DEFENCE AMENDMENT (CALL OUT OF THE AUSTRALIAN DEFENCE FORCE) BILL 2018

2016-2017-2018

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Defence Amendment (Call Out of the

Australian Defence Force) Bill 2018

No. , 2018

(Attorney-General)

A Bill for an Act to amend the Defence Act 1903,

and for related purposes

No. , 2018

Defence Amendment (Call Out of the Australian Defence Force) Bill

2018

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 2

Schedule 1--Amendments

Part 1--Amendments

Defence Act 1903

Defence Reserve Service (Protection) Act 2001

Part 2--Application of amendments

No. , 2018

Defence Amendment (Call Out of the Australian Defence Force) Bill

2018

A Bill for an Act to amend the Defence Act 1903,

and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act is the Defence Amendment (Call Out of the Australian

Defence Force) Act 2018.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

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Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of

this Act

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 6 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end of

that period.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

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Schedule 1--Amendments

Part 1--Amendments

Defence Act 1903

1 Subsection 4(1) (definition of call out order)

Repeal the definition, substitute:

call out order:

(a) in Division 3 of Part III--has the meaning given by

subsection 28(1); and

(b) in Part IIIAAA--has the meaning given by section 31.

2 Part IIIAAA

Repeal the Part, substitute:

Part IIIAAA--Calling out the Defence Force to

protect Commonwealth interests, States

and self-governing Territories

Division 1--Introduction

30 Simplified outline of this Part

The Defence Force can be called out under a call out order made

under this Part. A call out order is made by the Governor-General

if the Prime Minister, the Minister and the Attorney-General (who

are called the authorising Ministers) are satisfied of various

matters.

There are 2 general kinds of call out orders: Commonwealth

interests orders and State protection orders. For both kinds of call

out orders, the Defence Force can be called out immediately or,

under a contingent call out order, if specified circumstances arise.

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Under a Commonwealth interests order, the Defence Force is

called out to protect Commonwealth interests in Australia or the

Australian offshore area. The order might apply in a State or

Territory, or in the Australian offshore area, or in more than one of

those places. Each State or self-governing Territory in which

domestic violence is occurring, or is likely to occur, must generally

be consulted before the Governor-General makes a Commonwealth

interests order.

A State or self-governing Territory can apply for a State protection

order to protect the State or Territory from domestic violence.

A power under a call out order may be exercised in a State or

Territory either because the State or Territory is specified in the

order or because the power is exercised in the State or Territory for

a purpose specified in the order.

As far as reasonably practicable, the Chief of the Defence Force

must assist, and cooperate with, the police force of a State or

Territory that is affected by a call out of the Defence Force.

Members of the Defence Force can exercise certain powers if the

Defence Force is called out under a call out order. There are 3

categories of powers:

(a)

powers that generally can be exercised only if authorised

by an authorising Minister; and

(b)

powers that can be exercised in an area that has been

declared by the authorising Ministers; and

(c)

powers for protecting infrastructure that has been

declared by the authorising Ministers.

Expedited call out orders, specified area declarations and

infrastructure declarations can be made by the authorising

Ministers or other Ministers in sudden and extraordinary

emergencies.

Call out orders, specified area declarations and infrastructure

declarations are all provided to the Presiding Officers for tabling in

each House of the Parliament.

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An independent review of this Part is to be commenced at least

every 5 years. The operation, effectiveness and implications of this

Part can also be reviewed on the initiative of the Independent

National Security Legislation Monitor under the Independent

National Security Legislation Monitor Act 2010.

31 Definitions

In this Part:

Australian offshore area means:

(a) Australian waters; or

(b) the exclusive economic zone adjacent to the coast of

Australia; or

and includes the airspace over an area covered by paragraph (a),

(b) or (c).

Note:

The exclusive economic zone adjacent to the coast of an external

Territory, and the sea over the continental shelf of an external

Territory, are part of the Australian offshore area (see the definition of

Australia in section 4).

Australian waters means:

(a) the territorial sea of Australia; or

(b) the waters of the sea on the landward side of the territorial

sea of Australia;

but does not include the internal waters of a State or self-governing

Territory.

Note:

The territorial sea of an external Territory, and the waters of the sea on

the landward side of the territorial sea of an external Territory, are part

of Australian waters (see the definition of Australia in section 4).

authorised Defence officer means:

(a) an officer; or

(b) an officer in a class of officers;

authorised, by the Chief of the Defence Force under

subsection 51A(6), to be an authorised Defence officer.

authorising Ministers means the Prime Minister, the Minister and

the Attorney-General.

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call out order means an order made under section 33, 34, 35 or 36.

Commonwealth interests order means a call out order made under

section 33 or 34.

contingent call out order means a call out order made under

section 34 or 36.

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.

declared infrastructure means infrastructure, or a part of

infrastructure, that is declared under section 51H.

domestic violence has the same meaning as in section 119 of the

Constitution.

expedited order means an order made under section 51U.

expedited order or declaration means an order or declaration made

under section 51U.

facility includes a fixed or floating structure or installation of any

kind (but does not include a means of transport).

infrastructure includes physical facilities, supply chains,

information technologies and communication networks or systems.

infrastructure declaration means a declaration made under

section 51H.

internal waters of a State or self-governing Territory:

(a) means the waters of the sea within the limits of the State or

Territory; and

(b) includes the airspace over those waters.

location includes any premises or place.

means of transport means a vehicle, vessel, aircraft, train or other

means of transporting persons or goods (whether or not manned).

member of the police force, of a Territory for which the Australian

Federal Police provides police services, means a member or special

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member of the Australian Federal Police providing police services

for the Territory.

Minister for Home Affairs means the Minister who administers

the Australian Federal Police Act 1979.

person who may be detained, in relation to a call out order, means

a person:

(a) who is likely to pose a threat to any person's life, health or

safety, or to public health or public safety; or

(b) both:

(i) who has committed an offence, against a law of the

Commonwealth, a State or a Territory, that is related to

the domestic violence or threat specified in the call out

order; and

(ii) whom it is necessary, as a matter of urgency, to detain.

Note:

For paragraph (b), in order to detain a person, a member of the

Defence Force must believe on reasonable grounds that the conditions

in that paragraph have been met.

police force, of a Territory for which the Australian Federal Police

provides police services, means the Australian Federal Police, to

the extent that it provides police services for the Territory.

premises includes:

(a) a place that is private property; and

(b) in the Australian offshore area--a facility.

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 the person or of things in the possession of the

person that may include:

(i) requiring the person to remove the person's overcoat,

coat or jacket and any gloves, shoes and hat; and

(ii) an examination of those items; or

(b) a search of the 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;

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but does not include:

(d) an examination of the person's body cavities.

search authorisation has the meaning given by subsection 51A(1).

self-governing Territory means:

(a) the Australian Capital Territory; or

(b) the Northern Territory and its internal waters.

specified area means an area that is declared to be a specified area

in a declaration that is in force under section 51.

specified area declaration means a declaration in force under

section 51.

State includes the internal waters of the State.

State protection order means a call out order made under

section 35 or 36.

substantive criminal law means law (including unwritten law):

(a) creating offences or imposing criminal liability for offences;

(b) dealing with capacity to incur criminal liability; or

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 the regulations 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.

thing includes any means of transport.

thing that may be seized, in relation to a call out order, means a

thing that:

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(a) is likely to pose a threat to any person's life, health or safety,

or to public health or public safety; or

(b) is likely to cause serious damage to property; or

the call out order, and that it is necessary, as a matter of

urgency, to seize.

utilised under a call out order: the Defence Force, or a member of

the Defence Force, is utilised under a call out order if the Defence

Force or member is utilised under section 39.

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;

(whether or not crewed) and includes a hovercraft and other

non-displacement craft.

Division 2--Calling out the Defence Force

Subdivision A--Simplified outline of this Division

32 Simplified outline of this Division

A call out order is made by the Governor-General if the Prime

Minister, the Minister and the Attorney-General (who are called

the authorising Ministers) are satisfied of various matters.

There are 2 general kinds of call out orders: Commonwealth

interests orders and State protection orders. For both kinds of call

out orders, the Defence Force can be called out immediately or,

under a contingent call out order, if specified circumstances arise.

Under a Commonwealth interests order, the Defence Force is

called out to protect Commonwealth interests in Australia or the

Australian offshore area. The order might apply in a State or

Territory, or in the Australian offshore area, or in more than one of

those places. Each State or self-governing Territory in which

domestic violence is occurring, or is likely to, would or would be

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likely to occur, must generally be consulted before the

Governor-General makes a Commonwealth interests order.

