c) describes the general security
area and its boundaries;
to be:
(d) broadcast by a television or radio
station so as to be capable of being received within the general security area;
and
(e) published in the Gazette;
and
(f) forwarded, within 24 hours after
the declaration is made, to the Presiding Officer of each House of the
Parliament for tabling in that House.
(2AA) However, subsection (2) does not apply
if:
(a) the order mentioned in section 51J
also states, in accordance with paragraph 51A(4)(c), 51B(3)(c) or 51C(3)(c),
that Division 2 applies in relation to the order; and
(b) the authorising Ministers declare,
in writing, that they are satisfied that the application of subsection (2)
would prejudice the exercise of powers under Division 2 by members of the
Defence Force who are being utilised in accordance with section 51D.
Houses to sit within 6 days
(2A) Each House of the Parliament must sit
within 6 days after its Presiding Officer receives the statement that is
forwarded in accordance with paragraph (2)(f).
Effect of failure to publish
(3) A failure to comply with subsection (2)
does not make the declaration ineffective to any extent.
51L
Authorisation to search premises in the general security area for dangerous
things
(1) If, while the Defence Force is being utilised
in accordance with section 51D:
(a) the Chief of the Defence Force; or
(b) an officer of the Defence Force
authorised by the Chief of the Defence Force for the purposes of this section;
believes on reasonable grounds that:
(c) there is a dangerous thing on any
premises in the general security area; and
(d) it is necessary as a matter of
urgency to make the dangerous thing safe or prevent it from being used;
he or she may give an authorisation under this section.
What the authorisation must say
(2) The authorisation must:
(a) authorise entry to, and search of,
the premises; and
(b) describe the premises; and
(c) state the name, rank and service
number of a member of the Defence Force (the member in charge)
who is to be in charge of the search; and
(d) authorise the member in charge,
and any other member of the Defence Force assisting the member, (the search
members) to carry out the search; and
(e) authorise each search member to
seize any thing found on the premises in the course of the search that he or
she believes on reasonable grounds to be a dangerous thing; and
(f) state that, if any search member
believes on reasonable grounds that a person who is at or near the premises
while the search is being carried out has any dangerous thing in his or her
possession, the member is authorised to:
(i) search the person; and
(ii) seize any dangerous
thing found in the search; and
(g) state the time during which the
authorisation remains in force, which must not be more than 24 hours.
Note: Subdivision B of Division 4 sets out what
is to happen if a dangerous thing is seized under this subsection.
Effect of the authorisation
(3) The authorisation has effect according to
its terms.
Further authorisations possible
(4) Paragraph (2)(g) does not prevent
the issue of further authorisations in relation to the same premises.
51M
Copy of search authorisation to be given to occupier etc.
Right of occupier to be given copy of search
authorisation etc.
(1) If the occupier of the premises specified
in the search authorisation, or another person who apparently represents the
occupier, is present at the premises when the search is being carried out, the
member in charge must:
(a) identify himself or herself to
that person; and
(b) give that person a copy of the
search authorisation.
Right of person searched to be shown copy of search
authorisation
(2) The member in charge must, before any
person (other than a person who has been given a copy of the search
authorisation under subsection (1)) is searched in accordance with the
search authorisation, show the person a copy of the search authorisation.
51N
Occupier etc. entitled to be present during search
(1) If the occupier of the premises specified
in the search authorisation, or another person who apparently represents the
occupier, is present at the premises when the search is being carried out, the
person is entitled to observe the search being carried out.
Search not to be impeded
(2) The entitlement to observe the search
being carried out ceases if the person impedes the search.
Multiple searches
(3) This section does not prevent 2 or more
areas of the premises being searched at the same time.
51O
Search of means of transport in the general security area for dangerous things
(1) If a member of the Defence Force who is
being utilised in accordance with section 51D believes on reasonable
grounds that a dangerous thing is in or on a means of transport in the general
security area, the member may:
(a) erect barriers or other structures
for the purpose of stopping the means of transport; and
(b) whether or not the member does so:
(i) stop and detain the
means of transport; and
(ii) search the means of
transport, and any thing found in or on the means of transport, for the
dangerous thing; and
(iii) seize any dangerous
thing that the member finds in the search.
Note: Subdivision B of Division 4 sets out what
is to happen if a dangerous thing is seized under this subsection.
(2) If the member stops the means of
transport, the member must not detain it for longer than is reasonable and
necessary to search it and any thing found in or on it.
51P
Search of persons in the general security area for dangerous things
If a member of the Defence Force who is
being utilised in accordance with section 51D believes on reasonable
grounds that a person in the general security area has a dangerous thing in the
person’s possession, the member may:
(a) search the person for such a
thing; and
(b) seize any such thing found in the
search.
Note: Subdivision B of Division 4 sets out what
is to happen if a dangerous thing is seized under this section.
Subdivision C—Powers that may be exercised only in relation to a
designated area in the general security area
51Q
Declaration of designated area
(1) The authorising Ministers may, in
writing, declare that a specified area, being the whole or a part of a general
security area, is a designated area for the purposes of the application of this
Division and Division 4 in relation to members of the Defence Force who
are being utilised in accordance with section 51D.
Where no longer a general security area
(2) To avoid doubt, if the whole or part of
the area later ceases to be within a general security area, the whole or the
part ceases to be a designated area.
Declaration to be published
(3) If the authorising Ministers make a
declaration under subsection (1), they must take reasonable steps to make
the public aware of the declaration of the designated area and of its
boundaries.
(4) However, subsection (3) does not
apply if the authorising Ministers declare, in writing, that they are satisfied
that the application of subsection (3) would prejudice the exercise of
powers under Division 2 by members of the Defence Force who are being
utilised in accordance with section 51D.
51R
Control of movement in relation to a designated area in the general security
area
Powers in relation to persons in charge of means of
transport
(1) A member of the Defence Force who is
being utilised in accordance with section 51D may do any one or more of the
following in relation to a person who is in charge of a means of transport:
(a) if the means of transport is in a
part of the general security area that is outside a designated area—direct the
person not to bring the means of transport into the designated area;
(b) direct the person to take the
means of transport out of a designated area;
(c) direct the person to take the
means of transport from a place in a designated area to another place in the
designated area;
(d) direct the person not to take the
means of transport from a place in a designated area to any other place, or to
a specified place, in the designated area;
(e) compel the person to comply with a
direction under any of the above paragraphs.
Erection of barriers etc.
(2) A member of the Defence Force may erect
barriers or other structures at the boundary of, or in, a designated area for
the purpose of stopping persons from bringing means of transport into the
designated area or to a place in the designated area.
Powers in relation to means of transport
(3) If there is no person in charge of a
means of transport that is in a designated area, a member of the Defence Force
may do such things as are reasonable and necessary for either of the following
purposes:
(a) to take the means of transport to
a place in the general security area that is outside the designated area;
(b) to take the means of transport to
another place in the designated area.
Powers in relation to persons generally
(4) A member of the Defence Force may do any
one or more of the following in relation to a person (whether or not in charge
of a means of transport):
(a) if the person is in the general
security area but outside a designated area—direct the person not to enter the
designated area;
(b) direct the person to leave a
designated area;
(c) direct the person to move from a
place in a designated area to another place in the designated area;
(d) compel the person to comply with a
direction under any of the above paragraphs.
Powers to carry out consent searches
(5) The power of a member under paragraph (1)(a)
or (4)(a) to direct a person:
(a) not to bring a means of transport
into a designated area; or
(b) not to enter a designated area;
includes:
(c) the power to direct a person not
to do either of those things unless the person agrees to a member searching:
(i) in either case—the
person; and
(ii) in a paragraph (a)
case—the means of transport and any thing in or on the means of transport;
for dangerous things; and
(d) if the person agrees, the power to
conduct such a search and to seize any dangerous thing that the member finds in
the search.
Note: Subdivision B of Division 4 sets out what
is to happen if a dangerous thing is seized under this subsection.
Powers to enter premises etc. to give directions
(6) A member of the Defence Force may enter
premises or a means of transport for the purpose of giving a direction under
any provision of this section.
51S
Members to wear uniforms and identification when exercising powers
(1) While any member of the Defence Force is
exercising powers under this Division, or under Division 4 in its
operation in relation to this Division, he or she must at all times:
(a) wear his or her uniform; and
(b) for the purposes of
identification, have:
(i) his or her surname; or
(ii) his or her numbers or
a combination of numbers and letters of the alphabet;
on or attached to the front of
his or her uniform.
Penalty: 30 penalty units.
Situation where no offence committed
(2) A member who contravenes paragraph (1)(b)
is not guilty of an offence if the contravention occurs because of an act of
another person (not being a member) done without the consent of the member.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
Members to be given means to comply with obligations
(4) The Chief of the Defence Force must take
such steps as are reasonable and necessary to ensure that members do not
contravene subsection (1).
Division 3A—Powers in the
Australian offshore area etc.
Subdivision A—Preliminary
51SA
Application of this Division and Division 4
If an order states in accordance with
paragraph 51AA(8)(c) that this Division and Division 4 apply in relation
to the order, the following provisions of this Division, and the provisions of
Division 4, apply.
51SB
Geographic application
This Division and Division 4 (in
its operation in relation to this Division) apply only in:
(a) the Australian offshore area; and
(b) if the order under section 51AA
includes a direction mentioned in subsection 51AA(5)—the internal waters of the
State or self‑governing Territory specified in the order.
51SC
International obligations
The authorising Ministers or an
authorising Minister must, in giving an authorisation or making a declaration
under this Division, have regard to Australia’s international obligations.
51SD
Definitions
In this Division:
facility includes a fixed or floating
structure or installation of any kind.
vessel means:
(a) a ship, boat, raft, pontoon or
submersible craft; or
(b) any other thing capable of
carrying persons or goods through or on water;
and includes a hovercraft (or other non‑displacement
craft) and a floating structure or installation.
Subdivision B—Special powers of members of the Defence Force
51SE
Special powers of members of the Defence Force
Special powers
(1) Subject to this section, a member of the
Defence Force who is being utilised in accordance with section 51D may,
under the command of the Chief of the Defence Force, do any one or more of the
following:
(a) take any one or more of the
following actions:
(i) take measures
(including the use of force) against a vessel or an aircraft, up to and
including destroying the vessel or aircraft;
(ii) give an order relating
to the taking of such measures;
(iii) capture a vessel or
aircraft;
(iv) board a facility,
vessel or aircraft;
(v) recapture a facility,
vessel or aircraft;
(vi) prevent, or put an end
to, acts of violence;
(vii) protect persons from
acts of violence;
(b) in connection with taking any such
action, do any one or more of the following:
(i) free any hostage from
a facility, vessel or aircraft;
(ii) if the member finds a
person whom the member believes on reasonable grounds to have committed an
offence against a law of the Commonwealth, a State or Territory—detain the
person for the purpose of placing the person in the custody of a member of a
police force at the earliest practicable time;
(iii) control the movement
of persons, vessels or aircraft;
(iv) evacuate persons to a
place of safety;
(v) search persons,
facilities, vessels or aircraft for dangerous things or other things related to
the threat concerned;
(vi) seize any dangerous
thing or other thing related to the threat concerned found in such a search;
(c) do anything incidental to anything
in paragraph (a) or (b).
Note: Subdivision B of Division 4 sets out what
is to happen if a thing is seized under this subsection.
(2) Subparagraph (1)(a)(i) does not
apply to the taking of measures unless:
(a) the member of the Defence Force
takes the measures under, or under the authority of, an order of a superior;
and
(b) the member was under a legal
obligation to obey the order; and
(c) the order was not manifestly
unlawful; and
(d) the member has no reason to
believe that circumstances have changed in a material way since the order was
given; and
(e) the member has no reason to
believe that the order was based on a mistake as to a material fact; and
(f) taking the measures was
reasonable and necessary to give effect to the order.
(3) Subparagraph (1)(a)(ii) does not
apply to giving an order unless:
(a) the member of the Defence Force
gives the order under, or under the authority of, an order (a superior
order) of a superior; and
(b) the member was under a legal
obligation to obey the superior order; and
(c) the superior order was not
manifestly unlawful; and
(d) the member has no reason to
believe that circumstances have changed in a material way since the superior
order was given; and
(e) the member has no reason to
believe that the superior order was based on a mistake as to a material fact;
and
(f) giving the order was reasonable
and necessary to give effect to the superior order.
Ministerial authorisation
(4) However, the member must not:
(a) take any action mentioned in paragraph (1)(a);
or
(b) do any of the things mentioned in paragraph (1)(b)
or (c) in connection with taking that action;
unless an authorising Minister has in writing authorised
taking that action.
Exception
(5) Subsection (4) does not apply if the
member believes on reasonable grounds that there is insufficient time to obtain
the authorisation because a sudden and extraordinary emergency exists.
Subdivision C—Powers that may be exercised anywhere in an offshore area
51SF
Declaration of offshore general security area
(1) The authorising Ministers may, in
writing, declare that a specified area is an offshore general security area for
the purposes of the application of this Division and Division 4 in
relation to members of the Defence Force who are being utilised in accordance
with section 51D.
(2) The area:
(a) may be specified by reference to
an area surrounding one or more vessels or aircraft, or surrounding a class of
vessels or aircraft, being an area the boundaries of which change as the
location of the vessels or aircraft changes; and
(b) may include areas within the
internal waters of a State or Territory if the order under section 51AA
includes the internal waters of the State or Territory.
Statement to be made available
(3) If the authorising Ministers make a
declaration under subsection (1), they must arrange for a statement that:
(a) summarises the content of the
order under section 51AA; and
(b) states that the declaration has
been made; and
(c) describes the offshore general
security area and its boundaries;
to be:
(d) notified to persons in the
offshore general security area to the extent that this is practicable; and
(e) published in the Gazette;
and
(f) forwarded, within 24 hours after
the declaration is made, to the Presiding Officer of each House of the
Parliament for tabling in that House.
(4) However, subsection (3) does not
apply if the authorising Ministers declare, in writing, that they are satisfied
that the application of subsection (3) would prejudice the exercise of
powers under Subdivision B by members of the Defence Force who are being
utilised in accordance with section 51D.
Houses to sit within 6 days
(5) Each House of the Parliament must sit
within 6 days after its Presiding Officer receives the statement that is
forwarded in accordance with paragraph (3)(f).
Effect of failure to publish
(6) A failure to comply with subsection (3)
does not make the declaration ineffective to any extent.
51SG
Authorisation to search facilities in the offshore general security area for
dangerous and other things
(1) If, while the Defence Force is being
utilised in accordance with section 51D:
(a) the Chief of the Defence Force; or
(b) an officer of the Defence Force,
or an officer of the Defence Force included in a class of officers, authorised
by the Chief of the Defence Force for the purposes of this section;
believes on reasonable grounds that:
(c) there is a dangerous thing on a
facility in the offshore general security area and it is necessary as a matter
of urgency to make the dangerous thing safe or prevent it from being used; or
(d) there is another thing on a
facility in the offshore general security area that is related to the threat
concerned and it is necessary as a matter of urgency to seize the thing;
he or she may give an authorisation under this section.
What the authorisation must say
(2) The authorisation must:
(a) authorise entry to, and search of,
the facility; and
(b) describe the facility; and
(c) state the name, rank and service number
of a member of the Defence Force (the offshore member in charge)
who is to be in charge of the search; and
(d) authorise the member in charge,
and any other member of the Defence Force assisting the member, (the offshore
search members) to carry out the search; and
(e) authorise each offshore search
member to seize any thing found on the facility in the course of the search
that he or she believes on reasonable grounds to be a dangerous thing or a
thing that is related to the threat concerned; and
(f) state that, if any offshore
search member believes on reasonable grounds that a person who is on or near
the facility while the search is being carried out has a dangerous thing or a
thing that is related to the threat concerned in his or her possession, the
member is authorised to:
(i) search the person; and
(ii) seize any dangerous
thing or other thing related to the threat concerned found in the search; and
(g) state the time during which the
authorisation remains in force, which must not be more than 24 hours.
Note: Subdivision B of Division 4 sets out what
is to happen if a thing is seized under this subsection.
Effect of the authorisation
(3) The authorisation has effect according to
its terms.
Further authorisations possible
(4) Paragraph (2)(g) does not prevent
the issue of further authorisations in relation to the same facility.
51SH
Copy of offshore search authorisation to be given to occupier etc.
Right of occupier to be given copy of offshore search
authorisation etc.
(1) If the occupier of the facility specified
in the offshore search authorisation, or another person who apparently
represents the occupier, is present on the facility when the search is being
carried out, the offshore member in charge must:
(a) identify himself or herself to
that person; and
(b) give that person a copy of the
offshore search authorisation.
Right of person searched to be shown copy of offshore
search authorisation
(2) The offshore member in charge must,
before any person (other than a person who has been given a copy of the
offshore search authorisation under subsection (1)) is searched in
accordance with the offshore search authorisation, show the person a copy of
the offshore search authorisation.
51SI
Occupier etc. entitled to be present during search
(1) If the occupier of the facility specified
in the offshore search authorisation, or another person who apparently
represents the occupier, is present on the facility when the search is being
carried out, the person is entitled to observe the search being carried out.
Search not to be impeded
(2) The entitlement to observe the search
being carried out ceases if the person impedes the search.
Multiple searches
(3) This section does not prevent 2 or more
areas of the facility being searched at the same time.
51SJ
Search of vessel or aircraft in the offshore general security area for
dangerous or other things
(1) If a member of the Defence Force who is
being utilised in accordance with section 51D believes on reasonable
grounds that a dangerous thing, or another thing that is related to the threat
concerned, is in or on a vessel or aircraft in the offshore general security
area, the member may:
(a) erect barriers or other structures
for the purpose of stopping the vessel or aircraft; and
(b) whether or not the member does so:
(i) stop and detain the
vessel or aircraft; and
(ii) search the vessel or
aircraft, and any thing found in or on the vessel or aircraft, for the
dangerous thing or other thing that is related to the threat concerned; and
(iii) seize any dangerous
thing or other thing that is related to the threat concerned that the member
finds in the search.
Note: Subdivision B of Division 4 sets out what
is to happen if a thing is seized under this subsection.
(2) If the member stops the vessel or
aircraft, the member must not detain it for longer than is reasonable and
necessary to search it and any thing found in or on it.
(3) The master of the vessel, or the captain
of the aircraft, is entitled to observe the search being carried out.
(4) The entitlement to observe the search
being carried out ceases if the master or captain impedes the search.
(5) This section does not prevent 2 or more
areas of the vessel or aircraft being searched at the same time.
51SK
Search of persons in the offshore general security area for dangerous and other
things
If a member of the Defence Force who is
being utilised in accordance with section 51D believes on reasonable
grounds that a person in the offshore general security area has a dangerous
thing, or a thing that is related to the threat concerned, in the person’s
possession, the member may:
(a) search the person for such a
thing; and
(b) seize any such thing found in the
search.
Note: Subdivision B of Division 4 sets out what
is to happen if a thing is seized under this section.
Subdivision D—Powers that may be exercised only in relation to an offshore
designated area in the offshore general security area
51SL
Declaration of offshore designated area
(1) The authorising Ministers may, in
writing, declare that a specified area, being the whole or a part of an
offshore general security area, is an offshore designated area for the purposes
of the application of this Division and Division 4 in relation to members
of the Defence Force who are being utilised in accordance with section 51D.
(2) The area:
(a) may be specified by reference to
an area surrounding one or more vessels or aircraft, or surrounding a class of
vessels or aircraft, being an area the boundaries of which change as the
location of the vessels or aircraft changes; and
(b) may include areas within the
internal waters of a State or Territory if the order under section 51AA
includes the internal waters of the State or Territory.
Where no longer an offshore general security area
(3) To avoid doubt, if the whole or part of
the area later ceases to be within an offshore general security area, the whole
or the part ceases to be an offshore designated area.
Declaration to be notified
(4) If the authorising Ministers make a
declaration under subsection (1), they must arrange for a statement that:
(a) states that the declaration has
been made; and
(b) describes the offshore designated
area and its boundaries;
to be notified to persons in the offshore designated area
to the extent that this is practicable.
(5) However, subsection (4) does not
apply if the authorising Ministers declare, in writing, that they are satisfied
that the application of subsection (4) would prejudice the exercise of
powers under Subdivision B by members of the Defence Force who are being
utilised in accordance with section 51D.
51SM
Control of movement in relation to an offshore designated area in the offshore
general security area
Powers in relation to persons in charge of vessels or
aircraft
(1) A member of the Defence Force who is
being utilised in accordance with section 51D may do any one or more of
the following in relation to a person who is in charge of a vessel or aircraft:
(a) if the vessel or aircraft is in a
part of the offshore general security area that is outside an offshore
designated area—direct the person not to bring the vessel or aircraft into the
offshore designated area;
(b) direct the person to take the
vessel or aircraft out of an offshore designated area;
(c) direct the person to take the
vessel or aircraft from a place in an offshore designated area to another place
in the offshore designated area;
(d) direct the person not to take the
vessel or aircraft from a place in an offshore designated area to any other
place, or to a specified place, in the offshore designated area;
(e) compel the person to comply with a
direction under any of the above paragraphs.
Erection of barriers etc.
(2) A member of the Defence Force may erect
barriers or other structures at the boundary of, or in, an offshore designated
area for the purpose of stopping persons from bringing a vessel or aircraft
into the offshore designated area or to a place in the offshore designated
area.
No person in charge of vessel
(3) If there is no person in charge of a
vessel or aircraft that is in an offshore designated area, a member of the
Defence Force may do such things as are reasonable and necessary for either of
the following purposes:
(a) to take the vessel or aircraft to
a place in the offshore general security area that is outside the offshore
designated area;
(b) to take the vessel or aircraft to
another place in the offshore designated area.
Powers in relation to persons generally
(4) A member of the Defence Force may do any
one or more of the following in relation to a person (whether or not in charge
of a vessel or aircraft):
(a) if the person is in the offshore
general security area but outside an offshore designated area—direct the person
not to enter the offshore designated area;
(b) direct the person to leave an
offshore designated area;
(c) direct the person to move from a
place in an offshore designated area to another place in the offshore
designated area;
(d) compel the person to comply with a
direction under any of the above paragraphs.
Powers to carry out consent searches
(5) The power of a member under paragraph (1)(a)
or (4)(a) to direct a person:
(a) not to bring a vessel or aircraft
into an offshore designated area; or
(b) not to enter an offshore
designated area;
includes:
(c) the power to direct a person not
to do either of those things unless the person agrees to a member searching:
(i) in either case—the
person; and
(ii) in a paragraph (a)
case—the vessel or aircraft and any thing on the vessel or aircraft;
for dangerous things or other
things related to the threat concerned; and
(d) if the person agrees, the power to
conduct such a search and to seize any such thing that the member finds in the
search.
Note: Subdivision B of Division 4 sets out what
is to happen if a thing is seized under this subsection.
