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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Defence Legislation Amendment
(Instrument Making) Bill 2017
No. , 2017
(Defence)
A Bill for an Act to amend the Defence Act 1903,
and for related purposes
No. , 2017
Defence Legislation Amendment (Instrument Making) Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
4
Part 1--Defence Force inquiries
4
Defence Act 1903
4
Part 2--Defence aviation areas
5
Defence Act 1903
5
Part 3--Infringement notices for by-laws for public areas
10
Defence Act 1903
10
Part 4--Contingent amendments
12
Division 1--Inserting definition
12
Defence Act 1903
12
Division 2--Repealing definition
12
Defence Act 1903
12
No. , 2017
Defence Legislation Amendment (Instrument Making) Bill 2017
1
A Bill for an Act to amend the Defence Act 1903,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Defence Legislation Amendment (Instrument
5
Making) Act 2017.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Defence Legislation Amendment (Instrument Making) Bill 2017
No. , 2017
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day after this Act receives the Royal
Assent.
2. Schedule 1,
Parts 1 to 3
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.
3. Schedule 1,
Part 4, Division 1
At the same time as the provisions covered
by table item 2.
However, the provisions do not commence
at all if item 1 of Schedule 5 to the
Regulatory Powers (Standardisation
Reform) Act 2017 commences before the
commencement of the provisions covered by
table item 2.
4. Schedule 1,
Part 4, Division 2
Immediately after the commencement of
item 1 of Schedule 5 to the Regulatory
Powers (Standardisation Reform) Act 2017.
However, the provisions do not commence
at all if that item commences before the
commencement of the provisions covered by
table item 2.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
No. , 2017
Defence Legislation Amendment (Instrument Making) Bill 2017
3
concerned, and any other item in a Schedule to this Act has effect
1
according to its terms.
2
Schedule 1 Amendments
Part 1 Defence Force inquiries
4
Defence Legislation Amendment (Instrument Making) Bill 2017
No. , 2017
Schedule 1--Amendments
1
Part 1--Defence Force inquiries
2
Defence Act 1903
3
1 Paragraph 110ZB(1)(d)
4
Omit "a court of inquiry, a board of inquiry or a Chief of the Defence
5
Force commission of inquiry", substitute "an inquiry".
6
2 Paragraph 124(1)(gc)
7
Repeal the paragraph, substitute:
8
(gc) inquiries concerning the Defence Force, other than inquiries
9
conducted by:
10
(i) the Defence Force Remuneration Tribunal under
11
Part IIIA; or
12
(ii) the Inspector-General ADF under Part VIIIB; or
13
(iii) the Defence Honours and Awards Appeals Tribunal
14
under Part VIIIC; and
15
3 Subsection 124(2A)
16
Omit "a court of inquiry, a board of inquiry, a Chief of the Defence
17
Force commission of inquiry, an inquiry officer or an inquiry assistant",
18
substitute "an inquiry".
19
4 Subsection 124(2C)
20
Omit "a court of inquiry, a board of inquiry, a Chief of the Defence
21
Force commission of inquiry, an inquiry officer or an inquiry assistant",
22
substitute "an inquiry, established (however described) under
23
regulations made for the purposes of paragraph (1)(gc),".
24
5 Subsection 124(2C)
25
Omit "the court of inquiry, the board of inquiry, the Chief of the
26
Defence Force commission of inquiry, the inquiry officer or the inquiry
27
assistant", substitute "the inquiry".
28
Amendments Schedule 1
Defence aviation areas Part 2
No. , 2017
Defence Legislation Amendment (Instrument Making) Bill 2017
5
Part 2--Defence aviation areas
1
Defence Act 1903
2
6 Subsection 4(1)
3
Insert:
4
defence aviation area has the meaning given by
5
subsection 117AC(1).
6
defence aviation area inspector has the meaning given by
7
subsection 117AG(1).
8
7 After Part IXC
9
Insert:
10
Part IXD--Defence aviation areas
11
12
117AC Defence aviation areas
13
(1) The Minister may, by legislative instrument, declare an area of
14
land, sea or airspace in or adjacent to Australia to be a defence
15
aviation area.
16
(2) The Minister must not declare an area unless the Minister is
17
satisfied that:
18
(a) it is necessary for the defence of Australia for any of the
19
matters mentioned in paragraphs 117AD(a) to (c) to apply in
20
relation to the area; and
21
(b) in particular, the matters are necessary for the purpose of
22
preventing or reducing hazards to the following as they relate
23
to the defence of Australia:
24
(i) aircraft;
25
(ii) aviation-related communications, navigation or
26
surveillance.
27
(3) Without limiting section 117AD, a declaration of an area may also
28
specify height restrictions that apply in relation to buildings,
29
Schedule 1 Amendments
Part 2 Defence aviation areas
6
Defence Legislation Amendment (Instrument Making) Bill 2017
No. , 2017
structures and objects (including trees and other natural obstacles)
1
within the area.
2
(4) A declaration of an area may apply, adopt or incorporate, with or
3
without modification:
4
(a) a map, or a matter contained in a map, as in force or existing
5
from time to time; or
6
(b) a matter contained in an instrument or other writing as in
7
force or existing from time to time, to the extent that the
8
matter relates to a map.
9
117AD Regulations in relation to defence aviation areas
10
Without limiting section 124, the regulations may prescribe matters
11
providing for and in relation to the following:
12
(a) the regulation or prohibition of the construction or use of
13
buildings, structures or objects within defence aviation areas;
14
(b) the regulation or prohibition of the bringing of objects into,
15
or having objects within, defence aviation areas;
16
(c) the removal (in whole or in part), marking, lighting,
17
screening, modification or relocation of buildings, structures
18
or objects (including trees or other natural obstacles) within
19
defence aviation areas.
20
Note:
The regulations may also provide for and in relation to the payment by
21
the Commonwealth of compensation, and may provide for penalties
22
for offences against the regulations (see paragraphs 124(1)(r) and
23
(w)).
24
117AE Monitoring powers
25
Provisions subject to monitoring
26
(1) A provision of the regulations made for the purposes of
27
section 117AD is subject to monitoring under Part 2 of the
28
Regulatory Powers Act if the regulations prescribe the provision
29
for the purposes of this subsection.
30
Note:
Part 2 of the Regulatory Powers Act creates a framework for
31
monitoring whether provisions of the regulations have been complied
32
with. It includes powers of entry and inspection.
33
Amendments Schedule 1
Defence aviation areas Part 2
No. , 2017
Defence Legislation Amendment (Instrument Making) Bill 2017
7
Information subject to monitoring
1
(2) Information given in compliance or purported compliance with a
2
provision of the regulations made for the purposes of
3
section 117AD is subject to monitoring under Part 2 of the
4
Regulatory Powers Act if the regulations prescribe the provision
5
for the purposes of this subsection.
6
Note:
Part 2 of the Regulatory Powers Act creates a framework for
7
monitoring whether the information is correct. It includes powers of
8
entry and inspection.
9
Authorised applicant, authorised person, issuing officer, relevant
10
chief executive and relevant court
11
(3) For the purposes of Part 2 of the Regulatory Powers Act, as it
12
applies in relation to a provision prescribed for the purposes of
13
subsection (1) and the information mentioned in subsection (2):
14
(a) a defence aviation area inspector is an authorised applicant;
15
and
16
(b) a defence aviation area inspector is an authorised person; and
17
(c) a magistrate is an issuing officer; and
18
(d) each of the following is a relevant chief executive:
19
(i) the Secretary;
20
(ii) the Chief of the Defence Force; and
21
(e) each of the following is a relevant court:
22
(i) the Federal Court of Australia;
23
(ii) the Federal Circuit Court of Australia;
24
(iii) a court of a State or Territory that has jurisdiction in
25
relation to matters arising under this Act.
26
Person assisting
27
(4) An authorised person may be assisted by other persons in
28
exercising powers or performing functions or duties under Part 2 of
29
the Regulatory Powers Act in relation to a provision prescribed for
30
the purposes of subsection (1) and the information mentioned in
31
subsection (2).
32
Schedule 1 Amendments
Part 2 Defence aviation areas
8
Defence Legislation Amendment (Instrument Making) Bill 2017
No. , 2017
117AF Modifications of Part 2 of the Regulatory Powers Act
1
Additional purpose and monitoring powers
2
(1) Part 2 of the Regulatory Powers Act, subsections 117AE(3) and (4)
3
of this Act, and section 117AH of this Act (as that section relates to
4
that Part), also apply in relation to a provision prescribed for the
5
purposes of subsection 117AE(1) (the monitored provision) as if:
6
(a) the powers under that Part may be exercised for the purpose
7
of ensuring compliance with the monitored provision; and
8
(b) the monitoring powers in that Part included the taking of any
9
action that is reasonably necessary to ensure compliance with
10
the monitored provision.
11
Note 1:
A warrant may be issued under subsection 32(2) of the Regulatory
12
Powers Act if the issuing officer is satisfied, by information on oath or
13
affirmation, that it is reasonably necessary that one or more authorised
14
persons should have access to a premises for that purpose.
15
Note 2:
The regulations may provide for and in relation to the payment by the
16
Commonwealth of compensation (see paragraph 124(1)(r)).
17
(2) Without limiting paragraph (1)(b), the taking of action may include
18
the removal (in whole or in part), destruction or modification of a
19
building, structure or object.
20
Use of force in executing a warrant
21
(3) In executing a monitoring warrant for the purpose mentioned in
22
paragraph (1)(a):
23
(a) an authorised person may use such force against persons and
24
things as is necessary and reasonable in the circumstances;
25
and
26
(b) a person assisting the authorised person may use such force
27
against things as is necessary and reasonable in the
28
circumstances.
29
117AG Appointment of inspectors for defence aviation areas
30
(1) The Secretary, or the Chief of the Defence Force, (the appointer)
31
may, in writing, appoint any of the following as an inspector (a
32
defence aviation area inspector) for the purposes of this Part:
33
(a) an APS employee in the Department;
34
(b) a member of the Defence Force.
