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This is a Bill, not an Act. For current law, see the Acts databases.
DEFENCE LEGISLATION AMENDMENT (SECURITY OF DEFENCE PREMISES) BILL 2010
2008-2009-2010
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Defence Legislation Amendment
(Security of Defence Premises) Bill 2010
No. , 2010
(Defence)
A Bill for an Act to amend the Defence Act 1903,
and for related purposes
i Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. , 2010
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Amendments relating to the security of defence
premises
3
Part 1--Main amendments
3
Defence Act 1903
3
Part 2--Associated amendment
32
Australian Federal Police Act 1979
32
Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. , 2010 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 may be cited as the Defence Legislation Amendment
5
(Security of Defence Premises) Act 2010.
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 (Security of Defence Premises) Bill 2010 No. ,
2010
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 this Act receives the Royal Assent.
2. Schedule 1
A single day to be fixed by Proclamation.
However, if any of the provision(s) 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
1
passed by both Houses of the Parliament and assented to. It will not be
2
expanded to deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
4
part of this Act. Information in this column may be added to or
5
edited in any published version of this Act.
6
3 Schedule(s)
7
Each Act 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
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
Amendments relating to the security of defence premises Schedule 1
Main amendments Part 1
Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. , 2010
3
Schedule 1--Amendments relating to the
1
security of defence premises
2
Part 1--Main amendments
3
Defence Act 1903
4
1 After Part VI
5
Insert:
6
Part VIA--Security of defence premises
7
Division 1--Preliminary
8
71 Simplified outline
9
(1) The following is a simplified outline of this Part.
10
(2) This Division sets out the meaning of expressions used in this Part.
11
(3) Division 2 provides for matters relating to defence security
12
officials.
13
(4) Division 3 sets out the powers exercisable by defence security
14
officials with consent at defence access control points and on
15
defence premises. Subdivision B of Division 3 contains special
16
provisions relating to declared explosive ordnance depots.
17
(5) Division 4 sets out the powers exercisable by special defence
18
security officials without consent at defence access control points
19
and on defence premises, and provides for related matters,
20
including offences relating to non-compliance with requirements,
21
hindering and obstructing.
22
(6) Division 5 relates to seizure of things.
23
(7) Division 6 sets out provisions that apply generally in relation to the
24
exercise of powers under this Part, including the following:
25
(a) the production of identity cards;
26
(b) informing persons of offences;
27
Schedule 1 Amendments relating to the security of defence premises
Part 1 Main amendments
4 Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. ,
2010
(c) the use of force;
1
(d) limits on the exercise of certain powers.
2
(8) Division 7 provides for other matters, including:
3
(a) an offence of unauthorised entry on, or being on, defence
4
premises or defence accommodation; and
5
(b) the provision of information obtained by certain surveillance
6
devices to law enforcement and other agencies.
7
71A Definitions
8
(1) In this Part:
9
contracted defence security guard has the meaning given by
10
section 71B.
11
criminal offence means an offence against a law of the
12
Commonwealth, a State or a Territory.
13
declared explosive ordnance depot has the meaning given by
14
section 71L.
15
defence access control point means a point of entry to, or exit
16
from, defence premises or a part of defence premises, where entry
17
or exit is controlled or limited by any means, including but not
18
limited to control by means of:
19
(a) guarding by defence security officials; or
20
(b) physical barriers such as security screens, locked doors or
21
gates.
22
defence accommodation means any building or other structure, or
23
any place, that:
24
(a) is in Australia; and
25
(b) is used for, or in connection with, the accommodation of a
26
group of members of any part of the Defence Force.
27
defence premises means any of the following that is in Australia,
28
and is owned or occupied by the Commonwealth for use by the
29
Defence Force or the Department:
30
(a) an area of land or any other place (whether or not it is
31
enclosed or built on);
32
(b) a building or other structure;
33
Amendments relating to the security of defence premises Schedule 1
Main amendments Part 1
Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. , 2010
5
(c) a vehicle, vessel or aircraft, including any fixed or moveable
1
ramp, stairs or other means of access to, or exit from, the
2
vehicle, vessel or aircraft;
3
(d) a prohibited area, within the meaning of the Defence (Special
4
Undertakings) Act 1952.
5
defence security official means:
6
(a) a contracted defence security guard (see section 71B); or
7
(b) a security authorised member of the Defence Force (see
8
section 71C); or
9
(c) a defence security screening employee (see section 71D).
10
defence security screening employee has the meaning given by
11
section 71D.
12
intelligence or security agency means any of the following:
13
(a) the Australian Secret Intelligence Service;
14
(b) the Australian Security Intelligence Organisation;
15
(c) the Office of National Assessments.
16
limited search of a person means:
17
(a) a search of things in the possession of a person that may
18
include:
19
(i) requesting the person to remove his or her overcoat,
20
coat or jacket and any gloves, shoes and hat; and
21
(ii) an examination of any of those items that the person
22
consents to remove; or
23
(b) a search of a person conducted by quickly running the hands
24
over the person's outer garments and an examination of
25
anything worn or carried by the person that is conveniently
26
and voluntarily removed by the person;
27
but does not include requesting the person to remove all of his or
28
her garments.
29
optical surveillance device means any device capable of being
30
used to record visually or observe an activity, but does not include
31
spectacles, contact lenses or a similar device used by a person with
32
impaired sight to overcome that impairment.
33
personal information has the same meaning as in the Privacy Act
34
1988.
