Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) The Governor - General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for securing the good government of the Defence Force, or for carrying out or giving effect to this Act, and in particular prescribing matters providing for and in relation to:
(a) The enlistment, appointment, promotion, reduction in rank, retirement and discharge of members of the Defence Force; and
(aa) the transfer of members between different arms, or parts of arms, of the Defence Force; and
(ab) the training of members and ;
(ac) conditions of service of members; and
(ad) the appointment of the Chief of Navy, the Chief of Army and the Chief of Air Force; and
(b) forfeiture, or assignment, of the whole or part of the remuneration of a member or of allowances or other pecuniary benefits referred to in paragraph 58B(1)(b) or (c); and
(c) deductions from the remuneration of a member or from allowances or other pecuniary benefits referred to in paragraph 58B(1)(b) or (c); and
(e) the liability of a member, or a member of the family of a member, to pay an amount to the Commonwealth and the manner of recovery of an amount so payable; and
(gc) inquiries concerning the Defence Force, other than inquiries conducted by:
(i) the Defence Force Remuneration Tribunal under Part IIIA; or
(ii) the Inspector - General ADF under Part VIIIB; or
(iii) the Defence Honours and Awards Appeals Tribunal under Part VIIIC; and
(h) the procedures, powers and reporting obligations of the Inspector - General ADF in respect of the performance of the Inspector - General ADF's functions, including in relation to any matter connected with inquiries, investigations and performance reviews; and
(i) medical or dental treatment of a member, or a member of the family of a member; and
(ia) the administration, management, supervision and training of cadets; and
(j) The formation, incorporation and management of:
(i) full - bore or small - bore rifle clubs;
(ii) full - bore or small - bore rifle associations;
(iii) a national body for the control and administration of full - bore rifle shooting; and
(iv) a national body for the control and administration of small - bore rifle shooting; and
(k) The empowering of clubs, associations or national bodies referred to in paragraph ( j) to make, alter and repeal rules, not inconsistent with this Act, for the conduct of their affairs and for the conduct of any rifle competitions promoted by them; and
(ka) The establishment, management, operation and control of canteens on rifle ranges or on the premises of rifle clubs, including the possession, supply, sale, purchase and consumption of intoxicating liquor at any such range or club; and
(m) The furnishing of means of conveyance and transport in time of war; and
(n) The regulation of the quartering or billeting of members of the Defence Force in time of war; and
(nb) The declaration as a prohibited area of a place (including a place owned by, or held in right of, the Commonwealth or a State) used or intended to be used for a purpose of defence, the prohibition of a person entering, being in or remaining in the prohibited area without permission and the removal of any such person from the area; and
(nc) The prohibition of the use, except as prescribed, of a word, group of letters, object or device which is descriptive or indicative of:
(i) a part of the Naval Forces, Military Forces or Air Forces of a part of the King's dominions; or
(ii) a service or body of persons associated with the defence of Australia ; and
(nd) The establishment, maintenance and operation of any factory or undertaking under section 63; and
(o) The establishment, management, operation and control of canteens and the establishment, management, operation and control of messes including, but without limiting the generality of the foregoing, the subjection of:
(i) a specified canteen or mess;
(ii) a canteen or mess included in a class of specified canteens or messes; or
(iii) a specified organization established under the regulations that establishes, manages, operates or controls canteens, to taxation (other than income tax) under a law of the Commonwealth or of a State or Territory; and
(oa) The management and disposal of the funds and property of units of the Defence Force; and
(p) The regulation of any naval, military or air - force operation or practice, including any naval, military or air - force operation or practice in or adjacent to Australia of a country other than Australia; and
(pa) The regulation or prohibition of the emission of smoke from factories or other buildings within the prescribed distance from any gun, fort, searchlight, signal station, observation post, or other work of defence during, or immediately before any naval, military or air force practice; and
(q) The preservation of the public safety in or at any naval, military or air - force operation or practice; and
(qa) The entry upon and survey of lands for defence purposes; and
(qaa) The declaration and use of any area (by whomever owned or held) as a practice area for any naval, military or air force operation or practice and the regulation or prohibition of any entry upon or use of a practice area, including the prohibition of a person entering, being in or remaining in a practice area and the removal of any such person from the area; and
(qb) The post mortem examination and disposal of the bodies of members of the Defence Force who die while on service; and
(qba) The provision and maintenance of, and the execution of work in connexion with, the following :
(i) the graves of persons who have died while on service as members of the Defence Force;
(ii) the graves of persons who have died as a result of service as members of the Defence Force;
(iii) the grave of a person who, immediately before his or her death, was a dependant of a member of the Defence Force on service, where the grave is located in the Terendak Military Cemetery in Malaysia; and
(qe) The administration of oaths to, the taking of affidavits of, and the attestation of the execution of documents by, members of the Defence Force while on service outside Australia ; and
(qf) The execution and revocation of powers of attorney by persons under the age of 21 years who are members of the Defence Force and the validity and effect of powers of attorney executed by such persons; and
(r) the payment by the Commonwealth of compensation for any loss, injury or damage suffered by reason of anything done in pursuance of this Act; and
(u) The disposal of unclaimed property of members of the Defence Force and of other persons held in the custody or control of the Commonwealth; and
(w) Providing for penalties, of imprisonment for a period not exceeding 12 months or a fine not exceeding 20 penalty units , or both, for offences against the regulations; and
(x) Providing for penalties, not exceeding a fine of 5 penalty units , for offences against orders made under section 123G.