Powers to board vessel or aircraft to give directions
(6) A member of the Defence Force may board
any vessel or aircraft for the purpose of giving a direction under any
provision of this section.
51SN
Members to wear uniforms and identification when exercising powers
(1) While any member of the Defence Force is
exercising powers under this Division, or under Division 4 in its
operation in relation to this Division, he or she must at all times:
(a) wear his or her uniform; and
(b) for the purposes of
identification, have:
(i) his or her surname; or
(ii) his or her numbers or
a combination of numbers and letters of the alphabet;
on or attached to the front of
his or her uniform.
Penalty: 30 penalty units.
Situation where no offence committed
(2) A member who contravenes paragraph (1)(b)
is not guilty of an offence if the contravention occurs because of an act of
another person (not being a member) done without the consent of the member.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
Members to be given means to comply with obligations
(3) The Chief of the Defence Force must take
such steps as are reasonable and necessary to ensure that members do not contravene
subsection (1).
Geographical application
(4) Section 15.1 of the Criminal Code
(extended geographical jurisdiction—category B) applies to an offence against subsection (1).
Subdivision E—Other powers
51SO
Power to require person to answer questions or produce documents
(1) A member of the Defence Force who is
being utilised in accordance with section 51D may, in connection with the
exercise of any power under this Division, require a person to answer a
question put by the member or to produce a particular document to the member.
(2) However, the member may do so only if the
member believes on reasonable grounds that it is necessary for the purpose of
preserving the life or safety of other persons or to protect Commonwealth
interests against the threat concerned.
(3) A person commits an offence if:
(a) the person is required to answer a
question or produce a document under this section; and
(b) the person fails to comply with
the requirement.
Penalty: 30 penalty units.
Self‑incrimination
(4) A person is not excused from answering a
question or producing a document under this section on the ground that the
answer to the question, or the production of the document, may tend to
incriminate the person or make the person liable to a penalty.
(5) However:
(a) the answer given or document
produced; or
(b) answering the question or
producing the document; or
(c) any information, document or thing
obtained as a direct or indirect consequence of the answering of the question
or the production of the document;
is not admissible in evidence against the person in
criminal proceedings other than:
(d) proceedings for an offence against
subsection (3); or
(e) proceedings for an offence against
section 137.1 or 137.2 of the Criminal Code (about false or misleading
information or documents) that relates to this section.
51SP
Power to require person to operate facility, vessel or aircraft or machinery or
equipment
(1) A member of the Defence Force who is
being utilised in accordance with section 51D may, in connection with the
exercise of any power under this Division, require a person to operate a
facility, vessel or aircraft, or machinery or equipment on a facility, vessel
or aircraft, in a particular manner.
(2) However, the member may do so only if the
member believes on reasonable grounds that it is necessary for the purpose of
preserving the life or safety of other persons or to protect Commonwealth
interests against the threat concerned.
(3) A person commits an offence if:
(a) the person is required to operate
a facility, vessel or aircraft, or machinery or equipment on a facility, vessel
or aircraft, in a particular manner under this section; and
(b) the person fails to comply with
the requirement.
Penalty for contravention of this subsection: 30 penalty
units.
51SQ
Geographical jurisdiction for offences
Section 15.4 of the Criminal
Code (extended geographical jurisdiction—category D) applies to an offence
against section 51SO or 51SP.
Division 3B—Powers relating to aircraft
51SR
Application of this Division and Division 4
If an order states in accordance with
paragraph 51A(4)(c), 51AB(4)(c), 51B(3)(c) or 51C(3)(c) that this Division and
Division 4 apply in relation to the order, the following provisions of
this Division, and the provisions of Division 4, apply.
51SS
Geographical application
This Division and Division 4 (in
its operation in relation to this Division) extend to the Australian offshore
area.
51ST
Special powers of members of the Defence Force
Taking measures against aircraft
(1) A member of the Defence Force who is
being utilised in accordance with section 51D may, under the command of
the Chief of the Defence Force:
(a) take measures (including the use
of force) against an aircraft, up to and including destroying the aircraft; or
(b) give an order relating to the
taking of such measures;
whether or not the aircraft is airborne.
(2) Paragraph (1)(a) does not apply to
the taking of measures unless:
(a) the member of the Defence Force
takes the measures under, or under the authority of, an order of a superior;
and
(b) the member was under a legal
obligation to obey the order; and
(c) the order was not manifestly
unlawful; and
(d) the member has no reason to
believe that circumstances have changed in a material way since the order was
given; and
(e) the member has no reason to
believe that the order was based on a mistake as to a material fact; and
(f) taking the measures was
reasonable and necessary to give effect to the order.
(3) Paragraph (1)(b) does not apply to
giving an order unless:
(a) the member of the Defence Force
gives the order under, or under the authority of, an order (a superior
order) of a superior; and
(b) the member was under a legal
obligation to obey the superior order; and
(c) the superior order was not
manifestly unlawful; and
(d) the member has no reason to
believe that circumstances have changed in a material way since the superior
order was given; and
(e) the member has no reason to
believe that the superior order was based on a mistake as to a material fact;
and
(f) giving the order was reasonable
and necessary to give effect to the superior order.
Ministerial authorisation
(4) However, the member must not take
measures against an aircraft, or give an order of a kind mentioned in paragraph (1)(b)
in connection with an aircraft, unless an authorising Minister has in writing
authorised the taking of measures against the aircraft.
Exception
(5) Subsection (4) does not apply if:
(a) the member believes on reasonable
grounds that there is insufficient time to obtain the authorisation because a
sudden and extraordinary emergency exists; or
(b) the measures are taken in
specified circumstances that an authorising Minister has authorised under subsection (6).
(6) An authorising Minister may in writing
authorise the taking of measures against an aircraft in specified circumstances
if this Division applies because an order states in accordance with paragraph
51AB(4)(c) that this Division and Division 4 apply in relation to the
order.
Authorising Minister must be satisfied of
reasonableness and necessity
(7) An authorising Minister must not
authorise the taking of measures against an aircraft unless the Minister is
satisfied that:
(a) in the case of an authorisation
under subsection (4)—taking action against the aircraft is reasonable and
necessary; or
(b) in the case of an authorisation
under subsection (6)—taking action against the aircraft would be
reasonable and necessary if the specified circumstances in question were to
arise.
International obligations
(8) An authorising Minister must, in giving
an authorisation under this section, have regard to Australia’s international
obligations.
Division 4—Provisions
common to Divisions 2 to 3B
Subdivision A—Use of reasonable and necessary force
51T
Use of reasonable and necessary force
(1) A member of the Defence Force may, in
exercising any power under Division 2, 2A, 3, 3A or 3B or this Division,
use such force against persons and things as is reasonable and necessary in the
circumstances.
(1A) However, subsection (1) does not apply
to the powers under Subdivision E of Division 3A.
(1B) To avoid doubt, any use of force by a
member of the Defence Force under this Part must be in accordance with this
section.
Further restrictions on use of force
(2) Despite subsection (1), in
exercising powers under Division 2, 3 or 3A (other than subparagraph
51SE(1)(a)(i) or (ii)) or this Division, a member of the Defence Force must
not, in using force against a person:
(a) do anything that is likely to
cause the death of, or grievous bodily harm to, the person unless the member
believes on reasonable grounds that doing that thing is necessary to protect
the life of, or to prevent serious injury to, another person (including the
member); or
(b) subject the person to greater
indignity than is reasonable and necessary in the circumstances.
(2A) Despite subsection (1), in exercising
powers under Division 2A, a member of the Defence Force must not, in using
force against a person:
(a) do anything that is likely to
cause the death of, or grievous bodily harm to, the person unless the member
believes on reasonable grounds that doing that thing is necessary to:
(i) protect the life of,
or to prevent serious injury to, another person (including the member); or
(ii) protect, against the
threat concerned, the designated critical infrastructure in respect of which
the powers are being exercised; or
(b) subject the person to greater
indignity than is reasonable and necessary in the circumstances.
(2B) Despite subsection (1), in exercising
powers under subparagraph 51SE(1)(a)(i) or (ii) or Division 3B, a member
of the Defence Force must not, in using force against a person or thing, do
anything that is likely to cause the death of, or grievous bodily harm to, the
person unless the member believes on reasonable grounds that:
(a) doing that thing is necessary to
protect the life of, or to prevent serious injury to, another person (including
the member); or
(b) doing that thing is necessary to
protect designated critical infrastructure against a threat of damage or
disruption to its operation; or
(c) doing that thing is necessary and
reasonable to give effect to the order under which, or under the authority of
which, the member is acting.
(3) In addition, if a person is attempting to
escape being detained by fleeing, a member of the Defence Force must not do
anything that is likely to cause the death of, or grievous bodily harm to, the
person unless the person has, if practicable, been called on to surrender and
the member believes on reasonable grounds that the person cannot be apprehended
in any other manner.
51U
Persons to be informed of offence if detained
(1) A member of the Defence Force who, in
accordance with subparagraph 51I(1)(b)(ii), 51IB(b)(i) or 51SE(1)(b)(ii) or paragraph
51V(e), detains a person must inform the person, at the time the person is
detained, of the offence mentioned in that provision.
(2) It is sufficient if the person is
informed of the substance of the offence, and it is not necessary that this be
done in language of a precise or technical nature.
(3) Subsection (1)
does not apply to the detention of a person if:
(a) the person should, in the
circumstances, know the substance of the offence; or
(b) the person’s actions make it
impracticable for the member to inform the person of the offence.
Subdivision B—Action to be taken if things are seized
51V
Action to be taken if things are seized
If a member of the Defence Force seizes
a thing under Division 2, 2A, 3 or 3A, the member:
(a) may take such action as is
reasonable and necessary to make the thing safe or prevent it being used; and
(b) if the member seized the thing
from a person—must, if it is practicable to do so, give the person a receipt
for the thing; and
(c) if the member believes on reasonable
grounds that the thing has been used or otherwise involved in the commission of
an offence against a law of the Commonwealth, a State or a Territory—must give
the thing to a member of a police force at the earliest practicable time; and
(d) if paragraph (c) does not
apply—must:
(i) if the member seized
the thing from a person and it is practicable to do so—return the thing to the
person; or
(ii) if not, give it to a
member of a police force; and
(e) if:
(i) the member seized the
thing from a person; and
(ii) the member believes on
reasonable grounds that the person used the thing in the commission of an
offence against a law of the Commonwealth, a State or a Territory;
may detain the person for the
purpose of placing him or her in the custody of a member of a police force at
the earliest practicable time.
Subdivision C—Members not entitled to exercise powers if obligations not
complied with
51W
Members not entitled to exercise powers if obligations not complied with
If, before, during or after exercising a
power under Division 2, 2A, 3, 3A or 3B or this Division, a member of the
Defence Force fails to comply with any obligation imposed under any of those
Divisions that relates to the exercise of the power, the member is not, or is
taken not to have been, entitled to exercise the power.
Division 4A—Applicable
criminal law
51WA
Applicable criminal law
(1) The substantive criminal law of the Jervis
Bay Territory, as in force from time to time, applies in relation to a
criminal act of a member of the Defence Force that is done, or purported to be
done, under this Part.
(2) The substantive criminal law of the
States and the other Territories, as in force from time to time, does not apply
in relation to a criminal act of a member of the Defence Force that is done, or
purported to be done, under this Part.
(3) To avoid doubt, Chapter 2 of the Criminal
Code does not apply to an act done, or purported to be done, under this
Part that is a criminal act (except to the extent that it constitutes an offence
against the law of the Commonwealth).
(4) To avoid doubt, the functions of the
Director of Public Prosecutions under section 6 of the Director of
Public Prosecutions Act 1983 in relation to the law of the Jervis Bay
Territory as applied by subsection (1) are exclusive of the corresponding
functions of any officer of a State or Territory, in relation to the law of the
Jervis Bay Territory as so applied, under a law corresponding to that Act.
Note: It is not intended that this section or Act
restrict or limit the power of State or Territory police to investigate any
criminal acts done, or purported to be done, by Defence Force members when
operating under Part IIIAAA of this Act.
51WB
Defence of superior orders in certain circumstances
(1) Subject to subsection (2), the fact
that a criminal act was done, or purported to be done, by a member of the
Defence Force under this Part under an order of a superior does not relieve the
member of criminal responsibility.
(2) It is a defence to a criminal act done,
or purported to be done, by a member of the Defence Force under this Part that:
(a) the criminal act was done by the
member under an order of a superior; and
(b) the member was under a legal
obligation to obey the order; and
(c) the order was not manifestly
unlawful; and
(d) the member had no reason to
believe that circumstances had changed in a material respect since the order
was given; and
(e) the member had no reason to
believe that the order was based on a mistake as to a material fact; and
(f) the action taken was reasonable
and necessary to give effect to the order.
(3) Subsection (2) does not limit the
defences that may be available to the person.
Division 5—Miscellaneous
51X
Publication of order and report
Single order
(1) If:
(a) an order under Division 1
ceases to be in force; and
(b) the order is not one of 2 or more
orders to which subsection (2) applies;
the Minister must arrange for presentation to the
Parliament in accordance with subsection (3) of:
(c) a copy of:
(i) the order; and
(ii) any declarations of
general security areas or designated areas, or of offshore general security
areas or offshore designated areas, under the order; and
(d) a report on any utilisation of the
Defence Force that occurred under the order.
Successive orders
(2) If 2 or more orders under Division 1
about the same or related circumstances come into force in succession, without
any intervening period when no such order is in force, the Minister must
arrange for presentation to the Parliament in accordance with subsection (3)
of:
(a) a copy of:
(i) all of the orders; and
(ii) any declarations of
general security areas or designated areas, or of offshore general security
areas or offshore designated areas, under the orders; and
(b) a report on any utilisation of the
Defence Force that occurred under the orders.
Reporting to Parliament
(3) For the purposes of subsection (1)
or (2), presentation to the Parliament of the copy and report is in accordance
with this subsection if the copy and report are forwarded to the Presiding
Officer of each House:
(a) if that House sits before the end
of 7 days after the order mentioned in subsection (1) or the last of the
orders mentioned in subsection (2) ceases to be in force—for tabling in
that House before the end of that 7 days; or
(b) if not—before the end of that 7
days for distribution to all Senators or Members of the House of
Representatives, as the case may be.
Effect of revocation
(5) To avoid doubt, a reference to an order
ceasing to be in force includes a reference to an order ceasing to be in force
because it is revoked.
51XA
Review of operation of Part
Independent review where first orders made
(1) If:
(a) before the end of 3 years after
the commencement of this Part:
(i) an order under Division 1
ceases to be in force, where the order is not one of 2 or more orders to which subparagraph (ii)
applies; or
(ii) 2 or more orders under
Division 1 cease to be in force, where the orders were about the same or
related circumstances and came into force in succession, without any
intervening period when no such order was in force; and
(b) no order under Division 1 had
previously been made;
the Minister must, subject to subsection (2), before
the end of 6 months after the order mentioned in subparagraph (a)(i), or
the last of the orders mentioned in subparagraph (a)(ii), ceases to be in
force, arrange for the carrying out of an independent review (see subsection (6))
of the operation of this Part in relation to the order or orders.
Independent review not required if Parliamentary
committee report
(2) Subsection (1) does not apply if a
committee of one or both of the Houses of the Parliament has already presented
a report to that House or both of the Houses, as the case may be, about the
operation of this Part in relation to the order or orders.
Independent review where no orders made
(3) If no order under Division 1 ceases
to be in force before the end of 3 years after the commencement of this Part,
the Minister must, subject to subsection (4), as soon as practicable after
those 3 years, arrange for the carrying out of an independent review of the
operation of this Part during those 3 years.
Independent review not required if Parliamentary
committee report
(4) Subsection (3) does not apply if a
committee of one or both of the Houses of the Parliament has already presented
a report to that House or those Houses, as the case may be, about the operation
of this Part during those 3 years.
Tabling of report of independent review
(5) The Minister must arrange for a copy of
the report of any independent review under subsection (1) or (3) to be
tabled in each House of the Parliament within 5 sitting days of that House
after the Minister is given the report.
Meaning of “independent review”
(6) In this section:
independent review means a review, and report
to the Minister, by 2 or more persons who:
(a) in the Minister’s opinion, possess
appropriate qualifications to carry out the review; and
(b) include at least one person who:
(i) is not employed by the
Commonwealth or a Commonwealth authority; and
(ii) has not, since the
commencement of this Part, provided services to the Commonwealth or a
Commonwealth authority under or in connection with a contract.
51XB
Instruments that are not legislative instruments
An order, authorisation or declaration
made under this Part is not a legislative instrument.
51Y
Part additional to other Defence Force utilisation and powers
This Part does not affect any
utilisation of the Defence Force that would be permitted or required, or any
powers that the Defence Force would have, if this Part were disregarded.
Part IIIAA—Superannuation benefit
52
Determination of benefit
(1) The Minister may, by legislative
instrument, make determinations for the purpose of providing a superannuation
benefit in respect of:
(a) service on and after 1 January 1988 by members of the Permanent Forces; and
(b) continuous full time naval,
military or air force service on and after that day by members of the Reserves.
(2) A determination:
(a) shall not be inconsistent with
this Act, the Naval Defence Act 1910 or the Air Force Act 1923;
and
(b) shall not be expressed to take
effect from a day before 1 January 1988.
(3) In making determinations, the Minister
shall have regard to:
(a) principle 3 of the wage fixing
principles adopted by the Conciliation and Arbitration Commission in its
national wage case decision of 23 September 1983, as modified by its
national wage case decision of 26 June 1986;
(b) the provisions of the Superannuation
(Productivity Benefit) Act 1988; and
(c) matters relating to the terms and
conditions of service of members of the Defence Force and the arrangements for
the administration of the Defence Force.
(3A) The Minister may not make a determination
that would have the effect that the Commonwealth, as employer, would have an
individual superannuation guarantee shortfall for a member referred to in subsection (1)
for any quarter under the Superannuation Guarantee (Administration) Act 1992.
(4) Determinations are legislative
instruments for the purposes of the Legislative Instruments Act 2003.
(4A) Paragraph 14(1)(a) of the Legislative
Instruments Act 2003 applies as if the reference to disallowable
legislative instruments included a reference to instruments made under section 58B
or 58H of the Defence Act 1903.
(5) Determinations may make provision for,
and in relation to, reducing a superannuation benefit under the determinations
in a case where a person becomes entitled to benefits under the Military
Superannuation and Benefits Act 1991 in circumstances mentioned in
subparagraph 5A(1)(b)(i) of that Act.
Note: Section 5A of the Military
Superannuation and Benefits Act 1991 provides for superannuation benefits
for a non‑member spouse in respect of splitting agreements and splitting
orders under the Family Law Act 1975.
(6) Reductions referred to in subsection (5)
are to be disregarded in applying subsection (3A).
53
Trustee of scheme providing superannuation benefit
For the purposes of the definition of trustee
in section 43 of the Superannuation Contributions Tax (Assessment and
Collection) Act 1997, the Authority established under section 8 of the
Defence Force Retirement and Death Benefits Act 1973 is taken to be the
person who manages the scheme constituted by the Defence Force (Superannuation)
(Productivity Benefit) Determination made under section 52 of the Defence
Act 1903.
Note: The definitions of public sector
superannuation scheme, superannuation fund and trustee
in section 43 of the Superannuation Contributions Tax (Assessment and
Collection) Act 1997 are relevant to this section.
Part IIIA—Remuneration, allowances and other benefits
Division 1—Determinations by the Minister
58A
Interpretation
In this Division, unless the contrary
intention appears:
cadet means an officer, instructor or cadet
in the Australian Army Cadets, the Australian Navy Cadets or the Australian Air
Force Cadets, and includes a person who has ceased to be such an officer,
instructor or cadet, whether by reason of death or otherwise.
determination means a determination made
under section 58B.
member includes a person who has ceased to be
a member, whether by reason of death or otherwise.
member of the family includes:
(a) in relation to a member—a member
of the household of the member and a dependant of the member; or
(b) in relation to a cadet—a member of
the household of the cadet and a dependant of the cadet.
remuneration means remuneration by way of
salary, pay, allowances or otherwise.
58B
Minister may make determinations
(1) The Minister may, by instrument in
writing, make determinations, not inconsistent with this Act, the Naval
Defence Act 1910 or the Air Force Act 1923, providing for and in
relation to:
(a) the remuneration of members or
cadets; and
(b) the payment of allowances or other
pecuniary benefits (except allowances or benefits by way of remuneration) to or
for members or cadets, including the payment of additional compensation to
members of the Reserves to whom compensation is payable under the Safety,
Rehabilitation and Compensation Act 1988; and
(c) the payment of allowances or other
pecuniary benefits to or in respect of members of the families of members or
cadets; and
(d) leave of absence and long service
leave of members; and
(e) the provision of other benefits to
or in respect of members or cadets, or to or in respect of members of the
families of members or cadets; and
(f) the payment of allowances and
expenses to or in respect of, and the provision of travelling facilities for,
applicants for appointment or engagement as members in respect of attendance at
an enlistment centre of the Defence Force or attendance for interview or
examination; and
(g) deductions from the remuneration
of a member or cadet or from allowances or other pecuniary benefits referred to
in paragraphs (b) and (c); and
(ga) payments, by way of compensation,
incentives or other benefits, to:
(i) members of the
Reserves; or
(ii) their dependants; or
(iii) their employers,
business or professional partners or other associates; or
(iv) other persons;
in relation to the availability
of the members for defence service, or for losses incurred or inconvenience
suffered because of the members’ absence on defence service (including losses
incurred or inconvenience suffered because of the operation of the Defence
Reserve Service (Protection) Act 2001); and
(h) the meanings to be attributed to
words and expressions used in existing determinations and future determinations
made under this section, and the circumstances in which those meanings are to
apply.
(1AA) Expressions used in paragraph (1)(ga)
that are defined in the Defence Reserve Service (Protection) Act 2001
have the same meaning as in that Act.
(1A) A determination made under this section may
make provision for or in relation to a matter by applying, adopting or
incorporating, with or without modification:
(a) the provisions of any Act or of
any regulations made under an Act or of any determination made under this
section, section 58H of this Act or section 24 of the Public Service
Act 1999, as in force at a particular time or as in force from time to
time; or
(b) any matter contained in any other
instrument or writing as in force or existing at the time when the first‑mentioned
determination takes effect.
(1B) A determination under this section may
provide that, where an amount has been paid (whether before or after the
commencement of this subsection) to a member or cadet or to a member of the
family of a member or cadet under the regulations or under a determination made
under this section or under Division 2, the member or cadet or the member
of the family of the member or cadet is required to pay to the Commonwealth an
amount, not exceeding the first‑mentioned amount, upon the occurrence of
an event specified in the determination, and may provide for the manner of
recovery of such an amount.
(2) Subsection (1) does not authorize
the making of a determination providing for or in relation to the payment to or
in respect of a member, or to or in respect of a member of the family of a
member, of a benefit in the nature of a pension.
