DEFENCE LEGISLATION AMENDMENT (AID TO CIVILIAN AUTHORITIES) BILL 2005

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005 ii

Contents

1 Short

title...........................................................................................1

2 Commencement.................................................................................1

3 Schedule(s) ........................................................................................1

Schedule 1--Incidents in the Australian offshore area

Defence Act 1903

Schedule 2--Incidents involving designated critical

infrastructure

Defence Act 1903

Schedule 3--Aviation incidents

Defence Act 1903

Schedule 4--Expedited call out

Defence Act 1903

Schedule 5--Amendments consequential on Schedules 1 to 4

Air Force Act 1923

Defence Act 1903

Defence Reserve Service (Protection) Act 2001

Naval Defence Act 1910

Schedule 6--Other amendments

Defence Act 1903

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005 1

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

and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Defence Legislation Amendment (Aid

to Civilian Authorities) Act 2005.

2 Commencement

This Act commences on the day after it receives the Royal Assent.

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repealed as set out in the applicable items in the Schedule

Incidents in the Australian offshore area Schedule 1

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005 3

Schedule 1--Incidents in the Australian

offshore area

Defence Act 1903

1 Subsection 51(1)

Insert:

Australian offshore area means:

(a) Australian waters; or

(b) the exclusive economic zone of Australia (including its

external Territories); or

(d) an area prescribed by the regulations;

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

(b), (c) or (d).

2 Subsection 51(1)

Insert:

Australian waters means:

(a) the territorial sea of Australia; and

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

sea of Australia; and

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

sea of each external Territory;

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

Territory.

3 Subsection 51(1)

Insert:

continental shelf has the same meaning as in the Seas and

Submerged Lands Act 1973.

4 Subsection 51(1)

Schedule 1 Incidents in the Australian offshore area

4 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

Insert:

exclusive economic zone has the same meaning as in the Seas and

Submerged Lands Act 1973.

5 Subsection 51(1)

Insert:

internal waters, in relation to a State or self-governing Territory,

means the waters of the sea within the limits of the State or

Territory and includes the airspace over those waters.

6 Subsection 51(1)

Insert:

offshore designated area means an area in relation to which a

declaration is in force under section 51SL.

7 Subsection 51(1)

Insert:

offshore general security area means an area in relation to which a

declaration is in force under section 51SF.

8 Subsection 51(1)

Insert:

offshore member in charge, in relation to an offshore search

authorisation, has the meaning given by paragraph 51SG(2)(c).

9 Subsection 51(1)

Insert:

offshore search authorisation means an authorisation under

section 51SG.

10 Subsection 51(1)

Insert:

offshore search members, in relation to a search authorisation, has

the meaning given by paragraph 51SG(2)(d).

Incidents in the Australian offshore area Schedule 1

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005 5

11 Subsection 51(1)

Insert:

territorial sea has the same meaning as in the Seas and Submerged

Lands Act 1973.

12 After section 51A

Insert:

51AA Order about utilising Defence Force in the offshore area etc.

to protect Commonwealth interests

Conditions for making of order utilising the Defence Force in the

offshore area

(1) Subsection (2) applies if the authorising Ministers are satisfied

that:

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

Commonwealth interests (whether in that area or elsewhere);

and

(b) the Defence Force should be called out and the Chief of the

Defence Force should be directed to utilise the Defence Force

in the Australian offshore area to protect the Commonwealth

interests against the threat; and

apply in relation to the order.

Power of Governor-General to make order utilising the Defence

Force in the Australian offshore area

(2) If this subsection applies, the Governor-General may, by written

order, call out the Defence Force and direct the Chief of the

Defence Force to utilise the Defence Force in the Australian

offshore area to protect the Commonwealth interests against the

threat concerned.

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

connection with an industrial dispute.

Schedule 1 Incidents in the Australian offshore area

6 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

Conditions for also utilising the Defence Force in the internal

waters

(4) Subsection (5) applies if the authorising Ministers are satisfied

that:

(a) in relation to the threat mentioned in paragraph (1)(a),

domestic violence is occurring or is likely to occur in the

internal waters of a State or self-governing Territory; and

(b) the State or Territory is not, or is unlikely to be, able to

protect the Commonwealth interests against the domestic

violence; and

the Defence Force in the internal waters of the State or

Territory to protect the Commonwealth interests against the

domestic violence.

Power of Governor-General to direct utilising the Defence Force

in the internal waters

(5) If this subsection applies, the Governor-General may, in the order

under subsection (2), also direct the Chief of the Defence Force to

utilise the Defence Force in the internal waters of the State or

Territory to protect the Commonwealth interests against the

domestic violence.

Involvement of State or Territory

(6) If subsection (5) applies:

(a) the Governor-General may make the direction referred to in

subsection (5) whether or not the Government of the State or

the self-governing Territory requests the making of the

direction; and

(b) if the Government of the State or the self-governing Territory

does not request the making of the direction referred to in

subsection (5), an authorising Minister must, subject to

subsection (7), consult that Government about the making of

the direction.

Incidents in the Australian offshore area Schedule 1

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005 7

Exception to paragraph (6)(b)

(7) However, paragraph (6)(b) does not apply if the authorising

Ministers are satisfied that, for reasons of urgency, it is

impracticable to comply with the requirements of that paragraph.

Content of the order

(8)

The

order:

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

(b)

must

specify:

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

(ii) the Commonwealth interests; and

(iii) if the order includes a direction mentioned in

subsection (5)--the State or Territory to which the

direction relates and the domestic violence; and

apply in relation to the order; and

(d) must state that the order comes into force when it is made

and that, unless it is revoked earlier, it ceases to be in force

after a specified period (which must not be more than 20

days).

When order is in force

(9) The order is in force as stated in accordance with paragraph (8)(d).

Revocation of order

(10) If the authorising Ministers cease to be satisfied as mentioned in

subsection (1), the Governor-General must revoke the order.

Advice to Governor-General

(11) In making or revoking the order, the Governor-General is to act

with the advice of:

(a) except where paragraph (b) applies--the Executive Council;

(b) if an authorising Minister is satisfied that, for reasons of

urgency, the Governor-General should, for the purposes of

this subsection, act with the advice of the authorising

Minister--the authorising Minister.

Schedule 1 Incidents in the Australian offshore area

8 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

Effect of revocation of order etc.

(12) To avoid doubt, if the order is revoked or ceases to be in force, the

call out of the Defence Force under the order ends and the Chief of

the Defence Force must cease utilising the Defence Force as

mentioned in subsection (2) or (5).