A State or self-governing Territory can apply for a State protection

order to protect the State or Territory from domestic violence.

A power under a call out order may be exercised in a State or

Territory either because the State or Territory is specified in the

order or because the power is exercised in the State or Territory for

a purpose specified in the order.

As far as reasonably practicable, the Chief of the Defence Force

must assist, and cooperate with the police force of, a State or

Territory that is affected by a call out of the Defence Force.

Subdivision B--Making call out orders

33 Calling out the Defence Force to protect Commonwealth interests

Conditions for making order

(1) The Governor-General may make an order under subsection (3) if

the authorising Ministers are satisfied that:

(a) any of the following applies:

(i) domestic violence that would, or would be likely to,

affect Commonwealth interests is occurring or is likely

to occur in Australia;

(ii) there is a threat in the Australian offshore area to

Commonwealth interests (whether those interests are in

that area or elsewhere);

(iii) domestic violence that would, or would be likely to,

affect Commonwealth interests is occurring or is likely

to occur in Australia, and there is a threat in the

Australian offshore area to those or any other

Commonwealth interests; 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 Commonwealth interests against the domestic

violence or threat, or both; and

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to the order.

Note 1:

See section 38 if domestic violence is occurring or is likely to occur in

a State or self-governing Territory that does not request a call out

order.

Note 2:

An expedited order may be made by one or more Ministers in sudden

and extraordinary emergencies (see Division 7).

(2) In determining whether the authorising Ministers are satisfied as

mentioned in paragraph (1)(b) in relation to domestic violence that

is occurring or is likely to occur in one or more States or

self-governing Territories, the authorising Ministers:

(a) must consider:

(i) the nature of the domestic violence; and

(ii) whether the utilisation of the Defence Force would be

likely to enhance the ability of each of those States and

Territories to protect the Commonwealth interests

against the domestic violence; and

(b) may consider any other matter that the authorising Ministers

consider is relevant.

Power of Governor-General to make order

(3) 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 or threat, or both.

Note:

For additional rules in relation to making, varying and revoking call

out orders, see section 37.

(4) However, the Reserves must not be called out or utilised in

connection with an industrial dispute.

Content of order

(5) The order must:

(a) state that it is made under this section; and

(b) specify:

(i) the domestic violence or threat, or both; and

(ii) the Commonwealth interests; and

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(iii) for domestic violence occurring or likely to occur in one

or more States or self-governing Territories--each of

those States and Territories; and

order; and

(d) state that the order:

(i) comes into force when it is made; and

(ii) ceases to be in force at the end of a specified period

(which must not end more than 20 days after it is made),

unless it is revoked earlier.

When order is in force

(6) The order is in force as stated in accordance with paragraph (5)(d).

Note:

The order can be extended under section 37.

34 Contingent call out of the Defence Force to protect

Commonwealth interests

Conditions for making order

(1) The Governor-General may make an order under subsection (3) if

the authorising Ministers are satisfied that:

(a) if specified circumstances were to arise:

(i) domestic violence that would, or would be likely to,

affect Commonwealth interests would occur, or would

be likely to occur, in Australia; or

(ii) there would be, or it is likely there would be, a threat in

the Australian offshore area to Commonwealth interests

(whether those interests are in that area or elsewhere); or

(iii) domestic violence that would, or would be likely to,

affect Commonwealth interests would occur, or would

be likely to occur, in Australia and there would be, or it

is likely there would be, a threat in the Australian

offshore area to those or any other Commonwealth

interests; and

(b) if the specified circumstances were to arise, for reasons of

urgency, it would be impracticable for a Commonwealth

interests order to be made under section 33; and

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out and the Chief of the Defence Force should be directed to

utilise the Defence Force to protect the Commonwealth

interests against the violence or threat, or both; and

(d) if the circumstances arise, one or more of Divisions 3, 4 and

5 should apply in relation to the order.

Note 1:

See section 38 if domestic violence would occur, or would be likely to

occur, in a State or self-governing Territory that does not request a call

out order.

Note 2:

An expedited order may be made by one or more Ministers in sudden

and extraordinary emergencies (see Division 7).

(2) In determining whether the authorising Ministers are satisfied as

mentioned in paragraph (1)(c) in relation to domestic violence that

would occur, or would be likely to occur, in one or more States or

self-governing Territories if specified circumstances were to arise,

the authorising Ministers:

(a) must consider:

(i) the nature of the domestic violence; and

(ii) whether the utilisation of the Defence Force would be

likely to enhance the ability of each of those States and

Territories to protect the Commonwealth interests

against the domestic violence; and

(b) may consider any other matter that the authorising Ministers

consider is relevant.

Power of Governor-General to make order

(3) The Governor-General may, by written order, specify that, if the

specified circumstances arise:

(a) the Defence Force is called out; and

(b) the Chief of the Defence Force is directed to utilise the

Defence Force to protect the Commonwealth interests against

the domestic violence or threat, or both.

Note:

For additional rules in relation to making, varying and revoking call

out orders, see section 37.

(4) However, the Reserves must not be called out or utilised in

connection with an industrial dispute.

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Content of order

(5) The order must:

(a) state that it is made under this section; and

(b) specify:

(i) the circumstances to which the order relates; and

(ii) the domestic violence or threat, or both; and

(iii) the Commonwealth interests; and

(iv) for domestic violence that would, or would be likely to,

occur in one or more States or self-governing

Territories--each of those States and Territories; and

order; and

(d) state that the order:

(i) comes into force when it is made; and

(ii) ceases to be in force at the end of a specified period,

unless it is revoked earlier.

When order is in force

(6) The order is in force as stated in accordance with paragraph (5)(d).

Note:

The order can be extended under section 37.

35 Calling out the Defence Force to protect States and Territories

Conditions for making order

(1) The Governor-General may make an order under subsection (3) if:

(a) a State Government or Government of a self-governing

Territory applies to the Commonwealth Government to

protect the State or Territory against domestic violence that is

occurring, or is likely to occur, in the State or Territory; and

(b) the authorising Ministers are satisfied that:

(i) 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 or Territory against

the domestic violence; and

(ii) one or more of Divisions 3, 4 and 5 should apply in

relation to the order.

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Note:

An expedited order may be made by one or more Ministers in sudden

and extraordinary emergencies (see Division 7).

(2) In determining whether the authorising Ministers are satisfied as

mentioned in subparagraph (1)(b)(i) in relation to domestic

violence that is occurring, or is likely to occur, in the State or

self-governing Territory, the authorising Ministers:

(a) must consider:

(i) the nature of the domestic violence; and

(ii) whether the utilisation of the Defence Force would be

likely to enhance the ability of the State or Territory to

protect the State or Territory against the domestic

violence; and

(b) may consider any other matter that the authorising Ministers

consider is relevant.

Power of Governor-General to make order

(3) 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 or Territory against the domestic

violence.

Note:

For additional rules in relation to making, varying and revoking call

out orders, see section 37.

(4) However, the Reserves must not be called out or utilised in

connection with an industrial dispute.

Content of order

(5) The order must:

(a) state that it is made under this section; and

(b) specify:

(i) the domestic violence; and

(ii) the State or Territory; and

order; and

(d) state that the order:

(i) comes into force when it is made; and

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(ii) ceases to be in force at the end of a specified period

(which must not end more than 20 days after it is made),

unless it is revoked earlier.

When order is in force

(6) The order is in force as stated in accordance with paragraph (5)(d).

Note:

The order can be extended under section 37.

36 Contingent call out of the Defence Force to protect States and

Territories

Conditions for making order

(1) The Governor-General may make an order under subsection (3) if:

(a) a State Government or Government of a self-governing

Territory applies to the Commonwealth Government to

protect the State or Territory against domestic violence that

would occur, or would be likely to occur, in the State or

Territory if specified circumstances were to arise; and

(b) the authorising Ministers are satisfied that, if the specified

circumstances were to arise, for reasons of urgency, it would

be impracticable for a State protection order to be made

under section 35; and

circumstances arise:

(i) 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 or Territory against

the domestic violence; and

(ii) one or more of Divisions 3, 4 and 5 should apply in

relation to the order.

Note:

An expedited order may be made by one or more Ministers in sudden

and extraordinary emergencies (see Division 7).

(2) In determining whether the authorising Ministers are satisfied as

mentioned in subparagraph (1)(c)(i) in relation to domestic

violence that would occur, or would be likely to occur, in the State

or self-governing Territory if specified circumstances were to arise,

the authorising Ministers:

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(a) must consider:

(i) the nature of the domestic violence; and

(ii) whether the utilisation of the Defence Force would be

likely to enhance the ability of the State or Territory to

protect the State or Territory against the domestic

violence; and

(b) may consider any other matter that the authorising Ministers

consider is relevant.

Power of Governor-General to make order

(3) The Governor-General may, by written order, specify that, if the

specified circumstances arise:

(a) the Defence Force is called out; and

(b) the Chief of the Defence Force is directed to utilise the

Defence Force to protect the State or Territory against the

domestic violence.

Note:

For additional rules in relation to making, varying and revoking call

out orders, see section 37.

(4) However, the Reserves must not be called out or utilised in

connection with an industrial dispute.

Content of order

(5) The order must:

(a) state that it is made under this section; and

(b) specify:

(i) the circumstances to which the order relates; and

(ii) the domestic violence; and

(iii) the State or Territory; and

order; and

(d) state that the order:

(i) comes into force when it is made; and

(ii) ceases to be in force at the end of the period specified in

the order, unless it is revoked earlier.

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When order is in force

(6) The order is in force as stated in accordance with paragraph (5)(d).

Note:

The order can be extended under section 37.

Subdivision C--Common provisions for making, varying and

revoking call out orders

37 Making, varying and revoking call out orders

Variation of order

(1) The Governor-General may, in writing, vary a call out order if:

(a) the authorising Ministers are still satisfied as mentioned in

subsection 33(1), 34(1), 35(1) or 36(1) (as the case requires);

and

(b) the order, as varied, complies (subject to subsection (2)) with

the following provisions (as the case requires):

(i) subsections 33(3) to (5);

(ii) subsections 34(3) to (5);

(iii) subsections 35(3) to (5);

(iv) subsections 36(3) to (5); and

applied for the order requests the variation.

Note:

See section 38 if a Commonwealth interests order specifies a State or

self-governing Territory that does not request a variation.

(2) The Governor-General may vary a call out order to extend the

period during which the order is in force. However, a period that is

varied in an order under section 33 or 35 must not end more than

20 days after the variation takes effect.

Note:

Sections 33 and 35 allow the Defence Force to be called out

immediately.

Revocation of order

(3) The Governor-General must, in writing, revoke a call out order if:

(a) one or more authorising Ministers cease to be satisfied as

mentioned in subsection 33(1), 34(1), 35(1) or 36(1) (as the

case requires); or

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(b) for a State protection order--the State Government or

Government of the self-governing Territory withdraws its

application to the Commonwealth Government for the call

out order.

When variation or revocation takes effect

(4) A variation or revocation of a call out order takes effect when the

order is varied or revoked.

Advice to Governor-General

(5) In making, varying or revoking a call out order, the

Governor-General is to act with the advice of:

(a) the Executive Council; or

(b) without limiting paragraphs 16A(a) and (b) of the Acts

Interpretation Act 1901, if, despite paragraph (a), an

authorising Minister is satisfied that, for reasons of urgency,

the Governor-General should act with the advice of the

authorising Minister--the authorising Minister.

Effect of revocation of call out order etc.

(6) To avoid doubt, if a call out order is revoked or ceases to be in

force:

(a) the call out of the Defence Force under the order ends; and

(b) the Chief of the Defence Force must cease utilising the

Defence Force under section 39.

Notice to State or self-governing Territory

(7) As soon as reasonably practicable after making, varying or

revoking a Commonwealth interests order that specifies a State or

self-governing Territory, an authorising Minister must arrange for

the Government of the State or Territory to be notified of the

making, variation or revocation of the order. However, a failure to

do so does not affect the validity of the making, variation or

revocation of the order.

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Further orders

(8) The fact that a call out order has been made does not prevent

further call out orders being made in relation to the same matter.

38 Commonwealth interests orders or variations that were not

requested by a State or Territory

(1) The Governor-General may make or vary a Commonwealth

interests order in relation to domestic violence whether or not any

State or self-governing Territory in which the domestic violence is

occurring, is likely to occur, would occur, or would be likely to

occur, requests the order or variation (as the case requires).

(2) However, if any Government of those States or Territories does not

request the order or variation, an authorising Minister must (subject

to subsection (3)) consult that Government about the order or

variation before the Governor-General makes or varies the order.

Note:

An authorising Minister is not required to consult in relation to an

expedited call out order (see subsection 51V(6)).

(3) Subsection (2) does not apply to a Commonwealth interests order

made under section 33 if the authorising Ministers are satisfied

that, for reasons of urgency, it is impracticable to comply with that

subsection.

Subdivision D--Effect of making call out order

39 Chief of Defence Force to utilise Defence Force as directed

(1) The Chief of the Defence Force must comply with this section if:

(a) the Governor-General makes a call out order; and

(b) for a contingent call out order--the circumstances specified

in the order arise.

(2) The Chief of the Defence Force must utilise the Defence Force

(subject to subsection (3) and section 40), in such manner as is

reasonable and necessary, for the purpose specified in the order

under subsection 33(3), 34(3), 35(3) or 36(3).

Note:

Section 40 requires the Chief of the Defence Force to assist and

cooperate with the police forces of affected States and Territories.

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Limitations on power

(3) In doing so, the Chief of the Defence Force:

(a) must (subject to paragraph (b)) 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; and

(b) must not stop or restrict any protest, dissent, assembly or

industrial action, except if there is a reasonable likelihood of:

(i) the death of, or serious injury to, persons; or

(ii) serious damage to property.

40 Assisting and cooperating with police forces of affected States

and Territories

(1) In utilising the Defence Force under a call out order (except in the

Australian offshore area), the Chief of the Defence Force must, as

far as is reasonably practicable, ensure that:

(a) the Defence Force:

(i) is utilised to assist any State or Territory specified in the

order, and any other State or Territory in which powers

under this Part may be exercised in accordance with

section 44 or 51K or subsection 51(5); and

(ii) cooperates with the police force of those States and

Territories; and

(b) the Defence Force is not utilised for any particular task in any

of those States and Territories (except in relation to airborne

aircraft) unless a member of the police force of that State or

Territory requests that the Defence Force be so utilised.

(2) A request under paragraph (1)(b) must, if reasonably practicable,

be in writing.

(3) Subsection (1) does not require or permit the Chief of the Defence

Force to transfer to any extent command of the Defence Force to a

State or Territory, or to a police force or member of the police

force of that State or Territory.

(4) Subsection (1) is subject to subsection 39(3).

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Note:

Subsection 39(3) requires the Chief of the Defence Force to comply

with Ministerial directions and generally not stop or restrict protests

etc.

Division 3--Special powers generally authorised by

Minister

Subdivision A--Introduction

41 Simplified outline of this Division

This Part confers powers on members of the Defence Force if the

Defence Force is being utilised under a call out order that specifies

that this Division applies. Generally, the powers must be

authorised by an authorising Minister. The powers can be exercised

without Ministerial authorisation in sudden and extraordinary

emergencies.

The powers in this Division can also be exercised in an area

specified under Division 4. If a particular power can be exercised

both under this Division and Division 4, the power is taken to be

exercised under this Division (so that any rules under Division 4

that would otherwise apply to the power do not apply).

A power exercised under this Division for the purposes of a call

out order can be exercised in a State or Territory that is not

specified in the order if the exercise of the power is for the purpose

specified in the order.

Division 6 allows members of the Defence Force exercising

powers under this Division to use reasonable and necessary force.

Division 6 also:

(a)

confers powers and imposes obligations if persons are

detained or things are seized; and

(b)

contains an offence for failing to comply with a

direction; and

(c)

deals with the consequences of the exercise of powers

by members of the Defence Force if obligations imposed

in relation to the exercise of those powers have not been

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met or if call out orders and other instruments have not

been validly made.

42 Application of this Division

This Division applies if a call out order states that this Division

applies in relation to the order.

Note:

The powers under this Division must generally be authorised by a

Minister (see subsection 46(1)).

43 Powers that may be exercised under this Division and Division 4

(1) To avoid doubt, a power under this Division may be exercised in

an area specified under Division 4.

(2) If a power may be exercised under this Division, and under

Division 4, the power is taken, for the purposes of this Part, to be

exercised under this Division.

Note:

For example, searches may be undertaken under this Division and

Division 4. Searches undertaken under Division 4 must be undertaken

by a member of the Defence Force who is in uniform (see section 50).

A member who may undertake a search under this Division and

Division 4 is not required to wear a uniform.

44 Location of exercise of powers

(1) A power may be exercised in a State or self-governing Territory

under this Division in relation to a call out order if:

(a) the exercise of the power in that State or Territory is

authorised by the order; or

(b) the power is exercised for the purpose specified in the order

under subsection 33(3), 34(3), 35(3) or 36(3).