(3) A determination shall not be made
providing for or in relation to the forfeiture or assignment of the whole or
part of:
(a) the remuneration of a member or
cadet; or
(b) allowances or other pecuniary
benefits referred to in paragraph (1)(b) or (c).
(4) A determination takes effect:
(a) on the day on which it is made; or
(b) where another day (which may be a
day earlier than the day on which it is made) is specified for the purpose in
the determination, on the day so specified.
(5) A determination shall not be expressed to
take effect on a day earlier than the day on which it is made in any case
where, if the determination so took effect:
(a) the rights of a person (other than
the Commonwealth) existing immediately before the last‑mentioned day
would be affected in a manner prejudicial to that person; or
(b) liabilities would be imposed on a
person (other than the Commonwealth) in respect of anything done or omitted to
be done before that last‑mentioned day;
and where, in a determination, any provision is made in
contravention of this subsection, that provision shall be void and of no
effect.
(6) The determinations made in each secular
year (including determinations amending or revoking other determinations) shall
be numbered in regular arithmetic series, beginning with the number 1, as
nearly as possible in the order in which they are made.
(7) A determination may, without prejudice to
any other manner of citation, be cited by reference to its number and the
secular year in which it was made.
(8) The Minister shall cause to be published
in the Gazette, in respect of each determination, notice of:
(a) the fact that the determination
has been made; and
(b) the place or places where copies of
the determination can be obtained.
(9) In this section, a reference to this Act
does not include a reference to the regulations.
58C
Tabling, disallowance etc. of determinations
(1) The provisions of section 48 (other
than paragraphs (1)(a) and (b) and subsection (2)) and sections 48A,
48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to
determinations as if:
(a) references in those provisions to
regulations were references to determinations and references to a regulation
were references to a provision of a determination; and
(b) references in those provisions to
the repeal of a regulation were references to the revocation of a determination
or of a provision of a determination, as the case requires.
(3) Determinations shall not be deemed to be
statutory rules within the meaning of the Statutory Rules Publication Act
1903.
58E
Delegation
The regulations may make provision for
and in relation to the delegation by the Minister of his power to make
determinations with respect to such of the matters with respect to which
determinations may be made as are specified in the regulations.
Division 2—The Defence Force Remuneration Tribunal
58F
Interpretation
In this Division, unless the contrary
intention appears:
Commission means the Australian Industrial
Relations Commission established by section 8 of the Workplace
Relations Act 1996.
Defence Force Advocate means the Defence
Force Advocate appointed under section 58S.
Fair Work Australia means the body
established by section 575 of the Fair Work Act 2009.
FWA means Fair Work Australia.
member of the Tribunal means a member of the
Tribunal appointed under section 58G, and includes the President.
President means the President of the Tribunal
appointed under section 58G.
relevant allowances, in relation to a member,
means allowances by way of remuneration payable to the member and, without
limiting the generality of the foregoing, includes any allowance payable to the
member:
(a) in respect of the service of the
member on a ship or aircraft;
(b) as general compensation for the
disadvantages of rendering naval, military or air force service;
(c) in respect of particular skills or
qualifications possessed by the member; or
(d) as compensation for the hazardous
nature of the duties that the member is required to perform or for the
conditions under which the member is required to perform his or her duties.
Remuneration Tribunal means the Remuneration
Tribunal established by subsection 4(1) of the Remuneration Tribunal Act
1973.
salary includes pay.
single member means a member of the Tribunal
specified in a direction made under subsection 58KA(1).
Tribunal means the Defence Force Remuneration
Tribunal established by section 58G.
58G
Establishment of Defence Force Remuneration Tribunal
(1) There is established by this section a
Defence Force Remuneration Tribunal.
(2) The Tribunal shall consist of:
(a) a President;
(b) a person who is experienced in
industrial relations matters; and
(c) a person who was, but is no
longer, a member of the Permanent Forces (although the person may be a member
of the Reserves).
Note: The Permanent Forces are made up of the
Permanent Navy, the Regular Army and the Permanent Air Force which are
established respectively by the Naval Defence Act 1910, this Act and the
Air Force Act 1923. Those Acts also establish the Naval Reserve, the
Army Reserve and the Air Force Reserve, which together make up the Reserves.
(3) The members of the Tribunal shall be
appointed by the Governor‑General on a part‑time basis.
(4) The person appointed as President shall
be a Deputy President of FWA.
(5) A person must not be appointed as a
member of the Tribunal if he or she has, at any time during the year preceding
the appointment, been a member of the Permanent Forces.
(6) The performance of the duties and
functions and the exercise of the powers of the Tribunal are not affected by
reason only of there being one vacancy in the membership of the Tribunal.
58H
Functions and powers of Tribunal
(1) The functions of the Tribunal are to
inquire into and determine, in accordance with this section, the matters
referred to in subsection (2).
(2) The Tribunal shall, as provided for by
this section:
(a) inquire into and determine the
salaries and relevant allowances to be paid to members; and
(b) inquire into and make
determinations in respect of prescribed matters that have been referred to the
Tribunal.
(3) The Minister or, subject to subsection (4),
the Secretary or the Chief of the Defence Force may, by notice in writing given
to the President, refer a prescribed matter to the Tribunal.
(4) The Secretary or the Chief of the Defence
Force shall not, without the approval in writing of the Minister, refer a
prescribed matter to the Tribunal pursuant to subsection (3) if:
(a) at any time during the preceding
12 months, the Minister has made a determination under section 58B that
relates, in whole or in part, to that matter; or
(b) the Secretary or the Chief of the
Defence Force is aware that, at any time during the preceding 12 months,
submissions have been made to the Minister requesting the Minister to make a
determination that relates, in whole or in part, to that matter and the
Minister has not made such a determination.
(5) The Tribunal shall, within 2 years of the
commencement of this section or within such shorter period as the Minister, by
notice in writing given to the President, determines, inquire into and make a
determination in respect of the salaries and relevant allowances to be paid to
members.
(6) Where a determination of the Tribunal in
respect of the salaries and relevant allowances to be paid to members is in
force, the Tribunal shall inquire into and make a further determination in
respect of those salaries and allowances:
(a) within 2 years of the first‑mentioned
determination taking effect; or
(b) if the Minister, by notice in
writing given to the President, requests the Tribunal to make a further
determination in respect of those salaries and allowances within a shorter
period of the first‑mentioned determination taking effect—within that
shorter period.
(7) A determination of the Tribunal shall be
in writing and shall take effect, or shall be deemed to have taken effect, on
such day as the Tribunal specifies for the purpose in the determination.
(8) The Tribunal shall not specify as the day
on which a determination of the Tribunal takes effect a day earlier than the
day on which the determination is made in any case where, if the determination
so took effect:
(a) the rights of a person (other than
the Commonwealth) which existed immediately before the last‑mentioned day
would be affected in a manner prejudicial to that person; or
(b) liabilities would be imposed on a
person (other than the Commonwealth) in respect of anything done or omitted to
be done before that last‑mentioned day;
and where, in a determination of the Tribunal, any
provision is made in contravention of this subsection, that provision shall be
of no effect.
(9) The President shall give a copy of each
determination made by the Tribunal to the Minister, to the Secretary and to the
Chief of the Defence Force.
(10) Where the Tribunal has made a
determination (not being a determination made pursuant to subsection (12)),
the Minister, the Secretary or the Chief of the Defence Force may, by notice in
writing given to the President within 28 days of the determination being made,
request the Tribunal to reconsider the determination.
(11) A notice of request under subsection (10)
shall set out the grounds on which the reconsideration is being sought.
(12) As soon as practicable after a request is
made under subsection (10) for reconsideration of a determination, the
Tribunal shall reconsider the determination and shall make a further
determination affirming, varying or replacing the first‑mentioned determination.
(13) The Minister shall cause a copy of each
determination of the Tribunal to be laid before each House of the Parliament
within 15 sitting days of that House after the determination is received by the
Minister.
(14) Any regulation made under this Act, the Air
Force Act 1923 or the Naval Defence Act 1910, and any determination
made under section 58B of this Act, has no effect to the extent that it is
inconsistent with any determination of the Tribunal.
(15) In this section, prescribed matter
means a matter in relation to which the Minister may make determinations under
section 58B, not being a matter referred to in paragraph (2)(a).
58HA
Hearings in relation to discriminatory determinations
(1) If a determination is referred to the
Tribunal under section 46PY of the Australian Human Rights Commission
Act 1986, the Tribunal must hold a hearing to review the determination.
(2) Unless the hearing takes place before a
single member of the Tribunal, subsections 58K(1) to (6) apply to the hearing
as if it were a meeting of the Tribunal.
(3) The Tribunal must decide whether or not
the hearing is to be held in public.
(4) If the Tribunal decides that the hearing
is not to be held in public, then, subject to subsection (5) and
subsections 58K(9) and 58KB(5), the Tribunal may decide the people who may be
present.
(5) The Sex Discrimination Commissioner is
entitled to notice of, and to be present at, the hearing and may make
submissions to the Tribunal.
(6) In this section:
determination includes a variation to
a determination.
Tribunal includes a single member
conducting the Tribunal’s business under a direction under subsection 58KA(1).
58HB
Review of discriminatory determinations
(1) If:
(a) a determination has been referred
to the Tribunal under section 46PY of the Australian Human Rights
Commission Act 1986; and
(b) the Tribunal considers that the
determination is a discriminatory determination;
the Tribunal must take the necessary action to remove the
discrimination, by setting aside the determination, setting aside terms of the
determination or varying the determination.
(2) In this section:
determination has the same meaning as
in section 58HA.
discriminatory determination means a
determination that:
(a) has been referred to the Tribunal under
section 46PY of the Australian Human Rights Commission Act 1986;
and
(b) requires a person to do an act
that would be unlawful under Part II of the Sex Discrimination Act 1984
except for the fact that the act would be done in direct compliance with the
determination.
Tribunal has the same meaning as in
section 58HA.
(3) For the purposes of the definition of discriminatory
determination in subsection (2), the fact that an act is
done in direct compliance with the determination does not of itself mean that
the act is reasonable.
58J
Reports by Tribunal
(1) The Minister may, by notice in writing
given to the President, request the Tribunal to inquire into and report to the
Minister on a matter specified in the notice, being a matter in relation to which
the Tribunal may make a determination pursuant to section 58H.
(2) When a request is made under subsection (1),
the Tribunal shall inquire into the matter concerned and give to the Minister a
report in writing on that matter.
58K
Procedure of Tribunal
(1) The President shall convene such meetings
of the Tribunal as he or she considers necessary for the efficient performance
of its functions.
(2) Meetings of the Tribunal shall be held at
such places as the President determines.
(3) The President shall preside at all
meetings of the Tribunal at which he or she is present.
(4) If the President is not present at a
meeting of the Tribunal, another member of the Tribunal nominated by the
President shall preside at the meeting.
(5) The Tribunal shall keep records of its
meetings.
(6) At a meeting of the Tribunal:
(a) 2 members of the Tribunal
constitute a quorum;
(b) all questions shall be decided by
a majority of votes of the members of the Tribunal present and voting; and
(c) the member of the Tribunal
presiding has a deliberative vote and, in the event of an equality of votes,
also has a casting vote.
(7) The Tribunal shall, in making a
determination, have regard to:
(a) any decision of, or principles
established by, FWA that is or are relevant to the making of the determination;
or
(b) if FWA has not yet made any such
decision or established any such principles, any decision of, or principles
established by, the Commission that is or are relevant to the making of the
determination.
(8) In the performance of the functions of
the Tribunal:
(a) the Tribunal may regulate the
conduct of its proceedings as it thinks fit and is not bound to act in a formal
manner; and
(b) the Tribunal may inform itself on
any matter in such manner as it thinks fit and is not bound by the rules of
evidence.
(9) The Defence Force Advocate and a person
representing the Commonwealth are entitled to be present, and to make
submissions to the Tribunal, during any proceedings before the Tribunal.
(10) Where the Tribunal thinks that a person or
body should be heard in relation to a matter that is being, or is to be,
considered by the Tribunal, the Tribunal may permit the person or body to be
present, and to make submissions to the Tribunal, during proceedings before the
Tribunal in relation to that matter.
58KA
Single member may conduct Tribunal’s business
(1) Subject to
subsection (2), the President may:
(a) if a person referred to in
subsection 58K(9) requests the President to do so and the President considers
it appropriate; or
(b) in any case, on the Chairman’s
initiative;
direct, in writing, that a member of the Tribunal
specified in the direction is to conduct the Tribunal’s business in relation to
any matter that is specified in the direction, being a matter that is being, or
is to be, dealt with by the Tribunal.
(2) The President must not, in a direction
made under subsection (1), direct that a single member is to deal with a
request made under subsection 58KC(1).
(3) The President may, at any time, in
writing, terminate a direction made under subsection (1).
(4) Where a single member is conducting the
Tribunal’s business in relation to a matter:
(a) the single member may exercise any
powers or perform any functions of the Tribunal in relation to that matter; and
(b) any act of the single member in
relation to that matter is taken to be an act of the Tribunal.
(5) In this section, a reference to a matter
that is being, or is to be, dealt with by the Tribunal includes a reference to
any part of such a matter.
58KB Procedure
where single member is conducting Tribunal’s business
(1) Where a single member is conducting the
Tribunal’s business:
(a) section 58K does not apply to
the single member’s conduct of such business; and
(b) the following provisions apply.
(2) The single member may conduct such
proceedings relating to the matter to which the direction relates as he or she
considers necessary.
(3) In the
conduct of the Tribunal’s business:
(a) the single member is not bound to
act in a formal manner; and
(b) the single member may inform
himself or herself on any matter in such manner as he or she thinks fit and is
not bound by the rules of evidence.
(4) The single member must, in making a
determination, have regard to:
(a) any decision of, or principles established
by, FWA that is or are relevant to the making of the determination; or
(b) if FWA has not yet made any such
decision or established any such principles, any decision of, or principles
established by, the Commission that is or are relevant to the making of the
determination.
(5) The Defence Force Advocate and a person
representing the Commonwealth are entitled to be present, and to make
submissions to the single member, during any proceedings conducted by the
single member.
(6) Where the single member thinks that a
person or body should be heard in relation to a matter that is being, or is to
be, considered by him or her, the single member may permit the person or body
to be present, and to make submissions to the single member, during proceedings
conducted by the single member in relation to that matter.
58KC
Review of action etc. of single member
(1) Where:
(a) a single member is conducting the
Tribunal’s business in relation to a matter; and
(b) in dealing with the matter, the
single member exercises a power or performs a function of the Tribunal;
the Minister, the Secretary or the Chief of the Defence
Force may, by notice in writing given to the President within 28 days after the
single member has completed his or her conduct of that business, request the
Tribunal to reconsider the exercise of the power or performance of the
function.
(2) The notice must specify the exercise of
the power or the performance of the function requested to be reconsidered and
the grounds for seeking the reconsideration.
(3) As soon as
practicable after the request is made, the Tribunal must:
(a) reconsider the exercise of the
power or performance of the function specified in the request; and
(b) make a determination affirming,
varying or replacing anything done by the single member in exercising that
power or performing that function.
58KD
Determinations giving effect to agreement between the parties
The Tribunal may, in making a
determination, give effect to any agreement reached between the Minister,
acting on behalf of the Commonwealth, and the Chief of the Defence Force,
acting on behalf of the members of the Australian Defence Force, in relation to
a matter to which the determination relates.
58L
Terms and tenure of office
(1) Subject to this Division, a member of the
Tribunal holds office for such period, not exceeding 5 years, as is specified
in his or her instrument of appointment, but is eligible for re‑appointment.
(2) A person must not continue to hold office
as a member of the Tribunal if:
(a) he or she becomes a member of the
Permanent Forces (although he or she may become a member of the Reserves); or
(b) he or she becomes the Defence
Force Advocate; or
(c) in the case of the President, he
or she ceases to be a Deputy President of FWA.
Note: The Permanent Forces are made up of the
Permanent Navy, the Regular Army and the Permanent Air Force which are
established respectively by the Naval Defence Act 1910, this Act and the
Air Force Act 1923. Those Acts also establish the Naval Reserve, the Army
Reserve and the Air Force Reserve, which together make up the Reserves.
58M
Resignation
A member of the Tribunal may resign his
or her office by writing signed by him or her and delivered to the Governor‑General.
58N
Termination of appointment
The Governor‑General may terminate
the appointment of a member of the Tribunal by reason of misbehaviour or
physical or mental incapacity.
58P
Acting appointments
(1) The Minister may appoint a person to act
as a member (including the President) of the Tribunal:
(a) during a vacancy in the office of
that member; or
(b) during any period, or during all
periods, when that member is absent from duty or from Australia or is, for any
other reason (including the reason that, in the case of a member not being the President,
he or she is acting as President), unable to perform the duties of his or her
office;
but a person appointed to act during a vacancy shall not
continue so to act for more than 12 months.
(2) While a person is acting as President or
as a member of the Tribunal other than the President, the person has and may
exercise all the powers, and shall perform all the functions, of the President
or that member, as the case may be.
(3) An appointment of a person under subsection (1)
may be expressed to have effect only in such circumstances as are specified in
the instrument of appointment.
(4) The Minister may:
(a) determine the terms and conditions
of appointment, including fees and allowances, of a person acting as a member
of the Tribunal; and
(b) terminate such an appointment at
any time.
(5) Where a person is acting as a member of
the Tribunal in accordance with paragraph (1)(b) and that office becomes
vacant while that person is so acting, then, subject to subsection (3),
that person may continue so to act until the Minister otherwise directs, the
vacancy is filled or a period of 12 months from the date on which the vacancy
occurred expires, whichever first happens.
(6) The appointment of a person to act as a
member of the Tribunal ceases to have effect if the person resigns his or her
appointment by writing signed by him or her and delivered to the Minister.
(7) The validity of anything done by a person
purporting to act under this section shall not be called in question on the
ground that the occasion for his or her appointment had not arisen, that there
was a defect or irregularity in or in connection with his or her appointment,
that the appointment had ceased to have effect or that the occasion for the
person to act had not arisen or had ceased.
(8) A reference in section 58H, 58J,
58K, 58KA, 58KC or 58U to the President or to a member of the Tribunal shall be
read as including a reference to a person acting as the President or as a
member of the Tribunal, as the case may be.
58Q
Fees and allowances
(1) A member of the Tribunal shall be paid
such fees and allowances as the Remuneration Tribunal determines.
(2) The appointment of the holder of a
prescribed office as a member of the Tribunal, or service by the holder of a
prescribed office as such a member, does not affect his or her tenure of that
prescribed office or his or her rank, title, status, precedence, salary, annual
or other allowances or other rights or privileges as the holder of that
prescribed office and, for all purposes, his or her service as a member of the
Tribunal shall be taken to be service as the holder of the prescribed office.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
(4) In this section, prescribed office
means an office, appointment or other employment which is referred to in
subsection 7(11) of the Remuneration Tribunals Act 1973 as an office,
appointment or other employment on a full‑time basis or a judicial office
referred to in subsection 7(12) of that Act.
Division 3—The Defence Force Advocate
58R
Interpretation
In this Division, unless the contrary
intention appears:
Advocate means the Defence Force Advocate
appointed under section 58S.
Remuneration Tribunal means the Remuneration
Tribunal established by subsection 4(1) of the Remuneration Tribunal Act
1973.
Tribunal means the Defence Force Remuneration
Tribunal established by section 58G.
58S
Defence Force Advocate
(1) There shall be a Defence Force Advocate,
who shall be appointed by the Minister on a part‑time basis.
(2) The person appointed as the Advocate
shall be a person who:
(a) is experienced in industrial
relations matters; and
(b) has a knowledge of the nature of
service in the Defence Force.
(3) In making an appointment under subsection (1),
the Minister shall have regard to any recommendations made by the Chief of the
Defence Force.
58T
Functions of Advocate
The functions of the Advocate are:
(a) to advise the Chief of the Defence
Force in relation to matters that have been, or may be, referred to the Tribunal
by the Chief of the Defence Force pursuant to subsection 58H(3);
(b) to prepare submissions to be made
to the Tribunal on behalf of the Defence Force concerning any matter that is
being considered by the Tribunal; and
(c) to represent the Defence Force in
proceedings before the Tribunal.
58U
Tenure and terms of office
(1) Subject to this Division, the Advocate
holds office for 3 years, but is eligible for re‑appointment.
(2) A person shall not continue to hold the
office of Advocate if he becomes a member of the Tribunal.
58V
Resignation
The Advocate may resign his office by
writing signed by him and delivered to the Minister.
58W
Termination of appointment
The Minister may terminate the
appointment of the Advocate by reason of misbehaviour or physical or mental
incapacity.
58X
Acting Defence Force Advocate
(1) The Minister may appoint a person to act
as the Advocate:
(a) during a vacancy in the office of
the Advocate; or
(b) during any period, or during all
periods, when the Advocate is absent from duty or from Australia or is, for any
other reason, unable to perform the duties of his office;
but a person appointed to act during a vacancy shall not
continue so to act for more than 12 months.
(2) While a person is acting as the Advocate,
he has and may exercise all the powers, and shall perform all the functions, of
the Advocate.
(3) An appointment of a person under subsection (1)
may be expressed to have effect only in such circumstances as are specified in
the instrument of appointment.
(4) The Minister may:
(a) determine the terms and conditions
of appointment, including remuneration and allowances, of a person acting as
the Advocate; and
(b) terminate such an appointment at
any time.
(5) Where a person is acting as the Advocate
in accordance with paragraph (1)(b) and the office becomes vacant while
that person is so acting, then, subject to subsection (3), that person may
continue so to act until the Minister otherwise directs, the vacancy is filled
or a period of 12 months from the date on which the vacancy occurred expires,
whichever first happens.
(6) The appointment of a person to act as the
Advocate ceases to have effect if he resigns his appointment by writing signed
by him and delivered to the Minister.
(7) The validity of anything done by a person
purporting to act under this section shall not be called in question on the
ground that the occasion for his appointment had not arisen, that there was a
defect or irregularity in or in connection with his appointment, that the appointment
had ceased to have effect or that the occasion for him to act had not arisen or
had ceased.
58Y
Fees and allowances
(1) The Defence Force Advocate shall be paid
such fees and allowances as the Remuneration Tribunal determines.
(2) This section has effect subject to the Remuneration
Tribunal Act 1973.
Part IV—Liability to serve in the Defence Force in time of war
Division 1—Liability to serve
59
Persons liable to serve in Defence Force in time of war
All persons (except those who are exempt
from service under this Part or to whom this Part does not apply) who:
(a) have resided in Australia for not
less than 6 months; and
(c) have attained the age of 18 years
but have not attained the age of 60 years;
are liable, when called upon under section 60, to
serve in the Defence Force.
60
Proclamation calling upon persons to serve in time of war
(1) In time of war the Governor‑General
may, by proclamation, call upon persons specified in section 59 to serve
in the Defence Force in accordance with this Act for the duration of the time
of war.