(1A) The regulations may make provision for or in relation to a matter by applying, adopting or incorporating, with or without modification, the provisions of a determination, as in force at a particular time or as in force from time to time, made under section 58H of this Act or under section 24 of the Public Service Act 1999.
Note: In addition, section 14 of the Legislation Act 2003 allows regulations to prescribe matters by reference to disallowable legislative instruments as in force at a particular time or from time to time. That section would, for example, allow a regulation to prescribe matters by reference to a determination under section 58B as in force at a particular time or from time to time.
(1AA) Regulations under subsection ( 1) may make provision in relation to:
(a) the appointment or reappointment of a member; or
(b) the enlistment or re - enlistment of a member; or
on the basis that, after a specified time or on a specified event occurring, the member may or must transfer to a different arm, or part of an arm, of the Defence Force, or in relation to other similar arrangements.
Example: The regulations might allow for a soldier to enlist for a total of 8 years, with the first 4 years to be served in the Regular Army and the last 4 years in the Army Reserve, or vice versa, or any other combination of service.
(1AB) Subsection ( 1AA) does not limit the scope of subsection ( 1).
(1B) In paragraphs ( 1)(b), (c), (e) and (i) , member and member of the family have the same respective meanings as in Part IIIA.
(1C) In paragraph ( 1)(i), medical or dental treatment includes the provision of services or goods (including pharmaceuticals) related to medical or dental treatment.
(2) The regulations may make provision for or in relation to the certification or proof of the death:
(a) of a member of the Defence Force who died, or is presumed to have died, while on service; and
(b) of a person, not being a member of the Defence Force, who died, or is presumed to have died, while in the hands of an enemy or in other circumstances which make proof of death difficult, being circumstances arising out of:
(i) a war in which Australia has been or is engaged;
(ii) the war - like operations in Korea after 26 June 1950, or in Malaya after 28 June 1950; or
(iii) such other war or war - like operations as are prescribed.
(2A) Subject to subsection ( 2B), the power to make regulations by virtue of paragraph ( 1)(gc) includes the power to make regulations requiring a person appearing as a witness before an inquiry to answer a question notwithstanding that the answer to the question may tend to incriminate the person.
(2AA) Subject to subsection ( 2B), the power to make regulations for the purposes of paragraph ( 1)(h) includes the power to make regulations requiring a person appearing as a witness before the Inspector - General ADF to answer a question even if the answer to the question may tend to incriminate the person.
(2AB) Subject to subsection ( 2B), the power to make regulations for the purposes of subsection 110P(3) includes the power to make regulations requiring a person appearing as a witness before a person appointed under section 110P to answer a question even if the answer to the question may tend to incriminate the first - mentioned person.
(2B) Subsection ( 2A) does not authorise the making of a regulation containing a requirement referred to in the subsection concerned where the answer to the question may tend to incriminate the person in respect of an offence with which the person has been charged and in respect of which the charge has not been finally dealt with by a court or otherwise disposed of.
(2C) A statement or disclosure made by a witness in the course of giving evidence before an inquiry, established (however described) under regulations made for the purposes of paragraph ( 1)(gc), is not admissible in evidence against that witness in:
(a) any civil or criminal proceedings in any federal court or court of a State or Territory; or
(b) proceedings before a service tribunal;
otherwise than in proceedings by way of a prosecution for giving false testimony at the hearing before the inquiry .
(2CA) If a witness makes a statement or disclosure in the course of giving evidence before the Inspector - General ADF or a person appointed under section 110P:
(a) the statement or disclosure; and
(b) the making of the statement or disclosure; and
(c) any information, document or thing obtained as a direct or indirect consequence of making the statement or disclosure;
are not admissible in evidence against the witness in:
(d) any civil or criminal proceedings in any federal court or court of a State or Territory; or
(e) proceedings before a service tribunal;
other than in proceedings by way of a prosecution for giving false testimony at the hearing before the Inspector - General ADF or person appointed under section 110P.