35
Schedule 1 Amendments relating to the security of defence premises
Part 1 Main amendments
6 Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. ,
2010
person assisting a defence security official has the meaning given
1
by section 72N.
2
protective service officer has the same meaning as in the
3
Australian Federal Police Act 1979.
4
search:
5
(a) of a person--has the same meaning as in section 51; and
6
(b) of a vehicle, vessel or aircraft--includes a search of a thing
7
in the vehicle, vessel or aircraft.
8
security authorised member of the Defence Force has the
9
meaning given by section 71C.
10
special defence security official means:
11
(a) a security authorised member of the Defence Force (see
12
section 71C); or
13
(b) a defence security screening employee (see section 71D).
14
vessel has the same meaning as in section 51SD.
15
(2) To avoid doubt, a thing includes a substance, a vehicle, vessel or
16
aircraft and a thing in electronic or magnetic form.
17
Division 2--Defence security officials
18
71B Contracted defence security guards
19
(1) A person is a contracted defence security guard if:
20
(a) the person is one of the following:
21
(i) a party to a contract with the Commonwealth or a
22
Commonwealth entity;
23
(ii) a subcontractor for a contract with the Commonwealth
24
or a Commonwealth entity;
25
(iii) an employee of a person referred to in subparagraph (i)
26
or (ii); and
27
(b) the contract is for, or includes, the provision of security
28
services at one or more defence premises; and
29
(c) either of the following applies:
30
(i) the person is authorised under subsection (2);
31
(ii) the person is included in a class of persons authorised
32
under subsection (2) (including a person who becomes a
33
Amendments relating to the security of defence premises Schedule 1
Main amendments Part 1
Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. , 2010
7
member of the class after the authorisation is given);
1
and
2
(d) the person satisfies the training and qualification
3
requirements determined under subsection (4).
4
(2) The Minister may, in writing, authorise a person, or a class of
5
persons, for the purposes of paragraph (1)(c).
6
(3) An authorisation made under subsection (2) is not a legislative
7
instrument.
8
(4) The Minister must, by legislative instrument, determine the
9
training and qualification requirements for contracted defence
10
security guards.
11
(5) Without limiting the training and qualification requirements that
12
may be determined in a legislative instrument under subsection (4),
13
different training and qualification requirements may apply to
14
different kinds of contracted defence security guards.
15
71C Security authorised members of the Defence Force
16
(1) A person is a security authorised member of the Defence Force if
17
the person:
18
(a) is a member of the Defence Force; and
19
(b) either of the following applies:
20
(i) the person is authorised under subsection (2);
21
(ii) the person is included in a class of persons authorised
22
under subsection (2) (including a person who becomes a
23
member of the class after the authorisation is given);
24
and
25
(c) the person satisfies the training and qualification
26
requirements determined under subsection (4).
27
(2) The Minister may, in writing, authorise a person, or a class of
28
persons, for the purposes of paragraph (1)(b).
29
(3) An authorisation made under subsection (2) is not a legislative
30
instrument.
31
(4) The Minister must, by legislative instrument, determine the
32
training and qualification requirements for security authorised
33
members of the Defence Force.
34
Schedule 1 Amendments relating to the security of defence premises
Part 1 Main amendments
8 Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. ,
2010
(5) Without limiting the training and qualification requirements that
1
may be determined in a legislative instrument under subsection (4):
2
(a) different training and qualification requirements may apply to
3
different kinds of security authorised members of the
4
Defence Force; and
5
(b) the Minister must determine training and qualification
6
requirements that apply to security authorised members of
7
the Defence Force in relation to the use of dogs as referred to
8
in section 72M.
9
71D Defence security screening employees
10
(1) A person is a defence security screening employee if the person:
11
(a) is an APS employee in the Department; and
12
(b) either of the following applies:
13
(i) the person is authorised under subsection (2);
14
(ii) the person is included in a class of persons authorised
15
under subsection (2) (including a person who becomes a
16
member of the class after the authorisation is given);
17
and
18
(c) the person satisfies the training and qualification
19
requirements determined under subsection (4).
20
(2) The Minister may, in writing, authorise a person, or a class of
21
persons, for the purposes of paragraph (1)(b).
22
(3) An authorisation made under subsection (2) is not a legislative
23
instrument.
24
(4) The Minister must, by legislative instrument, determine the
25
training and qualification requirements for defence security
26
screening employees.
27
(5) Without limiting the training and qualification requirements that
28
may be determined in a legislative instrument under subsection (4),
29
different training and qualification requirements may apply to
30
different kinds of defence security screening employees.
31
71E Identity cards
32
(1) The Secretary must issue an identity card to each defence security
33
official.
34
Amendments relating to the security of defence premises Schedule 1
Main amendments Part 1
Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. , 2010
9
Form of identity card
1
(2) The identity card must:
2
(a) be in the form approved by the Secretary; and
3
(b) contain a recent photograph of the defence security official.
4
Offence
5
(3) A person commits an offence if:
6
(a) the person has been issued with an identity card; and
7
(b) the person ceases to be a defence security official; and
8
(c) the person does not, within 7 days of so ceasing, return the
9
person's identity card to the Secretary.
10
Penalty: 5 penalty units.
11
(4) Subsection (3) is an offence of strict liability.
12
Note:
For strict liability, see section 6.1 of the Criminal Code.
13
Defence--card lost or destroyed
14
(5) Subsection (3) does not apply if the identity card was lost or
15
destroyed.
16
Note:
A defendant bears an evidential burden in relation to the matter in this
17
subsection (see subsection 13.3(3) of the Criminal Code).