(2) A Proclamation under this section must
call on persons in the order in which they are included in classes established
for the purposes of this subsection under subsection (3).
(3) The regulations may establish a series of
classes of persons for the purposes of subsection (2).
(4) A Proclamation must be laid before each
House of the Parliament before, but not more than 90 days before, the day on
which it is expressed to come into effect.
(5) A Proclamation does not come into effect
unless, within the period of 90 days before it is expressed to come into
effect, it is approved, by resolution, by each House of the Parliament.
61
Registration and allotment for service
(1) The regulations may make provision for
and in relation to:
(a) the registration of persons who
are or may become liable to serve in the Defence Force in time of war;
(b) the deferment of the service of
persons, or persons included in classes of persons, who have been called upon
under section 60 to serve in the Defence Force;
(c) medical and other examinations of
persons who have been so called upon;
(f) the choice, by ballot or
otherwise, from persons who have been called upon to serve in the Defence Force
of those persons who are required so to serve; and
(g) the allotment of persons required
so to serve for service in a part of the Navy, the Army or the Air Force.
61A
Persons exempt from service
(1) The following persons are exempt from
service in the Defence Force in time of war so long as the employment,
condition, status, belief, or other reason stated in regulations made for the
purposes of paragraph (j), on which the exemption is based continues:
(a) persons subject to a prescribed
mental or physical disability;
(b) members and officers of the
Parliament of the Commonwealth or of a State;
(c) judges of federal or State courts
and police, stipendiary or special magistrates of a Territory or of a State;
(d) ministers of religion;
(e) members of a religious order who
devote the whole of their time to the duties of the order;
(f) persons who are students at a
college maintained solely for training persons to become members of a religious
order;
(g) persons who are students at a
theological college as defined by the regulations or are theological students
as prescribed;
(h) persons whose conscientious
beliefs do not allow them to participate in war or warlike operations;
(i) persons whose conscientious
beliefs do not allow them to participate in a particular war or particular warlike
operations; and
(j) persons who, for a reason stated
in the Regulations, are declared by the Regulations to be exempt from service
in the Defence Force in time of war.
(1A) Persons whose conscientious beliefs do not
allow them to engage in duties of a combatant nature (either generally or
during a particular war or particular warlike operations) are not exempt from
liability to serve in the Defence Force in time of war but are exempt from such
duties while members of the Defence Force as long as those beliefs continue.
(2) A person who, in pursuance of section 60,
has been called upon to serve in the Defence Force and is, by virtue of this
section, exempt from service shall, notwithstanding the exemption, do any act
that such a person is required, by or under the regulations, to do.
Penalty: $40.
61B
Entry into Defence Force for service
(1) A person who, in accordance with the
regulations, is allotted for service in a part of the Navy, the Army or the Air
Force shall, as from the time at which he presents himself for service in that
part, be deemed to have been enlisted in that part and to have been engaged to
serve in that part for the duration of the time of war.
(2) A person who, in pursuance of section 60,
has been called upon to serve in the Defence Force and fails, when required by
or under the regulations, to present himself for examination or service or to
do any other act required to be done by persons so called upon remains liable
to do that act, notwithstanding that the time originally appointed for the
doing of that act has expired or that he has been convicted for failing to do
that act.
61C
Part not to apply to certain persons
Nothing
in this Part applies to:
(a) a person whose presence in Australia
is occasioned solely by his or her employment in the service of a government
outside Australia; or
(b) a prescribed official of any
international organisation; or
(c) a member of the Defence Force.
Division 2—Determination of conscientious belief
61CA
Application for determination of conscientious belief
(1) A person who claims to be exempt from
service because of conscientious beliefs must, within 7 days after he or she is
called on for service under section 60 apply to the Secretary, in writing,
to have his or her claim determined by a Conscientious Objection Tribunal.
(2) At any time after a Tribunal has made a
determination that a person is or is not exempt from service because of
conscientious beliefs either the applicant for that determination or the
Commonwealth may apply to the Secretary, in writing, to have a Tribunal set
aside the previous determination and, where appropriate, make a new
determination in substitution for it on the grounds of a change in
circumstances.
61CB
Secretary must refer application
If the Secretary receives an application
under subsection 61CA(1) or (2), the Secretary must refer the application to a
Conscientious Objection Tribunal for determination.
61CC
Function of Conscientious Objection Tribunals
(1) The function of a Conscientious Objection
Tribunal is to determine, following an application that is referred to it by
the Secretary, whether the person to whom the application related is exempt
from service because of conscientious beliefs.
(2) Subject to this Part, a determination
under subsection (1) is final and binding for all purposes.
61CD
Parties to the hearing of an application
In this Part, the parties to the hearing
of an application by a Conscientious Objection Tribunal are the applicant and
the Commonwealth.
61CE
Notice of determination to be given to parties
(1) If a Conscientious Objection Tribunal
makes a determination it must notify the parties of the result of the
determination as soon as possible.
(2) A Tribunal must give the parties a
statement in writing of the reasons for its determination within 28 days of
making that determination.
Division 3—Establishment and membership of Conscientious Objection
Tribunals
61CF
Establishment of Conscientious Objection Tribunals
(1) The Minister may, by notice in the Gazette,
establish such Conscientious Objection Tribunals as he or she thinks necessary
for the purposes of this Part.
(2) Each Tribunal is to comprise:
(a) a presiding member; and
(b) 2 other members.
(3) Members are to be appointed in writing by
the Minister and may be appointed as either full‑time or part‑time
members.
(4) A person is not to be appointed as a
presiding member of a Tribunal unless he or she is a legal practitioner of not
less than 7 years standing.
(5) A person is not to be appointed as
another member of a Tribunal unless the Minister is satisfied that he or she is
capable, by reason of training or experience, of ascertaining facts other than
by adversarial procedures.
61CG
Period of appointment of members
Members are to hold office for such
period, not exceeding 5 years, as is specified in the instrument of
appointment.
61CH
Remuneration and allowances of members
(1) Members are to be paid:
(a) such remuneration as is determined
by the Remuneration Tribunal; and
(b) such allowances as are prescribed.
(2) If no determination of the remuneration
of members by the Remuneration Tribunal is in operation, members are to be paid
such remuneration as is prescribed.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
61CJ
Other terms and conditions
A member holds office on such terms and
conditions (if any) in respect of matters not provided for by this Part as are
determined by the Minister in writing.
61CK
Leave of absence
The Minister may grant leave of absence
to a member on such terms and conditions as to remuneration or otherwise as the
Minister determines in writing.
61CL
Resignation
A member may resign in writing signed by
him or her and sent to the Minister.
61CM
Removal from office
The Minister may remove a member from
office for proved misbehaviour or physical or mental incapacity.
61CN
Member of a Tribunal unavailable to complete proceeding
(1) If the hearing of an application has been
commenced or completed by a Conscientious Objection Tribunal but, before the
proceeding has been determined, one of the members constituting the Tribunal
for the purposes of the application has:
(a) ceased to be a member; or
(b) ceased to be available for the
purposes of the application;
the following provisions have effect:
(c) if the member concerned is a
member other than a member appointed as a presiding member—the hearing and
determination, or the determination, of the application may be completed by the
Tribunal constituted by the remaining 2 members;
(d) in any other case—the proceeding
must be reheard by another Tribunal.
(2) If an application that was being dealt
with by one Tribunal is reheard by another Tribunal, that other Tribunal may,
for the purposes of that application, have regard to any record of the proceedings
before the first‑mentioned Tribunal.
(3) The reference in subsection (2) to a
record of proceedings includes a reference to a record of any evidence taken in
the proceeding.
61CO
Acting appointments
(1) The Minister may appoint a person to act
as a full‑time member of a Conscientious Objection Tribunal during any
period, or during all periods, when the member is absent from duty or from
Australia or is, for any reason, unable to perform the duties of the member’s
office.
(2) The Minister may appoint a person to act
as a part‑time member of a Tribunal during any period, or during all
periods, when the member is, for any reason, unable to perform the duties of
the member’s office.
(3) Where a person has been appointed under subsection (1)
or (2), the Minister may direct that the person is to continue to act in the
appointment after the normal terminating event occurs.
(4) A direction under subsection (3)
must specify the period during which the person may continue to act in the
appointment.
(5) The period specified under subsection (4)
may be specified by reference to the happening of a particular event or the
existence of particular circumstances.
(6) A direction under subsection (3):
(a) is to be given only if there is a
pending determination or other special circumstances justifying the giving of
the direction; and
(b) may only be given before the
normal terminating event occurs.
(7) A person continuing to act under a
direction under subsection (3) must not continue to act for more than 12
months after the normal terminating event occurs.
(8) If a Tribunal includes a person acting or
purporting to act under an appointment under this section, any decision of, or
any direction given or any other act done by, the Tribunal is not invalid
merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
(9) Anything done by or in relation to a
person purporting to act under an appointment under this section is not invalid
merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
(10) For the purposes of this section, the
normal terminating event for an appointment under subsection (1) or (2)
is:
(a) if the appointment is made under subsection (1)—the
member ceasing to be absent or ceasing to be unable to perform the duties of
the member’s office; or
(b) if the appointment is made under subsection (2)—the
member ceasing to be unable to perform the duties of the member’s office.
Division 4—Procedures of Conscientious Objection Tribunals
61CP
Tribunals’ way of operating
A Conscientious Objection Tribunal, in
carrying out its functions under this Part:
(a) must provide procedures which are
informal, quick, fair, just and economical; and
(b) must act according to substantial
justice and the merits of the case; and
(c) is not bound by technicalities,
legal forms or rules of evidence.
61CQ
Powers of Tribunals
For the purposes of making a
determination, a Conscientious Objection Tribunal may:
(a) take evidence on oath or
affirmation; and
(b) summon a person to appear before
it to give evidence; and
(c) summon a person to produce to it
such documents as are referred to in the summons; and
(d) require a person appearing before
it to give evidence either to take an oath or to make an affirmation that the
evidence that the person will give will be true.
61CR
Procedure of Tribunals
(1) The presiding member of a Conscientious
Objection Tribunal may convene such hearings of the Tribunal as he or she
thinks necessary for the performance of its functions.
(2) The presiding member is to preside at all
hearings of the Tribunal.
(3) A Tribunal must keep records of its
hearings.
61CS
Majority decision
A question before a Conscientious
Objection Tribunal on an application for a determination is to be decided
according to the opinion of a majority of the members of the Tribunal.
61CT
Procedure where opinion of members equally divided
If:
(a) an application is referred to a
Conscientious Objection Tribunal for a determination; and
(b) section 61CS does not apply
to a question before the Tribunal on the application;
the question is to be decided according to the opinion of
the member presiding.
61CU
Hearings
(1) Subject to this section, a Conscientious
Objection Tribunal is to take oral evidence in public.
(2) If a Tribunal is satisfied that it is
necessary, in the interests of determining a matter which is before it, the
Tribunal may direct that oral evidence is to be taken in private.
(3) If a Tribunal makes a direction under subsection (2),
it may give directions as to the persons who may be present when the oral
evidence is given.
(4) If a Tribunal is satisfied that it would
be difficult for a person to give oral evidence, the Tribunal may accept a
written statement from that person.
(5) An applicant may be assisted in
presenting his or her case by another person, whether or not that person is a
lawyer.
61CV
Onus of proof
(1) In proceedings before a Conscientious
Objection Tribunal the onus of proving exemption from service because of
conscientious belief rests with an applicant.
(2) Such onus is to be discharged on the
balance of probabilities.
61CW
Protection of members and persons giving evidence etc.
(1) A member of a Conscientious Objection
Tribunal has, in the performance of his or her duties as a member, the same
protection and immunity as a Judge of the Federal Court.
(2) Subject to this Part, an applicant, a
person summoned to attend, or appearing, before a Conscientious Objection
Tribunal to give evidence, a person representing the Commonwealth or a person
who assists an applicant at a hearing, has the same protection and is, in
addition to the penalties provided by this Part, subject to the same liabilities,
as a witness in proceedings in the Federal Court.
61CX
Fees for persons giving evidence
(1) A person, other than the applicant,
summoned to appear before a Conscientious Objection Tribunal to give evidence
is entitled to be paid, in respect of his or her attendance, fees, and
allowances for expenses, ascertained in accordance with a determination under subsection (2).
(2) The Minister may, by legislative
instrument, determine the amounts of fees and allowances to be paid under subsection (1).
(4) The fees and allowances referred to in subsection (1)
are to be paid by the Commonwealth.
61CY
Failure of witness to attend
(1) A person is guilty of an offence if:
(a) the person is served under
paragraph 61CQ(b) with a summons to appear before a Conscientious Objection
Tribunal to give evidence and is tendered reasonable expenses; and
(b) the person:
(i) fails to attend as
required by the summons; or
(ii) fails to appear and
report from day to day and has not been excused, or released from further
attendance, by a member.
Penalty: Imprisonment for 6 months.
(2) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal
Code.
(3) In paragraph (1)(a), strict
liability applies to the physical element of circumstance, that the summons is
under paragraph 61CQ(b).
Note: For strict liability, see
section 6.1 of the Criminal Code.
61CZ
Refusal to be sworn or to answer questions etc.
(1) A person is guilty of an offence if the
person:
(a) is required to produce a document
by a summons under paragraph 61CQ(c) served on the person; and
(b) refuses or fails to do so.
Penalty: Imprisonment for 6 months.
(2) In paragraph (1)(a), strict
liability applies to the physical element of circumstance, that the summons is
under paragraph 61CQ(c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) A person is guilty of an offence if the
person:
(a) is appearing before a
Conscientious Objection Tribunal to give evidence; and
(b) is required under paragraph
61CQ(d) either to take an oath or to make an affirmation; and
(c) refuses or fails to comply with
the requirement.
Penalty: Imprisonment for 6 months.
(4) In paragraph (3)(b), strict
liability applies to the physical element of circumstance, that the requirement
is under paragraph 61CQ(d).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(5) A person is guilty of an offence if the
person:
(a) is appearing before a
Conscientious Objection Tribunal to give evidence; and
(b) is required to answer a question
by the presiding member; and
(c) refuses or fails to answer the
question.
Penalty: Imprisonment for 6 months.
(6) Subsections (1), (3) and (5) do not
apply if the person has a reasonable excuse.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (6). See subsection 13.3(3) of the Criminal
Code.
(7) A person is guilty of an offence if the
person:
(a) is appearing before a
Conscientious Objection Tribunal to give evidence; and
(b) gives evidence that is false or
misleading in a material particular; and
(c) knows that the evidence is false
or misleading in the material particular.
Penalty: Imprisonment for 6 months.
61CZA
Contempt of Tribunal
A person
must not:
(a) obstruct or hinder a Conscientious
Objection Tribunal, or a member of such a tribunal, in the performance of the
functions of the Tribunal; or
(b) disrupt the taking of evidence by
a Conscientious Objection Tribunal.
Penalty: Imprisonment for 12 months.
Division 5—Reviews and appeals
61CZB
Review of determinations of Conscientious Objection Tribunals
A party to a determination by a
Conscientious Objection Tribunal may apply to the AAT for review of that
determination.
61CZC
AAT Act to apply subject to modification
(1) The AAT Act applies in relation to the
review of a determination of a Conscientious Objection Tribunal subject to the
modifications set out in this section.
(2) Section 30 of the AAT Act applies in
relation to such a review as if it read as follows:
30
Parties to proceedings before Tribunal
“The parties to a
proceeding before the AAT for a review of a determination of a Conscientious
Objection Tribunal are:
(a) the person in relation to whom the
determination was made; and
(b) the Commonwealth.”.
(3) Sections 30A, 31, 44 and 44A of the
AAT Act do not apply in relation to such a review.
(4) Subsection 46(1) of the AAT Act applies
in relation to such a review as if the words preceding paragraph (a) of
that subsection read as follows:
“(1) When a question of law is referred
to the Federal Court of Australia in accordance with section 45:”.
61CZD
Appeals from AAT
(1) A party to a proceeding before the AAT
may appeal to the Federal Court, on a question of law only, from any decision
of the AAT in that proceeding.
(2) An appeal by a person under subsection (1)
must be instituted:
(a) within 28 days after the day on
which the document setting out the terms of the decision of the AAT is given to
the person or within such further time (whether before or after the end of that
period) as the Federal Court allows; and
(b) in such manner as is prescribed by
rules of court made under the Federal Court of Australia Act 1976.
(3) The Federal Court has jurisdiction to
hear and determine appeals instituted in the Court in accordance with subsection (2)
and that jurisdiction must be exercised by the Court constituted as a Full
Court.
(4) The Federal Court:
(a) must hear and determine the
appeal; and
(b) may affirm, vary or set aside the
order of the AAT; and
(c) may give such judgment, or make
such order, as in all the circumstances it thinks fit, or refuse to make an
order; and
(d) may remit the case for rehearing
and determination, either with or without the hearing of further evidence, by
the AAT.
61CZE
Operation etc. of decision subject to appeal
(1) Subject to this section, the institution
of an appeal to the Federal Court from a decision of the AAT does not:
(a) affect the operation of the
decision; or
(b) prevent the taking of action to
implement the decision; or
(c) prevent the taking of action in
reliance on the making of the decision.
(2) If an appeal is instituted in the Federal
Court from a decision of the AAT, the Federal Court or a Judge of the Federal
Court may make such orders of the kind referred to in subsection (3) as
that Court or Judge considers appropriate for the purpose of securing the
effectiveness of the hearing and determination of the appeal.
(3) The orders that may be made under subsection (2)
are orders staying, or otherwise affecting the operation or implementation of,
either or both of the following:
(a) the decision of the AAT or a part
of that decision;
(b) the decision to which the
proceeding before the AAT related or a part of that decision.
(4) The Federal Court or a Judge of that
Court may, by order, vary or revoke an order in force under subsection (2)
(including an order that has previously been varied under this subsection).
(5) An order in force under subsection (2):
(a) is subject to such conditions as
are specified in the order; and
(b) has effect until:
(i) where a period for the
operation of the order is specified in the order—the end of that period or, if
a decision is given on the appeal before the end of that period, the giving of
the decision; or
(ii) where no period is so
specified—the giving of a decision on the appeal.
Part V—Cadets
62
Australian Army Cadets
(1) The body known immediately before the
commencement of this subsection as the Australian Cadet Corps is continued in
existence with the new name, Australian Army Cadets.
(2) The Australian Army Cadets consists of:
(a) persons appointed in accordance
with the regulations to be officers in that body;
(aa) persons appointed in accordance
with the regulations to be instructors in that body; and
(b) subject to subsections (5)
and (6), persons who volunteer, and are accepted, in accordance with the
regulations as cadets in that body.
(3) A person appointed to be an officer or
instructor in the Australian Army Cadets does not become a member of the Army
by virtue of that appointment.
(4) A cadet in the Australian Army Cadets is
not a member of the Army.
(5) A person is not entitled to volunteer, or
to be accepted, as a cadet unless he:
(a) has attained such age as is
prescribed; and
(b) has not attained the age of 20
years.
(6) A person ceases to be a cadet when he
attains the age of 21 years or such lower age as is prescribed.
(7) The regulations may make provision for
and in relation to the organization, maintenance, regulation, control and
discipline of the Australian Army Cadets, and, in particular, for and in
relation to:
(a) the periods and conditions of
service of members, other than conditions of service with respect to which
determinations under section 58B may be made; and
(b) the promotion of members.
(8) In subsection (7), member
means an officer, instructor or cadet in the Australian Army Cadets.
(9) Subject to the regulations, to any
determinations in force under section 58B and to the directions of the
Minister, the Chief of Army shall administer the Australian Army Cadets.
Part VI—Special powers in relation to defence
63
General powers for defence purposes [see Note 3]
(1) The Governor‑General may:
(f) Subject to the provisions of this
Act do all matters and things deemed by him to be necessary or desirable for
the efficient defence and protection of the Commonwealth or of any State.
64
Control of railways in time of war
The Governor‑General may in time
of war authorize any officer to assume control of any railway for transport for
naval, military or air‑force purposes.
65
Railways to carry troops etc. when required
The principal railway official in any
State or the owner, controller, or manager of any railway or tramway in any
State shall when required by the Governor‑General, and as prescribed,
convey and carry members of the Defence Force, together with their horses,
guns, ammunition, forage, baggage, aircraft, aircraft material and stores from
any place to any place on the railway or tramway, and shall provide all
engines, carriages, trucks and rolling‑stock necessary for the purpose.
66
Conveyance by railway and tramway
Members of the Defence Force when on
duty in uniform or carrying a rifle shall, subject to the Regulations, be
conveyed over the railways and tramways of the Commonwealth or of any State for
the purpose of attending musters, parades, and rifle practices, and returning
therefrom, on production of a pass signed by a commanding officer or an officer
authorised in writing by a commanding officer to sign such passes.
67
Registration and impressment of vehicles etc.
The owner of any vehicle, horse, mule,
bullock, aircraft, aircraft material, boat or vessel, or of any goods, required
for naval, military or air‑force purposes, shall, when required to do so
by an officer authorized in that behalf by the regulations, furnish it for
those purposes, and shall be recompensed therefor in the manner prescribed, and
the owners of any vehicles, horses, mules, bullocks, aircraft, aircraft
material, boats or vessels may be required by the regulations to register them
periodically.
68
Billeting and quartering
Members of the Defence Force may in time
of war as prescribed be billeted, quartered or cantoned, but nothing in this
Act shall authorize the quartering or billeting of any member of the Defence
Force in any house solely occupied by women or by women and children.
70
Tolls
No toll or due, whether demandable by
virtue of any Act or State Act or otherwise, at any wharf, landing place,
aerodrome, bridge gate, or bar on a public road shall be demanded or taken in
respect of:
(a) Any member of the Defence Force on
march or duty or any prisoner under his charge;
(b) Any horse ridden or used by any
member of the Defence Force on march or duty or by any prisoner under his
charge;
(c) Any vehicle employed only in
conveying members of the Defence Force on march or duty or any prisoner under
their charge or conveying naval, military or air‑force arms, stores,
baggage, aircraft or aircraft material; or
(d) Any animal drawing any such
vehicle.
Part VII—Offences
73A
Unlawfully giving or obtaining information as to defences
(1) A person who is a member of the Defence
Force or a person appointed or engaged under the Public Service Act 1999
is guilty of an offence if:
(a) the person communicates to any
other person any plan, document, or information relating to any fort, battery,
field work, fortification, or defence work, or to any defences of the
Commonwealth, or to any factory, or air force aerodrome or establishment or any
other naval, military or air force information; and
(b) the communication is not in the
course of the first‑mentioned person’s official duty.
(2) A person is guilty of an offence if:
(a) the person obtains any plan,
document, or information relating to any fort, battery, field work,
fortification, or defence work, or air force aerodrome or establishment, or to
any of the defences of the Commonwealth or any other naval, military or air
force information; and
(b) that conduct is unlawful.