(3) For the purposes of paragraphs ( 1)(qb), (qba), (qe) and (qf) and for the purposes of subsection ( 2):
(a) a member of the Defence Force shall be deemed to be on service while he or she is a prisoner of war or interned in a place outside Australia; and
(b) a person, not being a member of the Defence Force, who accompanies a part of the Defence Force shall be deemed to be a member of, and on service with, that part of the Defence Force.
(3A) Subject to subsection ( 3B), regulations made by virtue of paragraph 124(1)(ka) in relation to the possession, supply, sale, purchase and consumption of intoxicating liquor have effect notwithstanding any provision of a law of a State or Territory.
(3B) Subsection ( 3A) is not intended to affect the operation of a law of a State or Territory to the extent that that law is capable of operating concurrently with the regulations referred to in that subsection.
(3C) Regulations made by virtue of paragraph ( 1)(qa) or (qaa) shall include provision for and in relation to the payment of reasonable compensation for any loss or damage caused by anything done in pursuance of those regulations or otherwise caused by the operation of those regulations.
(4) In this section, remuneration means remuneration by way of salary, pay, allowances or otherwise.
The Defence Force can be called out under a call out order made under this Part. A call out order is made by the Governor - General if the Prime Minister, the Minister and the Attorney - General (who are called the authorising Ministers) are satisfied of various matters.
There are 2 general kinds of call out orders: Commonwealth interests orders and State protection orders. For both kinds of call out orders, the Defence Force can be called out immediately or, under a contingent call out order, if specified circumstances arise.
Under a Commonwealth interests order, the Defence Force is called out to protect Commonwealth interests in Australia or the Australian offshore area. The order might apply in a State or Territory, or in the Australian offshore area, or in more than one of those places. Each State or self - governing Territory in which domestic violence is occurring, or is likely to occur, must generally be consulted before the Governor - General makes a Commonwealth interests order.
A State or self - governing Territory can apply for a State protection order to protect the State or Territory from domestic violence.
A power under a call out order may be exercised in a State or Territory either because the State or Territory is specified in the order or because the power is exercised in the State or Territory for a purpose specified in the order.
As far as reasonably practicable, the Chief of the Defence Force must assist, and cooperate with, the police force of a State or Territory that is affected by a call out of the Defence Force.
Members of the Defence Force can exercise certain powers if the Defence Force is called out under a call out order. There are 3 categories of powers:
(a) powers that generally can be exercised only if authorised by an authorising Minister; and
(b) powers that can be exercised in an area that has been declared by the authorising Ministers; and
(c) powers for protecting infrastructure that has been declared by the authorising Ministers .
Expedited call out orders, specified area declarations and infrastructure declarations can be made by the authorising Ministers or other Ministers in sudden and extraordinary emergencies.
Call out orders, specified area declarations and infrastructure declarations are all provided to the Presiding Officers for tabling in each House of the Parliament.
An independent review of this Part i s to be commenced at least every 5 years. The operation, effectiveness and implications of this Part c an also be reviewed on the initiative of the Independent National Security Legislation Monitor under the Independent National Security Legislation Monitor Act 2010 .
A call out order is made by the Governor - General if the Prime Minister, the Minister and the Attorney - General (who are called the authorising Ministers) are satisfied of various matters.
There are 2 general kinds of call out orders: Commonwealth interests orders and State protection orders. For both kinds of call out orders, the Defence Force can be called out immediately or, under a contingent call out order, if specified circumstances arise.
Under a Commonwealth interests order, the Defence Force is called out to protect Commonwealth interests in Australia or the Australian offshore area. The order might apply in a State or Territory, or in the Australian offshore area, or in more than one of those places. Each State or self - governing Territory in which domestic violence is occurring, or is likely to, would or would be likely to occur, must generally be consulted before the Governor - General makes a Commonwealth interests order.
A State or self - governing Territory can apply for a State protection order to protect the State or Territory from domestic violence.
A power under a call out order may be exercised in a State or Territory either because the State or Territory is specified in the order or because the power is exercised in the State or Territory for a purpose specified in the order.
As far as reasonably practicable, the Chief of the Defence Force must assist, and cooperate with the police force of, a State or Territory that is affected by a call out of the Defence Force.
This Part c onfers powers on members of the Defence Force if the Defence Force is being utilised under a call out order that specifies that this Division applies. Generally, the powers must be authorised by an authorising Minister. The powers can be exercised without Ministerial authorisation in sudden and extraordinary emergencies.