Notice to State or self-governing Territory

(13) If the order includes a direction mentioned in subsection (5), then

as soon as is reasonably practicable after the order is made or

revoked, an authorising Minister must arrange for the Government

of the State or the self-governing Territory specified in the order to

be notified of the making or revocation of the order. However, if

this is not done, the validity of the making or revocation of the

order is not affected.

Further orders

(14) The fact that the order has been made does not prevent further

orders being made in relation to the same matter.

13 Subsection 51F(1)

Omit "subsection (2)", substitute "subsections (2) and (3)".

14 At the end of section 51F

Add:

(3) This section does not apply in relation to an order under

section 51AA to the extent that the Defence Force is being utilised

in the Australian offshore area.

Note:

This section will still apply in relation to an order under section 51AA

to the extent that the Defence Force is being utilised in the internal

waters of a State or self-governing Territory.

15 After Division 3 of Part IIIAAA

Insert:

Incidents in the Australian offshore area Schedule 1

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005 9

Division 3A--Powers in the Australian offshore area etc.

Subdivision A--Preliminary

51SA Application of this Division and Division 4

If an order states in accordance with paragraph 51AA(8)(c) that

this Division and Division 4 apply in relation to the order, the

following provisions of this Division, and the provisions of

Division 4, apply.

51SB Geographic application

This Division and Division 4 (in its operation in relation to this

Division) apply only in:

(a) the Australian offshore area; and

(b) if the order under section 51AA includes a direction

mentioned in subsection 51AA(5)--the internal waters of the

State or self-governing Territory specified in the order.

51SC International obligations

The authorising Ministers or an authorising Minister must, in

giving an authorisation or making a declaration under this

Division, have regard to Australia's international obligations.

51SD Definitions

In this Division:

facility includes a fixed or floating structure or installation of any

kind.

vessel means:

(a) a ship, boat, raft, pontoon or submersible craft; or

(b) any other thing capable of carrying persons or goods through

or on water;

and includes a hovercraft (or other non-displacement craft) and a

floating structure or installation.

Schedule 1 Incidents in the Australian offshore area

10 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

Subdivision B--Special powers of members of the Defence

Force

51SE Special powers of members of the Defence Force

Special powers

(1) Subject to this section, a member of the Defence Force who is

being utilised in accordance with section 51D may, under the

command of the Chief of the Defence Force, do any one or more of

the following:

(a) take any one or more of the following actions:

(i) take measures (including the use of force) against a

vessel or an aircraft, up to and including destroying the

vessel or aircraft;

(ii) give an order relating to the taking of such measures;

(iii) capture a vessel or aircraft;

(iv) board a facility, vessel or aircraft;

(v) recapture a facility, vessel or aircraft;

(vi) prevent, or put an end to, acts of violence;

(vii) protect persons from acts of violence;

(b) in connection with taking any such action, do any one or

more of the following:

(i) free any hostage from a facility, vessel or aircraft;

(ii) if the member finds a person whom the member

believes on reasonable grounds to have committed an

offence against a law of the Commonwealth, a State or

Territory--detain the person for the purpose of placing

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

at the earliest practicable time;

(iii) control the movement of persons, vessels or aircraft;

(iv) evacuate persons to a place of safety;

(v) search persons, facilities, vessels or aircraft for

dangerous things or other things related to the threat

concerned;

(vi) seize any dangerous thing or other thing related to the

threat concerned found in such a search;

Incidents in the Australian offshore area Schedule 1

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

Note:

Subdivision B of Division 4 sets out what is to happen if a thing is

seized under this subsection.

(2) Subparagraph (1)(a)(i) does not apply to the taking of measures

unless:

(a) the member of the Defence Force takes the measures under,

or under the authority of, an order of a superior; and

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

and

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

changed in a material way since the order was given; and

(e) the member has no reason to believe that the order was based

on a mistake as to a material fact; and

(f) taking the measures was reasonable and necessary to give

effect to the order.

(3) Subparagraph (1)(a)(ii) does not apply to giving an order unless:

(a) the member of the Defence Force gives the order under, or

under the authority of, an order (a superior order) of a

superior; and

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

order; and

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

changed in a material way since the superior order was given;

and

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

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

(f) giving the order was reasonable and necessary to give effect

to the superior order.

Ministerial authorisation

(4) However, the member must not:

(a) take any action mentioned in paragraph (1)(a); or

(b) do any of the things mentioned in paragraph (1)(b) or (c) in

connection with taking that action;

unless an authorising Minister has in writing authorised taking that

action.

Schedule 1 Incidents in the Australian offshore area

12 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

Exception

(5) Subsection (4) does not apply if the member believes on reasonable

grounds that there is insufficient time to obtain the authorisation

because a sudden and extraordinary emergency exists.

Subdivision C--Powers that may be exercised anywhere in an

offshore area

51SF Declaration of offshore general security area

(1) The authorising Ministers may, in writing, declare that a specified

area is an offshore general security area for the purposes of the

application of this Division and Division 4 in relation to members

of the Defence Force who are being utilised in accordance with

section 51D.

(2)

The

area:

(a) may be specified by reference to an area surrounding one or

more vessels or aircraft, or surrounding a class of vessels or

aircraft, being an area the boundaries of which change as the

location of the vessels or aircraft changes; and

(b) may include areas within the internal waters of a State or

Territory if the order under section 51AA includes the

internal waters of the State or Territory.

Statement to be made available

(3) If the authorising Ministers make a declaration under

subsection (1), they must arrange for a statement that:

(a) summarises the content of the order under section 51AA; and

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

boundaries;

to be:

(d) notified to persons in the offshore general security area to the

extent that this is practicable; and

(e) published in the Gazette; and

(f) forwarded, within 24 hours after the declaration is made, to

the Presiding Officer of each House of the Parliament for

tabling in that House.

Incidents in the Australian offshore area Schedule 1

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

(4) However, subsection (3) does not apply if the authorising Ministers

declare, in writing, that they are satisfied that the application of

subsection (3) would prejudice the exercise of powers under

Subdivision B by members of the Defence Force who are being

utilised in accordance with section 51D.

Houses to sit within 6 days

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

Presiding Officer receives the statement that is forwarded in

accordance with paragraph (3)(f).

Effect of failure to publish

(6) A failure to comply with subsection (3) does not make the

declaration ineffective to any extent.

51SG Authorisation to search facilities in the offshore general

security area for dangerous and other things

(1) If, while the Defence Force is being utilised in accordance with

section 51D:

(a) the Chief of the Defence Force; or

(b) an officer of the Defence Force, or an officer of the Defence

Force included in a class of officers, authorised by the Chief

of the Defence Force for the purposes of this section;

believes on reasonable grounds that:

security area and it is necessary as a matter of urgency to

make the dangerous thing safe or prevent it from being used;

(d) there is another thing on a facility in the offshore general

security area that is related to the threat concerned and it is

necessary as a matter of urgency to seize the thing;

he or she may give an authorisation under this section.