73F
Penalty
(1) An offence under section 73A may be
prosecuted either summarily or upon indictment, but an offender shall not be
liable to be punished more than once in respect of the same offence.
(2) The punishment for an offence under
section 73A shall be:
(a) if the offence is prosecuted
summarily—a fine not exceeding $200 or imprisonment for 6 months or both; or,
in the case of a body corporate, a fine not exceeding $2,000; or
(b) if the offence is prosecuted upon
indictment—a fine of any amount or imprisonment for any term, or both.
79
Unlawfully disposing of arms etc.
(1) Any person who:
(a) unlawfully disposes of or removes
or
(b) fails to deliver up when lawfully
required so to do or
(c) has in his possession;
any arms accoutrements or other naval, military or air‑force
articles belonging to the Commonwealth or to any corps, unit or station, shall
be liable to a penalty not exceeding $40, and may be ordered by the Court by
which he is tried to be imprisoned for a period not exceeding 3 months unless
in the meantime he delivers up the article or pays its value.
(1AA) An offence under subsection (1) is an
offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(1AB) Paragraph (1)(c) does not apply if the
person proves that he or she had lawful cause for possessing the thing in
question.
Note: The defendant bears a legal burden in relation
to the matter in subsection (1AB). See section 13.4 of the Criminal
Code.
(1A) In any prosecution under this section for
failure to deliver up when lawfully required so to do any arms, accoutrements
or other naval, military or air‑force articles belonging to the
Commonwealth or to any corps, unit or station:
(a) if it is proved to the
satisfaction of the Court that any such article was in the possession of the
defendant at any time prior to the time at which he was required to deliver up
the article, he shall be deemed, in the absence of proof by him of the lawful
disposal of the article, to have continued in possession of the article up to
the time when he was required to deliver up the article; and
(b) inability to deliver up the
article shall not be a defence unless the defendant proves to the satisfaction
of the Court that such inability did not arise from any negligence or wrongful
act or omission on his part.
Note: The defendant bears a legal burden in relation
to the matter in paragraph (1A)(b). See section 13.4 of the Criminal
Code.
(2) When an order has been made under this
section the Court may by warrant in writing authorize any member or special
member of the Australian Federal Police or member of the Police Force of a
State or Territory to take possession of the article and to deliver it to an
officer or as the Court thinks fit to direct.
(3) Any member or special member of the
Australian Federal Police or member of the Police Force of a State or Territory
having any warrant under this section may in the day time enter any building,
premises, or place where the article is or is supposed to be, and may break
open any part of the building, premises, or place, or any chest, receptacle, or
thing therein, and may seize or take possession of the article and deliver it in
accordance with the warrant.
80A
Falsely representing to be returned soldier, sailor or airman
(1) A person is guilty of an offence if:
(a) the person represents himself or
herself to be a returned soldier, sailor or airman; and
(b) the representation is false.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
(2) For the purposes of this section:
(a) returned soldier
means a person who has served abroad during any war as a member of any Military
Force raised in Australia or in any other part of the British Empire, or as a
member of the Military Forces of any Ally of Great Britain;
(b) returned sailor
means a person who has served abroad during any war as a member of any Naval
Force raised in Australia or in any other part of the British Empire, or as a
member of the Naval Forces of any Ally of Great Britain; and
(c) returned airman
means a person who has served abroad during any war as a member of any Air
Force, air service or flying corps raised in Australia or in any other part of the
British Empire or as a member of the air forces of any Ally of Great Britain.
80B
Improper use of service decorations
(1) A person is guilty of an offence if:
(a) the person wears a service
decoration; and
(b) the person is not the person on
whom the decoration was conferred.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
(2) Where the person upon whom a service
decoration was conferred has died, it is not an offence against subsection (1)
for a member of the family of that person to wear the service decoration if the
member of the family does not represent himself as being the person upon whom
the decoration was conferred.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal
Code.
(3) It is not an offence against subsection (1)
for a person to wear a service decoration in the course of a dramatic or other
visual representation (including such a representation to be televised) or in
the making of a cinematograph film.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (3). See subsection 13.3(3) of the Criminal
Code.
(4) A person shall not falsely represent
himself as being the person upon whom a service decoration has been conferred.
Penalty: 30 penalty units or imprisonment for 6 months, or
both.
(5) A person shall not deface or destroy, by
melting or otherwise, a service decoration.
Penalty: 60 penalty units or imprisonment for 12 months, or
both.
82
Sketching etc. of fortifications prohibited
(1) If:
(a) a person makes a sketch, drawing,
photograph, picture or painting of any defence installation in Australia or of
any part of one; and
(b) the person has no lawful authority
to do so;
then:
(c) the person is guilty of an
offence; and
(d) all sketches, drawings,
photographs, pictures, and paintings, and all tools and all materials or
apparatus for sketching, drawing, photographing or painting found in his or her
possession are forfeited and may be destroyed, sold, or otherwise disposed of,
as the Governor‑General directs.
(1A) The maximum penalty for an offence under subsection (1)
is a fine of $200, imprisonment for 6 months, or both.
(2) If:
(a) a person enters or approaches any
defence installation with sketching, drawing, photographing, or painting
materials or apparatus in his or her possession; and
(b) the person has no lawful authority
for that conduct; and
(c) the person intends to contravene subsection (1);
then:
(d) the person is guilty of an offence;
and
(e) all tools and all materials or
apparatus for sketching, drawing, photographing or painting found in his or her
possession are forfeited and may be destroyed, sold, or otherwise disposed of,
as the Governor‑General directs.
(2A) The maximum penalty for an offence under subsection (2)
is a fine of $100.
(3) A person is guilty of an offence if the
person trespasses on:
(a) a defence installation, or on any
land reserved for or forming part of one (whether or not any erection, fort,
fortification, or work of any kind is on the land); or
(b) a building or land reserved or set
apart for or used in connection with the administration, accommodation, or
training of any part of the Defence Force; or
(c) an aircraft.
Penalty: $40.
(4) Any member of the Defence Force, member
or special member of the Australian Federal Police or member of the Police
Force of a State, may, without warrant, arrest any person who he has reasonable
ground to believe has committed an offence against this section, and take him before
a Court of summary jurisdiction to be dealt with according to law.
(5) In this
section:
defence installation means any fort, battery,
fieldwork, fortification, aircraft, air force establishment or aircraft
material or any naval, military or air force work of defence.
83
Unauthorised use, possession or supply of emblems or flags
(1) A person who is not a member of the
Defence Force is guilty of an offence if:
(a) the person uses or wears a defence
emblem or an emblem so nearly resembling a defence emblem as to be capable of
being mistaken for such an emblem; and
(b) the person does not have the
written authority of the Minister, or of a person authorised in writing by the
Minister, to do so.
Penalty: $200.
(2) A person is guilty of an offence if:
(a) the person makes, supplies or
offers to supply a defence emblem or an emblem so nearly resembling a defence
emblem as to be capable of being mistaken for such an emblem; and
(b) the person does not have the
written authority of the Minister, or of a person authorised in writing by the
Minister, to do so.
Penalty: $500.
(3) A person is guilty of an offence if:
(a) the person flies or displays a
defence flag; and
(b) the person is not a member of the
Defence Force acting in the course of his or her duties; and
(c) the person does not have the
written authority of the Minister, or of a person authorised in writing by the
Minister, to do so.
Penalty: $200.
(3A) An authority under subsection (1), (2)
or (3) shall be subject to such limitations (if any) as are specified in the
authority.
(4) A person on whose behalf or at whose
place of business an article is supplied or offered in contravention of this
section, whether contrary to the instructions of that person or not, shall be
guilty of an offence, and shall, on conviction, be liable to a fine not
exceeding $200.
(4A) An offence under subsection (4) is an
offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(5) It is not an offence against this section
for a person to use or wear a defence emblem or fly a defence flag in the
course of a dramatic or other visual representation (including such a
representation to be televised) or in the making of a cinematograph film.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (5). See subsection 13.3(3) of the Criminal
Code.
(6) Where an offence against this section has
been committed, the court may, if it thinks fit, order the forfeiture of any
emblem or flag in respect of which that offence was committed.
(7) In this section:
defence emblem means an emblem of the Defence
Force or an arm of the Defence Force.
defence flag means a flag of the Defence
Force or an arm of the Defence Force.
emblem includes a badge, a regimental or other
similar distinctive mark, an armlet or an accoutrement.
flag includes an ensign or a standard.
84
Penalty for bringing contempt on uniform
(1) Any person who wears any uniform of the
Defence Force, or any dress having the appearance or bearing any of the
regimental or other distinctive marks of any such uniform, in such a manner or
under such circumstances as to be likely to bring contempt upon that uniform,
shall be liable to a penalty not exceeding $200.
(2) An offence under this section is an
offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Part VIII—Offences in relation to service tribunals
86
Failure of witness to appear
(1) A person is guilty of an offence if:
(a) the person has been served with a
summons under the Defence Force Discipline Act 1982 to appear as a
witness before a service tribunal; and
(b) the person:
(i) fails to appear as
required by the summons; or
(ii) fails to appear and
report himself or herself from day to day and has not been excused or released
by the tribunal from further attendance.
Penalty: $1,000 or imprisonment for 6 months, or both.
(2) An offence under this section is an
offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (3). See subsection 13.3(3) of the Criminal
Code.
88
False or misleading evidence
A person who is appearing as a witness
before a service tribunal is guilty of an offence if:
(a) the person gives evidence; and
(b) the evidence is false or
misleading; and
(c) the person knows that the evidence
is false or misleading.
Penalty: $1,000 or imprisonment for 6 months, or both.
89
Contempt of service tribunals etc.
(1) A person shall not:
(a) insult a member of a military
jury, a Military Judge or a summary authority in or in relation to the exercise
of his powers or functions as such a member, Judge or authority, as the case
may be;
(b) interrupt the proceedings of a
service tribunal;
(c) create a disturbance or take part
in creating or continuing a disturbance in or near a place where a service
tribunal is sitting; or
(d) do any other act or thing that:
(i) in the case of the Australian
Military Court—constitutes a contempt of that court; and
(ii) in the case of a
service tribunal other than the Australian Military Court—would, if the service
tribunal were a court of record, constitute a contempt of that court.
Penalty: $1,000 or imprisonment for 6 months.
(1A) An offence under this section is an offence
of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2) In this section, military jury,
Military Judge and summary authority have the same
respective meanings as they have in the Defence Force Discipline Act 1982.
90
Failure to comply with order under section 140 of the Defence Force
Discipline Act 1982
(1) A person is guilty of an offence if:
(a) an order under section 140 of
the Defence Force Discipline Act 1982 applies to the person; and
(b) the person contravenes or fails to
comply with the order.
Penalty: $1,000 or imprisonment for 6 months, or both.
(2) In paragraph (1)(a), strict
liability applies to the physical element of circumstance, that the order is
under section 140 of the Defence Force Discipline Act 1982.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Part VIIIA—Testing for prohibited substances
Division 1—Preliminary
91
Application of Part
This Part applies to the following
persons:
(a) defence members;
(b) defence civilians.
92
Object of Part
The object of this Part is to make
provision for the testing of persons to whom this Part applies to determine
whether they have used any prohibited substance.
93
Definitions
In this Part, unless the contrary
intention appears:
accredited authority means a laboratory or
other body, or a person, specified in the Defence Instructions to be an
accredited authority for the purposes of this Part.
authorised person means a person determined
under section 93A to be an authorised person for the purposes of the
provision of this Part in which the expression occurs.
defence civilian has the same meaning as in
the Defence Force Discipline Act 1982.
Defence Instructions means Defence
Instructions (General), Defence Instructions (Navy), Defence Instructions
(Army) or Defence Instructions (Air Force) issued under section 9A.
defence member has the same meaning as in the
Defence Force Discipline Act 1982.
narcotic substance has the same meaning as in
the Customs Act 1901.
positive test result, in relation to a
prohibited substance test in respect of a person, means a finding by an
accredited authority that the test in respect of the person reveals:
(a) the presence of a prohibited
substance in a sample provided by the person, or otherwise reveals the use by
the person of a prohibited substance; and
(b) if a permitted level for that
substance is specified in the Defence Instructions—that the permitted level has
been exceeded.
prohibited substance means:
(a) a narcotic substance; or
(b) any substance that is a prohibited
substance because of a determination under subsection 93B(1).
prohibited substance test means:
(a) urinalysis; or
(b) another test that:
(i) is for the purpose of
determining whether a person has used a prohibited substance, whether by means
of testing a sample provided by the person or by other means; and
(ii) is a prohibited
substance test because of a determination under subsection 93B(2).
relevant authority means:
(a) in relation to a defence member
who holds a rank not below the rank of Major‑General (or an equivalent
rank)—the Governor‑General; or
(b) in relation to a defence member
who holds a rank below the rank of Major‑General (or an equivalent
rank)—the relevant service chief; or
(c) in relation to a defence
civilian—the commanding officer who has responsibility for the defence
civilian.
sample means:
(a) any human biological fluid; or
(b) any human biological tissue
(whether alive or otherwise); or
(c) any human breath.
93A
Authorised person
The Chief of the Defence Force or a
service chief may, by written instrument, determine that a person is an
authorised person for the purposes of a provision of this Part.
93B
Determinations about prohibited substances and prohibited substance tests
(1) The Chief of the Defence Force may, by
legislative instrument, determine that a substance, or a substance included in
a class of substances, is a prohibited substance for the purposes of this Part.
(2) The Chief of the Defence Force may, by
legislative instrument, determine that a test, or a test included in a class of
tests, is a prohibited substance test for the purposes of this Part.
Division 2—Testing for prohibited substances
94
Requirement to undergo a prohibited substance test
An authorised person may require a
person to whom this Part applies:
(a) to undergo a prohibited substance
test; and
(b) if the prohibited substance test
involves testing a sample—to provide a sample for the purposes of the test.
95
Conduct of testing
(1) The conduct of a prohibited substance
test under section 94 must be supervised by an authorised person.
(2) A prohibited substance test:
(a) must be conducted in circumstances
affording reasonable privacy to the person being tested; and
(b) must not be conducted in the
presence of a person whose presence is not necessary for the purposes of
conducting or supervising the test; and
(c) must not involve:
(i) the removal of more
clothing; or
(ii) more visual
inspection;
than is necessary for the
purposes of conducting the test.
96
Notice to person required to provide a sample
If a person is required to provide a
sample for the purposes of a prohibited substance test under section 94,
the authorised person supervising the test must, before the sample is provided,
give to the person a written notice explaining such matters relating to dealing
with the sample as are specified in the Defence Instructions.
Division 3—Return of a
positive test result
98
Application
(1) This Division applies if a prohibited
substance test in respect of a person returns a positive test result.
(2) A positive test result is to be
disregarded if an authorised person is satisfied that the presence of any
prohibited substance revealed by the testing was wholly attributable to
something done in accordance with the directions or recommendations of a
legally qualified medical practitioner.
100
Notice to be given of a positive test result
(1) If a prohibited substance test in respect
of a person returns a positive test result, the relevant authority in relation
to the person must:
(a) give the person written notice of
the positive test result; and
(b) invite the person to give to the
relevant authority a written statement of reasons as to:
(i) if the person is an
officer—why the officer’s appointment should not be terminated; or
(ii) if the person is a
defence member other than an officer—why the defence member should not be
discharged; or
(iii) if the person is a
defence civilian—why the arrangement under which the person is a defence
civilian should not be terminated.
Note: Subsection 98(2) provides that a positive test
result is to be disregarded in specified circumstances, so in such circumstances
a notice under this section would not be given.
(2) A notice under subsection (1) must
specify a period ending not less than 28 days after the day on which the notice
is given as the period within which a statement of reasons must be given to the
relevant authority.
101
Termination or discharge
(1) If a defence member to whom a notice is
given under section 100 is an officer who holds a rank not below the rank
of Major‑General (or equivalent rank) and:
(a) the officer does not give the
relevant authority, within the period specified in the notice, a statement of
reasons why the officer’s appointment should not be terminated; or
(b) having considered such a statement
given by the officer, the relevant authority is of the opinion that the
officer’s appointment should be terminated;
the Governor‑General must terminate the appointment.
(2) If a defence member to whom a notice is
given under section 100 is an officer who holds a rank below the rank of
Major‑General (or equivalent rank) and:
(a) the officer does not give the
relevant authority, within the period specified in the notice, a statement of
reasons why the officer’s appointment should not be terminated; or
(b) having considered such a statement
given by the officer, the relevant authority is of the opinion that the
officer’s appointment should be terminated;
the relevant authority must terminate the appointment.
(3) If a defence member to whom a notice is
given under section 100 is not an officer and:
(a) the defence member does not give
the relevant authority, within the period specified in the notice, a statement
of reasons why the defence member should not be discharged; or
(b) having considered such a statement
given by the defence member, the relevant authority is of the opinion that the
defence member should be discharged;
the relevant authority must discharge the defence member.
(4) If a person to whom a notice is given
under section 100 is a defence civilian and:
(a) the person does not give the
relevant authority, within the period specified in the notice, a statement of
reasons why the arrangement under which the person is a defence civilian should
not be terminated; or
(b) having considered such a statement
given by the person, the relevant authority is of the opinion that the arrangement
under which the person is a defence civilian should be terminated;
the relevant authority must terminate that arrangement.
(5) In considering under this section
whether:
(a) an officer’s appointment should be
terminated; or
(b) a defence member other than an
officer should be discharged; or
(c) the arrangement under which a
person is a defence civilian should be terminated;
the relevant authority must take into consideration any
warning previously given to the officer, defence member or defence civilian
under section 104.
(6) Nothing in this section or in section 104
is to be taken to require that a notice under section 104 must have been
given in respect of a previous positive test result before:
(a) an officer’s appointment is
terminated; or
(b) a defence member is discharged; or
(c) the arrangement under which a
person is a defence civilian is terminated;
under this section.
102
Form and date of effect of termination or discharge
(1) The termination under subsection 101(1)
or (2) of the appointment of an officer, the discharge under subsection 101(3)
of a defence member or the termination under subsection 101(4) of an
arrangement in relation to a defence civilian must be in writing.
(2) The document effecting the termination or
discharge must specify the day on which the termination or discharge is to take
effect.
(3) A copy of the document effecting the
termination or discharge must be given to the defence member or defence
civilian.
(4) The day to be specified is a day:
(a) not earlier than the day on which
the defence member or defence civilian is given a copy of the document
effecting the termination or discharge; and
(b) not later than 3 months after the
day referred to in paragraph (a).
(5) The termination of appointment or the
discharge, as the case may be, takes effect on the day specified.
103
Reduction in rank
(1) This section applies if a prohibited
substance test in respect of a defence member returns a positive test result
and:
(a) if the defence member is an officer—the
officer’s appointment is not terminated under subsection 101(1) or (2); or
(b) if the defence member is not an
officer—the member is not discharged under subsection 101(3).
(2) Subject to the following provisions of
this section, the relevant service chief may reduce the defence member to the
next lower rank.
(3) If the relevant service chief proposes to
reduce a defence member’s rank, he or she must:
(a) inform the defence member in
writing of the proposal; and
(b) give the defence member a reasonable
opportunity to show cause why the member’s rank should not be reduced.
(4) A reduction in rank must be in writing.
(5) The document effecting the reduction in
rank must specify the day on which the reduction in rank is to take effect.
(6) A copy of the document effecting the
reduction in rank is to be given to the officer or other defence member.
104
Warning if a prohibited substance test returns a positive result
(1) If a prohibited substance test in respect
of a defence member returns a positive test result, the relevant authority may
give to the defence member a notice containing a warning that, if a subsequent
prohibited substance test in respect of the defence member also returns a
positive test result:
(a) if the defence member is an officer—the
officer’s appointment may be terminated; or
(b) if the defence member is not an
officer—the defence member may be discharged; or
(c) in either case—the defence member
may be reduced, or further reduced, in rank.
(2) If a prohibited substance test in respect
of a defence civilian returns a positive test result, the relevant authority
may give to the defence civilian a notice containing a warning that, if a
subsequent prohibited substance test in respect of the defence civilian also
returns a positive test result, the arrangement under which the person is a
defence civilian may be terminated.
Division 4—Miscellaneous
106
Failure to provide sample
(1) A defence member or defence civilian is
guilty of an offence if:
(a) an authorised person has required
the defence member or defence civilian under section 94 to provide a
sample; and
(b) the defence member or defence
civilian refuses or fails to provide the sample.
Maximum penalty: Imprisonment for 6 months.
(2) In paragraph (1)(a), strict liability
applies to the physical element of circumstance, that the requirement is under
section 94.
Note: For strict liability, see
section 6.1 of the Criminal Code.
107
Unauthorised acts in relation to sample
(1) A person is guilty of an offence if:
(a) a sample is provided by a defence
member or defence civilian pursuant to a requirement made by an authorised
person under section 94; and
(aa) the person interferes with, or
otherwise deals with, the sample; and
(b) the person is not authorised under
this Part or the Defence Instructions to do so.
Maximum penalty: Imprisonment for 6 months.
(2) In paragraph (1)(a), strict
liability applies to the physical element of circumstance, that the requirement
is under section 94.
Note: For strict liability, see section 6.1
of the Criminal Code.
108
Finding made as a result of testing not admissible in certain criminal
proceedings
A finding made by an accredited
authority by means of testing a sample provided by a defence member or defence
civilian under this Part is not admissible in evidence in any proceeding
against the defence member or defence civilian for:
(a) an offence under the Defence
Force Discipline Act 1982; or
(b) an offence against section 6,
7 or 7A or subsection 86(1) of the Crimes Act 1914 in relation to an
offence under the Defence Force Discipline Act 1982.
109
Defence Instructions
(1) Without limiting section 9A, the
Defence Instructions may make provision, not inconsistent with this Part, in
relation to the following:
(a) the persons or classes of persons
who may be required to undergo prohibited substance tests under section 94;
(b) laboratories, bodies or persons
that are accredited authorities for the purposes of this Part;
(c) the provision of samples for the
purpose of prohibited substance tests under section 94;
(d) the conduct of, and procedures
relating to, prohibited substance tests under section 94;
(e) the devices used in conducting
prohibited substance tests under section 94, including the calibration,
inspection and testing of those devices;
(f) levels of prohibited substances
that are permitted levels for the purposes of this Part;
(g) the procedures for the handling
and analysis of the following:
(i) samples taken in
connection with prohibited substance tests under section 94;
(ii) the giving of
prohibited substance test results in certificates or other documents and the
evidentiary effect of such certificates or other documents;
(h) the confidentiality of prohibited
substance test results;
(i) notices to be given to persons
who are to undergo, or who have undergone, prohibited substance tests;
(j) any other matter or thing that
relates to, or is for the purposes of, this Part.
(2) The Defence Instructions may provide that
strict compliance with procedures specified in the Defence Instructions is not
required and substantial compliance is sufficient, other than in respect of
procedures relating to the following matters:
(a) ensuring that a sample is not
interfered with;
(b) ensuring that a sample is securely
contained and identified.
110
Other administrative action not precluded
Nothing in this Part precludes the
taking, in relation to a defence member, of any administrative action that
could, if this Part had not been enacted, be lawfully taken because he or she
is a defence member.
Part VIIIB—Inspector‑General of the Australian Defence Force
Division 1—Establishment and functions of the Inspector‑General of
the Australian Defence Force
110A
Object of Part
The object of this Part is to provide
the Chief of the Defence Force with:
(a) a mechanism for internal audit and
review of the military justice system independent of the ordinary chain of
command; and
(b) an avenue by which failures and
flaws in the military justice system can be exposed and examined so that the
cause of any injustice (whether systemic or otherwise) may be remedied.
110B
Inspector‑General of the Australian Defence Force
There is to be an Inspector‑General
of the Australian Defence Force, to be known as the Inspector‑General
ADF.
110C
Functions of the Inspector‑General ADF
(1) The Inspector‑General ADF has the
following functions:
(a) to inquire into or investigate
matters concerning the military justice system;
(b) to conduct performance reviews of
the military justice system, including internal audits, at the times and in the
manner the Inspector‑General ADF considers appropriate;
(c) to advise on matters concerning
the military justice system, including making recommendations for improvements;
(d) to promote military justice values
across the Defence Force;
(e) to do anything incidental or
conducive to the performance of any of the preceding functions.
(2) In addition to his or her functions under
subsection (1), the Inspector‑General ADF also has:
(a) the functions conferred on the
Inspector‑General ADF by or under this Act or any other law of the
Commonwealth; and
(b) such other functions as are
prescribed by the regulations.
(3) The function referred to in paragraph (1)(a)
includes the following:
(a) carrying out preliminary assessments
as to whether an inquiry or investigation should be conducted by the Inspector‑General
ADF;
(b) referring matters to other
appropriate authorities to be dealt with.
Note: The regulations may make provision in relation
to the procedures and powers of the Inspector‑General ADF in respect of
the performance of the Inspector‑General ADF’s functions (see paragraph
124(1)(h)).
110D
When the Inspector‑General ADF can conduct inquiries or investigations
(1) The Inspector‑General ADF may
conduct an inquiry or an investigation on his or her own initiative.
(2) The Inspector‑General ADF may be
directed to conduct an inquiry or an investigation by the Chief of the Defence
Force.
(3) The Inspector‑General ADF may be
requested to conduct an inquiry or an investigation by a service chief, but is
not required to comply with the request.
(4) The Inspector‑General ADF may be
requested to conduct an inquiry or an investigation by any other individual,
but is not required to comply with the request.
Division 2—Administrative provisions about the Inspector‑General
of the Australian Defence Force
110E
Appointment
(1) The Inspector‑General ADF is to be
appointed by the Minister by written instrument.
(2) In making an appointment under subsection (1),
the Minister must have regard to any recommendations made by the Chief of the
Defence Force.
(3) The Inspector‑General ADF holds
office on a full‑time basis.
(4) A person holding office as the Inspector‑General
ADF holds office on the terms and conditions (if any) in relation to matters
not covered by this Act that are determined by the Minister.
110F
Qualifications for appointment
A person must not be appointed as the
Inspector‑General ADF unless the person has knowledge of and experience
in relation to military justice issues and an understanding of their relevance
to the role of the Defence Force.
110G
Tenure
(1) The Inspector‑General ADF holds
office for the period specified in the instrument of appointment. The period
must not exceed 5 years.
(2) The Inspector‑General ADF is
eligible for reappointment.
110H
Resignation
The Inspector‑General ADF may
resign his or her appointment by giving the Minister a written resignation.
110I
Remuneration
(1) The Inspector‑General ADF is to be
paid the remuneration that is determined by the Remuneration Tribunal. If no
determination of that remuneration by the Tribunal is in operation, he or she
is to be paid the remuneration that is prescribed.
(2) The Inspector‑General ADF is to be
paid the allowances that are prescribed.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
110J
Leave of absence
(1) The Inspector‑General ADF has the
recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Chief of the Defence Force may grant
the Inspector‑General ADF leave of absence, other than recreation leave,
on the terms and conditions as to remuneration or otherwise that the Chief of
the Defence Force determines.
110K
Engaging in other paid work
The Inspector‑General ADF must not
engage in paid employment outside the duties of his or her office without the
Minister’s consent.
110L
Termination of appointment
(1) The Minister must terminate the
appointment of the Inspector‑General ADF if the Inspector‑General
ADF:
(a) becomes bankrupt; or
(b) applies to take the benefit of any
law for the relief of bankrupt or insolvent debtors; or
(c) compounds with his or her
creditors; or
(d) assigns his or her remuneration
for the benefit of his or her creditors; or
(e) is absent from duty, except on
leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(f) fails, without reasonable excuse,
to comply with section 110M.
(2) The Minister may terminate the
appointment of the Inspector‑General ADF on the ground of:
(a) misbehaviour; or
(b) physical or mental incapacity.
(3) The Minister may terminate the
appointment of the Inspector‑General ADF if the Inspector‑General
ADF engages in paid employment outside the duties of his or her office other
than with the Minister’s consent.
110M
Disclosure of interests
The Inspector‑General ADF must
give written notice to the Minister of all interests (financial or otherwise)
that the Inspector‑General ADF has or acquires that could conflict with
the proper performance of the functions of his or her office.
110N
Acting appointments
(1) The Minister may appoint a person to act
as the Inspector‑General ADF:
(a) during a vacancy in the office of
Inspector‑General ADF (whether or not an appointment has previously been
made to that office); or
(b) during any period, or during all
periods, when the Inspector‑General ADF is absent from duty or from Australia,
or is, for any other reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a
person purporting to act under an appointment under this section is not invalid
merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
(3) The Minister must not appoint a person to
act as the Inspector‑General ADF unless the person has knowledge of and
experience in relation to military justice issues and an understanding of their
relevance to the role of the Defence Force.
(4) In making an appointment under subsection (1),
the Minister must have regard to any recommendations made by the Chief of the
Defence Force.
110O
Staff
(1) The staff necessary to assist the
Inspector‑General ADF are to be the following:
(a) members of the Defence Force made
available for the purpose by the appropriate service chief;
(b) persons engaged under the Public
Service Act 1999 and made available for the purpose by the Secretary of the
Department.
(2) The Inspector‑General ADF may
engage persons having suitable qualifications and experience as consultants to,
or to perform services for, the Inspector‑General ADF.
(3) An engagement under subsection (2)
is to be made:
(a) on behalf of the Commonwealth; and
(b) by written agreement.
110P
Inquiry officers, inquiry assistants and Assistants IGADF
(1) The Inspector‑General ADF may
appoint a person as:
(a) an inquiry officer; or
(b) an inquiry assistant; or
(c) an Assistant IGADF.
(2) The Inspector‑General ADF must not
appoint a person under subsection (1) unless the person is eligible to be
so appointed under the regulations.
(3) The regulations may prescribe matters
relating to the roles, functions and powers of a person appointed under subsection (1).
Division 3—Other matters
110Q
Protection from civil actions
(1) This section applies to the following
persons (protected persons):
(a) the Inspector‑General ADF;
(b) a person acting under the
authority of the Inspector‑General ADF.
(2) A protected person is not liable to civil
proceedings for loss, damage or injury of any kind suffered by another person
as a result of the performance or exercise, in good faith, of the protected
person’s functions, powers or duties under or in relation to this Act.
110R
Reports
The Inspector‑General ADF must
prepare and give to the Chief of the Defence Force such reports on the
operations of the Inspector‑General ADF as the Chief of the Defence Force
directs.
110S
Delegation
The Inspector‑General ADF may, by
instrument in writing, delegate his or her power under section 110P to an
officer holding a rank not lower than the naval rank of captain or the rank of
colonel or group captain.
Part IX—Legal procedure
111
Subscription, arms etc. vested in commanding officer
(1) For the purposes of legal proceedings,
all moneys subscribed by or for or otherwise appropriated to the use of any
corps or part thereof, or ship’s company or part thereof, or air‑force
unit or station or part thereof, and all arms, ammunition, accoutrements,
clothing, musical instruments, or other things, belonging to or used by any
corps or part thereof, or ship’s company or part thereof, or air‑force
unit or station or part thereof, and not being the private property of a member
of the corps or ship’s company or air‑force unit or station, as the case
may be, shall be deemed to be the property of the commanding officer of the
corps or ship’s company or air‑force unit or station, as the case may be.
(2) For the purposes of this section, corps
includes unit.
111A
Property of Rifle Club vested in Captain
For the purposes of legal proceedings,
all arms, ammunition, or other military articles, belonging to or used by any
Rifle Club, shall be deemed to be the property of the Captain of the Rifle
Club.
Part IXA—Provisions relating to the forces of other countries
Division 1—Interpretation
116A
Interpretation
(1) In this Part, unless the contrary
intention appears:
forces, in relation to a country, means the
naval, military or air forces of that country.
service authorities, in relation to a
country, means the naval, military or air force authorities of that country.
(2) A reference in this Part to a country in
relation to which a provision of this Part applies shall be read as a reference
to a country declared by the regulations to be a country in relation to which
that provision applies.
(3) For the purposes of this Part, a member
of a force of a country that (by whatever name called) is in the nature of a
reserve or auxiliary force shall be deemed to be a member of the forces of that
country so long as, but only so long as, he is called into actual service (by
whatever expression described) with those forces or is called out for training
with those forces.
Division 2—Attachment of personnel and mutual powers of command
116B
Attachment to the Defence Force of members of the forces of another country and
vice versa
(1) The Chief of Navy, the Chief of Army or
the Chief of Air Force may, by order in writing:
(a) attach temporarily to any part of
the Defence Force under his command a specified member, or a member included in
a specified class of members, of the forces of a country in relation to which
this section applies who is placed at his disposal by the service authorities
of that country for the purpose of being so attached; and
(b) subject to anything to the
contrary in the conditions applicable to his service, place a specified member,
or a member included in a specified class of members, of any part of the
Defence Force under his command at the disposal of the service authorities of a
country in relation to which this section applies in order that he may be
attached temporarily by those authorities to the forces of that country.
(2) Where a member of the forces of a country
in relation to which this section applies is attached temporarily to a part of
the Defence Force, he shall, for the period for which he is so attached, be
regarded as a member of that part of the Defence Force, as holding the rank in
that part of the Defence Force that corresponds with the rank that he holds in
those forces and as having, for the purposes of command and discipline, the
same status and powers, including the power to arrest and to impose
punishments, as:
(a) a member of that rank in that part
of the Defence Force; and
(b) if he is given an appointment in
that part of the Defence Force—a member of that part of the Defence Force
holding the like appointment.
(3) The application of the law governing the
Australian Navy, the Australian Army or the Australian Air Force, as the case
may be, to a person to whom subsection (2) applies is subject to such
exceptions, modifications and adaptations as are specified by the Minister by
order in writing.
(4) A member of the Defence Force referred to
in paragraph (1)(b) does not cease to be subject to the law governing that
part of the Defence Force to which he belongs by reason only of his being
temporarily attached as provided by that paragraph.
(5) This section applies to and in relation
to a part of the Defence Force serving either within or beyond the territorial
limits of Australia.
116C
Forces serving together
(1) Whenever a part of the Defence Force and
a part of the forces of a country in relation to which this subsection applies
are serving together, either within or beyond the territorial limits of
Australia, and either alone or together with any other force, a member of the
force of that country has the same powers of command over members of that part
of the Defence Force as a member of the Defence Force holding the rank in that
Force that corresponds with the rank that he holds in the force of the country
to which he belongs.
(2) If a part of the Defence Force and a part
of the forces of another country to which this subsection applies are acting in
combination (either within or beyond the territorial limits of Australia), the
Governor‑General may, by order in writing, appoint an officer of the
forces of that other country to command the combined force, or any part of the
combined force.
(2A) An officer appointed under
subsection (2) has, subject to such restrictions and limitations as are
specified by the Chief of the Defence Force by order in writing, over members
of the Defence Force serving in that combined force or part of that force, the
same powers of command and discipline (including the power to impose
punishments) as if he or she were an officer of the Defence Force holding:
(a) that appointment; and
(b) the rank in the Defence Force that
corresponds to the rank that he or she holds in the force to which he or she
belongs.
(3) Where a part of the Defence Force and a
part of the forces of a country in relation to which subsection (1)
applies are serving together beyond the territorial limits of Australia, the
officer in command of that part of the Defence Force, or an officer authorized
in writing by the Chief of the Defence Force or a service chief for the
purposes of this subsection, may request the appropriate service authority of
that country to direct, by general or special orders, members of the forces of
that country to arrest any member of that part of the Defence Force who is
alleged to have committed, or is reasonably suspected of having committed, an
offence punishable under Australian service law and to deliver him into the
custody of such service authority of the Defence Force as is designated by or
under the orders.
(4) A member of the Defence Force arrested
and held in custody in pursuance of subsection (3) shall be deemed to have
been arrested and held in custody in accordance with Australian service law.
(5) The Governor‑General may declare
that specified parts of the Defence Force and specified parts of the forces of
specified countries are to be taken for the purposes of this section to be
serving together or acting in combination.
(5A) The Governor‑General may declare
that, whenever specified parts of the Defence Force and specified parts of the
forces of specified countries are in fact serving together or acting in
combination, the forces are to be taken for the purposes of this section to be
serving together or acting in combination.
(5B) A declaration under subsection (5) or
(5A) has effect accordingly. Except as provided in such a declaration, forces
are not taken for the purposes of this section to be serving together or acting
in combination.
(5C) A declaration under subsection (5) or
(5A) must be in writing.
(6) In this section, Australian service
law means the law (including any instrument having the force of law)
governing the Defence Force or a part of the Defence Force.
116D
Corresponding ranks
(1) For the
purposes of this division, the Chief of the Defence Force may, by order in
writing, determine the ranks in the several parts of the Defence Force that are
to be regarded as corresponding with specified ranks in the forces of any other
specified country.
(2) Where, in the course of preparing an
order under subsection (1) in relation to a country, the Chief of the
Defence Force determines that there is no rank in a part of the Defence Force
that can reasonably be regarded as corresponding with a particular rank in the
forces of that country, he may specify in the order, for the purposes of this
Division or any specified provision of this Division and either generally or
for any other specified purposes:
(a) a rank in that part of the Defence
Force that is to be regarded as corresponding with that particular rank; or
(b) the relationship that is to be
regarded as existing between a member of those forces holding that particular
rank and the members of that part of the Defence Force.
(3) References in this section to ranks shall
be read as including references to ratings in naval forces and, generally, as
not restricted to the ranks of officers.
Division 3—Absentees without leave
116E
Interpretation
(1) In this Division, authorized
officer means an officer authorized by the Chief of the Defence Force
or a service chief, by order in writing, for the purposes of this Division.
(2) A reference in this Division to the
designated authority of a country is a reference to an authority designated for
the purposes of this Division by the appropriate authority or officer of that
country.
(3) A reference in this Division to the
country to which a person belongs is a reference to the country from whose
forces he is suspected of being, or, where he has surrendered himself, appears
from his confession to be, an absentee without leave.
(4) For the purposes of the application of
this Division in relation to the forces of a country, it is immaterial whether
or not any body, contingent or detachment of those forces is present in Australia.
116F
Apprehension of absentees without leave
Where the designated authority of a
country in relation to which this section applies, by writing signed by him, requests
an authorized officer for assistance in the apprehension of a member of the
forces of that country, not being an Australian citizen, who is an absentee
without leave from those forces, the authorized officer may, in his discretion,
issue a warrant in accordance with the prescribed form authorizing a member or
special member of the Australian Federal Police or a member of the police force
of a State or Territory or any member of the Defence Force to arrest that
absentee.
116G
Detention of illegal absentee
(1) A person who is arrested under section 116F
or who surrenders himself as being illegally absent from the forces of a
country in relation to which this section applies may be detained:
(a) by a member or special member of
the Australian Federal Police or a member of a police force of a State or
Territory at a police station or at a place provided for the confinement of
persons in lawful custody; or
(b) by a member of the Defence Force
at a place provided for the confinement of members of the Defence Force who are
accused or convicted of offences;
for such time as is reasonably necessary to enable the
person to be dealt with in accordance with section 116H.
(2) As soon as practicable after a person is
taken into custody under subsection (1), the person holding him in custody
shall:
(a) cause an authorized officer to be
notified that the person has been taken into custody; and
(b) take all reasonable steps to
ensure that the person in custody understands his right to make a request under
subsection (3).
(3) A person in custody under this section
may, on grounds specified by him, request that he be released from that
custody.
(4) Where a person makes a request under subsection (3),
the person holding him in custody shall cause the request to be referred to an
authorized officer.
116H
Disposal of person in custody
(1) Where an authorized officer is notified
under paragraph 116G(2)(a) that a person has been taken into custody under
subsection 116G(1), he shall, after such investigation of the matter as he
thinks necessary:
(a) if he is satisfied that there is a
good and sufficient reason why the person held in custody should be
released—direct that the person be released from custody under this Division;
or
(b) if he is not so satisfied—refer
the matter to the Minister.
(2) For the purposes of the carrying out of
an investigation referred to in subsection (1), the authorized officer
shall have due regard to any request made by a person under subsection 116G(3).
(3) Where the matter is referred to the
Minister under subsection (1), the Minister shall:
(a) direct that the person held in
custody be released from custody under this Division; or
(b) issue a warrant for the delivery
of the person held in custody under this Division into the custody of a
specified service authority of the country to which the person belongs at a
place in Australia:
(i) specified in the
warrant; or
(ii) determined by the
authorized officer.
(4) A service authority into whose custody a
person is delivered in pursuance of a warrant issued under paragraph (3)(b)
may remove the person from Australia, but nothing in this subsection shall be
taken to limit any other powers that the authority may have with respect to the
person.
(5) Where under this section the Minister or an
authorized officer directs that a person be released from custody under this
Division, that person shall be so released.
116J
Evidence for the purposes of this Division
For the purposes of any proceedings in a
court or otherwise arising in connection with any action taken in pursuance of
the provisions of this Division, where the designated authority of a country in
relation to which section 116F applies certifies in writing that a person
named and described in that certificate was, on a specified date, an absentee
without leave from the forces of that country, that certificate is prima
facie evidence of the facts so certified.
116K
Proof of facts by certificate
(1) Where in a certificate given for the
purposes of this Division reference is made to a person by name and that
certificate includes a description of the person named by reference to his
physical characteristics and a court is satisfied that a person before it is a
person having that name and answering to the description in the certificate, the
certificate shall be deemed to refer to that person, unless the contrary is
proved.
(2) A document purporting to be a
certificate, request or notification given or made for the purposes of a
provision of this Division, and to be signed by an authority or person
specified in the document, shall, upon mere production in any proceedings in a
court, be received in evidence and, unless the contrary is proved, be deemed to
be a certificate, request or notification given or made by that authority or
person.
(3) Where under a provision of this Division
a certificate or request is given or made by the designated authority of a
country, and a certificate or request purports to be signed by a person
described in that document as the designated authority of that country, that
person shall, in any proceedings in a court, be deemed to be the designated
authority of that country for the purposes of that provision, unless the
contrary is proved.
Division 4—Miscellaneous
116M
Delegation
(1) Subject to subsection (2), the Chief
of the Defence Force or a service chief may, in relation to a matter or a class
of matters, or to a State, Territory, or other part of Australia, another
country or part of another country, by writing signed by him, delegate to an
officer who holds a rank not below the rank of Captain in the Australian Navy,
Colonel in the Australian Army or Group Captain in the Australian Air Force,
all or any of his powers under this Part, other than this power of delegation.
(2) The Chief of the Defence Force or a
service chief shall not delegate:
(a) his power to authorize an officer
for the purposes of subsection 116C (3); or
(b) his power to authorize an officer
for the purposes of Division 3;
except to an officer who holds a rank not below the rank
of Rear‑Admiral in the Australian Navy, Major‑General in the
Australian Army or Air Vice‑Marshal in the Australian Air Force.
(3) A power so delegated, when exercised by
the delegate, shall, for the purposes of this Act, be deemed to have been
exercised by the Chief of the Defence Force or a service chief.
(4) A delegation under this section does not
prevent the exercise of a power by the Chief of the Defence Force or a service
chief.
(5) A delegation under this section continues
in force notwithstanding a change in the occupancy of, or a vacancy in, the
office of the Chief of the Defence Force or a service chief.
(6) A document purporting to be a copy of a
delegation by the Chief of the Defence Force or a service chief, or an order or
written authority made or given by the Chief of the Defence Force or a service
chief or by a delegate of the Chief of the Defence Force or a service chief,
and purporting to bear the signature or a facsimile of the signature of the
Chief of the Defence Force or a service chief or of the delegate, as the case
may be, with an endorsement in writing that the delegation, order or written
authority is, or was on a specified date, in force, is, upon mere production in
a court or otherwise for any purpose arising under this Part, prima facie evidence
that the delegation, order or written authority was duly given or made in the
terms set out in the document and is, or was on the date specified, in force.
Part IXB—Public areas of defence land
116P
Interpretation
(1) In this Part, unless the contrary
intention appears:
by‑laws means by‑laws under this
Part.
public area means a public area declared
under section 116Q.
ranger means:
(a) a person appointed under section 116S;
and
(b) a person referred to in section 116T.
(2) A reference in this Part to a member of
the Australian Federal Police or to a member of a police force includes a
reference to a special member of the Australian Federal Police.
116Q
Public areas of defence land
(1) The Minister may, by notice published in
the Gazette, declare an area specified in the notice to be a public area
and assign a name to that area.
(2) In subsection (1), area
means an area of land that is owned or held under lease by the Commonwealth and
used, or intended for use, for the purposes of defence.
116R
Delegation
(1) The Minister may, either generally or as
otherwise provided by the instrument of delegation, by writing signed by him,
delegate to an officer of the Defence Force or an officer of the Department of
Defence all or any of his powers under this Part or the by‑laws, other
than this power of delegation or his powers under section 116ZD to make by‑laws.
(2) A power so delegated, when exercised by
the delegate, shall, for the purposes of this Act or the by‑laws, be
deemed to have been exercised by the Minister.
(3) A delegation under this section does not
prevent the exercise of a power by the Minister.
(4) Subsections 120A(8) and (9) apply in
relation to a delegation under this section as if it were a delegation under
section 120A.
116S
Appointment of rangers
The Minister may, by instrument in
writing, appoint a person as a ranger.
116T
Rangers ex officio
By force of this section, any member of
the Australian Federal Police or member of the police force of a Territory is a
ranger.
116U
Identity cards
(1) The Minister may cause to be issued to a
ranger, other than a member of a police force, an identity card in a form
approved by the Minister.
(2) A person who ceases to be a ranger shall
forthwith return his identity card to the Minister.