The powers in this Division can also be exercised in an area specified under Division 4. If a particular power can be exercised both under this Division and Division 4, the power is taken to be exercised under this Division (so that any rules under Division 4 that would otherwise apply to the power do not apply).
A power exercised under this Division for the purposes of a call out order can be exercised in a State or Territory that is not specified in the order if the exercise of the power is for the purpose specified in the order.
Division 6 allows members of the Defence Force exercising powers under this Division to use reasonable and necessary force. Division 6 also:
(a) confers powers and imposes obligations if persons are detained or things are seized; and
(b) contains an offence for failing to comply with a direction; and
(c) deals with the consequences of the exercise of powers by members of the Defence Force if obligations imposed in relation to the exercise of those powers have not been met or if call out orders and other instruments have not been validly made.
This Division confers powers on members of the Defence Force if the Defence Force is being utilised under a call out order that specifies that this Division applies. The powers are to be exercised in a specified area which may be in Australia or the Australian offshore area. The authorising Ministers specify the area in a specified area declaration.
An expedited specified area declaration can be made under Division 7 in sudden and extraordinary emergencies.
Uniforms must be worn by members of the Defence Force when exercising powers under this Division.
The powers under this Division are:
(a) the power to search premises in the specified area; and
(b) powers relating to means of transport in the specified area; and
(c) powers relating to persons in the specified area.
If a call out order specifies that this Division and Division 3 apply in relation to the order, the powers under Division 3 can be exercised in the specified area. If a particular power can be exercised both under this Division and Division 3, the power is taken to be exercised under Division 3 (so that any rules under this Division that would otherwise apply to the power do not apply).
Division 6 allows members of the Defence Force exercising powers under this Division to use reasonable and necessary force. Division 6 also:
(a) confers powers and imposes obligations if persons are detained or things are seized; and
(b) contains an offence for failing to comply with a direction; and
(c) deals with the consequences of the exercise of powers by members of the Defence Force if obligations imposed in relation to the exercise of those powers have not been met or if call out orders and other instruments have not been validly made.
This Division confers powers on members of the Defence Force if the Defence Force is being utilised under a call out order that specifies that this Division applies. The powers are to protect infrastructure, in Australia or the Australian offshore area, that has been declared by the authorising Ministers in an infrastructure declaration.
An infrastructure declaration can be made whether or not a call out order is in force.
An expedited infrastructure declaration can be made under Division 7 in sudden and extraordinary emergencies.
Division 6 allows members of the Defence Force exercising powers under this Division to use reasonable and necessary force. Division 6 also:
(a) confers powers and imposes obligations if persons are detained or things are seized; and
(b) contains an offence for failing to comply with a direction; and
(c) deals with the consequences of the exercise of powers by members of the Defence Force if obligations imposed in relation to the exercise of those powers have not been met or if call out orders and other instruments have not been validly made.
A member of the Defence Force who is being utilised under a call out order may use reasonable and necessary force, whether the member is exercising a power under this Part or not. Additional limitations apply in relation to the use of force against persons.
Powers (such as the power to make a thing safe and prevent it from being used), and obligations, apply under this Division if a member detains a person or seizes a thing under any of Divisions 3 to 5.
A person may commit an offence if a person fails to comply with a direction given to the person under Division 3, 4 or 5.
This Division also deals with the consequences of the exercise of powers by members of the Defence Force if obligations imposed in relation to the exercise of those powers have not been met or if call out orders and other instruments have not been validly made.
In sudden and extraordinary emergencies:
(a) a call out order may be made under this Division by authorising Ministers, or other Ministers, instead of the Governor - General; and
(b) a specified area declaration or infrastructure declaration can be made under this Division by one or 2 authorising Ministers, or other Ministers, instead of all authorising Ministers.
The criminal law of the Jervis Bay Territory applies in relation to criminal acts of members of the Defence Force done, or purported to be done, under this Part.
It may be a defence to a criminal act done by a member of the Defence Force that the member was under a legal obligation to obey an order of a superior.
Call out orders that have ceased to be in force are tabled in each House of the Parliament, as are specified area declarations and any report on the utilisation of the Defence Force that occurred under the order.
An independent review of this Part i s to be commenced at least every 5 years. The operation, effectiveness and implications of this Part c an also be reviewed on the initiative of the Independent National Security Legislation Monitor under the Independent National Security Legislation Monitor Act 2010 .
This Part does not affect any utilisation of the Defence Force that would be permitted if this Part were disregarded.
(2) The Minister may, in writing, direct the provision of
assistance in relation to a natural disaster or other emergency if the
Minister is satisfied of either or both of the following: