DEFENCE LEGISLATION (MISCELLANEOUS AMENDMENTS) BILL 2009

i Defence Legislation (Miscellaneous Amendments) Bill 2008 No. , 2008

Contents

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

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

Schedule(s) ......................................................................................... 3

Schedule 1--The third additional protocol to the Geneva

Conventions

Criminal Code Act 1995

Geneva Conventions Act 1957

Schedule 2--Medical and dental treatment

Defence Act 1903

Schedule 3--Joint Defence Facility Pine Gap

Defence (Special Undertakings) Act 1952

Schedule 4--Technical amendme nts

Defence (Special Undertakings) Act 1952

Defence Legislation (Miscellaneous Amendments) Bill 2008 No. , 2008 1

A Bill for an Act to amend legislation relating to

defence, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Defence Legislation (Miscellaneous

Amendments) Act 2008.

2 Commence ment

(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.

2 Defence Legislation (Miscellaneous Amendments) Bill 2008 No. , 2008

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1

A single day to be fixed by Proclamation.

However:

(a) the Proclamation must not specify a day

that occurs before the day on which

Protocol III to the Geneva Conventions

enters into force for Australia; and

(b) if any of the provision(s) do not

commence with in the period of one

month beginning on the day on which

Protocol III to the Geneva Conventions

enters into force for Australia, they

commence on the first day after the end

of that period.

If a p rovision commences as a result of

paragraph (b), the Minister must announce

by notice in the Gazette the day on which

the provision commenced.

3. Schedule 2

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence with in the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

4. Schedule 3

The day after this Act receives the Royal

Assent.

5. Schedule 4

The day on which this Act receives the

Royal Assent.

Note:

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

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

Defence Legislation (Miscellaneous Amendments) Bill 2008 No. , 2008 3

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act 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.

Schedule 1 The third additional protocol to the Geneva Conventions

4 Defence Legislation (Miscellaneous Amendments) Bill 2008 No. , 2008

Schedule 1

The third additional protocol to

the Geneva Conventions

Criminal Code Act 1995

1 Dictionary in the Criminal Code

Insert:

Protocol III to the Geneva Conventions means the Protocol

Additional to the Geneva Conventions of 12 August 1949, and

relating to the Adoption of an Additional Distinctive Emblem

(Protocol III), done at Geneva on 8 December 2005, a copy of the

English text of which is set out in Schedule 6 to the Geneva

Conventions Act 1957.

2 Dictionary in the Criminal Code (definition of Protocols to

the Geneva Conventions)

Omit "and Protocol II to the Geneva Conventions", substitute ",

Protocol II to the Geneva Conventions and Protocol III to the Geneva

Conventions".

Geneva Conventions Act 1957

3 Subsection 5(1A)

Insert:

Protocol III means the Protocol Additional to the Geneva

Conventions of 12 August 1949, and relating to the Adoption of an

Additional Distinctive Emblem (Protocol III), done at Geneva on

8 December 2005, a copy of the English text of which is set out in

Schedule 6.

4 Subsection 5(3)

After "Protocol I", insert "or Protocol III".

5 After paragraph 15(1)(c)

Insert:

The third additional protocol to the Geneva Conventions Schedule 1

Defence Legislation (Miscellaneous Amendments) Bill 2008 No. , 2008 5

(ca) the emblem of a red frame in the shape of a square on edge

on a white ground, or the designation "Red Crystal";

6 Paragraph 15(1)(e)

After "(c)", insert ", (ca)".

7 At the end of paragraph 15(1)(f)

Add "or Protocol III".

8 Subsection 15(5)

Omit "the day on which this Act received the Royal Assent" (first

occurring), substitute "the day to which subsection (5A) applies".

9 Subsection 15(5)

Omit "paragraph (1)(b) or (c)", substitute "paragraph (1)(b), (c) or

(ca)".