18
Defence security official must carry card
19
(6) A defence security official must carry the identity card at all times
20
when performing functions or exercising powers as a defence
21
security official.
22
71F Delegations relating to training and qualification requirements
23
Contracted defence security guards and defence security screening
24
employees
25
(1) The Minister may, by writing, delegate the Minister's power under
26
subsection 71B(4) or 71D(4) (training and qualification
27
requirements for contracted defence security guards and defence
28
security screening employees) to:
29
(a) the Secretary; or
30
Schedule 1 Amendments relating to the security of defence premises
Part 1 Main amendments
10 Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. ,
2010
(b) an APS employee who holds or performs the duties of an
1
SES Band 3 position, or an equivalent or higher position, in
2
the Department.
3
Security authorised members of the Defence Force
4
(2) The Minister may, by writing, delegate the Minister's power under
5
subsection 71C(4) (training and qualification requirements for
6
security authorised members of the Defence Force) to:
7
(a) an officer of the Army who holds the rank of Brigadier or a
8
higher rank; or
9
(b) an officer of the Navy who holds the rank of Commodore or
10
a higher rank; or
11
(c) an officer of the Air Force who holds the rank of Air
12
Commodore or a higher rank.
13
71G Delegations relating to identity cards
14
Issue of identity cards
15
(1) The Secretary may, by writing, delegate the Secretary's power
16
under subsection 71E(1) (issue of identity cards) to:
17
(a) an APS employee who holds or performs the duties of an
18
Executive Level 2 position, or an equivalent or higher
19
position, in the Department; or
20
(b) an officer of the Army who holds the rank of Colonel or a
21
higher rank; or
22
(c) an officer of the Navy who holds the rank of Captain or a
23
higher rank; or
24
(d) an officer of the Air Force who holds the rank of Group
25
Captain or a higher rank.
26
Return of identity cards
27
(2) The Secretary may, by writing, delegate the Secretary's function
28
under paragraph 71E(3)(c) (return of identity cards) to:
29
(a) an APS employee who holds or performs the duties of an
30
APS 5 position, or an equivalent or higher position, in the
31
Department; or
32
(b) an officer of the Army who holds the rank of Captain or a
33
higher rank; or
34
Amendments relating to the security of defence premises Schedule 1
Main amendments Part 1
Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. , 2010
11
(c) an officer of the Navy who holds the rank of Lieutenant or a
1
higher rank; or
2
(d) an officer of the Air Force who holds the rank of Flight
3
Lieutenant or a higher rank.
4
Division 3--Powers exercisable with consent at defence
5
access control points and on defence premises
6
Subdivision A--General provisions
7
71H Consensual identification and limited search--person about to
8
pass a defence access control point
9
Power to request identification etc.
10
(1) A defence security official may request a person who is about to
11
pass a defence access control point to provide evidence of the
12
following:
13
(a) the person's name;
14
(b) the person's residential address;
15
(c) the person's authority to pass the defence access control
16
point.
17
Power to request limited search
18
(2) A defence security official may request a person who is about to
19
pass a defence access control point to undergo a limited search.
20
Power to refuse access etc.
21
(3) A defence security official may refuse to allow a person to pass a
22
defence access control point if:
23
(a) the person refuses a request by a defence security official
24
under subsection (1) or (2); or
25
(b) as a result of the person complying with such a request, a
26
defence security official reasonably believes that the person:
27
(i) is not authorised to pass the defence access control
28
point; or
29
(ii) constitutes a threat to the safety of persons on the
30
defence premises; or
31
Schedule 1 Amendments relating to the security of defence premises
Part 1 Main amendments
12 Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. ,
2010
(iii) has committed, or may commit, a criminal offence on,
1
or in relation to, the defence premises.
2
Additional powers if person is on defence premises
3
(4) If a defence security official refuses to allow a person to pass a
4
defence access control point under subsection (3), a defence
5
security official may, if the person is on defence premises, restrain
6
and detain the person.
7
71J Consensual search--vehicle, vessel or aircraft about to pass a
8
defence access control point
9
(1) A defence security official may request a person apparently in
10
control of a vehicle, vessel or aircraft that is about to pass a
11
defence access control point to permit a search of the vehicle,
12
vessel or aircraft.
13
(2) A defence security official may refuse to allow a vehicle, vessel or
14
aircraft to pass a defence access control point if:
15
(a) a person refuses to permit a search of a vehicle, vessel or
16
aircraft requested by a defence security official under
17
subsection (1); or
18
(b) as a result of the person complying with such a request, a
19
defence security official reasonably believes that the vehicle,
20
vessel or aircraft, or a thing in it:
21
(i) is not authorised to pass the defence access control
22
point; or
23
(ii) constitutes a threat to the safety of persons on the
24
defence premises; or
25
(iii) relates to a criminal offence committed, or that may be
26
committed, on or in relation to the defence premises.
27
Additional powers if vehicle, vessel or aircraft is on defence
28
premises
29
(3) If a defence security official refuses to allow a vehicle, vessel or
30
aircraft to pass a defence access control point under subsection (2),
31
a defence security official may, if the vehicle, vessel or aircraft is
32
on defence premises, restrain or detain any person in the vehicle,
33
vessel or aircraft.
34
Amendments relating to the security of defence premises Schedule 1
Main amendments Part 1
Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. , 2010
13
71K Consensual identification--person on defence premises
1
(1) This section applies if:
2
(a) a person is on defence premises; and
3
(b) a defence security official reasonably believes that the person
4
is not authorised to be on the premises.
5
(2) The defence security official may request the person to provide
6
evidence of the following:
7
(a) the person's name;
8
(b) the person's residential address;
9
(c) the person's authority to be on the defence premises.
10
(3) A defence security official may restrain and detain a person if:
11
(a) the person refuses a request by a defence security official
12
under subsection (2); or
13
(b) as a result of the person complying with such a request, a
14
defence security official reasonably believes that the person:
15
(i) is not authorised to be on the defence premises; or
16
(ii) constitutes a threat to the safety of persons on the
17
defence premises; or
18
(iii) has committed, or may commit, a criminal offence on,
19
or in relation to, the defence premises.
20
Subdivision B--Special provisions for declared explosive
21
ordnance depots
22
71L Declared explosive ordnance depots
23
(1) A specified area of land or any other place (whether or not it is
24
enclosed or built on), or a building or other structure, is a declared
25
explosive ordnance depot if:
26
(a) the area of land or the place, building or structure is specified
27
in an instrument in force under subsection (2); and
28
(b) signs stating that it is a condition of entry to the area of land
29
or the place, building or structure that a person consent to
30
undergo searches as provided by this Subdivision are
31
prominently displayed:
32
(i) at the entrance to the area of land or the place, building
33
or structure; and
34
Schedule 1 Amendments relating to the security of defence premises
Part 1 Main amendments
14 Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. ,
2010
(ii) at regular intervals around the perimeter of the area of
1
land or the place, building or structure.
2
(2) The Minister may, by legislative instrument, specify an area of
3
land or any other place (whether or not it is enclosed or built on),
4
or a building or other structure if:
5
(a) the area of land or the place, building or structure is defence
6
premises used wholly or partly for the storage of explosive
7
ordnance; and
8
(b) members of the Defence Force are not normally present at
9
the area of land or the place, building or structure.
10
(3) An instrument under subsection (2) may specify more than one
11
area of land, place, building or structure.
12
(4) Each area of land, place, building or structure specified in an
13
instrument under subsection (2) must be specified by reference to
14
one of the following:
15
(a) its geographical location;
16
(b) a unique code or number.
17
(5) If an area of land or a place, building or structure is specified by a
18
unique code or number as mentioned in paragraph (4)(b), the code
19
or number must correspond with a code or number that is held in
20
the records of the Department as a code or number applicable to
21
that area of land or that place, building or structure.
22
71M Consensual search--person on a declared explosive ordnance
23
depot
24
(1) A contracted defence security guard may request a person who is
25
on a declared explosive ordnance depot to undergo a limited
26
search.
27
(2) A contracted defence security guard may restrain and detain a
28
person if:
29
(a) the person refuses a request by a contracted defence security
30
guard under subsection (1); or
31
(b) as a result of the person complying with such a request, a
32
contracted defence security guard reasonably believes that
33
the person:
34
Amendments relating to the security of defence premises Schedule 1
Main amendments Part 1
Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. , 2010
15
(i) is not authorised to be on the declared explosive
1
ordnance depot; or
2
(ii) constitutes a threat to the safety of persons on the
3
defence explosive ordnance depot; or
4
(iii) has committed, or may commit, a criminal offence on,
5
or in relation to, the defence explosive ordnance depot.
6
71N Consensual search--vehicle, vessel or aircraft on a declared
7
explosive ordnance depot
8
(1) A contracted defence security guard may request a person
9
apparently in control of a vehicle, vessel or aircraft that is on a
10
declared explosive ordnance depot to permit a search of the
11
vehicle, vessel or aircraft.
12
(2) A contracted defence security guard may restrain and detain any
13
person in the vehicle, vessel or aircraft if:
14
(a) a person refuses to permit a search of the vehicle, vessel or
15
aircraft requested under subsection (1); or
16
(b) as a result of a person complying with such a request, a
17
contracted defence security guard reasonably believes that
18
the vehicle, vessel or aircraft, or a thing in it:
19
(i) is not authorised to be on the declared explosive
20
ordnance depot; or
21
(ii) constitutes a threat to the safety of persons on the
22
declared explosive ordnance depot; or
23
(iii) relates to a criminal offence committed, or that may be
24
committed, on or in relation to the declared explosive
25
ordnance depot.
26
71P Powers additional to other powers
27
To avoid doubt, this Subdivision does not limit any other power of
28
a contracted defence security guard under this Part.
29
Subdivision C--Offences
30
71Q Offences--search powers exercised without consent
31
(1) A defence security official commits an offence if:
32
Schedule 1 Amendments relating to the security of defence premises
Part 1 Main amendments
16 Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. ,
2010
(a) the defence security official conducts a limited search of a
1
person purportedly under this Division; and
2
(b) the person did not consent to the search.
3
Penalty: 50 penalty units.
4
(2) A defence security official commits an offence if:
5
(a) the defence security official conducts a search of a vehicle,
6
vessel or aircraft purportedly under this Division; and
7
(b) the person apparently in control of the vehicle, vessel or
8
aircraft did not consent to the search.
9
Penalty: 30 penalty units.
10
Division 4--Powers exercisable without consent at defence
11
access control points and on defence premises
12
71R Non-consensual identification and search--person about to pass
13
a defence access control point
14
Power to require identification etc.
15
(1) A special defence security official may require a person who is
16
about to pass a defence access control point to provide evidence of
17
the following:
18
(a) the person's name;
19
(b) the person's residential address;
20
(c) the person's authority to pass the defence access control
21
point.