35
Amendments Schedule 1
Defence aviation areas Part 2
No. , 2017
Defence Legislation Amendment (Instrument Making) Bill 2017
9
(2) The appointer must not appoint a person as a defence aviation area
1
inspector unless the appointer is satisfied that the person has the
2
knowledge, training or experience necessary to properly exercise
3
the powers of a defence aviation area inspector.
4
(3) A defence aviation area inspector must, in exercising powers as
5
such, comply with any directions of the appointer.
6
(4) If a direction is given under subsection (3) in writing, the direction
7
is not a legislative instrument.
8
117AH Delegation of powers of Secretary or Chief of Defence Force
9
(1) The Secretary, or the Chief of the Defence Force, (the delegator)
10
may, in writing, delegate the powers and functions mentioned in
11
subsection (2) to any of the following:
12
(a) an SES employee, or an acting SES employee, in the
13
Department;
14
(b) an officer of the Navy who holds the rank of Commodore or
15
a higher rank;
16
(c) an officer of the Army who holds the rank of Brigadier or a
17
higher rank;
18
(d) an officer of the Air Force who holds the rank of Air
19
Commodore or a higher rank.
20
(2) The powers and functions that may be delegated are the following:
21
(a) the powers and functions of the relevant chief executive
22
under Part 2 of the Regulatory Powers Act in relation to a
23
provision prescribed for the purposes of subsection 117AE(1)
24
and the information mentioned in subsection 117AE(2);
25
(b) the powers and functions of the appointer under
26
section 117AG.
27
(3) A person exercising powers or performing functions under a
28
delegation under subsection (1) must comply with any directions of
29
the delegator.
30
8 Paragraph 124(1)(na)
31
Repeal the paragraph.
32
Schedule 1 Amendments
Part 3 Infringement notices for by-laws for public areas
10
Defence Legislation Amendment (Instrument Making) Bill 2017
No. , 2017
Part 3--Infringement notices for by-laws for public
1
areas
2
Defence Act 1903
3
9 After section 116ZC
4
Insert:
5
116ZCA Infringement notices
6
Provisions subject to an infringement notice
7
(1) A strict liability offence against the by-laws is subject to an
8
infringement notice under Part 5 of the Regulatory Powers Act if
9
the by-laws specify the offence for the purposes of this subsection.
10
Note:
Part 5 of the Regulatory Powers Act creates a framework for using
11
infringement notices in relation to provisions.
12
Infringement officer
13
(2) For the purposes of Part 5 of the Regulatory Powers Act, a ranger
14
is an infringement officer in relation to an offence specified for the
15
purposes of subsection (1).
16
Relevant chief executive
17
(3) For the purposes of Part 5 of the Regulatory Powers Act, each of
18
the following is a relevant chief executive in relation to an offence
19
specified for the purposes of subsection (1):
20
(a) the Secretary;
21
(b) the Chief of the Defence Force.
22
(4) A relevant chief executive may, in writing, delegate the powers and
23
functions of the relevant chief executive under that Part to any of
24
the following:
25
(a) an SES employee, or an acting SES employee, in the
26
Department;
27
(b) an officer of the Navy who holds the rank of Commodore or
28
a higher rank;
29
Amendments Schedule 1
Infringement notices for by-laws for public areas Part 3
No. , 2017
Defence Legislation Amendment (Instrument Making) Bill 2017
11
(c) an officer of the Army who holds the rank of Brigadier or a
1
higher rank;
2
(d) an officer of the Air Force who holds the rank of Air
3
Commodore or a higher rank.
4
(5) A person exercising powers or performing functions under a
5
delegation under subsection (4) must comply with any directions of
6
the relevant chief executive.
7
Additional matters to be included in infringement notices
8
(6) In addition to the matters included in subsection 104(1) of the
9
Regulatory Powers Act, an infringement notice given in relation to
10
an alleged contravention of an offence specified for the purposes of
11
subsection (1) of this section must also state who is the relevant
12
chief executive in relation to the offence.
13
Note:
The relevant chief executive may be the Secretary or the Chief of the
14
Defence Force (see subsection (3)).
15
10 Paragraph 116ZD(2)(r)
16
Repeal the paragraph, substitute:
17
(r) specifying strict liability offences against the by-laws for the
18
purposes of subsection 116ZCA(1);
19
11 Paragraph 116ZD(2)(za)
20
Omit "5 penalty units", substitute "10 penalty units".
21
Schedule 1 Amendments
Part 4 Contingent amendments
12
Defence Legislation Amendment (Instrument Making) Bill 2017
No. , 2017
Part 4--Contingent amendments
1
Division 1
--Inserting definition
2
Defence Act 1903
3
12 Subsection 4(1)
4
Insert:
5
Regulatory Powers Act means the Regulatory Powers (Standard
6
Provisions) Act 2014.
7
Division 2
--Repealing definition
8
Defence Act 1903
9
13 Subsection 4(1) (the definition of Regulatory Powers Act
10
inserted by item 1 of Schedule 5 to the Regulatory
11
Powers (Standardisation Reform) Act 2017)
12
Repeal the definition.
13