What the authorisation must say

(2) The authorisation must:

(a) authorise entry to, and search of, the facility; and

(b) describe the facility; and

Schedule 1 Incidents in the Australian offshore area

14 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

Defence Force (the offshore member in charge) who is to be

in charge of the search; and

(d) authorise the member in charge, and any other member of the

Defence Force assisting the member, (the offshore search

members) to carry out the search; and

(e) authorise each offshore search member to seize any thing

found on the facility in the course of the search that he or she

believes on reasonable grounds to be a dangerous thing or a

thing that is related to the threat concerned; and

(f) state that, if any offshore search member believes on

reasonable grounds that a person who is on or near the

facility while the search is being carried out has a dangerous

thing or a thing that is related to the threat concerned in his or

her possession, the member is authorised to:

(i) search the person; and

(ii) seize any dangerous thing or other thing related to the

threat concerned found in the search; and

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

force, which must not be more than 24 hours.

Note:

Subdivision B of Division 4 sets out what is to happen if a thing is

seized under this subsection.

Effect of the authorisation

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

Further authorisations possible

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

authorisations in relation to the same facility.

51SH Copy of offshore search authorisation to be given to occupier

etc.

Right of occupier to be given copy of offshore search authorisation

etc.

(1) If the occupier of the facility specified in the offshore search

authorisation, or another person who apparently represents the

Incidents in the Australian offshore area Schedule 1

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

occupier, is present on the facility when the search is being carried

out, the offshore member in charge must:

(a) identify himself or herself to that person; and

(b) give that person a copy of the offshore search authorisation.

Right of person searched to be shown copy of offshore search

authorisation

(2) The offshore member in charge must, before any person (other

than a person who has been given a copy of the offshore search

authorisation under subsection (1)) is searched in accordance with

the offshore search authorisation, show the person a copy of the

offshore search authorisation.

51SI Occupier etc. entitled to be present during search

(1) If the occupier of the facility specified in the offshore search

authorisation, or another person who apparently represents the

occupier, is present on the facility when the search is being carried

out, the person is entitled to observe the search being carried out.

Search not to be impeded

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

the person impedes the search.

Multiple searches

(3) This section does not prevent 2 or more areas of the facility being

searched at the same time.

51SJ Search of vessel or aircraft in the offshore general security

area for dangerous or other things

(1) If a member of the Defence Force who is being utilised in

accordance with section 51D believes on reasonable grounds that a

dangerous thing, or another thing that is related to the threat

concerned, is in or on a vessel or aircraft in the offshore general

security area, the member may:

(a) erect barriers or other structures for the purpose of stopping

the vessel or aircraft; and

(b) whether or not the member does so:

Schedule 1 Incidents in the Australian offshore area

16 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

(i) stop and detain the vessel or aircraft; and

(ii) search the vessel or aircraft, and any thing found in or

on the vessel or aircraft, for the dangerous thing or other

thing that is related to the threat concerned; and

(iii) seize any dangerous thing or other thing that is related

to the threat concerned that the member finds in the

search.

Note:

Subdivision B of Division 4 sets out what is to happen if a thing is

seized under this subsection.

(2) If the member stops the vessel or aircraft, the member must not

detain it for longer than is reasonable and necessary to search it and

any thing found in or on it.

(3) The master of the vessel, or the captain of the aircraft, is entitled to

observe the search being carried out.

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

the master or captain impedes the search.

(5) This section does not prevent 2 or more areas of the vessel or

aircraft being searched at the same time.

51SK Search of persons in the offshore general security area for

dangerous and other things

If a member of the Defence Force who is being utilised in

accordance with section 51D believes on reasonable grounds that a

person in the offshore general security area has a dangerous thing,

or a thing that is related to the threat concerned, in the person's

possession, the member may:

(a) search the person for such a thing; and

(b) seize any such thing found in the search.

Note:

Subdivision B of Division 4 sets out what is to happen if a thing is

seized under this section.

Incidents in the Australian offshore area Schedule 1

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

Subdivision D--Powers that may be exercised only in relation

to an offshore designated area in the offshore general

security area

51SL Declaration of offshore designated area

(1) The authorising Ministers may, in writing, declare that a specified

area, being the whole or a part of an offshore general security area,

is an offshore designated area for the purposes of the application of

this Division and Division 4 in relation to members of the Defence

Force who are being utilised in accordance with section 51D.

(2)

The

area:

(a) may be specified by reference to an area surrounding one or

more vessels or aircraft, or surrounding a class of vessels or

aircraft, being an area the boundaries of which change as the

location of the vessels or aircraft changes; and

(b) may include areas within the internal waters of a State or

Territory if the order under section 51AA includes the

internal waters of the State or Territory.

Where no longer an offshore general security area

(3) To avoid doubt, if the whole or part of the area later ceases to be

within an offshore general security area, the whole or the part

ceases to be an offshore designated area.

Declaration to be notified

(4) If the authorising Ministers make a declaration under

subsection (1), they must arrange for a statement that:

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

(b) describes the offshore designated area and its boundaries;

to be notified to persons in the offshore designated area to the

extent that this is practicable.

(5) However, subsection (4) does not apply if the authorising Ministers

declare, in writing, that they are satisfied that the application of

subsection (4) would prejudice the exercise of powers under

Subdivision B by members of the Defence Force who are being

utilised in accordance with section 51D.

Schedule 1 Incidents in the Australian offshore area

18 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

51SM Control of movement in relation to an offshore designated

area in the offshore general security area

Powers in relation to persons in charge of vessels or aircraft

(1) A member of the Defence Force who is being utilised in

accordance with section 51D may do any one or more of the

following in relation to a person who is in charge of a vessel or

aircraft:

(a) if the vessel or aircraft is in a part of the offshore general

security area that is outside an offshore designated area--

direct the person not to bring the vessel or aircraft into the

offshore designated area;

(b) direct the person to take the vessel or aircraft out of an

offshore designated area;

an offshore designated area to another place in the offshore

designated area;

(d) direct the person not to take the vessel or aircraft from a

place in an offshore designated area to any other place, or to

a specified place, in the offshore designated area;

(e) compel the person to comply with a direction under any of

the above paragraphs.

Erection of barriers etc.

(2) A member of the Defence Force may erect barriers or other

structures at the boundary of, or in, an offshore designated area for

the purpose of stopping persons from bringing a vessel or aircraft

into the offshore designated area or to a place in the offshore

designated area.