22
Power to search at defence access control point on defence
23
premises
24
(2) A special defence security official may search a person who is
25
about to pass a defence access control point on defence premises.
26
Note:
If the defence access control point is not on defence premises, a
27
defence security official may request the person to undergo a search
28
under Division 3.
29
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17
Power to refuse access etc.
1
(3) A special defence security official may refuse to allow a person to
2
pass a defence access control point if:
3
(a) the person refuses to comply with a requirement imposed by
4
a special defence security official under subsection (1); or
5
(b) the person hinders or obstructs a search of the person by a
6
special defence security official under subsection (2); or
7
(c) as a result of the person complying with such a requirement
8
or undergoing such a search, a special defence security
9
official reasonably believes that the person:
10
(i) is not authorised to pass the defence access control
11
point; or
12
(ii) constitutes a threat to the safety of persons on the
13
defence premises; or
14
(iii) has committed, or may commit, a criminal offence on,
15
or in relation to, the defence premises.
16
Additional powers if person is on defence premises
17
(4) If a special defence security official refuses to allow a person to
18
pass a defence access control point under subsection (3), a special
19
defence security official may, if the person is on defence premises:
20
(a) restrain and detain the person; or
21
(b) request the person to leave the defence premises and, if he or
22
she refuses, remove the person from the defence premises.
23
71S Non-consensual search--vehicle, vessel or aircraft about to pass
24
a defence access control point
25
Power to search vehicles, vessels or aircraft
26
(1) A special defence security official may search a vehicle, vessel or
27
aircraft that is about to pass a defence access control point on
28
defence premises.
29
Note:
If the defence access control point is not on defence premises, a
30
defence security official may request a search under Division 3.
31
(2) A special defence security official may refuse to allow a vehicle,
32
vessel or aircraft to pass a defence access control point if:
33
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(a) a person hinders or obstructs a search of the vehicle, vessel or
1
aircraft conducted by a special defence security official under
2
subsection (1); or
3
(b) as a result of a search conducted under subsection (1), the
4
official reasonably believes that the vehicle, vessel or
5
aircraft, or a thing in it:
6
(i) is not authorised to pass the defence access control
7
point; or
8
(ii) constitutes a threat to the safety of persons on the
9
defence premises; or
10
(iii) relates to a criminal offence committed, or that may be
11
committed, on or in relation to the defence premises.
12
Additional powers if vehicle, vessel or aircraft is on defence
13
premises
14
(3) If a special defence security official refuses to allow a vehicle,
15
vessel or aircraft to pass a defence access control point under
16
subsection (2), a special defence security official may, if the
17
vehicle, vessel or aircraft is on defence premises, restrain and
18
detain any person in the vehicle, vessel or aircraft.
19
Note:
For other powers in relation to persons in a vehicle, vessel or aircraft
20
see section 71R.
21
71T Non-consensual identification and search--person on defence
22
premises
23
When section applies
24
(1) This section applies if:
25
(a) a person is on defence premises; and
26
(b) a special defence security official reasonably believes that the
27
person:
28
(i) is not authorised to be on the premises; or
29
(ii) constitutes a threat to the safety of persons on the
30
defence premises; or
31
(iii) has committed, or may commit, a criminal offence on,
32
or in relation to, the premises.
33
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19
Power to require identification etc.
1
(2) A special defence security official may require the person to
2
provide evidence of the following:
3
(a) the person's name;
4
(b) the person's residential address;
5
(c) the person's authority to be on the defence premises.
6
Power to search
7
(3) A special defence security official may search the person.
8
Power to restrain and detain, remove etc.
9
(4) A special defence security official may:
10
(a) restrain and detain the person; or
11
(b) request the person to leave the defence premises and if he or
12
she refuses, remove the person from the defence premises.
13
71U Non-consensual search--vehicle, vessel or aircraft on defence
14
premises
15
When section applies
16
(1) This section applies if:
17
(a) a vehicle, vessel or aircraft is on defence premises; and
18
(b) a special defence security official reasonably believes that the
19
vehicle, vessel or aircraft:
20
(i) is not authorised to be on the premises; or
21
(ii) constitutes a threat to the safety of persons on the
22
defence premises; or
23
(iii) relates to a criminal offence committed, or that may be
24
committed, on or in relation to the defence premises.
25
Power to search
26
(2) A special defence security official may search the vehicle, vessel
27
or aircraft.
28
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Power to restrain and detain
1
(3) A special defence security official may restrain and detain any
2
person in the vehicle, vessel or aircraft.
3
71V Offence--refusing to provide evidence etc. required under this
4
Division
5
A person commits an offence if:
6
(a) a special defence security official requires the person to
7
provide evidence under this Division; and
8
(b) section 72B (which deals with the production of identity
9
cards, etc.) was complied with in relation to the requirement;
10
and
11
(c) the person refuses or fails to provide the evidence, or gives a
12
name or address that is false in a material particular; and
13
(d) the person is on defence premises.
14
Penalty: 20 penalty units.
15
Note:
An offence under this section is a protective service offence for the
16
purposes of the Australian Federal Police Act 1979.
17
71W Offence--hindering or obstructing a search under this Division
18
A person commits an offence if the person hinders or obstructs a
19
search under this Division, and:
20
(a) if paragraphs 72B(3)(a) and (b) apply in relation to the
21
search--at the time the person hindered or obstructed the
22
search, the special defence security official who conducted
23
the search had done the things referred to in subparagraphs
24
72B(3)(c)(i) and (ii); or
25
(b) otherwise--subsection 72B(2) was complied with in relation
26
to the search.