Note:

For example, powers might be exercised in a State because:

(a) the State is specified in the order; or

(b) the powers are exercised in a State that is not specified in the

order for the purpose of protecting a State that is specified in the

order against domestic violence that is occurring in that State; or

order for the purpose of protecting Commonwealth interests in

the Australian offshore area, as specified in the order.

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(2) A power must not be exercised under this Division outside the

Australian offshore area.

45 International obligations

In giving an authorisation under Subdivision B in relation to an

action or power that is to be, or may be, taken or exercised in the

Australian offshore area, an authorising Minister must have regard

to Australia's international obligations.

Subdivision B--Special powers generally authorised by

Minister

46 Special powers generally authorised by Minister

When special powers may be exercised

(1) A member of the Defence Force who is being utilised under a call

out order may, under the command of the Chief of the Defence

Force, take an action under subsection (5), or exercise a power

under subsection (7) or (9) in relation to taking such an action, if:

(a) an authorising Minister has authorised in writing taking the

action; or

(b) the member believes on reasonable grounds that there is

insufficient time to obtain the authorisation because a sudden

and extraordinary emergency exists.

Note:

An authorisation for the purposes of paragraph (1)(a) that relates to an

expedited order is not required to be in writing (see section 51W).

(2) An authorising Minister may, under paragraph (1)(a), authorise

taking an action in relation to a contingent call out order even if the

circumstances specified in the order have not yet arisen.

(3) An authorising Minister must not, under paragraph (1)(a), authorise

the taking of measures against an aircraft or vessel, or the giving of

an order in relation to the taking of such a measure, under

paragraph (5)(d) or (e) unless the Minister is satisfied that taking

the measure:

(a) is reasonable and necessary; or

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(b) for a contingent call out order--would be reasonable and

necessary if the circumstances specified in the order were to

arise.

(4) Without limiting paragraph (1)(a), the taking of an action may be

authorised under that paragraph in relation to:

(a) particular domestic violence or a particular threat specified in

the call out order; or

(b) any domestic violence or threat specified in the call out order.

Note:

For example, the taking of a particular action may be authorised for

domestic violence specified in the order, while the taking of different

action may be authorised for a threat specified in the order.

Taking authorised actions

(5) The member may take any one or more of the following actions:

(a) capture or recapture a location (including a facility) or thing;

(b) prevent, or put an end to:

(i) acts of violence; or

(ii) threats to any person's life, health or safety, or to public

health or public safety;

(i) acts of violence; or

(ii) threats to any person's life, health or safety, or to public

health or public safety;

(d) take measures (including the use of force) against an aircraft

(whether or not the aircraft is airborne) or vessel, up to and

including destroying the aircraft or vessel (subject to

subsection (6));

(e) give an order relating to the taking of measures referred to in

paragraph (d) of this subsection (subject to subsection (6)).

(6) Paragraphs (5)(d) and (e) do not authorise taking a measure against

an aircraft or vessel, or the giving of an order (the member's order)

in relation to taking such a measure, unless:

(a) the member of the Defence Force takes the measure, or gives

the member's order, under, or under the authority of, an order

(the superior's order) of a superior; and

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(b) the member was under a legal obligation to obey the

superior's order; and

(d) the member has no reason to believe that circumstances have

changed in a material way since the superior's order was

given; and

(e) the member has no reason to believe that the superior's order

was based on a mistake as to a material fact; and

(f) taking the measure, or giving the member's order, was

reasonable and necessary to give effect to the superior's

order.

Additional powers

(7) The member may, in connection with taking any action mentioned

in subsection (5), do any one or more of the following:

(a) free any hostage from a location (including a facility) or

thing;

(b) control the movement of persons or of means of transport;

(d) search persons, locations or things for things that may be

seized, or persons who may be detained, in relation to the call

out order;

(e) seize any thing found in the search that the member believes

on reasonable grounds is a thing that may be seized in

relation to the call out order;

(f) detain any person found in the search that the member

believes on reasonable grounds is a person who may be

detained in relation to the call out order for the purpose of

placing the person in the custody of a member of a police

force at the earliest practicable time;

(g) provide security (whether or not armed, and whether or not

with a police force) including by patrolling or securing an

area or conducting cordon operations;

(h) direct a person to answer a question put by the member, or to

produce to the member a particular document that is readily

accessible to the person, (including by requiring the person to

provide identification to the member);

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(i) operate, or direct a person to operate, a facility, machinery or

equipment (including electronic equipment) in a particular

manner (whether or not the facility, machinery or equipment

is on a facility or means of transport).

Note 1:

For the definitions of person who may be detained, search and thing

that may be seized, see section 31.

Note 2:

See also sections 51P (persons to be informed of certain matters if

detained), 51Q (actions to be taken if things seized) and 51R (offence

for failing to comply with a direction).

(8) A member who controls the movement of persons or of means of

transport under paragraph (7)(b) must not do so for longer than is

reasonable and necessary in the circumstances.

Incidental powers

(9) The member may do anything incidental to anything in

subsection (5) or (7), including enter any place or premises or

board an aircraft or vessel.

Powers do not limit each other

(10) To avoid doubt, no paragraph of subsection (5) or (7) limits the

operation of any other paragraph of either of those subsections.

Division 4--Powers exercised in specified areas

Subdivision A--Introduction

47 Simplified outline of this Division

This Division confers powers on members of the Defence Force if

the Defence Force is being utilised under a call out order that

specifies that this Division applies. The powers are to be exercised

in a specified area which may be in Australia or the Australian

offshore area. The authorising Ministers specify the area in a

specified area declaration.

An expedited specified area declaration can be made under

Division 7 in sudden and extraordinary emergencies.

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Uniforms must be worn by members of the Defence Force when

exercising powers under this Division.

The powers under this Division are:

(a)

the power to search premises in the specified area; and

(b)

powers relating to means of transport in the specified

area; and

(c)

powers relating to persons in the specified area.

If a call out order specifies that this Division and Division 3 apply

in relation to the order, the powers under Division 3 can be

exercised in the specified area. If a particular power can be

exercised both under this Division and Division 3, the power is

taken to be exercised under Division 3 (so that any rules under this

Division that would otherwise apply to the power do not apply).

Division 6 allows members of the Defence Force exercising

powers under this Division to use reasonable and necessary force.

Division 6 also:

(a)

confers powers and imposes obligations if persons are

detained or things are seized; and

(b)

contains an offence for failing to comply with a

direction; and

(c)

deals with the consequences of the exercise of powers

by members of the Defence Force if obligations imposed

in relation to the exercise of those powers have not been

met or if call out orders and other instruments have not

been validly made.

48 Application of this Division

This Division applies if a call out order states that this Division

applies in relation to the order.

49 International obligations

In making a specified area declaration under Subdivision B in

relation to the Australian offshore area, the authorising Ministers

must have regard to Australia's international obligations.

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50 Members to wear uniforms and identification when exercising

powers

(1) A person commits an offence if:

(a) the person is a member of the Defence Force; and

(b) the person is exercising powers under this Division, or under

Division 6 (provisions common to Divisions 3 to 5) in its

operation in relation to this Division; and

powers:

(i) wear the person's uniform; and

(ii) have the person's surname, the person's numbers, or the

person's combination of numbers and letters of the

alphabet, on or attached to the uniform in a place that is

visible.

Penalty: 30 penalty units.

Exception

(2) Subsection (1) does not apply if:

(a) the contravention by the person occurs because of an act of

another person (not being a member of the Defence force)

done without the consent of the person; or

(b) the power is taken not to be exercised under this Division

because of section 43 (powers that may be exercised under

Divisions 3 and 4).

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 15.2 of the Criminal Code (extended geographical

jurisdiction--category B) applies to an offence against

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subsection (1) to the extent that this section applies in relation to

the Australian offshore area.

Subdivision B--Declaration of specified area

51 Declaration of specified area

(1) The authorising Ministers may, in writing, declare an area to be a

specified area, in relation to a call out order, if the area is either or

both of the following:

(a) a part of a State or Territory that is specified in the call out

order;

(b) if the call out order specifies a threat in the Australian

offshore area--a part of the Australian offshore area.

Note 1:

An expedited declaration may be made by one or more other Ministers

in sudden and extraordinary emergencies (see Division 7).

Note 2:

A specified area declaration may be varied or revoked in accordance

with subsections 33(3) and (3AA) of the Acts Interpretation Act 1901.

(2) To avoid doubt, a declaration may be made under subsection (1) in

relation to a contingent call out order whether or not the

circumstances specified in the call out order have arisen.