No person in charge of vessel

(3) If there is no person in charge of a vessel or aircraft that is in an

offshore designated area, a member of the Defence Force may do

such things as are reasonable and necessary for either of the

following purposes:

(a) to take the vessel or aircraft to a place in the offshore general

security area that is outside the offshore designated area;

Incidents in the Australian offshore area Schedule 1

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

(b) to take the vessel or aircraft to another place in the offshore

designated area.

Powers in relation to persons generally

(4) A member of the Defence Force may do any one or more of the

following in relation to a person (whether or not in charge of a

vessel or aircraft):

(a) if the person is in the offshore general security area but

outside an offshore designated area--direct the person not to

enter the offshore designated area;

(b) direct the person to leave an offshore designated area;

designated area to another place in the offshore designated

area;

(d) compel the person to comply with a direction under any of

the above paragraphs.

Powers to carry out consent searches

(5) The power of a member under paragraph (1)(a) or (4)(a) to direct a

person:

(a) not to bring a vessel or aircraft into an offshore designated

area; or

(b) not to enter an offshore designated area;

includes:

unless the person agrees to a member searching:

(i) in either case--the person; and

(ii) in a paragraph (a) case--the vessel or aircraft and any

thing on the vessel or aircraft;

for dangerous things or other things related to the threat

concerned; and

(d) if the person agrees, the power to conduct such a search and

to seize any such thing that the member finds in the search.

Note:

Subdivision B of Division 4 sets out what is to happen if a thing is

seized under this subsection.

Schedule 1 Incidents in the Australian offshore area

20 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

Powers to board vessel or aircraft to give directions

(6) A member of the Defence Force may board any vessel or aircraft

for the purpose of giving a direction under any provision of this

section.

51SN Members to wear uniforms and identification when exercising

powers

(1) While any member of the Defence Force is exercising powers

under this Division, or under Division 4 in its operation in relation

to this Division, he or she must at all times:

(a) wear his or her uniform; and

(b) for the purposes of identification, have:

(i) his or her surname; or

(ii) his or her numbers or a combination of numbers and

letters of the alphabet;

on or attached to the front of his or her uniform.

Penalty: 30 penalty units.

Situation where no offence committed

(2) A member who contravenes paragraph (1)(b) is not guilty of an

offence if the contravention occurs because of an act of another

person (not being a member) done without the consent of the

member.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code).

Members to be given means to comply with obligations

(3) The Chief of the Defence Force must take such steps as are

reasonable and necessary to ensure that members do not contravene

subsection (1).

Geographical application

(4) Section 15.1 of the Criminal Code (extended geographical

jurisdiction--category B) applies to an offence against

subsection (1).

Incidents in the Australian offshore area Schedule 1

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

Subdivision E--Other powers

51SO Power to require person to answer questions or produce

documents

(1) A member of the Defence Force who is being utilised in

accordance with section 51D may, in connection with the exercise

of any power under this Division, require a person to answer a

question put by the member or to produce a particular document to

the member.

(2) However, the member may do so only if the member believes on

reasonable grounds that it is necessary for the purpose of

preserving the life or safety of other persons or to protect

Commonwealth interests against the threat concerned.

(3) A person commits an offence if:

(a) the person is required to answer a question or produce a

document under this section; and

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

Penalty: 30 penalty units.

Self-incrimination

(4) A person is not excused from answering a question or producing a

document under this section on the ground that the answer to the

question, or the production of the document, may tend to

incriminate the person or make the person liable to a penalty.

(5)

However:

(a) the answer given or document produced; or

(b) answering the question or producing the document; or

indirect consequence of the answering of the question or the

production of the document;

is not admissible in evidence against the person in criminal

proceedings other than:

(d) proceedings for an offence against subsection (3); or

(e) proceedings for an offence against section 137.1 or 137.2 of

the Criminal Code (about false or misleading information or

documents) that relates to this section.

Schedule 1 Incidents in the Australian offshore area

22 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

51SP Power to require person to operate facility, vessel or aircraft

or machinery or equipment

(1) A member of the Defence Force who is being utilised in

accordance with section 51D may, in connection with the exercise

of any power under this Division, require a person to operate a

facility, vessel or aircraft, or machinery or equipment on a facility,

vessel or aircraft, in a particular manner.

(2) However, the member may do so only if the member believes on

reasonable grounds that it is necessary for the purpose of

preserving the life or safety of other persons or to protect

Commonwealth interests against the threat concerned.

(3) A person commits an offence if:

(a) the person is required to operate a facility, vessel or aircraft,

or machinery or equipment on a facility, vessel or aircraft, in

a particular manner under this section; and

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

Penalty for contravention of this subsection: 30 penalty units.

51SQ Geographical jurisdiction for offences

Section 15.4 of the Criminal Code (extended geographical

jurisdiction--category D) applies to an offence against

section 51SO or 51SP.

16 After subsection 51T(1)

Insert:

(1A) However, subsection (1) does not apply to the powers under

Subdivision E of Division 3A.

17 Subdivision B of Division 4 of Part IIIAAA (heading)

Repeal the heading, substitute:

Subdivision B--Action to be taken if things are seized

18 Section 51V

Omit "dangerous".

Incidents in the Australian offshore area Schedule 1

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

Note:

The heading to section 51V is altered by omitting "dangerous".

19 Subparagraph 51X(1)(c)(ii)

Repeal the subparagraph, substitute:

(ii) any declarations of general security areas or designated

areas, or of offshore general security areas or offshore

designated areas, under the order; and

20 Subparagraph 51X(2)(a)(ii)

Repeal the subparagraph, substitute:

(ii) any declarations of general security areas or designated

areas, or of offshore general security areas or offshore

designated areas, under the orders; and

Schedule 2 Incidents involving designated critical infrastructure

24 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

Schedule 2--Incidents involving designated

critical infrastructure

Defence Act 1903

1 Subsection 51(1)

Insert:

designated critical infrastructure means infrastructure, or a part of

infrastructure, that is declared under section 51CB.

2 Subsection 51(1)

Insert:

infrastructure includes physical facilities, supply chains,

information technologies and communication networks or systems.

3 Before section 51D

Insert:

51CB Declaration of designated critical infrastructure

(1) The authorising Ministers may, in writing, declare that particular

infrastructure, or a part of particular infrastructure, in Australia or

in the Australian offshore area is designated critical infrastructure.

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

on reasonable grounds that:

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

the infrastructure or the part of the infrastructure; and

(b) the damage or disruption would directly or indirectly

endanger the life of, or cause serious injury to, other persons.

(3) If the authorising Ministers no longer believe those matters, they

must revoke the declaration.

(4) To avoid doubt, the authorising Ministers may make a declaration

under this section whether or not an order is in force under this

Division.