27
Penalty: 50 penalty units.
28
Note 1:
An offence under this section is a protective service offence for the
29
purposes of the Australian Federal Police Act 1979.
30
Note 2:
Subsections 72B(2) and (3) deal with the production of identity cards
31
before conducting a search.
32
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21
71X Security authorised members of the Defence Force may
1
respond to attack
2
(1) This section applies if:
3
(a) an attack on defence premises is occurring or is imminent;
4
and
5
(b) the attack is likely to, or is intended to, result in the death of
6
or serious injury to one or more persons on the defence
7
premises.
8
(2) Subject to sections 72G and 72H, a security authorised member of
9
the Defence Force may take action on defence premises to protect
10
persons from the attack.
11
Note:
Section 72G provides that defence security officials may use
12
reasonable and necessary force in exercising powers under this Part.
13
Section 72H provides that security authorised members of the Defence
14
Force may, in limited circumstances involving an attack, do a thing
15
that is likely to cause the death of, or grievous bodily harm to, another
16
person. Other defence security officials are not so authorised (see
17
subsection 72G(2)).
18
71Y Power to stop and detain
19
A special defence security official may stop and detain a person, or
20
a vehicle, vessel or aircraft, for the purposes of exercising a power
21
under this Division:
22
(a) to require the person to provide evidence of particular
23
matters; or
24
(b) to search the person or the vehicle, vessel or aircraft.
25
71Z Powers are in addition to powers under this Part
26
To avoid doubt, a power conferred upon a special defence security
27
official under this Division may be exercised in addition to a power
28
conferred on the special defence security official under another
29
Division of this Part.
30
Division 5--Seizure
31
72 Power to seize things on defence premises
32
(1) A special defence security official may seize a thing (including a
33
vehicle, vessel or aircraft or an unattended thing) on defence
34
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22 Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. ,
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premises, or a thing found as a result of a search (including a
1
limited search) under this Part, if the official believes on
2
reasonable grounds that the thing may:
3
(a) constitute a threat to the safety of a person on the defence
4
premises; or
5
(b) relate to a criminal offence committed, or that may be
6
committed, on or in relation to the defence premises.
7
(2) If a special defence security official seizes a thing under
8
subsection (1):
9
(a) a security authorised member of the Defence Force may take
10
such action as is reasonable and necessary to make the thing
11
safe or prevent the thing being used; and
12
(b) if the official seized the thing from a person--a special
13
defence security official must, if it is practicable to do so,
14
give the person a receipt for the thing; and
15
(c) if the official believes on reasonable grounds that the thing
16
has been used or otherwise involved in the commission of a
17
criminal offence--a special defence security official must
18
give the thing to a member or special member of the
19
Australian Federal Police or a member of the police force of
20
a State or Territory at the earliest practicable time; and
21
(d) if paragraph (c) does not apply:
22
(i) if the official seized the thing from a person and it is
23
practicable to do so--a special defence security official
24
must return the thing to the person within 7 days; or
25
(ii) otherwise--a special defence security official must give
26
it to a member or special member of the Australian
27
Federal Police or a member of the police force of a State
28
or Territory at the earliest practicable time.
29
Division 6--Matters relating to exercise of powers under
30
Part
31
72A Certain powers to be exercised only by security authorised
32
members of the Defence Force unless not reasonably
33
practicable
34
A power conferred upon a special defence security official under
35
Division 4 (powers exercisable without consent) or Division 5
36
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23
(seizure powers) may be exercised by a defence security screening
1
employee only if it is not reasonably practicable in all the
2
circumstances for the power to be exercised by a security
3
authorised member of the Defence Force.
4
72B Defence security officials must produce identity cards, etc.
5
Production of identity card before making request or requirement
6
(1) A defence security official is not entitled to make a request or
7
requirement of a person under this Part unless, before making the
8
request or requirement:
9
(a) the defence security official produces his or her identity card
10
for inspection by the person; and
11
(b) the person is informed of the effect of refusal by the person
12
to comply with the request or requirement.
13
Production of identity card before search
14
(2) Subject to subsection (3), a defence security official is not entitled
15
to conduct a search (including a limited search) of a person, or a
16
vehicle, vessel or aircraft apparently under the control of a person,
17
under this Part unless, before conducting the search:
18
(a) the defence security official produces his or her identity card
19
for inspection by the person; and
20
(b) if the search is under Division 4 (powers exercisable without
21
consent)--the person is informed of the effect of hindering or
22
obstructing the search.
23
(3) A defence security official is not required to comply with
24
subsection (2) before conducting a search of a person, or of a
25
vehicle, vessel or aircraft apparently under the control of a person,
26
if:
27
(a) the search is conducted under subsection 71R(2), 71S(1),
28
71T(3) or 71U(2); and
29
(b) a defence security official reasonably believes that the
30
person, or the vehicle, vessel or aircraft, constitutes a threat
31
to the safety of persons on the defence premises concerned;
32
and
33
(c) as soon as practicable while conducting, or after conducting,
34
the search:
35
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24 Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. ,
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(i) the defence security official who is conducting, or has
1
conducted, the search produces his or her identity card
2
for inspection by the person; and
3
(ii) the person is informed of the effect of hindering or
4
obstructing the search.
5
Production of identity card before removal of a person
6
(4) A defence security official is not entitled to exercise powers under
7
this Part to remove a person from defence premises unless, before
8
exercising the power, the official produces his or her identity card
9
for inspection by the person.
10
Production of identity card as soon as practicable after detaining a
11
person
12
(5) A defence security official is not entitled to restrain and detain, or
13
stop and detain, a person under this Part unless, as soon as
14
practicable after restraining and detaining, or stopping and
15
detaining, the person, the official produces his or her identity card
16
for inspection by the person.
17
72C Persons to be informed of offence
18
(1) A defence security official who, in accordance with this Part,
19
exercises a power on the basis that the official reasonably believes
20
that a person has committed, or may commit, a criminal offence
21
must inform the person of the offence.
22
(2) It is sufficient if the person is informed of the substance of the
23
offence, and it is not necessary that this be done in language of a
24
precise or technical nature.
25
(3) Subsection (1) does not apply if:
26
(a) the person should, in the circumstances, know the substance
27
of the offence; or
28
(b) the person's actions make it impracticable for the defence
29
security official to inform the person of the offence.
30
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25
72D Conduct of searches and limited searches
1
A search or a limited search of a person under this Part must, if
2
practicable, be conducted by a person of the same sex as the person
3
being searched.
4
72E Use of equipment to examine things etc.
5
For the purposes of conducting a search or a limited search of a
6
person, or a search of a thing, under this Part or determining
7
whether a thing may be seized under this Part, a defence security
8
official may do one or more of the following:
9
(a) use any equipment, including electronic equipment,
10
reasonably necessary for the search or the limited search, or
11
the examination or processing of the thing;
12
(b) in the case of a thing that is on defence premises, and that a
13
defence security official suspects on reasonable grounds:
14
(i) constitutes a threat to the safety of persons on the
15
defence premises; or
16
(ii) relates to a criminal offence committed, or that may be
17
committed, on or in relation to the defence premises;
18
move the thing to another part of the defence premises for
19
immediate examination or processing;
20
(c) use any equipment, including electronic equipment, to gain
21
access to data stored on the thing;
22
(d) obtain expert assistance to do a thing referred to in
23
paragraph (a), (b) or (c).
24
72F Power to move certain unattended things on defence premises
25
If a thing is left unattended on defence premises as a result of, or in
26
connection with, the exercise of a power under this Part, a defence
27
security official may move the thing to another place if the defence
28
security official reasonably believes that it is necessary or desirable
29
to do so.
30
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26 Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. ,
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72G Use of reasonable and necessary force, etc. by defence security
1
officials
2
Use of force--general rule
3
(1) A defence security official may, subject to this section and
4
section 72H, use such force against persons and things as is
5
reasonable and necessary in the circumstances in exercising powers
6
under this Part.
7
Limit on use of force--defence security guards and defence
8
security screening employees
9
(2) Despite subsection (1), a contracted defence security guard or a
10
defence security screening employee must not, in using force
11
against a person in exercising powers under this Part, do anything
12
that is likely to cause the death of, or grievous bodily harm to, the
13
person.
14
Note 1:
For security authorised members of the Defence Force, see
15
section 72H.
16
Note 2:
This provision does not affect a person's rights under other laws: see
17
section 72S.
18
Indignity
19
(3) A defence security official must not, in exercising powers under
20
this Part, subject the person to greater indignity than is reasonable
21
and necessary in the circumstances.
22
72H Use of force involving death or grievous bodily harm by
23
security authorised members of the Defence Force in
24
responding to an attack
25
(1) Despite subsection 72G(1), a security authorised member of the
26
Defence Force must not, in using force against a person in
27
exercising powers under this Part, do anything that is likely to
28
cause the death of, or grievous bodily harm to, the person, unless
29
the member believes on reasonable grounds that:
30
(a) doing that thing is necessary to prevent the death of, or
31
serious injury to, another person (including the official); and
32
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27
(b) the threat of death or injury is caused by an attack on defence
1
premises, or on people on defence premises, that is occurring
2
or is imminent.
3
(2) In addition, if a person is attempting to escape being detained by
4
fleeing, a security authorised member of the Defence Force must
5
not, in exercising powers under this Part, do anything that is likely
6
to cause the death of, or grievous bodily harm to, the person unless:
7
(a) the person has, if practicable, been called on to surrender;
8
and
9
(b) the official believes on reasonable grounds that the person
10
cannot be apprehended in any other manner.
11
72J Limit on power to restrain and detain
12
A provision of this Part that confers a power on a defence security
13
official to restrain and detain a person is limited to a power to
14
restrain and detain the person for the purpose of placing the person,
15
at the earliest practicable time, in the custody of:
16
(a) a member or special member of the Australian Federal
17
Police; or
18
(b) a member of the police force of a State or Territory; or
19
(c) a protective service officer.
20
72K Limit on power to arrest
21
If a member of the Defence Force arrests a person under
22
section 72P (which deals with trespass), he or she must, as soon as
23
practicable after the arrest, bring the person, or cause the person to
24
be brought, before:
25
(a) a member or special member of the Australian Federal
26
Police; or
27
(b) a member of the police force of a State or Territory.
28
Note 1:
The Crimes Act 1914 provides for arrest powers of police officers and
29
how arrested persons are to be dealt with.
30
Note 2:
The Australian Federal Police Act 1979 provides for arrest powers of
31
protective service officers and how arrested persons are to be dealt
32
with.
33
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28 Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. ,
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72L Powers not to be used to stop protests etc.
1
In exercising powers under this Part, a defence security official
2
must not stop or restrict any protest, dissent, assembly or industrial
3
action, unless there is a reasonable likelihood of:
4
(a) death of, or serious injury to, persons; or
5
(b) the commission of a criminal offence.