(3) A declaration made under subsection (1):

(a) comes into force when it is made; and

(b) ceases to be in force if:

(i) it is revoked; or

(ii) the call out order to which it relates ceases to be in

force.

Declaration of areas in the Australian offshore area and internal

waters

(4) Without limiting subsection (1), an area in the Australian offshore

area or the internal waters of a State or self-governing Territory

may be specified by referring to an area:

(a) that surrounds one or more vessels or classes of vessels; and

(b) whose boundaries change as the location of the vessels

change.

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(5) The area specified under subsection (4) in relation to a vessel

whose location changes:

(a) may move from the internal waters of a State or

self-governing Territory that is specified in the call out order

to the internal waters of another State or self-governing

Territory if the vessel so moves; and

(b) may move from the internal waters of a State or

self-governing Territory to the Australian offshore area if the

vessel so moves; and

waters of a State or Territory if the vessel so moves.

However, the area does not move beyond the Australian offshore

area, even if the vessel so moves.

Statement to be prepared

(6) If a specified area declaration is made, the authorising Ministers

must arrange for the preparation of a statement that:

(a) summarises the content of the call out order to which the

declaration relates, but without including any reference to

whether Division 3 applies in relation to the order; and

(b) states that the declaration has been made; and

(7) The statement must:

(a) except in the Australian offshore area--be broadcast or

otherwise made public by television, radio or electronic

means so as to be capable of being received within the

specified area; and

(b) in the Australian offshore area--be notified to persons in the

Australian offshore area to the extent practicable; and

declaration is made, to the Presiding Officer of each House of

the Parliament for tabling in that House.

(8) However, subsections (6) and (7) do not apply if:

(a) the call out order states that Division 3 applies in relation to

the order; and

(b) the authorising Ministers declare, in writing, that they are

satisfied that the application of subsections (6) and (7) would

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prejudice the exercise of powers under Division 3 by

members of the Defence Force who are being utilised under

the call out order.

Houses to sit within 6 days

(9) Each House of the Parliament must sit within 6 days after its

Presiding Officer receives the statement that is forwarded in

accordance with paragraph (7)(c).

Effect of failure to publish or sit

(10) A failure to comply with subsection (6), (7) or (9) does not affect

the validity of the declaration.

Subdivision C--Powers to search premises in specified area

51A Authorisation to search premises in specified area

(1) The Chief of the Defence Force, or an authorised Defence officer,

(the authorising officer) may give an authorisation (a search

authorisation) if, while the Defence Force is being utilised under a

call out order, the authorising officer believes on reasonable

grounds that, on any premises in the specified area, there is:

(a) a person who is likely to pose a threat to:

(i) any person's life, health or safety; or

(ii) public health or public safety; or

(b) a thing that is likely to:

(i) pose a threat to any person's life, health or safety; or

(ii) pose a threat to public health or public safety; or

(iii) cause serious damage to property; or

threat specified in the order.

Content of authorisation

(2) The search authorisation must:

(a) authorise any member of the Defence Force who is being

utilised under the call out order to enter and search:

(i) all premises within the specified area; or

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(ii) specified premises within the specified area (including

premises specified by referring to an area or a class of

premises);

for the purpose of:

(iii) finding the person or thing mentioned in subsection (1);

(iv) determining that the person or thing mentioned in

subsection (1) is not on those premises; and

(b) authorise any member conducting a search under the

authorisation to seize any thing found on the premises in the

course of the search that the member believes on reasonable

grounds to be a thing that may be seized in relation to the call

out order; and

authorisation believes on reasonable grounds that a person

who is at or near premises while the search is being carried

out has any thing that may be seized in relation to the call out

order in the person's possession, the member is authorised to:

(i) search the person; and

(ii) seize any thing found in the search that the member

believes on reasonable grounds is a thing that may be

seized in relation to the call out order; and

(d) state that, if the member finds a person at or near premises in

the course of a search under the authorisation whom the

member believes on reasonable grounds to be a person who

may be detained in relation to the call out order, the member

is authorised to:

(i) require the person to provide identification to the

member; and

(ii) 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; and

(e) state the time during which the authorisation remains in

force, which must not be more than 24 hours.

Note 1:

For the definitions of person who may be detained, search and thing

that may be seized, see section 31.

Note 2:

See also sections 51P (persons to be informed of certain matters if

detained) and 51Q (actions to be taken if things seized).

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Effect of the authorisation

(3) The authorisation has effect according to its terms.

Further authorisations and powers

(4) Paragraph (2)(e) does not prevent the issue of further

authorisations in relation to the same premises.

(5) To avoid doubt, a member of the Defence Force may exercise

powers under Subdivision D in premises that are being searched in

accordance with this section.

Authorisation of Defence officers

(6) The Chief of the Defence Force may, in writing, authorise a

specified officer, or an officer in a specified class of officers, to be

an authorised Defence officer.

51B Information to be given to occupier etc. and those searched

Right of occupier to be given information

(1) If a person who is the occupier of premises described in a search

authorisation, or another person who apparently represents the

occupier, is present at the premises when a search is being carried

out, a member of the Defence Force must:

(a) tell the person that the member is a member of the Defence

Force; and

(b) give that person a document that:

(i) states that the search is authorised under this Division;

and

(ii) sets out the effect of this section and section 51C

(occupier etc. entitled to be present during search); and

(iii) states that things may be seized during the search; and

(iv) sets out contact details for inquiries in relation to things

that are so seized.

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Right of person searched to be given information

(2) Before any person is searched in accordance with a search

authorisation, a member of the Defence Force must give the person

a copy of a document described in paragraph (1)(b).

51C Occupier etc. entitled to be present during search

(1) If a person who is the occupier of premises described in a search

authorisation, or another person who apparently represents the

occupier, is present at the premises when a 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.

Subdivision D--Powers relating to means of transport and

persons in specified area

51D Powers relating to means of transport and persons in specified

area

(1) This section applies if a member of the Defence Force who is being

utilised under a call out order believes on reasonable grounds that

there is in a specified area:

(a) a person who is likely to pose a threat to:

(i) any person's life, health or safety; or

(ii) public health or public safety; or

(b) a person who has in the person's possession a thing that is

likely to:

(i) pose a threat to any person's life, health or safety; or

(ii) pose a threat to public health or public safety; or

(iii) cause serious damage to property; or

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specified in the order; or

(d) a thing that is likely to:

(i) pose a threat to any person's life, health or safety; or

(ii) pose a threat to public health or public safety; or

(iii) cause serious damage to property; or

(e) a thing connected with the domestic violence or threat

specified in the order.

Powers relating to any means of transport or person, and other

general powers

(2) Any member of the Defence Force who is being utilised under the

call out order may do any one or more of the following:

(a) erect barriers or other structures, at the border of, or in any

part of, the specified area;

(b) stop any person (including a person mentioned in

subsection (1)), or means of transport, in the specified area

(whether or not barriers were erected);

(i) not to enter the specified area; or

(ii) to leave, or not to leave, the specified area; or

(iii) to move from a place in the specified area to another

place in the specified area; or

(iv) not to move from a place in the specified area to another

place in the specified area;

(d) direct a person in charge of any means of transport:

(i) not to bring the means of transport into the specified

area; or

(ii) to take, or not to take, the means of transport out of the

specified area; or

(iii) to take the means of transport from a place in the

specified area to another place in the specified area; or

(iv) not to take the means of transport from a place in the

specified area to any other place, or to a specified place,

in the specified area;

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(e) if there is no person in charge of a means of transport that is

in a specified area--take any action that is reasonable and

necessary for either of the following purposes:

(i) taking the means of transport out of the specified area;

(ii) taking the means of transport from a place in the

specified area to another place in the specified area;

(f) direct a person in charge of a means of transport not to move

the means of transport within the specified area (including by

bringing it into or taking it out of that area) unless the person

agrees to a member searching:

(i) the person; and

(ii) the means of transport and any thing in or on the means

of transport;

(g) direct any person not to move within the specified area

(including by coming into or going out of that area) unless

the person agrees to a member searching the person;

(h) if a person agrees to a search under paragraph (f) or (g)--

conduct the search and:

(i) seize any thing found in the search that the member

believes on reasonable grounds is a thing that may be

seized in relation to the call out order; or

(ii) detain the person, if the member believes on reasonable

grounds that the person is a person who may be detained

in relation to the call out order, for the purpose of

placing the person in the custody of a member of a

police force at the earliest practicable time;

(i) direct a person in the specified area to answer a question put

by the member, or to produce to the member a particular

document that is readily accessible to the person, (including

by requiring the person to provide identification to the

member);

(j) operate, or direct a person to operate, a facility, machinery or

equipment (including electronic equipment) in a particular

manner (whether or not the facility, machinery or equipment

is on a facility or means of transport), if the member believes

on reasonable grounds that doing so is reasonable and

necessary for the purpose of:

(i) preserving the life or safety of any person in the

specified area; or

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(ii) protecting against the threat of the person or thing

mentioned in subsection (1).