Incidents involving designated critical infrastructure Schedule 2

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

4 After Division 2 of Part IIIAAA

Insert:

Division 2A--Powers to protect designated critical

infrastructure

51IA Application of this Division and Division 4

(1) If an order states in accordance with paragraph 51A(4)(c),

51AA(8)(c), 51B(3)(c) or 51C(3)(c) that this Division and

Division 4 apply in relation to the order, the following provisions

of this Division, and the provisions of Division 4, apply.

(2) In relation to an order under section 51AA, this Division and

Division 4 (in its operation in relation to this Division) apply only

in:

(a) the Australian offshore area; and

(b) if the order includes a direction mentioned in subsection

51AA(5)--the internal waters of the State or self-governing

Territory specified in the order.

51IB Powers to protect designated critical infrastructure

A member of the Defence Force who is being utilised in

accordance with section 51D may, under the command of the Chief

of the Defence Force, do any one or more of the following for the

purpose of protecting designated critical infrastructure:

(a) take one or both of the following actions:

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

operation of the designated critical infrastructure;

(ii) prevent, or put an end to, acts of violence;

(b) in connection with taking any such action, do any one or

more of the following:

(i) if the member finds a person whom the member

believes on reasonable grounds to have committed an

offence against a law of the Commonwealth, a State or

Territory--detain the person for the purpose of placing

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

at the earliest practicable time;

(ii) protect persons from acts of violence;

Schedule 2 Incidents involving designated critical infrastructure

26 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

(iii) control the movement of persons or of means of

transport;

(iv) evacuate persons to a place of safety;

(v) search persons or things for dangerous things or other

things related to the threat concerned;

(vi) seize any dangerous thing or other thing related to the

threat concerned found in such a search;

Note:

Subdivision B of Division 4 sets out what is to happen if a thing is

seized under this section.

5 After subsection 51T(2)

Insert:

(2A) Despite subsection (1), in exercising powers under Division 2A, a

member of the Defence Force must not, in using force against a

person:

(a) do anything that is likely to cause the death of, or grievous

bodily harm to, the person unless the member believes on

reasonable grounds that doing that thing is necessary to:

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

another person (including the member); or

(ii) protect, against the threat concerned, the designated

critical infrastructure in respect of which the powers are

being exercised; or

(b) subject the person to greater indignity than is reasonable and

necessary in the circumstances.

Aviation incidents Schedule 3

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

Schedule 3--Aviation incidents

Defence Act 1903

1 Before section 51B

Insert:

51AB Order about utilising Defence Force to protect

Commonwealth interests against violence if specified

circumstances arise

Conditions for making of order

(1) Subsection (2) applies if the authorising Ministers are satisfied

that:

(a) if specified circumstances were to arise:

(i) domestic violence would occur or would be likely to

occur in Australia that would, or would be likely to,

affect Commonwealth interests; or

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

the Australian offshore area to Commonwealth interests

(whether in that area or elsewhere);

and, for reasons of urgency, it would be impracticable for the

Governor-General to make an order under section 51A; and

(b) if subparagraph (a)(i) applies--the domestic violence would

occur or would be likely to occur in a State or self-governing

Territory that would not be, or is unlikely to be, able to

protect the Commonwealth interests against the domestic

violence; and

the Defence Force to protect the Commonwealth interests

against the violence, or the threat in the Australian offshore

area, if the specified circumstances arise; and

(d) Divisions 3B and 4 should apply in relation to the order.

Power of Governor-General to make order

(2) If this subsection applies, the Governor-General may, by written

order, direct the Chief of the Defence Force to utilise the Defence

Schedule 3 Aviation incidents

28 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

Force to protect the Commonwealth interests against the domestic

violence, or the threat in the Australian offshore area, if the

specified circumstances arise.

Involvement of State or Territory

(3) If paragraph (1)(b) applies:

(a) the Governor-General may make the order whether or not the

Government of the State or the self-governing Territory

requests the making of the order; and

(b) if the Government of the State or the self-governing Territory

does not request the making of the order, an authorising

Minister must consult that Government about the making of

the order before the Governor-General makes it.

Content of the order

(4)

The

order:

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

(b)

must

specify:

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

(ii) if paragraph (1)(b) applies--the State or Territory in

which the domestic violence would occur or would be

likely to occur; and

(iii) the Commonwealth interests; and

(iv) the domestic violence, or the threat in the Australian

offshore area, as the case requires; and

order; and

(d) must state that the order comes into force when it is made

and that, unless it is revoked earlier, it ceases to be in force at

the end of the period specified in the order.

When order is in force

(5) The order is in force as stated in accordance with paragraph (4)(d).

Revocation of order

(6) If the authorising Ministers cease to be satisfied as mentioned in

subsection (1), the Governor-General must revoke the order.

Aviation incidents Schedule 3

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

Advice to Governor-General

(7) In making or revoking the order the Governor-General is to act

with the advice of the Executive Council.

Effect of revocation of order etc.

(8) To avoid doubt, if the order is revoked or ceases to be in force, the

Chief of the Defence Force must cease utilising the Defence Force

as mentioned in subsection (2).

Notice to State or self-governing Territory

(9) If the order specifies a State or Territory under

subparagraph (4)(b)(ii), as soon as is reasonably practicable after

the order is made or revoked, an authorising Minister must arrange

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

making or revocation of the order. However, if this is not done, the

validity of the making or revocation of the order is not affected.

Further orders

(10) The fact that the order has been made does not prevent further

orders being made in relation to the same matter.

2 Before Division 4 of Part IIIAAA

Insert:

Division 3B--Powers relating to aircraft

51SR Application of this Division and Division 4

If an order states in accordance with paragraph 51A(4)(c),

51AB(4)(c), 51B(3)(c) or 51C(3)(c) that this Division and

Division 4 apply in relation to the order, the following provisions

of this Division, and the provisions of Division 4, apply.

51SS Geographical application

This Division and Division 4 (in its operation in relation to this

Division) extend to the Australian offshore area.

Schedule 3 Aviation incidents

30 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

51ST Special powers of members of the Defence Force

Taking measures against aircraft

(1) A member of the Defence Force who is being utilised in

accordance with section 51D may, under the command of the Chief

of the Defence Force:

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

up to and including destroying the aircraft; or

(b) give an order relating to the taking of such measures;

whether or not the aircraft is airborne.

(2) Paragraph (1)(a) does not apply to the taking of measures unless:

(a) the member of the Defence Force takes the measures under,

or under the authority of, an order of a superior; and

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

and

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

changed in a material way since the order was given; and

(e) the member has no reason to believe that the order was based

on a mistake as to a material fact; and

(f) taking the measures was reasonable and necessary to give

effect to the order.