6
72M Security authorised members of the Defence Force may use
7
dogs
8
A security authorised member of the Defence Force may, if the
9
security authorised member considers it is reasonably necessary to
10
do so, use a dog:
11
(a) to assist a defence security official to conduct a search
12
(including a limited search) under this Part; or
13
(b) to assist a defence security official to restrain or detain, or
14
remove, a person under this Part; or
15
(c) to assist a member of the Defence Force to arrest a person
16
under section 72P (which deals with trespass); or
17
(d) to assist a defence security official to perform a function or
18
exercise a power under this Part.
19
72N Persons assisting defence security officials
20
(1) A defence security official may, in exercising powers under any of
21
the following provisions, be assisted by other persons if that
22
assistance is necessary and reasonable:
23
(a) subsection 71J(1) (search of a vehicle, etc. with consent);
24
(b) subsection 71N(1) (search of a vehicle, etc. on declared
25
explosive ordnance depot);
26
(c) subsection 71S(1) (search of a vehicle, etc. without consent);
27
(d) subsection 71U(2) (search of a vehicle, etc. without consent);
28
(e) section 72E (use of equipment, etc.);
29
(f) section 72F (moving things, etc.).
30
(2) A person giving such assistance is a person assisting the defence
31
security official.
32
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29
(3) A person assisting the defence security official may exercise the
1
powers of the defence security official, but only in accordance with
2
a direction given to the person by the defence security official.
3
(4) A power exercised by a person assisting the defence security
4
official as mentioned in subsection (3) is taken for all purposes to
5
have been exercised by a defence security official.
6
(5) If a direction is given under subsection (3) in writing, the direction
7
is not a legislative instrument.
8
Division 7--Other matters
9
72P Unauthorised entry etc. on defence premises or defence
10
accommodation
11
(1) A person commits an offence if:
12
(a) the person enters or is on:
13
(i) defence premises; or
14
(ii) defence accommodation; and
15
(b) the person is not authorised to be on the premises or
16
accommodation.
17
Penalty: 50 penalty units.
18
Note:
An offence under this section is a protective service offence for the
19
purposes of the Australian Federal Police Act 1979.
20
(2) A member of the Defence Force, a member or special member of
21
the Australian Federal Police, a protective service officer or a
22
member of the police force of a State or Territory may, without
23
warrant, arrest any person if the member reasonably believes that
24
the person has committed an offence against subsection (1).
25
(3) Nothing in this section prevents the arrest of a person in
26
accordance with any other law.
27
72Q Certain information may be collected and provided to law
28
enforcement agencies etc.
29
(1) The Department, the Defence Force or a contracted security guard
30
may, on defence premises, collect information, including personal
31
information, by means of an optical surveillance device.
32
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30 Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. ,
2010
(2) The Department or the Defence Force may disclose information
1
collected under subsection (1) to one or more of the following
2
persons or bodies, for the purposes of the performance of the
3
functions of the person or body:
4
(a) an intelligence or security agency;
5
(b) the Australian Federal Police or the police force of a State or
6
Territory;
7
(c) the Director of Public Prosecutions of the Commonwealth or
8
a State or Territory.
9
(3) A disclosure of personal information under subsection (2) is taken
10
to be authorised by law for the purposes of Information Privacy
11
Principle 11 in section 14 of the Privacy Act 1988.
12
Note:
Paragraph 3 of Information Privacy Principle 11 in section 14 of the
13
Privacy Act 1988 applies to further disclosures of the personal
14
information.
15
(4) This provision has effect despite any law of the Commonwealth or
16
of a State or Territory.
17
72R Compensation for acquisition of property
18
(1) If, apart from this section, the operation of this Part would result in
19
the acquisition of property from a person otherwise than on just
20
terms, the Commonwealth is liable to pay reasonable compensation
21
to the person.
22
(2) If the Commonwealth and the person do not agree on the amount
23
of the compensation, the person may apply to the Federal Court to
24
determine a reasonable amount of compensation.
25
(3) The jurisdiction of the Federal Court is exclusive of the jurisdiction
26
of all other courts except that of the High Court.
27
(4) In this section:
28
acquisition of property and just terms have the same meaning as in
29
paragraph 51(xxxi) of the Constitution.
30
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31
72S Other powers not affected
1
(1) This Part does not, by implication, limit the exercise of the powers,
2
or the rights, of a defence security official, a member of the
3
Defence Force or any other person:
4
(a) under this Act; or
5
(b) under any other law (including the common law); or
6
(c) otherwise in the performance of his or her duties as a defence
7
security official, a member of the Defence Force or
8
otherwise.
9
(2) Without limiting subsection (1), this Part does not affect any right
10
of an owner or occupier of premises to refuse to allow a person to
11
enter, or remain on, the premises.
12
(3) Without limiting subsection (1), this Part does not affect any right
13
of a person to defend himself or herself or another person.
14
2 Subsection 82(3)
15
Repeal the subsection.
16
3 Subsection 82(4)
17
After "State", insert "or Territory".
18
19
Schedule 1 Amendments relating to the security of defence premises
Part 2 Associated amendment
32 Defence Legislation Amendment (Security of Defence Premises) Bill 2010 No. ,
2010
Part 2--Associated amendment
1
Australian Federal Police Act 1979
2
4 Subsection 4(1) (after subparagraph (a)(iii) of the definition
3
of protective service offence)
4
Insert:
5
(iiia) an offence against section 71V, 71W or 72P of the
6
Defence Act 1903; or
7