Note 1:

For the definitions of person who may be detained, search and thing

that may be seized, see section 31.

Note 2:

See also sections 51E (general provisions relating to section 51D), 51P

(persons to be informed of certain matters if detained), 51Q (actions to

be taken if things seized) and 51R (offence for failing to comply with

a direction).

Search and seizure powers relating to specific means of transport

(3) Any member of the Defence Force who is being utilised under the

call out order may do any one or more of the following if the

member believes on reasonable grounds that a person or thing

mentioned in subsection (1) is in or on a means of transport in the

specified area:

(a) detain the means of transport;

(b) search the means of transport, and any thing found in or on

the means of transport;

search that the member believes on reasonable grounds is a

thing that may be seized in relation to the call out order;

(d) detain any person found in the search who the member

believes on reasonable grounds is a person who may be

detained in relation to the call out order for the purpose of

placing the person in the custody of a member of a police

force at the earliest practicable time.

(4) A member who detains a means of transport under paragraph (3)(a)

must not detain the means of transport for longer than is reasonable

and necessary to search it and any thing found in or on it, unless

the means of transport is seized in accordance with

paragraph (3)(c).

Search and seizure powers relating to the suspect

(5) Any member of the Defence Force who is being utilised under the

call out order may do any one or more of the following if the

member believes on reasonable grounds that a person (the suspect)

mentioned in paragraph (1)(a), (b) or (c) is in the specified area:

(a) search the suspect;

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(b) seize any thing found in the search that the member believes

on reasonable grounds is a thing that may be seized in

relation to the call out order;

grounds that the suspect is a person who may be detained in

relation to the call out order for the purpose of placing the

suspect in the custody of a member of a police force at the

earliest practicable time.

51E General provisions relating to section 51D

Power to enter means of transport

(1) A member of the Defence Force may enter a means of transport for

the purpose of giving a direction under subsection 51D(2).

Vessels and aircraft in the Australian offshore area

(2) The master of a vessel, or the captain of an aircraft, that is in the

Australian offshore area, is entitled to observe a search that is

being carried out under subsection 51D(2), (3) or (5).

(3) The entitlement to observe the search being carried out ceases if

the master or captain impedes the search of the vessel or aircraft.

(4) Subsection (2) does not prevent 2 or more areas of the vessel or

aircraft being searched at the same time.

Powers do not limit each other

(5) To avoid doubt, no paragraph of subsection 51D(2), (3) or (5)

limits the operation of any other paragraph of any of those

subsections.

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Division 5--Powers to protect declared infrastructure

Subdivision A--Introduction

51F Simplified outline of this Division

This Division confers powers on members of the Defence Force if

the Defence Force is being utilised under a call out order that

specifies that this Division applies. The powers are to protect

infrastructure, in Australia or the Australian offshore area, that has

been declared by the authorising Ministers in an infrastructure

declaration.

An infrastructure declaration can be made whether or not a call out

order is in force.

An expedited infrastructure declaration can be made under

Division 7 in sudden and extraordinary emergencies.

Division 6 allows members of the Defence Force exercising

powers under this Division to use reasonable and necessary force.

Division 6 also:

(a)

confers powers and imposes obligations if persons are

detained or things are seized; and

(b)

contains an offence for failing to comply with a

direction; and

(c)

deals with the consequences of the exercise of powers

by members of the Defence Force if obligations imposed

in relation to the exercise of those powers have not been

met or if call out orders and other instruments have not

been validly made.

51G International obligations

In making an infrastructure declaration under Subdivision B

authorising the exercise of powers in the Australian offshore area,

the authorising Ministers must have regard to Australia's

international obligations.

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Subdivision B--Infrastructure declaration

51H Infrastructure declaration

(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 declared infrastructure (whether

or not a call out order is in force).

Note:

An expedited declaration may be made by one or more other Ministers

in sudden and extraordinary emergencies (see Division 7).

(2) However, the authorising Ministers may do so only if they believe

on reasonable grounds that:

(a) either:

(i) there is a threat of damage or disruption to the operation

of the infrastructure or the part of the infrastructure; or

(ii) if a contingent call out order is in force--if the

circumstances specified in the order were to arise, there

would be 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, any person.

(3) The authorising Ministers must, in writing, revoke the declaration

if:

(a) any one or more of the authorising Ministers cease to believe

the matters in subsection (2); or

(b) if the declaration was requested by a State or self-governing

Territory--the State or Territory requests the revocation.

(4) The authorising Ministers may, in writing, vary or revoke the

declaration in any other circumstances.

(5) An infrastructure declaration:

(a) comes into force when it is made; and

(b) ceases to be in force:

(i) if the declaration specifies a period--at the end of the

specified period; or

(ii) otherwise--when the declaration is revoked.

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Note:

A period specified in an infrastructure declaration might be different

from a period specified in a call out order to which the declaration

relates.

Declarations involving States and Territories that have not been

requested

(6) The authorising Ministers may make the declaration in relation to

infrastructure, or a part of infrastructure, that is in a State or a

self-governing Territory whether or not the Government of the

State or the self-governing Territory requests the making of the

declaration.

(7) However, if the Government of the State or the self-governing

Territory does not request the declaration, an authorising Minister

must (subject to subsection (8)) consult that Government about the

declaration before the Ministers make it.

Note:

An authorising Minister is not required to consult in relation to an

expedited infrastructure declaration (see subsection 51V(6)).

(8) Subsection (7) does not apply if the authorising Ministers are

satisfied that, for reasons of urgency, it is impracticable to comply

with that subsection.

Subdivision C--Powers to protect declared infrastructure

51J Application of this Subdivision

This Subdivision applies if:

(a) a call out order states that this Division applies in relation to

the order; and

(b) an infrastructure declaration is in force in relation to

infrastructure or a part of infrastructure.

51K Location of exercise of powers

(1) A power may be exercised in a State or self-governing Territory

under this Subdivision in relation to a call out order if:

(a) the exercise of the power in that State or Territory is

authorised by the order; or

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(b) the power is exercised for the purpose specified in the order

under subsection 33(3), 34(3), 35(3) or 36(3).

Note:

For example, powers might be exercised in a State because:

(a) the State is specified in the order; or

(b) the powers are exercised in a State that is not specified in the

order for the purpose of protecting a State that is specified in the

order against domestic violence that is occurring in that State; or

order for the purpose of protecting Commonwealth interests in

the Australian offshore area, as specified in the order.

(2) A power must not be exercised under this Subdivision beyond the

outer limit of the Australian offshore area.

51L Powers to protect declared infrastructure

(1) A member of the Defence Force who is being utilised under a call

out order may, under the command of the Chief of the Defence

Force, take any of the actions in subsection (2), or exercise any of

the powers in subsection (3) or (5), for the purpose of protecting

declared infrastructure.

(2) The member may take one or more of the following actions:

(a) prevent, or put an end to, damage or disruption to the

operation of the declared infrastructure;

(b) prevent, or put an end to:

(i) acts of violence; or

(ii) threats to any person's life, health or safety, or to public

health or public safety;

(i) acts of violence; or

(ii) threats to any person's life, health or safety, or to public

health or public safety.

(3) The member may do any one or more of the following in

connection with taking any such action:

(a) control the movement of persons or of means of transport;

(b) evacuate persons to a place of safety;

seized, or any persons who may be detained, in relation to the

call out order;

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(d) seize any thing found in the search that the member believes

on reasonable grounds is a thing that may be seized in

relation to the call out order;

(e) detain any person found in the search that the member

believes on reasonable grounds:

(i) is a person who may be detained in relation to the call

out order; or

(ii) is a person who is likely to pose a risk to the operation

or integrity of declared infrastructure;

for the purpose of placing the person in the custody of a

member of a police force at the earliest practicable time;

(f) provide security (whether or not armed, and whether or not

with a police force) including by patrolling or securing an

area or conducting cordon operations;

(g) direct a person to answer a question put by the member, or to

produce to the member a particular document that is readily

accessible to the person, (including by requiring the person to

provide identification to the member);

(h) operate, or direct a person to operate, a facility, machinery or

equipment (including electronic equipment) in a particular

manner (whether or not the facility, machinery or equipment

is on a facility or means of transport).

Note 1:

For the definitions of person who may be detained, search and thing

that may be seized, see section 31.

Note 2:

See also sections 51P (persons to be informed of certain matters if

detained), 51Q (actions to be taken if things seized) and 51R (offence

for failing to comply with a direction).

(4) A member who controls the movement of persons or of means of

transport under paragraph (3)(a) must not do so for longer than is

reasonable and necessary in the circumstances.

(5) The member may do anything incidental to anything in

subsection (2) or (3).

Powers do not limit each other

(6) To avoid doubt, no paragraph of subsection (2) or (3) limits the

operation of any other paragraph of either of those subsections.

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Division 6--Provisions common to Divisions 3 to 5

51M Simplified outline of this Division

A member of the Defence Force who is being utilised under a call

out order may use reasonable and necessary force, whether the

member is exercising a power under this Part or not. Additional

limitations apply in relation to the use of force against persons.

Powers (such as the power to make a thing safe and prevent it from

being used), and obligations, apply under this Division if a member

detains a person or seizes a thing under any of Divisions 3 to 5.

A person may commit an offence if a person fails to comply with a

direction given to the person under Division 3, 4 or 5.

This Division also deals with the consequences of the exercise of

powers by members of the Defence Force if obligations imposed in

relation to the exercise of those powers have not been met or if call

out orders and other instruments have not been validly made.

51N Use of reasonable and necessary force

(1) A member of the Defence Force who is being utilised under a call

out order (whether or not the member is exercising a power under

this Part):

(a) may use such force against persons and things as is

reasonable and necessary in the circumstances (subject to

subsections (2) and (3)); and

(b) if using force against persons--must do so in accordance

with this section.

Restrictions on use of force

(2) A member of the Defence Force must not use force against persons

or things in exercising a power under paragraph 46(7)(h), 51D(2)(i)

or 51L(3)(g) to direct a person to answer a question put by a

member of the Defence Force, or to produce to a member of the

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Defence Force a particular document that is readily accessible to

the person.

(3) In using force against a person, 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:

(a) the member believes on reasonable grounds that doing that

thing:

(i) is necessary to protect the life of, or to prevent serious

injury to, a person (including the member); or

(ii) in relation to powers exercised under Division 5--is

necessary to protect the declared infrastructure in

respect of which the powers are being exercised against

the domestic violence or threat specified in the call out

order; or

(iii) in relation to powers exercised under paragraph 46(5)(d)

or (e)--is reasonable and necessary to give effect to the

order under which, or under the authority of which, the

member is acting; and

(b) if a person against whom force is to be used is attempting to

escape being detained by fleeing--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.

Note:

Division 5 provides powers in relation to declared infrastructure.

Paragraphs 46(5)(d) and (e) allow measures to be taken against

aircraft and vessels.

(4) In using force against a person (except when exercising a power

under paragraph 46(5)(d) or (e)), a member of the Defence Force

must not subject a person to greater indignity than is reasonable

and necessary in the circumstances.

(5) A reference in this section to using force against a person is taken

to include a reference to using force against a thing if the use of

force against the thing is likely to cause the death of, or grievous

bodily harm to, a person.

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51P Persons to be informed of certain matters if detained

(1) A member of the Defence Force who detains a person under this

Part must inform the person, at the time the person is detained, of

the following (as the case requires):

(a) the offence against the law of the Commonwealth, the State

or the Territory that the person is reasonably believed to have

committed;

(b) both of the following:

(i) that the person is believed to be likely to pose a threat to

any person's life, health or safety, or to public health or

public safety;

(ii) the reasons for that belief;

(i) that the person is believed to be likely to pose a risk to

the operation or integrity of declared infrastructure;

(ii) the reasons for that belief.

(2) 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, threat or risk; or

(b) the person's actions make it impracticable for the member to

inform the person of the offence, threat or risk.

(3) For the purposes of paragraph (1)(a), 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.

51Q Action to be taken if things are seized

(1) If a thing is seized under Division 3, 4 or 5, a member of the

Defence Force may take any action that is reasonable and

necessary to make the thing safe or prevent it being used.

(2) Without limiting subsection (1), the member may destroy the thing

if:

(a) the member believes on reasonable grounds that it is

reasonable and necessary to do so to make the thing safe; or

(b) the member believes on reasonable grounds:

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(i) that using the thing would be likely to pose a threat to

any person's life, health or safety, or to public health or

public safety, or cause serious damage to property; and

(ii) that it is reasonable and necessary to destroy it to

prevent it from being used.

(3) If the thing was seized from a person, a member of the Defence

Force must:

(a) give the person a receipt for the thing (even if the thing has

been destroyed), if it is practicable to do so; and

(b) if the thing has not been destroyed and 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--give the

thing to a member of a police force at the earliest practicable

time; and

apply:

(i) return the thing to the person, if it is practicable to do

so; or

(ii) give it to a member of a police force, at the earliest

practicable time.

(4) If a member of the Defence Force believes on reasonable grounds

that a thing seized from a person has been used or otherwise

involved in the commission of an offence against a law of the

Commonwealth, a State or a Territory, the member may:

(a) require the person to provide identification to the member;

and

(b) 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.

51R Offence for failing to comply with a direction

(1) A person commits an offence if:

(a) the person is given a direction under Division 3, 4 or 5; and

(b) the person fails to comply with the direction.

Penalty: 60 penalty units.

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Geographical jurisdiction for offences

(2) Section 15.4 of the Criminal Code (extended geographical

jurisdiction--category D) applies to an offence against

subsection (1).

51S Exercise of powers when certain obligations not complied with

Members who fail to comply with obligations

(1) If, before, while or after exercising a power under any of

Divisions 3 to 5 or this Division, a member of the Defence Force

fails to comply with any obligation imposed under this Part that

relates to the exercise of the power, the member is not, and is taken

not to have been, entitled to exercise the power unless the member

exercised the power in good faith.

Members exercising powers in relation to invalid order etc.

(2) A member of the Defence Force is not liable to an action, suit or

proceeding, whether civil or criminal, in relation to the exercise, or

purported exercise, of powers under any of Divisions 3 to 5 or this

Division in relation to a call out order, infrastructure declaration,

specified area declaration or authorisation if:

(a) the order, declaration or authorisation was not validly made;

and

(b) if the member made the authorisation--the powers were

exercised or purportedly exercised in good faith.

Division 7--Expedited orders and declarations

51T Simplified outline of this Division

In sudden and extraordinary emergencies:

(a)

a call out order may be made under this Division by

authorising Ministers, or other Ministers, instead of the

Governor-General; and

(b)

a specified area declaration or infrastructure declaration

can be made under this Division by one or 2 authorising

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Ministers, or other Ministers, instead of all authorising

Ministers.

51U Making expedited orders and declarations

(1) A person or persons (the maker or makers) referred to in

subsection (2) may make a call out order, an infrastructure

declaration or a specified area declaration if the maker or makers

are satisfied that:

(a) because a sudden and extraordinary emergency exists, it is

not practicable for an order or declaration to be made under

the section under which the order or declaration would

otherwise be made; and

(b) for a call out order or an infrastructure declaration--the

circumstances referred to in subsection 33(1), 34(1), 35(1),

36(1) or 51H(2) (as the case requires) exist.

Who may make the order or declaration

(2) An order or declaration under this section may be made by:

(a) the Prime Minister; or

(b) the other 2 authorising Ministers jointly, but only if those

Ministers are satisfied that the Prime Minister is unable to be

contacted for the purposes of considering whether to make,

and making, an order or declaration under this section; or

jointly with any one of the following Ministers (the

alternative Minister):

(i) the Deputy Prime Minister;

(ii) the Foreign Affairs Minister;

(iii) the Treasurer;

(iv) the Minister for Home Affairs;

but only if the available authorising Minister and the

alternative Minister are satisfied that the other authorising

Ministers are unable to be contacted for the purposes of

considering whether to make, and making, an order or

declaration under this section.

Note 1:

An order or declaration would not be required to be made under this

section if an acting Prime Minister, or acting authorising Ministers,

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were available to make the order or declaration (see subsection 19(4)

of the Acts Interpretation Act 1901).

Note 2:

For the effect of the order, see sections 51V and 51W.

Order or declaration not in writing

(3) An order or declaration under this section need not be in writing. If

it is not in writing, the maker or makers, and the Chief of the

Defence Force, must each:

(a) make a written record (which may be electronic) of the order

or declaration; and

(b) sign (including by electronic signature) the record; and

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

(iii) for a specified area declaration--cause a copy of the

record to be given to each of the Presiding Officers; and

(d) 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 (c) or (d) does not

affect the validity of the order or declaration.

References to certain circumstances

(4) To avoid doubt, a reference in paragraph (1)(b) to the

circumstances referred to in subsection 33(1), 34(1), 35(1), 36(1)

or 51H(2):

(a) does not include a reference to the authorising Ministers

being satisfied as to particular matters; and

(b) in relation to a State protection order--includes a reference to

a State Government or Government of a self-governing

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Territory having made an application of a kind referred to in

subsection 35(1) or 36(1).

51V Effect of expedited order or declaration

(1) An expedited order or declaration has effect for all purposes as if it

were:

(a) a call out order made by the Governor-General; or

(b) an infrastructure declaration or a specified area declaration

made by the authorising Ministers;

(as the case requires) except as provided by subsections (4) and (5)

and for the purposes of section 51U.

(2) In particular:

(a) for a call out order--subsection 33(5), 34(5), 35(5) or 36(5)

(as the case requires) applies to the order; and

(b) for a call out order or infrastructure declaration--the order or

declaration may be varied or revoked in the same way, and in

the same circumstances, as the order or declaration may be

varied or revoked under section 37 or subsection 51H(3) or

(4).

However, a variation of an expedited order or declaration must not

extend the period during which the order or declaration is in force.

Note:

A new order or declaration would need to be made after the expedited

order or declaration had ceased to be in force.

(3) For the purposes of paragraph (2)(b) of this section:

(a) for a call out order--the reference in paragraph 37(1)(a) to

the authorising Ministers still being satisfied is taken to be a

reference to those Ministers being satisfied; and

(b) for a call out order or infrastructure declaration--the

reference in paragraph 37(3)(a) or subsection 51H(3) to the

authorising Ministers ceasing to be satisfied or to believe is

taken to be a reference to those Ministers not being satisfied

or believing.

Content of an order or declaration

(4) An expedited order or declaration:

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(a) must state that it is made under this section, and that it has

effect as if it were a call out order, infrastructure declaration

or specified area declaration (as the case requires); and

(b) despite paragraph 33(5)(d), 34(5)(d), 35(5)(d), 36(5)(d),

51(3)(b) or 51H(5)(b) (as the case requires), must state that it

ceases to be in force at the end of a specified period (which

must not end more than 5 days after it comes into force),

unless it is revoked earlier.

Note:

The period of an expedited order or declaration must not be extended

(see subsection (2) of this section).

When order is in force

(5) An expedited order or declaration:

(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 51U(3)(b) (which is about

signing the record); and

(b) ceases to be in force as stated in accordance with

paragraph (4)(b) of this section.

Consultation with State or Territory not required

(6) To avoid doubt, subsections 38(2) and 51H(7) do not apply to an

expedited order or declaration that would have effect as if it were a

Commonwealth interests order or infrastructure declaration.

51W Effect of expedited order on Ministerial authorisation

(1) An authorisation made for the purposes of paragraph 46(1)(a)

(special powers generally authorised by Minister) as a result of an

expedited order need not be in writing.

(2) If the authorisation is not in writing, the authorising Minister, and

the Chief of the Defence Force, must each:

(a) make a written record (which may be electronic) of the

authorisation; and

(b) sign (including by electronic signature) the record; and

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be given to the Chief of the Defence Force as soon as

practicable; and

(d) 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 the authorising Minister

who made the order, 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 (c) or (d) does not

affect the validity of the authorisation.

(3) If the authorisation is not in writing, it comes into force when the

authorising Minister, and the Chief of the Defence Force, have

complied with paragraph (2)(b).

Division 8--Miscellaneous

Subdivision A--Simplified outline of this Division

51X Simplified outline of this Division

The criminal law of the Jervis Bay Territory applies in relation to

criminal acts of members of the Defence Force done, or purported

to be done, under this Part.

It may be a defence to a criminal act done by a member of the

Defence Force that the member was under a legal obligation to

obey an order of a superior.

Call out orders that have ceased to be in force are tabled in each

House of the Parliament, as are specified area declarations and any

report on the utilisation of the Defence Force that occurred under

the order.

An independent review of this Part is to be commenced at least

every 5 years. The operation, effectiveness and implications of this

Part can also be reviewed on the initiative of the Independent

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National Security Legislation Monitor under the Independent

National Security Legislation Monitor Act 2010.

This Part does not affect any utilisation of the Defence Force that

would be permitted if this Part were disregarded.

Subdivision B--Applicable criminal law

51Y Applicable criminal law

Application of criminal law of the Jervis Bay Territory

(1) In relation to a criminal act of a member of the Defence Force that

is done, or purported to be done, under this Part:

(a) the substantive criminal law of the Jervis Bay Territory, as in

force from time to time, applies; and

(b) the substantive criminal law of the States and the other

Territories, as in force from time to time, does not apply.

(2) 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).

Functions of the Director of Public Prosecutions

(3) 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) of this section 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 force to investigate any criminal acts done, or

purported to be done, by Defence Force members when operating

under this Part.

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51Z Defence of superior orders in certain circumstances

(1) 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 (subject to subsection (2)) 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

(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.

Subdivision C--Other provisions

51ZA Publication of order and report

(1) The Minister must arrange for presentation to each House of the

Parliament in accordance with subsection (2) of a copy of:

(a) any call out order that has ceased to be in force; and

(b) any specified area declarations that relate to the order; and

under the order, including the number of premises searched

under Subdivision C of Division 4 (powers to search

premises in specified area).

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Defence Amendment (Call Out of the Australian Defence Force) Bill

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Reporting to Parliament

(2) The copy of the call out order and report must be forwarded to the

Presiding Officer of each House of the Parliament, before the end

of 7 days after the order ceases to be in force:

(a) if that House sits before those 7 days--for tabling in that

House before the end of those 7 days; or

(b) otherwise--for distribution to all Senators or Members of the

House of Representatives before the end of those 7 days.

Multiple call out orders

(3) For the purposes of this section, if more than one call out order is

made in relation to the same or related circumstances, without any

intervening period when a call out order relating to those

circumstances is not in force:

(a) each of the orders is taken to be a single call out order; and

(b) the order is taken to cease to be in force when the last of the

orders ceases to be in force.

Effect of revocation

(4) 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.

51ZB Independent review of this Part

(1) The Minister may, at any time, cause an independent review of this

Part to be conducted by one or more persons who, in the Minister's

opinion, possess appropriate qualifications to carry out the review.

(2) The Minister must ensure that, at least every 5 years, an

independent review of this Part is commenced by one or more

persons who, in the Minister's opinion, possess appropriate

qualifications to carry out the review.

Note:

The independent review may be a review that was conducted under

subsection (1).

(3) The review may be completed after the end of the 5-year period.

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(4) The persons who undertake a review under this section must give

the Minister a written report of the review.

(5) The Minister must cause a copy of the report to be tabled in each

House of the Parliament within 15 sitting days of receiving it.

51ZC Instruments that are not legislative instruments

An order, authorisation or declaration made under this Part is not a

legislative instrument.

51ZD Effect on 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.

3 Subsection 71A(1) (paragraph (a) of the definition of

search)

Omit "51", substitute "31".

4 Subsection 71A(1) (definition of vessel)

Omit "51SD", substitute "31".

Defence Reserve Service (Protection) Act 2001

5 Section 7 (definition of call out)

Omit "51A, 51AA, 51AB, 51B, 51C or 51CA", substitute "33, 34, 35 or

36".

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Part 2--Application of amendments

6 Application of amendments

(1)

Part IIIAAA of the Defence Act 1903, and the definition of call out in

the Defence Reserve Service (Protection) Act 2001, as in force

immediately after the commencement of this item, applies in relation to:

(a) any call out order made after the commencement of this item;

and

(b) any authorisation, declaration or other instrument relating to

any such order made after that commencement.

(2)

Despite the repeal of Part IIIAAA of the Defence Act 1903 by this

Schedule, that Part, and the definition of call out in the Defence Reserve

Service (Protection) Act 2001, as in force immediately before the

commencement of this item, continues in force in relation to:

(a) any call out order that is in force immediately before the

commencement of this item; and

(b) any authorisation, declaration or other instrument relating to

any such order that is in force immediately before that

commencement.

(3)

Subsection 51ZB(2) (independent review of Part IIIAAA) of the

Defence Act 1903, as in force immediately after the commencement of

this item, applies in relation to the period of 5 years that begins at that

commencement and each later 5 year period.

Commonwealth of Australia Bills

DEFENCE AMENDMENT (CALL OUT OF THE AUSTRALIAN DEFENCE FORCE) BILL 2018