(3) Paragraph (1)(b) does not apply to giving an order unless:

(a) the member of the Defence Force gives the order under, or

under the authority of, an order (a superior order) of a

superior; and

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

order; and

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

changed in a material way since the superior order was given;

and

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

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

(f) giving the order was reasonable and necessary to give effect

to the superior order.

Aviation incidents Schedule 3

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

Ministerial authorisation

(4) However, the member must not take measures against an aircraft,

or give an order of a kind mentioned in paragraph (1)(b) in

connection with an aircraft, unless an authorising Minister has in

writing authorised the taking of measures against the aircraft.

Exception

(5) Subsection (4) does not apply if:

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

insufficient time to obtain the authorisation because a sudden

and extraordinary emergency exists; or

(b) the measures are taken in specified circumstances that an

authorising Minister has authorised under subsection (6).

(6) An authorising Minister may in writing authorise the taking of

measures against an aircraft in specified circumstances if this

Division applies because an order states in accordance with

paragraph 51AB(4)(c) that this Division and Division 4 apply in

relation to the order.

Authorising Minister must be satisfied of reasonableness and

necessity

(7) An authorising Minister must not authorise the taking of measures

against an aircraft unless the Minister is satisfied that:

(a) in the case of an authorisation under subsection (4)--taking

action against the aircraft is reasonable and necessary; or

(b) in the case of an authorisation under subsection (6)--taking

action against the aircraft would be reasonable and necessary

if the specified circumstances in question were to arise.

International obligations

(8) An authorising Minister must, in giving an authorisation under this

section, have regard to Australia's international obligations.

3 Before subsection 51T(3)

Insert:

(2B) Despite subsection (1), in exercising powers under subparagraph

51SE(1)(a)(i) or (ii) or Division 3B, a member of the Defence

Schedule 3 Aviation incidents

32 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

Force must not, in using force against a person or thing, do

anything that is likely to cause the death of, or grievous bodily

harm to, the person unless the member believes on reasonable

grounds that:

(a) doing that thing is necessary to protect the life of, or to

prevent serious injury to, another person (including the

member); or

(b) doing that thing is necessary to protect designated critical

infrastructure against a threat of damage or disruption to its

operation; or

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

member is acting.

Expedited call out Schedule 4

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

Schedule 4--Expedited call out

Defence Act 1903

1 After section 51C

Insert:

51CA Expedited call out

Expedited call out by the Prime Minister

(1) The Prime Minister may make an order of a kind that the

Governor-General is empowered to make under section 51A,

51AA, 51AB, 51B or 51C if the Prime Minister is satisfied that:

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

not practicable for an order to be made under that section;

and

(b) the circumstances referred to in subsection 51A(1), 51AA(1),

51AB(1), 51B(1) or 51C(1) (as the case requires) exist.

Expedited call out by the other 2 authorising Ministers

(2) The other 2 authorising Ministers may jointly make an order of a

kind that the Governor-General is empowered to make under

section 51A, 51AA, 51AB, 51B or 51C if those authorising

Ministers are satisfied that:

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

not practicable for an order to be made under that section;

and

(b) the Prime Minister is unable to be contacted for the purposes

of considering whether to make, and making, an order under

subsection (1) of this section; and

51AB(1), 51B(1) or 51C(1) (as the case requires) exist.

Orders applying in internal waters

(3) If the order is an order of a kind that Governor-General is

empowered to make under section 51AA, the order must not direct

Schedule 4 Expedited call out

34 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

the Chief of the Defence Force to utilise the Defence Force in the

internal waters of the State or self-governing Territory unless:

(a) if the order is made under subsection (1) of this section--the

Prime Minister is satisfied that the circumstances referred to

in subsection 51AA(4) exist in relation to that State or

Territory; or

(b) if the order is made under subsection (2) of this section--the

other 2 authorising Ministers are satisfied that the

circumstances referred to in subsection 51AA(4) exist in

relation to that State or Territory.

Order not in writing

(4) An order under this section need not be in writing. If it is not in

writing, the Prime Minister or the other 2 authorising Ministers (as

the case requires), and the Chief of the Defence Force, must each:

(a) make a written record of the order; and

(b) sign the record; and

(d) in the case of the Prime Minister or another authorising

Minister--as soon as practicable:

(i) cause the record to be given to the Chief of the Defence

Force; and

(ii) cause a copy of the record to be given to the

Governor-General; and

(e) in the case of the Chief of the Defence Force--as soon as

practicable:

(i) cause the record to be given to the Prime Minister; or

(ii) cause the record to be given to one of the other 2

authorising Ministers, and cause a copy of the record to

be given to the other authorising Minister;

as the case requires.

However, a failure to comply with paragraph (d) or (e) does not

affect the validity of the order.

The effect of the order

(5) Subject to subsections (7) and (8) of this section, an order made

under this section has effect, for all purposes (other than this

section), as if it were an order made by the Governor-General

Expedited call out Schedule 4

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

under section 51A, 51AA, 51AB, 51B or 51C (as the case

requires). In particular:

(a) subsection 51A(4), 51AA(8), 51AB(4), 51B(3) or 51C(3) (as

the case requires) applies to the order; and

(b) the Governor-General may revoke the order in the same way,

and in the same circumstances, as he or she may revoke an

order under section 51A, 51AA, 51AB, 51B or 51C (as the

case requires).

(6) For the purposes of paragraph (5)(b), the reference in subsection

51A(6), 51AA(10) or 51AB(6) or paragraph 51B(5)(b) or

51C(5)(b) (as the case requires) to the authorising Ministers

ceasing to be satisfied is taken to be a reference to them not being

satisfied.

Content of the order

(7) An order made under this section:

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

effect as if it were an order made by the Governor-General

under section 51A, 51AA, 51AB, 51B or 51C (as the case

requires); and

(b) despite paragraph 51A(4)(d), 51AA(8)(d), 51AB(4)(d),

51B(3)(d) or 51C(3)(d) (as the case requires), must state that,

unless it is revoked earlier, it ceases to be in force after a

specified period (which must not be more than 5 days).

When order is in force

(8)

The

order:

(a) comes into force when it is made, or (if it is not in writing)

when:

(i) the Prime Minister, or the other 2 authorising Ministers;

and

(ii) the Chief of the Defence Force;

have complied with paragraph (4)(c); and

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

paragraph (7)(b).

Authorisations and declarations during an expedited call out

(9)

If:

Schedule 4 Expedited call out

36 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

(a) one or more authorising Ministers have the power to give an

authorisation or make a declaration under a provision of

Division 2, 3, 3A or 3B; and

(b) that Division applies because of an order made under this

section;

the authorisation or declaration need not be in writing, despite any

requirement of the provision to the contrary.