10 Paragraphs 15(5)(a) and (b)

Omit "the day on which this Act received the Royal Assent", substitute

"the day to which subsection (5A) applies".

11 After subsection 15(5)

Insert:

(5A) For the purposes of subsection (5), this subsection applies to the

following day:

(a) to the extent that subsection (5) applies in relation to a trade

mark consisting of or containing an emblem or designation

specified in paragraph (1)(b) or (c) or a design or wording

resembling such an emblem or designation--the day on

which this Act received the Royal Assent;

(b) to the extent that subsection (5) applies in relation to a trade

mark consisting of or containing an emblem or designation

specified in paragraph (1)(ca) or a design or wording

resembling such an emblem or designation--the day on

which Schedule 1 to the Defence Legislation (Miscellaneous

Amendments) Act 2008 commenced.

12 At the end of the Act

Add:

Schedule 1 The third additional protocol to the Geneva Conventions

6 Defence Legislation (Miscellaneous Amendments) Bill 2008 No. , 2008

Schedule 6--Protocol Additional to the

Geneva Conventions of 12 August

1949, and relating to the Adoption of

an Additional Distinctive Emblem

(Protocol III)

Section 5

Preamble

The High Contracting Parties,

(PP1) Reaffirming the provisions of the Geneva Conventions of 12 August 1949

(in particular Articles 26, 38, 42 and 44 of the First Geneva Convention) and,

where applicable, their Additional Protocols of 8 June 1977 (in particular

Articles 18 and 38 of Additional Protocol I and Article 12 of Additional

Protocol II), concerning the use of distinctive emblems,

(PP2) Desiring to supplement the aforementioned provisions so as to enhance

their protective value and universal character,

(PP3) Noting that this Protocol is without prejudice to the recognized right of

High Contracting Parties to continue to use the emblems they are using in

conformity with their obligations under the Geneva Conventions and, where

applicable, the Protocols additional thereto,

(PP4) Recalling that the obligation to respect persons and objects protected by

the Geneva Conventions and the Protocols additional thereto derives from their

protected status under international law and is not dependent on use of the

distinctive emblems, signs or signals,

(PP5) Stressing that the distinctive emblems are not intended to have any

religious, ethnic, racial, regional or political significance,

(PP6) Emphasizing the importance of ensuring full respect for the obligations

relating to the distinctive emblems recognized in the Geneva Conventions, and,

where applicable, the Protocols additional thereto,

The third additional protocol to the Geneva Conventions Schedule 1

Defence Legislation (Miscellaneous Amendments) Bill 2008 No. , 2008 7

(PP7) Recalling that Article 44 of the First Geneva Convention makes the

distinction between the protective use and the indicative use of the distinctive

emblems,

(PP8) Recalling further that National Societies undertaking activities on the

territory of another State must ensure that the emblems they intend to use within

the framework of such activities may be used in the country where the activity

takes place and in the country or countries of transit,

(PP9) Recognizing the difficulties that certain States and National Societies may

have with the use of the existing distinctive emblems,

(PP10) Noting the determination of the International Committee of the Red

Cross, the International Federation of Red Cross and Red Crescent Societies and

the International Red Cross and Red Crescent Movement to retain their current

names and emblems,

Have agreed on the following:

Article 1 - Respect for and scope of application of this Protocol

1. The High Contracting Parties undertake to respect and to ensure respect for

this Protocol in all circumstances.

2. This Protocol reaffirms and supplements the provisions of the four Geneva

Conventions of 12 August 1949 ("the Geneva Conventions") and, where

applicable, of their two Additional Protocols of 8 June 1977 ("the 1977

Additional Protocols") relating to the distinctive emblems, namely the red cross,

the red crescent and the red lion and sun, and shall apply in the same situations

as those referred to in these provisions.

Article 2 - Distinctive emblems

1. This Protocol recognizes an additional distinctive emblem in addition to,

and for the same purposes as, the distinctive emblems of the Geneva

Conventions. The distinctive emblems shall enjoy equal status.