(3) A person who contravenes subsection (2)
is guilty of an offence punishable on conviction by a fine not exceeding $100.
116V
Powers of arrest
(1) A ranger may, without warrant, arrest any
person, if the ranger believes on reasonable grounds:
(a) that the person is committing or
has committed an offence against this Part or the by‑laws; and
(b) that proceedings against the
person by summons would not be effective.
(2) Where a ranger (other than a member of a
police force who is in uniform) arrests a person under subsection (1), he
shall:
(a) in the case of a member of a
police force—produce, for inspection by that person, written evidence of the
fact that he is a member of a police force; or
(b) in any other case—produce his
identity card for inspection by that person.
(3) Where a person is arrested under subsection (1),
a ranger shall forthwith bring the person, or cause him to be brought, before a
Justice of the Peace or other proper authority to be dealt with in accordance
with law.
(4) Nothing in this section prevents the
arrest of a person in accordance with any other law.
116W
General powers of rangers
(1) A ranger may search any vehicle, aircraft
or vessel if he believes on reasonable grounds that there is in or on that vehicle,
aircraft or vessel anything that will afford evidence as to the commission of
an offence against this Part or the by‑laws, and for that purpose stop or
detain that vehicle, aircraft or vessel.
(2) A ranger may:
(a) require any person whom he finds committing
or whom he suspects on reasonable grounds of having committed an offence
against this Part or the by‑laws to state his full name and usual place
of residence; and
(b) require any person in a public
area whom he finds committing, or whom he suspects on reasonable grounds of
having committed, an offence against this Part or the by‑laws to leave
the public area.
(3) Where a ranger (other than a member of a
police force who is in uniform) stops, or proposes to search or detain, a
vehicle, aircraft or vessel, he shall:
(a) in the case of a member of a
police force—produce, for inspection by the person in charge of that vehicle,
aircraft or vessel, written evidence of the fact that he is a member of a
police force; or
(b) in any other case—produce his
identity card for inspection by that person;
and, if he fails to do so, he is not authorized to search
or detain that aircraft, vehicle or vessel.
(4) Where a ranger (other than a member of a
police force who is in uniform) makes a requirement of a person under this
section, he shall:
(a) in the case of a member of a
police force—produce, for inspection by that person, written evidence of the
fact that he is a member of a police force; or
(b) in any other case—produce his
identity card for inspection by that person;
and, if he fails to do so, that person is not obliged to
comply with the requirement.
(5) A person is guilty of an offence if:
(a) a ranger makes a requirement of
the person under this section; and
(b) the person fails to comply with
the requirement.
Penalty: $1,000.
(6) An offence under subsection (5) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(7) Subsection (5) does not apply if the
person has a reasonable excuse.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (7). See subsection 13.3(3) of the Criminal
Code.
116X
Seizure and forfeiture
(1) Where a court convicts a person of an
offence against this Part or the by‑laws, the court may order the
forfeiture to the Commonwealth of any vehicle, aircraft, vessel or article used
or otherwise involved in the commission of the offence.
(2) A ranger may seize any vehicle, aircraft,
vessel or article that he believes on reasonable grounds to have been used or
otherwise involved in the commission of an offence against this Part or the by‑laws
and may retain it until the expiration of a period of 60 days after the
seizure, or, if proceedings for an offence against this Part or the by‑laws
in the commission of which it may have been used or otherwise involved are
instituted within that period, until the proceedings are terminated.
(3) The Minister may authorize a vehicle,
aircraft, vessel or article seized under subsection (2) or anything on, in
or attached to such a vehicle, aircraft or vessel to be released to its owner,
or to the person from whose possession it was seized, either unconditionally or
on such conditions as he thinks fit, including conditions as to the giving of
security for payment of its value if it is forfeited.
(4) A vehicle, aircraft, vessel or article
forfeited under this section may be sold or otherwise disposed of as the
Minister thinks fit.
116Y
Assaulting etc. rangers
(1) A person is guilty of an offence if:
(a) the person assaults or threatens
another person; and
(b) that other person is a ranger
performing his or her duties under this Part or the by‑laws.
Penalty: $5,000 or imprisonment for 2 years, or both.
(2) In paragraph (1)(b), strict
liability applies to the physical element of circumstance, that the performance
of the duties is under this Part or the by‑laws.
Note: For strict liability, see
section 6.1 of the Criminal Code.
116ZA
Officers and employees of governments and authorities
The Minister may make arrangements with
a Minister of a State or Territory for the performance of functions and the
exercise of powers under this Part or the by‑laws by officers or
employees of that State or Territory or of an authority of that State or
Territory, as the case may be.
116ZB
Prosecution of offences
(1) Notwithstanding that an offence against
this Part is expressed to be an indictable offence, a court of summary
jurisdiction may hear and determine proceedings in respect of such an offence
if the court is satisfied that it is proper to do so and the defendant and the
prosecutor consent.
(2) Where, in accordance with subsection (1),
a court of summary jurisdiction convicts a person of an offence, the penalty
that the court may impose is a fine not exceeding $1,000 or imprisonment for a
period not exceeding 6 months, or both.
116ZC
Concurrent operation of State and Territory laws
(1) This Part and the by‑laws, in so
far as they apply in relation to public areas, are not intended to exclude or
limit the concurrent operation of a law of a State or Territory.
(2) In interpreting whether, in relation to
land owned or held under lease by the Commonwealth, any provision of this Act
(other than this Part) is intended to exclude or limit the concurrent operation
of a law of a State or Territory, subsection (1) shall be disregarded.
116ZD
By‑laws
(1) The Minister may, by legislative
instrument, make by‑laws, not inconsistent with this Act, for and in
relation to the control and management of public areas.
(2) Without limiting the generality of subsection (1),
by‑laws may be made:
(a) providing for functions and powers
to be conferred, and duties to be imposed, upon rangers;
(b) regulating or prohibiting the
pollution of soil, air or water in a manner that is, or is likely to be, harmful
to people or wildlife in, or to the natural features of, public areas;
(c) regulating or prohibiting tourism
in public areas;
(d) providing for the protection and
preservation of public areas and property and things in public areas;
(e) regulating or prohibiting access
to public areas by persons or classes of persons;
(f) providing for the removal of
trespassers from public areas;
(g) regulating or prohibiting camping
in public areas;
(h) providing for the safety of
persons in public areas;
(j) regulating or prohibiting the use
of fire in public areas;
(k) regulating the conduct of persons
in public areas;
(m) regulating or prohibiting the
carrying on of any trade or commerce in a public area;
(n) regulating or prohibiting the use
of vehicles in public areas and providing for signs and road markings for those
purposes;
(p) providing for the removal of
vehicles, aircraft or vessels from places in public areas where they have been
left in contravention of the by‑laws or have been abandoned and for the
impounding of such vehicles, aircraft or vessels;
(q) making provision to the effect
that, where a contravention of a provision of the by‑laws relating to the
parking or stopping of vehicles in a public area occurs in respect of a motor
vehicle, the person who is to be regarded as the owner of the motor vehicle for
the purposes of the by‑laws (who may, in accordance with the by‑laws,
be or include a person in whose name the motor vehicle is registered under the
law of a State or Territory) is to be, except as provided otherwise, deemed to
have committed an offence against the provision so contravened, whether or not
he in fact contravened that provision;
(r) enabling a person who is alleged
to have contravened a provision of the by‑laws relating to:
(i) littering;
(ii) the use of vehicles or
vessels;
(iii) the parking or
stopping of vehicles;
(iv) the mooring or landing
of vessels; or
(v) the landing and use of
aircraft;
to pay to the Commonwealth, as
an alternative to prosecution, a specified penalty, not exceeding the maximum
penalty by which a contravention of that provision is otherwise punishable;
(s) regulating or prohibiting the use
of vessels, and the landing and use of aircraft, in public areas;
(t) regulating or prohibiting the taking
of animals or plants into, or out of, public areas;
(u) providing for the impounding,
removal, destruction or disposal of animals found straying in public areas;
(v) regulating or prohibiting the
taking into public areas, and the use in public areas, of weapons, traps, nets,
snares, fishing apparatus and other devices;
(w) regulating or prohibiting the
laying of baits and the use of explosives and poisons in public areas;
(x) providing for the collection of
specimens and the pursuit of research in public areas for scientific purposes;
(y) providing for the issue of
licences, permits and authorities, the conditions subject to which they are
issued and the charging of fees by the Minister in respect of such licences,
permits and authorities;
(z) the imposition of charges for:
(i) the parking or
stopping of vehicles;
(ii) the landing of
aircraft; and
(iii) the use of vehicles
and vessels;
in public areas;
(za) providing for penalties, not
exceeding a fine of $500, for offences against the by‑laws; and
(zb) providing for any matter
incidental to or connected with any of the foregoing.
Part IXC—Salvage claims
117
Interpretation
(1) In this Part, unless the contrary
intention appears:
member of the crew, in relation to a Naval
ship, means any member of the Defence Force, whether an officer or a sailor,
who belonged to, and was on board, the ship at the time the salvage services
were rendered and includes any other member of the Defence Force who was on
board the ship at that time and who took part in the rendering of such
services.
Naval ship means a ship belonging to the
Australian Navy.
officer means an officer of the Australian
Navy.
salvage includes all expenses properly
incurred by a Naval ship in the performance of salvage services.
salvage services means any act or activity
undertaken to assist a vessel or property in danger in whatever waters the act
or activity takes place.
vessel means any ship, craft or structure
capable of navigating the high seas.
(2) Where, before a claim for salvage in
respect of salvage services rendered by a Naval ship is commenced or settled, a
person who was the commanding officer of that ship at the time when the ship
rendered salvage services:
(a) dies; or
(b) is absent from duty or from Australia
or is, for any other reason, unable to act or continue to act on behalf of the
members of the crew in accordance with subsection 117A(3);
the Chief of Navy shall, by instrument in writing, appoint
a member of the crew of that ship to act on that person’s behalf.
(3) Where, before a claim for salvage in
respect of salvage services rendered by a Naval ship is commenced or settled, a
person who was the commanding officer of that ship at the time when the ship
rendered salvage services:
(a) ceases (otherwise than by reason
of death) to be the commanding officer of that ship; or
(b) ceases (otherwise than by reason
of death) to be a member of the Australian Navy;
that person shall, for the purposes of this Part, be taken
to be the commanding officer of that ship until the claim for salvage is
settled.
117A
Salvage claims by crew of Naval ships
(1) Without, by implication, affecting the
right of the Commonwealth to claim salvage in respect of salvage services
rendered by a Naval ship, the members of the crew of that ship may, subject to subsection (2),
also claim salvage in respect of those services.
(2) A claim for salvage on behalf of the
members of the crew of a Naval ship:
(a) shall not be made without the
prior written approval of the Chief of Navy; and
(b) shall be commenced and prosecuted
only by the Australian Government Solicitor.
(3) Where the Chief of Navy approves the
making of a claim for salvage in respect of salvage services rendered by a
Naval ship on behalf of the members of the crew of that ship, the commanding
officer of that ship is authorised, on behalf of each member of the crew of
that ship:
(a) to instruct the Australian
Government Solicitor to act for the members of the crew in relation to the
claim; and
(b) to accept an offer in settlement
of the claim.
(4) An acceptance of an offer by the
commanding officer is binding on each member of the crew.
117AA
Apportionment of salvage between the Commonwealth and crew members
(1) Where salvage is payable in respect of
salvage services rendered by a Naval ship and a part of that salvage has been
claimed on behalf of the members of the crew of that ship, the salvage so
payable:
(a) shall be applied in meeting the
expenses incurred by the Commonwealth in providing such salvage services; and
(b) to the extent that it is not so
applied shall be apportioned between the Commonwealth and the members of the
crew of the ship:
(i) if the apportionment
between the Commonwealth and the members of the crew forms part of the terms of
settlement between the owners of the vessel or property saved, the Commonwealth
and the members of the crew—in accordance with those terms;
(ii) if a court or other
tribunal has determined the apportionment between the Commonwealth and the
members of the crew—in accordance with that determination; or
(iii) in any other case—on
the basis that the Commonwealth shall be entitled to receive 80% of the salvage
not so applied and the members of the crew shall be entitled to receive 20% of
the amount of salvage not so applied.
(2) Where an amount of salvage would, but for
this subsection, be apportioned between the Commonwealth and the members of the
crew of a Naval ship in accordance with subparagraph (1)(b)(iii), but the
Minister is of the opinion that the members of the crew have rendered
exceptional services in the course of rendering the salvage services concerned,
the Minister may, by instrument in writing, determine that the amount payable
under that subparagraph to members of the crew shall be increased to an amount
not exceeding 25% of the amount of salvage not applied in accordance with paragraph (1)(a)
and the amount payable to the Commonwealth shall be decreased accordingly.
117AB
Apportionment of salvage amongst crew members
Where salvage payable in respect of
salvage services rendered by a Naval ship is, in accordance with section 117AA,
to be apportioned between the Commonwealth and the members of the crew of that
ship, the amount of salvage apportioned to the members of the crew:
(a) shall be applied in meeting the
costs of the Commonwealth in conducting the salvage claim on behalf of the
members of the crew; and
(b) to the extent that it is not so
applied, shall be apportioned amongst the members of the crew in accordance
with the regulations.
Part X—Miscellaneous
117B
Members and former members may bring actions for money due in respect of
service
A person who is or has been a member of
the Defence Force may recover from the Commonwealth, by action in a court of
competent jurisdiction, money due to the person by the Commonwealth in respect
of the person’s service as a member of the Defence Force.
118
Penalty against raising forces without authority
A person is guilty of an offence if:
(a) the person induces another person
to enlist or engage to serve in any naval, military or air force; and
(b) the raising of that force has not
been authorised by or under this Act or another Act.
Penalty: Imprisonment for 6 months.
118A
Employer not to prevent employee from serving
(1) An employer shall not prevent any employee
and a parent or guardian shall not prevent any son or ward from rendering the
personal service required of him under Part IV.
Penalty: $200.
(2) An employer shall not in any way penalize
or prejudice in his employment any employee for rendering or being liable to
render the personal service required of him under Part IV, either by
reducing his wages or dismissing him from his employment or in any other way.
Penalty: $200.
(3) The rendering of the personal service or
the enlistment referred to in this section shall not terminate a contract of
employment, but the contract shall be suspended during the absence of the
employee for the purposes referred to in this section; but nothing in this
section shall render the employer liable to pay an employee for any time when
he is absent from employment for the purposes referred to in this section.
(4) In any proceedings for an offence against
this section it shall lie upon the employer to show that any employee proved to
have been dismissed or to have been prejudiced or penalized in his employment
or to have suffered a reduction of wages, was so dismissed penalized or
prejudiced in his employment or reduced for some reason other than that of
having rendered the personal service required of him under Part IV, either
within or without the limits of Australia.
(5) The Court may direct that the whole or
any part of the penalty recovered from an employer for an offence against this
section shall be paid to the employee.
118B
Enlistment of apprentices in time of war
In time of war, a person who is employed
under articles of apprenticeship may volunteer to serve as a sailor, soldier or
airman, and may enlist in the Australian Navy, the Australian Army or the
Australian Air Force, notwithstanding anything contained in, or any obligation
arising out of, those articles of apprenticeship.
119
Forfeiture or suspension of salary in certain circumstances
The regulations may make provision for
and in relation to the forfeiture, in whole or in part, or the suspension of the
whole, of the salary of, and of the allowances of, a member of the Defence
Force.
120
Notice etc. need not be in writing unless required herein
It shall not be necessary for any order
or notice under this Act to be in writing, unless by this Act required to be
so, provided it be communicated to the person who is to obey or be bound by it,
either directly by the officer or person making or giving it, or by some other
person by his order.
120A
Delegation
(2) The Governor‑General may, by
instrument in writing, delegate all or any of his or her powers under
subsections 116C(5) and 116C(5A) to:
(a) an officer of the Army who holds
the rank of Major‑General or a higher rank; or
(b) an officer of the Navy who holds
the rank of Rear‑Admiral or a higher rank; or
(c) an officer of the Air Force who
holds the rank of Air Vice‑Marshal or a higher rank.
(3) The Governor‑General may, by
instrument in writing, delegate all or any of his or her powers under sections 100,
101 and 104 to:
(a) an officer of the Army who holds
the rank of Lieutenant‑General or a higher rank; or
(b) an officer of the Navy who holds
the rank of Vice‑Admiral or a higher rank; or
(c) an officer of the Air Force who
holds the rank of Air Marshal or a higher rank.
(3A) The Secretary and the Chief of the Defence
Force may, by instrument in writing signed by each of them, delegate all or any
of the powers that they hold jointly under subsections 9A(1) and (2) to issue
the instructions known as Defence Instructions (General) to:
(a) an officer of the Army who holds
the rank of Major‑General or a higher rank; or
(b) an officer of the Navy who holds
the rank of Rear‑Admiral or a higher rank; or
(c) an officer of the Air Force who
holds the rank of Air Vice‑Marshal or a higher rank; or
(d) an SES employee who holds an SES
Band 2 position, or an equivalent or higher position, in the Department.
(3B) The Secretary and the Chief of the Defence
Force may, by instrument in writing signed by each of them, delegate all or any
of the powers that they hold jointly under subsections 9A(1) and (2) to issue
the instructions known as Defence Instructions (General) to 2 persons to
exercise jointly.
(3C) Each person to whom a power is delegated
under subsection (3B) must be a person specified in paragraph (3A)(a),
(b), (c) or (d).
(3D) To avoid doubt, the powers of delegation
under subsections (3A) and (3B) extend only to the powers of the Secretary
and the Chief of the Defence Force to issue Defence Instructions (General), and
not to any other powers that the Secretary and the Chief of the Defence Force
have under that section.
(3E) The Chief of the Defence Force may, by
instrument in writing, delegate his or her power under section 93A to:
(a) an officer of the Army who holds
the rank of Brigadier or a higher rank; or
(b) an officer of the Navy who holds
the rank of Commodore or a higher rank; or
(c) an officer of the Air Force who
holds the rank of Air Commodore or a higher rank.
(4) The Chief of Army may, by instrument in
writing, delegate to an officer of the Army all or any of his powers under
sections 50, 50D and 123A.
(4AA) The Chief of Army may, in writing, delegate
to an officer of the Army who holds a rank not below the rank of Brigadier his
or her powers under subsection 9A(3) to issue Defence Instructions (Army) and
sections 93A, 100, 101, 103 and 104.
(4A) The Chief of Navy may, by instrument in
writing, delegate to an officer of the Navy his powers under sections 50D
and 123A.
(4AB) The Chief of Navy may, by instrument in
writing, delegate to an officer of the Navy who holds a rank not below the rank
of Commodore his or her powers under subsection 9A(3) to issue Defence
Instructions (Navy) and sections 93A, 100, 101, 103 and 104.
(4B) The Chief of Air Force may, by instrument
in writing, delegate to an officer of the Air Force his powers under sections 50D
and 123A.
(4C) The Chief of Air Force may, by instrument
in writing, delegate to an officer of the Air Force who holds a rank not below
the rank of Air Commodore his or her powers under subsection 9A(3) to issue
Defence Instructions (Air Force) and sections 93A, 100, 101, 103 and 104.
(5) A delegation under this section may be
made either generally or otherwise as provided in the instrument of delegation.
(6) A power delegated under this section
shall, when exercised by the delegate, be deemed, for the purposes of this Act,
to have been exercised by the person who made the delegation.
(6A) The delegate is, in the exercise of a power
delegated under this section, subject to the directions of the person who made
the delegation.
(7) A delegation under this section does not
prevent the exercise of a power by the person who made the delegation.
(8) A delegation under this section continues
in force notwithstanding a change in the occupancy of, or a vacancy in, the
office of the person who made the delegation.
(9) A document purporting to be a copy of an
instrument of delegation under this section and purporting to bear the
signature, or a facsimile of the signature, of the person who made the
delegation and an endorsement in writing that the delegation is, or was on a
specified date, in force, is, upon mere production in a court or otherwise for
any purpose arising under this Act, prima facie evidence that the
delegation was duly made in the terms set out in the document and is, or was on
the date specified, in force.
120B
Attachment of salaries of members
(1) Where judgment has been given by a court
against a member for the payment of a sum of money, the person in whose favour
judgment was given (in this section referred to as the judgment creditor)
may serve on a paying officer:
(a) a copy of the judgment, certified
under the hand of the Registrar or other appropriate officer of the court; and
(b) a statutory declaration that:
(i) states that the
judgment has not been satisfied by the member; and
(ii) sets out the amount
then due by the member under the judgment.
(2) The paying officer shall, as soon as
practicable after service of the copy of the judgment and the statutory declaration,
by notice in writing given to the member:
(a) inform the member of the service
on the paying officer of the copy of the judgment and the statutory
declaration; and
(b) require the member:
(i) to inform the paying
officer, in writing, within the time specified for the purpose in the notice,
whether the judgment has been satisfied; and
(ii) if:
(A) the
member claims the judgment has been satisfied, to furnish evidence in support
of the claim; or
(B) the
member admits that the judgment has not been satisfied, to state the amount
then due under the judgment.
(3) If the member:
(a) fails, within the time specified
for the purpose in the notice, to satisfy the paying officer that the judgment
has been satisfied; or
(b) admits that the judgment has not
been satisfied;
the paying officer shall, subject to subsection (13),
in relation to each pay‑day of the member, cause to be deducted from the
salary payable to the member on the pay‑day an amount equal to the normal
deduction in relation to the member in relation to the pay‑day or such
lesser amount as is, in the opinion of the paying officer, sufficient to
satisfy the amount then due under the judgment.
(4) There is payable to the Commonwealth, by
the judgment creditor, an administration fee, at the prescribed rate, in
respect of each amount deducted pursuant to subsection (3).
(5) The paying officer shall, subject to subsection (6),
cause an amount equal to each amount deducted pursuant to subsection (3)
to be paid to the judgment creditor.
(6) Where an amount is deducted pursuant to subsection (3)
and the whole or part of the administration fee payable in respect of the
amount has not been paid by the judgment creditor, the paying officer shall:
(a) apply, in or towards payment of
the administration fee, the amount of the deduction or so much of the amount of
the deduction as is equal to the administration fee; and
(b) if the whole of the amount of the
deduction is not applied in accordance with paragraph (a), pay an amount
equal to the balance to the judgment creditor.
(7) Upon the application under subsection (6)
of an amount (in this subsection referred to as the relevant amount)
in or towards payment of the administration fee payable in respect of an amount
deducted pursuant to subsection (3) from the salary payable to the member
on a pay‑day:
(a) the judgment creditor shall be
deemed to have paid the relevant amount to the Commonwealth in satisfaction or
partial satisfaction, as the case requires, of the administration fee;
(b) an amount equal to the relevant
amount shall be deemed to have been paid by the Commonwealth to the member on
account of the salary payable to the member on the pay‑day; and
(c) an amount equal to the relevant
amount shall also be deemed to have been paid by the member to the judgment
creditor in relation to the judgment.