(10) If the authorisation or declaration is not in writing, the authorising

Minister or authorising Ministers, and the Chief of the Defence

Force, must each:

(a) make a written record of the authorisation or declaration; and

(b) sign the record; and

(d) in the case of an authorising Minister--as soon as practicable

cause the record to be given to the Chief of the Defence

Force; and

(e) in the case of the Chief of the Defence Force--as soon as

practicable:

(i) cause the record to be given to the authorising Minister;

(ii) cause the record to be given to one of the authorising

Ministers, and cause a copy of the record to be given to

the other authorising Minister;

as the case requires.

However, a failure to comply with paragraph (d) or (e) does not

affect the validity of the authorisation or declaration.

(11) If the authorisation or declaration is not in writing, it comes into

force when the authorising Minister or authorising Ministers, and

the Chief of the Defence Force, have complied with

paragraph (10)(c).

References to certain circumstances

(12) To avoid doubt, a reference in this section to the circumstances

referred to in subsection 51A(1), 51AA(1), 51AB(1), 51B(1) or

51C(1):

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

being satisfied as to particular matters; and

Expedited call out Schedule 4

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

(b) in relation to section 51B, includes a reference to a State

Government having made an application of a kind referred to

in subsection 51B(1); and

Government having made an application of a kind referred to

in subsection 51C(1).

Involvement of State or Territory under subsection 51A(3) not

required

(13) To avoid doubt, paragraph 51A(3)(b) does not apply to an order

under this section that would have effect as if it were an order

made by the Governor-General under section 51A.

Schedule 5 Amendments consequential on Schedules 1 to 4

38 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

Schedule 5--Amendments consequential on

Schedules 1 to 4

Air Force Act 1923

1 Paragraph 4J(1)(b)

Omit "51A, 51B or 51C", substitute "51A, 51AA, 51AB, 51B, 51C or

51CA".

Defence Act 1903

2 Paragraph 50(1)(b)

Omit "51A, 51B or 51C", substitute "51A, 51AA, 51AB, 51B, 51C or

51CA".

3 Part IIIAAA (heading)

Repeal the heading, substitute:

Part IIIAAA--Utilisation of Defence Force to

protect Commonwealth interests and States

and self-governing Territories

4 Subsection 51(1) (definition of order)

Repeal the definition.

5 Subsection 51(1)

Insert:

threat concerned means:

(a) for the purposes of the application of section 51IB or

subsection 51T(2A)--the threat of damage or disruption in

relation to which the authorising Ministers make a

declaration under section 51CB; or

(b) for the purposes of the application of one or more of the

provisions of Division 3A--the threat to Commonwealth

Amendments consequential on Schedules 1 to 4 Schedule 5

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

interests in relation to which an order under section 51AA is

made that causes Division 3A to apply.

6 Paragraph 51A(1)(d)

Repeal the paragraph, substitute:

(d) one or more of Divisions 2, 2A, 3 and 3B, and Division 4,

should apply in relation to the order.

7 Paragraph 51A(4)(c)

Repeal the paragraph, substitute:

Division 4, apply in relation to the order; and

8 Paragraph 51B(1)(c)

Repeal the paragraph, substitute:

should apply in relation to the order.

9 Paragraph 51B(3)(c)

Repeal the paragraph, substitute:

Division 4, apply in relation to the order; and

10 Paragraph 51C(1)(c)

Repeal the paragraph, substitute:

should apply in relation to the order.

11 Paragraph 51C(3)(c)

Repeal the paragraph, substitute:

Division 4, apply in relation to the order; and

12 After subsection 51D(1)

Insert:

Schedule 5 Amendments consequential on Schedules 1 to 4

40 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

Order under section 51AA

(1A) If the Governor-General makes an order under section 51AA, the

Chief of the Defence Force must, subject to sections 51E, 51F and

51G, utilise the Defence Force, in such manner as is reasonable and

necessary:

(a) in the Australian offshore area, for the purpose of protecting

the Commonwealth interests specified in the order against the

threat concerned; and

(b) if the order includes a direction mentioned in subsection

51AA(5)--in the internal waters of the State or Territory to

which the direction relates, for the purpose of protecting the

Commonwealth interests specified in the order against the

domestic violence specified in the order.

Order under section 51AB

(1B)

If:

(a) the Governor-General makes an order under section 51AB;

and

(b) the circumstances specified in the order arise;

the Chief of the Defence Force must, subject to sections 51E, 51F

and 51G, utilise the Defence Force, in such manner as is reasonable

and necessary:

in the order against the domestic violence specified in the

order; or

(d) for the purpose of protecting the Commonwealth interests

specified in the order against the threat specified in the order;

as the case requires.

13 Division 4 of Part IIIAAA (heading)

Repeal the heading, substitute:

Division 4--Provisions common to Divisions 2 to 3B

14 Subsection 51T(1)

Omit "Division 2 or 3", substitute "Division 2, 2A, 3, 3A or 3B".

15 Before subsection 51T(2)

Amendments consequential on Schedules 1 to 4 Schedule 5

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

Insert:

(1B) To avoid doubt, any use of force by a member of the Defence

Force under this Part must be in accordance with this section.

16 Subsection 51T(2)

Omit "However", substitute "Despite subsection (1), in exercising

powers under Division 2, 3 or 3A (other than subparagraph

51SE(1)(a)(i) or (ii)) or this Division".

17 Subsection 51U(1)

After "subparagraph 51I(1)(b)(ii)", insert ", 51IB(b)(i) or

51SE(1)(b)(ii)".

18 Section 51V

Omit "Division 2 or 3", substitute "Division 2, 2A, 3 or 3A".

19 Section 51W

Omit "Division 2 or 3", substitute "Division 2, 2A, 3, 3A or 3B".

20 Paragraph 51X(1)(a)

Omit "order under this Part", substitute "order under Division 1".

21 Subsection 51X(2)

Omit "orders under this Part", substitute "orders under Division 1".

22 Subparagraph 51XA(1)(a)(i)

Omit "order under this Part", substitute "order under Division 1".

23 Subparagraph 51XA(1)(a)(ii)

Omit "orders under this Part", substitute "orders under Division 1".

24 Paragraph 51XA(1)(b)

Omit "order under this Part", substitute "order under Division 1".

25 Subsection 51XA(3)

Omit "order under this Part", substitute "order under Division 1".

Defence Reserve Service (Protection) Act 2001

Schedule 5 Amendments consequential on Schedules 1 to 4

42 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

26 Section 7 (definition of call out day)

Omit "51A, 51B or 51C", substitute "51A, 51AA, 51AB, 51B, 51C or

51CA".