2. This additional distinctive emblem, composed of a red frame in the shape of

a square on edge on a white ground, shall conform to the illustration in the

Annex to this Protocol. This distinctive emblem is referred to in this Protocol as

the "third Protocol emblem".

Schedule 1 The third additional protocol to the Geneva Conventions

8 Defence Legislation (Miscellaneous Amendments) Bill 2008 No. , 2008

3. The conditions for use of and respect for the third Protocol emblem are

identical to those for the distinctive emblems established by the Geneva

Conventions and, where applicable, the 1977 Additional Protocols.

4. The medical services and religious personnel of armed forces of High

Contracting Parties may, without prejudice to their current emblems, make

temporary use of any distinctive emblem referred to in paragraph 1 of this

Article where this may enhance protection.

Article 3 - Indicative use of the third Protocol emblem

1. National Societies of those High Contracting Parties which decide to use the

third Protocol emblem may, in using the emblem in conformity with relevant

national legislation, choose to incorporate within it, for indicative purposes:

a) a distinctive emblem recognized by the Geneva Conventions or a

combination of these emblems; or

b) another emblem which has been in effective use by a High Contracting

Party and was the subject of a communication to the other High Contracting

Parties and the International Committee of the Red Cross through the depositary

prior to the adoption of this Protocol.

Incorporation shall conform to the illustration in the Annex to this Protocol.

2. A National Society which chooses to incorporate within the third Protocol

emblem another emblem in accordance with paragraph 1 above, may, in

conformity with national legislation, use the designation of that emblem and

display it within its nationa l territory.

3. National Societies may, in accordance with national legislation and in

exceptional circumstances and to facilitate their work, make temporary use of

the distinctive emblem referred to in Article 2 of this Protocol.

4. This Article does not affect the legal status of the distinctive emblems

recognized in the Geneva Conventions and in this Protocol, nor does it affect

the legal status of any particular emblem when incorporated for indicative

purposes in accordance with paragraph 1 of this Article.

Article 4 - International Committee of the Red Cross and

The third additional protocol to the Geneva Conventions Schedule 1

Defence Legislation (Miscellaneous Amendments) Bill 2008 No. , 2008 9

International

Federation of Red Cross and Red Crescent Societies

The International Committee of the Red Cross and the International Federation

of Red Cross and Red Crescent Societies, and their duly authorized personnel,

may use, in exceptional circumstances and to facilitate their work, the

distinctive emblem referred to in Article 2 of this Protocol.

Article 5 - Missions under United Nations auspices

The medical services and religious personnel participating in operations under

the auspices of the United Nations may, with the agreement of participating

States, use one of the distinctive emblems mentioned in Articles 1 and 2.

Article 6 - Prevention and repression of misuse

1. The provisions of the Geneva Conventions and, where applicable, the 1977

Additional Protocols, governing prevention and repression of misuse of the

distinctive emblems shall apply equally to the third Protocol emblem. In

particular, the High Contracting Parties shall take measures necessary for the

prevention and repression, at all times, of any misuse of the distinctive emblems

mentioned in Articles 1 and 2 and their designations, including the perfidious

use and the use of any sign or designation constituting an imitation thereof.

2. Notwithstanding paragraph 1 above, High Contracting Parties may permit

prior users of the third Protocol emblem, or of any sign constituting an imitation

thereof, to continue such use, provided that the said use shall not be such as

would appear, in time of armed conflict, to confer the protection of the Geneva

Conventions and, where applicable, the 1977 Additional Protocols, and

provided that the rights to such use were acquired before the adoption of this

Protocol.

Article 7 - Dissemination

The High Contracting Parties undertake, in time of peace as in time of armed

conflict, to disseminate this Protocol as widely as possible in their respective

countries and, in particular, to include the study thereof in their programmes of

military instruction and to encourage the study thereof by the civilian

population, so that this instrument may become known to the armed forces and

to the civilian population.