(8) Upon payment being made to the judgment
creditor pursuant to subsection (5) or (6) of an amount (in this
subsection referred to as the relevant amount) in relation to an
amount deducted pursuant to subsection (3) from the salary payable to the
member on a
pay‑day:
(a) an amount equal to the relevant
amount shall be deemed to have been paid by the Commonwealth to the member on
account of the salary payable to the member on the pay‑day; and
(b) an amount equal to the relevant
amount shall also be deemed to have been paid by the member to the judgment
creditor in relation to the judgment.
(9) When the judgment has been satisfied, the
judgment creditor shall forthwith notify the paying officer accordingly.
Penalty: $500 or imprisonment for 3 months.
(10) If the amounts deemed, by virtue of paragraphs (7)(c)
and (8)(b), to have been paid by the member to the judgment creditor exceed, in
the aggregate, the amount due under the judgment, the excess is repayable by
the judgment creditor to the member, and, in default of repayment, may be
recovered, by action in a court of competent jurisdiction, as a debt due by the
judgment creditor to the member.
(11) Where, in relation to an amount deducted
pursuant to subsection (3) from the salary payable to the member on a pay‑day,
an amount is, by virtue of paragraph (7)(c), deemed to have been paid by
the member to the judgment creditor and an amount is, by virtue of paragraph (8)(b),
deemed to have been paid by the member to the judgment creditor, then, for the
purposes of subsection (10), the last‑mentioned amount shall be
deemed to have been paid after the second‑mentioned amount.
(12) If the member ceases to be a member before
the paying officer is notified that the judgment has been satisfied, the paying
officer shall forthwith inform the judgment creditor, in writing, of the fact
that the member has ceased to be a member and the date on which the member
ceased to be a member.
(13) If the paying officer is satisfied that
the deduction of the amount that the paying officer would, but for this
subsection, be required to deduct from the salary payable to the member on a
pay‑day would cause severe hardship to the member, the paying officer may
deduct a lesser amount in relation to the pay‑day.
(14) Where copies of more than one judgment,
and statutory declarations in relation to those judgments, are served under subsection (1)
in relation to a member, the judgments shall be dealt with under this section
in the order in which copies of the judgments are served under that subsection.
(15) Subsections (1) to (14) (inclusive)
do not apply to a member:
(a) who is a bankrupt; or
(b) in relation to whom a personal
insolvency agreement is in force under the Bankruptcy Act 1966.
(16) In this section:
net salary, in relation to a member in
relation to a pay‑day, means the amount of salary payable by the
Commonwealth to the member on the pay‑day after deductions have been
made:
(a) pursuant to Part 2‑5 in
Schedule 1 to the Taxation Administration Act 1953; and
(b) pursuant to Part III of the Defence
Force Retirement and Death Benefits Act 1973; and
(c) for purposes prescribed for the
purpose of this paragraph.
member means a member of the Defence Force
rendering continuous full‑time service.
normal deduction, in relation to a member in
relation to a pay‑day, means an amount equal to 20% of the net salary of
the member in relation to the pay‑day or such greater amount as the
member notifies a paying officer, in writing, should be the normal deduction
for the purposes of this section in relation to the pay‑day.
pay‑day, in relation to a member, means
a day on which salary is payable to the member.
paying officer means a person engaged under
the Public Service Act 1999 performing duties in the Department who is
appointed by the Secretary, in writing, to be a paying officer for the purposes
of this section.
salary, in relation to a member, means any
money payable by the Commonwealth to the member by way of salary, and includes
any money payable by the Commonwealth to the member by way of an allowance
prescribed for the purposes of this definition, but does not include any money
payable to the member by way of a weekly payment of compensation under the Safety,
Rehabilitation and Compensation Act 1988 or the Military Rehabilitation
and Compensation Act 2004.
121
Proof of order
The production of an appointment, or
order in writing purporting to be granted or made according to the provisions
of this Act shall be prima facie evidence of the appointment, or order,
without proving the signature or seal thereto, or the authority of the person
granting or making the appointment, or order.
122
Appointments etc. not invalid because of defect etc. in connection with
appointment
The appointment of an officer of the
Australian Navy, the Australian Army or the Australian Air Force, the
enlistment of a sailor, soldier or airman, and any extension of such an
appointment or enlistment is not invalid because of a defect or irregularity in
connection with the appointment, enlistment or extension, as the case may be.
122AA
Taxation consequences of disposals of assets to defence companies
(1) This section applies where a CGT event
(within the meaning of the Income Tax Assessment Act 1997) happens in
relation to a CGT asset (within the meaning of that Act) of the Commonwealth
and all of the following conditions are satisfied:
(aa) the event involves a company
acquiring the asset;
(a) the company is:
(i) Australian Defence
Industries Pty Ltd; or
(ii) Aerospace Technologies
of Australia Pty Ltd;
(b) the event happens under a scheme:
(i) for the reorganisation
of defence‑related activities; and
(ii) associated with the
establishment of the company;
(c) for the purposes of the Income
Tax Assessment Act 1997, the asset was acquired by the Commonwealth before 20 September 1985;
(d) before 20 September 1985, the asset was used, or intended for use, for defence‑related purposes;
(2) For the purposes of Parts 3‑1
and 3‑3 of the Income Tax Assessment Act 1997, the company is
taken to have acquired the asset before 20 September 1985.
(4) In calculating the deductions (if any)
allowable to the company under Subdivision 40‑B of the Income Tax
Assessment Act 1997 in respect of the asset, the adjustable value of the
asset to the company at the time of the acquisition of the asset is the amount
that would have been its adjustable value to the Commonwealth just before that
time if:
(a) the Commonwealth had been a
taxpayer; and
(b) the asset had been used by the
Commonwealth exclusively for the purpose of producing assessable income.
(5) Section 170 of the Income Tax
Assessment Act 1936 does not prevent the amendment of an assessment for the
purpose of giving effect to this section.
122A
Immunity of Australian Defence Industries Pty Ltd from certain State and
Territory laws
(1) Subject to subsection (4), a law of
a State or Territory, being a law to which this section applies, does not apply
in relation to:
(a) Australian Defence Industries Pty
Ltd;
(b) the property or transactions of
Australian Defence Industries Pty Ltd; or
(c) any act or thing done by or on
behalf of Australian Defence Industries Pty Ltd.
(2) Subject to subsection (3), this
section applies to a law:
(a) to the extent that the law relates
to:
(i) the use of land or
premises;
(ii) the environmental
consequences of the use of land or premises;
(iii) dangerous goods;
(iv) licensing in relation
to:
(A) employment;
(B) the
carrying on of a particular kind of business or undertaking; or
(C) the
conduct of a particular kind of operation; or
(v) the liability to pay,
or the payment of, taxes, rates or charges (including stamp duty); or
(b) if regulations made for the
purposes of this paragraph declare that this section applies to the law.
(3) This section does not apply to a law of a
kind referred to in paragraph (2)(a) if regulations made for the purposes
of this section declare that this section does not apply to the law.
(4) Subsection (1) does not apply in
relation to any property, transaction, act or thing that is wholly unconnected
with defence production.
(5) This section ceases to be in force at the
end of 6 years after the day on which it commences.
(6) In this section:
Australian Defence Industries Pty Ltd means
the company, known as Australian Defence Industries Pty Ltd, incorporated in
the Australian Capital Territory under the Companies Act 1981 on 21 July 1988.
122B
Exercise of rights and discharge of duties and obligations by legal officers
(1) A legal officer acting in that capacity
is entitled to exercise his or her professional rights, and discharge his or
her professional duties and obligations, in accordance with the generally
accepted rights, duties and obligations applying to legal practitioners.
(2) In this section:
legal officer has the same meaning as in the Defence
Force Discipline Act 1982.
legal practitioner has the same meaning as in
the Defence Force Discipline Act 1982.
123
Immunity from certain State and Territory laws
(1) A member of the Defence Force is not
bound by any law of a State or Territory:
(a) that would require the member to
have permission (whether in the form of a licence or otherwise) to use or to
have in his or her possession, or would require the member to register, a
vehicle, vessel, animal, firearm or other thing belonging to the Commonwealth;
or
(b) that would require the member to
have permission (whether in the form of a licence or otherwise) to do anything
in the course of his or her duties as a member of the Defence Force.
(2) The Secretary, or an APS employee authorised
in writing by the Secretary, may, by instrument in writing, declare:
(a) a person:
(i) who is an APS
employee; and
(ii) who is employed in the
Department in, or in connection with, the manufacture of firearms; or
(b) a person who is employed by a body
corporate concerned with the manufacture of firearms, being a body corporate
declared by the regulations to be a body corporate in relation to which this
subsection applies;
to be an authorised employee for the purposes of this
subsection and, where such a declaration is made in relation to a person, the
person continues to be an authorised employee for the purposes of this
subsection while the person continues to be so employed.
(2A) A declaration under subsection (2) may
be made by declaring the person holding a particular office or occupying a
particular position to be an authorised employee for the purposes of that
subsection.
(3) A person who is an authorised employee
for the purposes of subsection (2) does not contravene any law of a State
or Territory that would require the person to have permission (whether in the
form of a licence or otherwise) to have in his or her possession a firearm by
reason only of having such a firearm in his or her possession, without such
permission, in the performance of his or her duties.
123A
Intoxicating liquor
It is lawful for a person:
(a) in or at an establishment, camp,
unit, mess or canteen of the Defence Force;
(b) on board a vessel of the Defence
Force; or
(c) at a gathering of members of the
Defence Force (with or without guests) approved by the Chief of the Defence
Force or a service chief;
notwithstanding any provision of the law of a State or
Territory:
(d) if the person is a member of the
Defence Force or of a mess, or is a guest of such a member—to have in his or
her possession, sell, supply, consume or buy intoxicating liquor; or
(e) in any other case—to have in his
or her possession, sell or supply intoxicating liquor;
in accordance with conditions determined by the Chief of
the Defence Force or a service chief.
123AA
Intoxicating liquor not to be supplied to cadets
(1) A person is guilty of an offence if:
(a) the person sells or supplies
intoxicating liquor to another person; and
(b) the person is a member of the
Australian Army Cadets, is under such age as is prescribed, and is in uniform.
Penalty: $40.
(2) Subsection (1) does not apply if the
liquor is sold or supplied by direction of a duly qualified medical
practitioner.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal
Code.
(3) An offence under subsection (1) is
an offence of strict liability.
ote: For strict liability, see
section 6.1 of the Criminal Code.
123B
Religion
No member of the Defence Force who has
conscientious objection shall be compelled to answer any question as to his
religion, nor shall any regulation or other order compel attendance at any
religious service.
123F
Certain persons not permitted to serve in Defence Force
A person shall not be permitted to serve
in the Defence Force if:
(a) that person has been convicted of
a crime that, in the opinion of the Chief of Navy, the Chief of Army or the
Chief of Air Force, as the case requires, is such as to render that person
unsuitable for service in the Defence Force; or
(b) the service of that person in the
Defence Force might, in the opinion of the Chief of Navy, the Chief of Army or
the Chief of Air Force, as the case requires, be prejudicial to the security of
Australia.
123G
Orders in relation to rifle ranges
(1) The Minister may, by legislative
instrument, make orders, not inconsistent with this Act, for and in relation to
the control and administration of rifle ranges.
(2) Without limiting the generality of subsection (1),
orders may be made for or in relation to:
(a) the location and acquisition of
property for use as a rifle range;
(b) the design, construction and use
of a rifle range and any equipment or facilities for use in connection with a
rifle range, including the setting of safety standards for such design,
construction and use; and
(c) the regulation or prohibition of
the carriage, possession or use of firearms on, or in connection with, a rifle
range.
(5) Subject to subsection (6), orders
made under this section for the regulation or prohibition of the carriage,
possession or use of firearms on, or in connection with, a rifle range have
effect notwithstanding any provision of a law of a State or Territory.
(6) Subsection (5) is not intended to
affect the operation of a law of a State or Territory to the extent that that
law is capable of operating concurrently with orders referred to in that
subsection.
123H
Tactical payment scheme for activities of the Defence Force outside Australia
(1) The Minister may authorise the making of
one or more payments to a person (even though the payments would not otherwise
be authorised by law or required to meet a legal liability) if:
(a) the person suffers loss, damage or
injury outside Australia because of an incident that occurs in the course of an
activity of the Defence Force outside Australia; and
(b) the person is not an Australian
citizen; and
(c) the Minister considers it
appropriate to authorise the payments.
(2) A payment cannot be made to the person
more than 12 months after the relevant incident.
(3) The total amount of the payments to the
person must not be more than the amount specified in regulations in force for
the purposes of subparagraph 65(2)(a)(ia) of the Financial Management and
Accountability Act 1997.
(4) This section does not limit, and is not
limited by, section 33 of the Financial Management and Accountability
Act 1997.
Note: Payments under this section must be made from
money appropriated by the Parliament.
123J
Delegations in relation to the tactical payment scheme
(1) The Minister may, in writing, delegate
his or her powers under section 123H to any of the following persons:
(a) the Secretary;
(b) the Chief of the Defence Force;
(c) an officer in command of an
activity of the Defence Force outside Australia;
(d) an APS employee who holds, or
performs the duties of, an APS 6 position, or an equivalent or higher position,
in the Department.
(2) In exercising powers under a delegation,
the delegate must comply with any directions of the Minister.
Part XI—Regulations
124
Regulations [see
Note 3]
(1) The Governor‑General may make
regulations, not inconsistent with this Act, prescribing all matters which by
this Act are required or permitted to be prescribed, or which are necessary or
convenient to be prescribed, for securing the good government of the Defence
Force, or for carrying out or giving effect to this Act, and in particular
prescribing matters providing for and in relation to:
(a) The enlistment, appointment,
promotion, reduction in rank, retirement and discharge of members of the
Defence Force;
(aa) the transfer of members between
different arms, or parts of arms, of the Defence Force;
(ab) the training of members;
(ac) conditions of service of members;
(b) forfeiture, or assignment, of the
whole or part of the remuneration of a member or cadet or of allowances or
other pecuniary benefits referred to in paragraph 58B(1)(b) or (c);
(c) deductions from the remuneration
of a member or cadet or from allowances or other pecuniary benefits referred to
in paragraph 58B(1)(b) or (c);
(e) the liability of a member or
cadet, or a member of the family of a member or cadet, to pay an amount to the
Commonwealth and the manner of recovery of an amount so payable;
(gc) The appointment, procedures and
powers of courts of inquiry, boards of inquiry, Chief of the Defence Force
commissions of inquiry, inquiry officers and inquiry assistants;
(h) the procedures, powers and
reporting obligations of the Inspector‑General ADF in respect of the
performance of the Inspector‑General ADF’s functions, including in
relation to any matter connected with inquiries, investigations and performance
reviews;
(j) The formation, incorporation and
management of:
(i) full‑bore or
small‑bore rifle clubs;
(ii) full‑bore or
small‑bore rifle associations;
(iii) a national body for
the control and administration of full‑bore rifle shooting; and
(iv) a national body for the
control and administration of small‑bore rifle shooting;
(k) The empowering of clubs,
associations or national bodies referred to in paragraph (j) to make,
alter and repeal rules, not inconsistent with this Act, for the conduct of
their affairs and for the conduct of any rifle competitions promoted by them;
(ka) The establishment, management,
operation and control of canteens on rifle ranges or on the premises of rifle
clubs, including the possession, supply, sale, purchase and consumption of
intoxicating liquor at any such range or club;
(m) The furnishing of means of
conveyance and transport in time of war;
(n) The regulation of the quartering
or billeting of members of the Defence Force in time of war;
(na) The regulation, control or
prohibition of the construction or use of buildings, erections or installations,
the use of apparatus, machines or vehicles, and the removal in whole or in part
of buildings, erections, installations, apparatus, trees or other natural
obstacles, within prescribed areas, being areas in which the regulation,
control, prohibition or removal is necessary for the defence of Australia;
(nb) The declaration as a prohibited
area of a place (including a place owned by, or held in right of, the
Commonwealth or a State) used or intended to be used for a purpose of defence,
the prohibition of a person entering, being in or remaining in the prohibited
area without permission and the removal of any such person from the area;
(nc) The prohibition of the use, except
as prescribed, of a word, group of letters, object or device which is descriptive
or indicative of:
(i) a part of the Naval
Forces, Military Forces or Air Forces of a part of the King’s dominions; or
(ii) a service or body of
persons associated with the defence of Australia;
(nd) The establishment, maintenance and
operation of any factory or undertaking under section 63;
(o) The establishment, management,
operation and control of canteens and the establishment, management, operation
and control of messes including, but without limiting the generality of the
foregoing, the subjection of:
(i) a specified canteen or
mess;
(ii) a canteen or mess
included in a class of specified canteens or messes; or
(iii) a specified
organization established under the regulations that establishes, manages,
operates or controls canteens, to taxation (other than income tax) under a law
of the Commonwealth or of a State or Territory;
(oa) The management and disposal of the
funds and property of units of the Defence Force;
(p) The regulation of any naval,
military or air‑force operation or practice, including any naval,
military or air‑force operation or practice in or adjacent to Australia
of a country other than Australia;
(pa) The regulation or prohibition of
the emission of smoke from factories or other buildings within the prescribed
distance from any gun, fort, searchlight, signal station, observation post, or
other work of defence during, or immediately before any naval, military or air
force practice;
(q) The preservation of the public
safety in or at any naval, military or air‑force operation or practice;
(qa) The entry upon and survey of lands
for defence purposes;
(qaa) The declaration and use of any area
(by whomever owned or held) as a practice area for any naval, military or air
force operation or practice and the regulation or prohibition of any entry upon
or use of a practice area, including the prohibition of a person entering,
being in or remaining in a practice area and the removal of any such person
from the area;
(qb) The post mortem examination and
disposal of the bodies of members of the Defence Force who die while on
service;
(qba) The provision and maintenance of,
and the execution of work in connexion with, the graves of persons who have
died:
(i) while on service as
members of the Defence Force; or
(ii) as a result of service
as members of the Defence Force;
(qc) Prisoners of war;
(qd) The command, control and
administration of bodies of 2 or more arms of the Defence Force acting together
or of a part of the Defence Force consisting of members of 2 or more arms of the
Defence Force;
(qe) The administration of oaths to,
the taking of affidavits of, and the attestation of the execution of documents
by, members of the Defence Force while on service outside Australia;
(qf) The execution and revocation of
powers of attorney by persons under the age of 21 years who are members of the
Defence Force and the validity and effect of powers of attorney executed by
such persons;
(r) the payment by the Commonwealth
of compensation for any loss, injury or damage suffered by reason of anything
done in pursuance of this Act;
(u) The disposal of unclaimed property
of members of the Defence Force and of other persons held in the custody or
control of the Commonwealth;
(w) Providing for penalties, not
exceeding a fine of $2,000 or imprisonment for a period not exceeding 12
months, or both, for offences against the regulations; and
(x) Providing for penalties, not
exceeding a fine of $500, for offences against orders made under section 123G.
(1A) The regulations may make provision for or
in relation to a matter by applying, adopting or incorporating, with or without
modification, the provisions of a determination, as in force at a particular
time or as in force from time to time, made under section 58B or 58H of
this Act or under section 24 of the Public Service Act 1999.
(1AA) Regulations under subsection (1) may
make provision in relation to:
(a) the appointment or reappointment
of a member; or
(b) the enlistment or re‑enlistment
of a member; or
(c) the service of a member;
on the basis that, after a specified time or on a
specified event occurring, the member may or must transfer to a different arm,
or part of an arm, of the Defence Force, or in relation to other similar
arrangements.
Example: The regulations might allow for a soldier to
enlist for a total of 8 years, with the first 4 years to be served in the
Regular Army and the last 4 years in the Army Reserve, or vice versa, or any
other combination of service.
(1AB) Subsection (1AA) does not limit the
scope of subsection (1).
(1B) In paragraphs (1)(b), (c), (d)
and (e), cadet, member and member of the
family have the same respective meanings as in Part IIIA.
(2) The regulations may make provision for or
in relation to the certification or proof of the death:
(a) of a member of the Defence Force
who died, or is presumed to have died, while on service; and
(b) of a person, not being a member of
the Defence Force, who died, or is presumed to have died, while in the hands of
an enemy or in other circumstances which make proof of death difficult, being
circumstances arising out of:
(i) a war in which Australia
has been or is engaged;
(ii) the war‑like
operations in Korea after 26 June 1950, or in Malaya after 28 June 1950; or
(iii) such other war or war‑like
operations as are prescribed.
(2A) Subject to subsection (2B), the power
to make regulations by virtue of paragraph (1)(gc) includes the power to
make regulations requiring a person appearing as a witness before a court of
inquiry, a board of inquiry, a Chief of the Defence Force commission of
inquiry, an inquiry officer or an inquiry assistant to answer a question
notwithstanding that the answer to the question may tend to incriminate the
person.
(2B) Subsection (2A) does not authorise the
making of a regulation containing a requirement referred to in that subsection
where the answer to the question may tend to incriminate the person in respect
of an offence with which the person has been charged and in respect of which
the charge has not been finally dealt with by a court or otherwise disposed of.
(2C) A statement or disclosure made by a witness
in the course of giving evidence before a court of inquiry, a board of inquiry,
a Chief of the Defence Force commission of inquiry, an inquiry officer or an
inquiry assistant is not admissible in evidence against that witness in:
(a) any civil or criminal proceedings
in any federal court or court of a State or Territory; or
(b) proceedings before a service
tribunal;
otherwise than in proceedings by way of a prosecution for
giving false testimony at the hearing before the court of inquiry, the board of
inquiry, the Chief of the Defence Force commission of inquiry, the inquiry
officer or the inquiry assistant.
(3) For the purposes of paragraphs (1)(qb),
(qba), (qe) and (qf) and for the purposes of subsection (2):
(a) a member of the Defence Force
shall be deemed to be on service while he is a prisoner of war or interned in a
place outside Australia; and
(b) a person, not being a member of
the Defence Force, who accompanies a part of the Defence Force shall be deemed
to be a member of, and on service with, that part of the Defence Force.
(3A) Subject to subsection (3B),
regulations made by virtue of paragraph 124(1)(ka) in relation to the
possession, supply, sale, purchase and consumption of intoxicating liquor have
effect notwithstanding any provision of a law of a State or Territory.
(3B) Subsection (3A) is not intended to
affect the operation of a law of a State or Territory to the extent that that
law is capable of operating concurrently with the regulations referred to in
that subsection.
(3C) Regulations made by virtue of paragraph (1)(qa)
or (qaa) shall include provision for and in relation to the payment of
reasonable compensation for any loss or damage caused by anything done in
pursuance of those regulations or otherwise caused by the operation of those
regulations.
(4) In this section, remuneration
means remuneration by way of salary, pay, allowances or otherwise.