27 Subsection 9(1) (definition of dependant)

Omit "51A, 51B or 51C", substitute "51A, 51AA, 51AB, 51B, 51C or

51CA".

28 Section 13

Omit "51A, 51B or 51C", substitute "51A, 51AA, 51AB, 51B, 51C or

51CA".

Naval Defence Act 1910

29 Paragraph 32A(1)(b)

Omit "51A, 51B or 51C", substitute "51A, 51AA, 51AB, 51B, 51C or

51CA".

Other amendments Schedule 6

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

Schedule 6--Other amendments

Defence Act 1903

1 Subsection 51(1)

Insert:

criminal act means an act or omission that would, if done or

omitted to be done in the Jervis Bay Territory, contravene the

substantive criminal law of the Jervis Bay Territory.

2 Subsection 51(1)

Insert:

substantive criminal law means law (including unwritten law):

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

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

degree of criminal liability; or

(d) providing for the confiscation of property used in, or derived

from, the commission of an offence; or

(e) dealing with other subjects declared by regulation to be

within the ambit of the substantive criminal law of the Jervis

Bay Territory; or

(f) providing for the interpretation of laws of the kinds

mentioned above.

3 After paragraph 51A(1)(a)

Insert:

(aa) the domestic violence would, or would be likely to, affect

Commonwealth interests; and

4 Subsection 51A(3A)

Omit "Governor-General is", substitute "authorising Ministers are".

5 Subsection 51A(7)

Schedule 6 Other amendments

44 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

Omit "or in deciding whether he or she is satisfied as mentioned in

subsection (3A),".

6 Section 51G

Repeal the section, substitute:

51G Restriction on certain utilisation of Defence Force

In utilising the Defence Force in accordance with section 51D, the

Chief of the Defence Force must not stop or restrict any protest,

dissent, assembly or industrial action, except where there is a

reasonable likelihood of the death of, or serious injury to, persons

or serious damage to property.

7 Division 2 of Part IIIAAA (heading)

Repeal the heading, substitute:

Division 2--Powers to recapture locations or things,

prevent or end acts of violence and protect

persons from acts of violence

8 Subsections 51I(1) and (2)

Repeal the subsections, substitute:

Special powers

(1) Subject to this section, a member of the Defence Force who is

being utilised in accordance with section 51D may, under the

command of the Chief of the Defence Force do any one or more of

the following:

(a) take any one or more of the following actions:

(i) recapture a location or thing;

(ii) prevent, or put an end to, acts of violence;

(iii) protect persons from acts of violence;

(b) in connection with taking any such action, do any one or

more of the following:

(i) free any hostage from a location or thing;

(ii) if the member finds a person whom the member

believes on reasonable grounds to have committed an

Other amendments Schedule 6

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

offence against a law of the Commonwealth, a State or

Territory--detain the person for the purpose of placing

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

at the earliest practicable time;

(iii) control the movement of persons or of means of

transport;

(iv) evacuate persons to a place of safety;

(v) search persons or locations or things for dangerous

things or other things related to the domestic violence

that is occurring or is likely to occur;

(vi) seize any dangerous thing, or other thing related to the

domestic violence that is occurring or is likely to occur,

found in such a search; and

Note:

Subdivision B of Division 4 sets out what is to happen if a thing is

seized under this subsection.

Ministerial authorisation

(2) However, the member must not:

(a) take any action mentioned in paragraph (1)(a); or

(b) do any of the things mentioned in paragraph (1)(b) or (c) in

connection with taking that action;

unless an authorising Minister has in writing authorised taking that

action.

9 At the end of section 51I

Add:

Definitions

(4) In this section:

location includes any premises or place.

thing includes any means of transport, but does not include an

aircraft that is airborne.

10 After subsection 51K(2)

Insert:

Schedule 6 Other amendments

46 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. ,

2005

(2AA) However, subsection (2) does not apply if:

(a) the order mentioned in section 51J also states, in accordance

with paragraph 51A(4)(c), 51B(3)(c) or 51C(3)(c), that

Division 2 applies in relation to the order; and

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

satisfied that the application of subsection (2) would

prejudice the exercise of powers under Division 2 by

members of the Defence Force who are being utilised in

accordance with section 51D.

11 At the end of section 51Q

Add:

(4) However, subsection (3) does not apply if the authorising Ministers

declare, in writing, that they are satisfied that the application of

subsection (3) would prejudice the exercise of powers under

Division 2 by members of the Defence Force who are being

utilised in accordance with section 51D.

12 Paragraph 51S(1)(b)

Repeal the paragraph, substitute:

(b) for the purposes of identification, have:

(i) his or her surname; or

(ii) his or her numbers or a combination of numbers and

letters of the alphabet;

on or attached to the front of his or her uniform.

13 After Division 4 of Part IIIAAA

Insert:

Division 4A--Applicable criminal law

51WA Applicable criminal law

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

force from time to time, applies in relation to a criminal act of a

member of the Defence Force that is done, or purported to be done,

under this Part.

Other amendments Schedule 6

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 No. , 2005

(2) The substantive criminal law of the States and the other Territories,

as in force from time to time, does not apply in relation to a

criminal act of a member of the Defence Force that is done, or

purported to be done, under this Part.

(3) To avoid doubt, Chapter 2 of the Criminal Code does not apply to

an act done, or purported to be done, under this Part that is a

criminal act (except to the extent that it constitutes an offence

against the law of the Commonwealth).

(4) To avoid doubt, the functions of the Director of Public

Prosecutions under section 6 of the Director of Public

Prosecutions Act 1983 in relation to the law of the Jervis Bay

Territory as applied by subsection (1) are exclusive of the

corresponding functions of any officer of a State or Territory, in

relation to the law of the Jervis Bay Territory as so applied, under a

law corresponding to that Act.

51WB Defence of superior orders in certain circumstances

(1) Subject to subsection (2), the fact that a criminal act was done, or

purported to be done, by a member of the Defence Force under this

Part under an order of a superior does not relieve the member of

criminal responsibility.

(2) It is a defence to a criminal act done, or purported to be done, by a

member of the Defence Force under this Part that:

(a) the criminal act was done by the member under an order of a

superior; and

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

and

(d) the member had no reason to believe that circumstances had

changed in a material respect since the order was given; and

(e) the member had no reason to believe that the order was based

on a mistake as to a material fact; and

(f) the action taken was reasonable and necessary to give effect

to the order.

(3) Subsection (2) does not limit the defences that may be available to

the person.

Commonwealth of Australia Bills

DEFENCE LEGISLATION AMENDMENT (AID TO CIVILIAN AUTHORITIES) BILL 2005