Schedule 1 The third additional protocol to the Geneva Conventions

10 Defence Legislation (Miscellaneous Amendments) Bill 2008 No. , 2008

Article 8 - Signature

This Protocol shall be open for signature by the Parties to the Geneva

Conventions on the day of its adoption and will remain open for a period of

twelve months.

Article 9 - Ratification

This Protocol shall be ratified as soon as possible. The instruments of

ratification shall be deposited with the Swiss Federal Council, depositary of the

Geneva Conventions and the 1977 Additional Protocols.

Article 10 - Accession

This Protocol shall be open for accession by any Party to the Geneva

Conventions which has not signed it. The instruments of accession shall be

deposited with the depositary.

Article 11 - Entry into force

1. This Protocol shall enter into force six months after two instruments of

ratification or accession have been deposited.

2. For each Party to the Geneva Conventions thereafter ratifying or acceding to

this Protocol, it shall enter into force six months after the deposit by such Party

of its instrument of ratification or accession.

Article 12 - Treaty relations upon entry into force of this Protocol

1. When the Parties to the Geneva Conventions are also Parties to this

Protocol, the Conventions shall apply as supplemented by this Protocol.

2. When one of the Parties to the conflict is not bound by this Protocol, the

Parties to the Protocol shall remain bound by it in their mutual relations. They

shall furthermore be bound by this Protocol in relation to each of the Parties

which are not bound by it, if the latter accepts and applies the provisions

thereof.

Article 13 - Amendment

The third additional protocol to the Geneva Conventions Schedule 1

Defence Legislation (Miscellaneous Amendments) Bill 2008 No. , 2008 11

1. Any High Contracting Party may propose amendments to this Protocol. The

text of any proposed amendment shall be communicated to the depositary,

which shall decide, after consultation with all the High Contracting Parties, the

International Committee of the Red Cross and the International Federation of

Red Cross and Red Crescent Societies, whether a conference should be

convened to consider the proposed amendment.

2. The depositary shall invite to that conference all the High Contracting

Parties as well as the Parties to the Geneva Conventions, whether or not they are

signatories of this Protocol.

Article 14 - Denunciation

1. In case a High Contracting Party should denounce this Protocol, the

denunciation shall only take effect one year after receipt of the instrument of

denunciation. If, however, on the expiry of that year the denouncing Party is

engaged in a situation of armed conflict or occupation, the denunciation shall

not take effect before the end of the armed conflict or occupation.

2. The denunciation shall be notified in writing to the depositary, which shall

transmit it to all the High Contracting Parties.

3. The denunciation shall have effect only in respect of the denouncing Party.

4. Any denunciation under paragraph 1 shall not affect the obligations already

incurred, by reason of the armed conflict or occupation, under this Protocol by

such denouncing Party in respect of any act committed before this denunciation

becomes effective.

Article 15 - Notifications

The depositary shall inform the High Contracting Parties as well as the Parties

to the Geneva Conventions, whether or not they are signatories of this Protocol,

of:

a) signatures affixed to this Protocol and the deposit of instruments of

ratification and accession under Articles 8, 9 and 10;

b) the date of entry into force of this Protocol under Article 11 within ten days

of said entry into force;

c) communications received under Article 13;

d) denunciations under Article 14.

Schedule 1 The third additional protocol to the Geneva Conventions

12 Defence Legislation (Miscellaneous Amendments) Bill 2008 No. , 2008

Article 16 - Registration

1. After its entry into force, this Protocol shall be transmitted by the depositary

to the Secretariat of the United Nations for registration and publication, in

accordance with Article 102 of the Charter of the United Nations.

2. The depositary shall also inform the Secretariat of the United Nations of all

ratifications, accessions and denunciations received by it with respect to this

Protocol.

Article 17 - Authentic texts

The original of this Protocol, of which the Arabic, Chinese, English, French,

Russian and Spanish texts are equally authentic, shall be deposited with the

depositary, which shall transmit certified true copies thereof to all the Parties to

the Geneva Conventions.

Schedule 2 Medical and dental treatment

14 Defence Legislation (Miscellaneous Amendments) Bill 2008 No. , 2008

Schedule 2

Medical and dental treatment

Defence Act 1903

1 At the end of paragraphs 124(1)(a) to (h)

Add "and".

2 After paragraph 124(1)(h)

Insert:

(i) medical or dental treatment of a member or cadet, or a

member of the family of a member; and

3 At the end of paragraphs 124(1)(j) to (u)

Add "and".

4 Subsection 124(1B)

Omit "(d) and (e)", substitute "(e) and (i)".

5 After subsection 124(1B)

Insert:

(1C) In paragraph (1)(i), medical or dental treatment includes the

provision of services or goods (including pharmaceuticals) related

to medical or dental treatment.

Joint Defence Facility Pine Gap Schedule 3

Defence Legislation (Miscellaneous Amendments) Bill 2008 No. , 2008 15

Schedule 3

Joint Defence Facility Pine Gap

Defence (Special Undertakings) Act 1952

1 After section 2

Insert:

2A Purposes of Act

The purposes of this Act are:

(a) to provide for the protection by the Commonwealth of works

and undertakings that are carried out for or in relation to:

(i) the defence of Australia; or

(ii) the defence of Australia and the defence of another

country; and

(b) to provide for the protection by the Commonwealth of areas

that are reserved for:

(i) the defence of Australia; or

(ii) the defence of Australia and the defence of another

country; and

undertakings and areas that require special security measures;

and

(d) to provide for the protection by the Commonwealth of works,

undertakings and areas in order to enable Australia to fulfil

its obligations under treaties, conventions and international

agreements relating to defence or security.

2 Section 4

Insert:

prohibited area means a place, or an area, that is a prohibited area

under section 7, 8 or 8A.

3 Section 4

Insert:

restricted area means an area that is a restricted area under

section 14.

Schedule 3 Joint Defence Facility Pine Gap

16 Defence Legislation (Miscellaneous Amendments) Bill 2008 No. , 2008

4 Section 4

Insert:

special defence undertaking means a work or undertaking that is a

special defence undertaking under section 6 or 8A.

5 Section 6

Omit "for the purposes of this Act".

6 Subsection 7(1)

Omit "for the purposes of this Act".

7 Section 8

Omit ", for the purposes of this Act,".

8 After section 8

Insert:

8A Joint Defence Facility Pine Gap

Prohibited area

(1) The whole of the area (the JDFPG area) described in Certificate

of Title Volume 321 Folio 075 being NT Portion 4130 from Plan

LT091/006 is a prohibited area.

Special defence undertaking

(2) A work or undertaking that is carried out at the JDFPG area is a

special defence undertaking.

9 Subsections 14(1) and (2)

Omit "for the purposes of this Act".

Technical amend ments Schedule 4

Defence Legislation (Miscellaneous Amendments) Bill 2008 No. , 2008 17

Schedule 4

Technical amendments

Defence (Special Undertakings) Act 1952

1 Section 10

Omit "by writing under his hand", substitute "in writing".

2 Subsection 11(1)

Omit "by writing under his hand", substitute "in writing".

3 Section 18

After "his", insert "or her".

4 Subsection 20(1)

After "his", insert "or her".

5 Section 21

After "his", insert "or her".

6 Section 26

After "he", insert "or she".

7 Subsection 28(1)

After "his", insert "or her".

8 Subsection 28(2)

After "for his", insert "or her".

9 Subsection 28(2)

After "he", insert "or she".

10 Subsection 28(2)

After "under his", insert "or her".

11 Paragraph 31(1)(c)

After "he", insert "or she".

Commonwealth of Australia Bills

DEFENCE LEGISLATION (MISCELLANEOUS AMENDMENTS) BILL 2009