Commonwealth Numbered Acts Commonwealth Numbered Acts
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
(c) the sea over the continental shelf 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
(c) the territorial sea of each external Territory; 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)
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).
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
(c) either Division 2A or 3A, or both, and Division 4 should 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.
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
(c) the Chief of the Defence Force should be directed to utilise 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.
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
(c) must state that Division 2A or 3A, or both, and Division 4 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; or
(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.
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:
Division 3A — Powers in the Australian offshore area etc.
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.
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.
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.
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;
(c) do anything incidental to anything in paragraph (a) or (b).
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
(c) the order was not manifestly unlawful; 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
(c) the superior order was not manifestly unlawful; 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.
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
(c) describes the offshore general security area and its 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.
(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:
(c) there is a dangerous thing on a facility in the offshore general security area and it is necessary as a matter of urgency to make the dangerous thing safe or prevent it from being used; or
(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
(c) state the name, rank and service number of a member of the 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 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:
(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.
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.
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;
(c) direct the person to take the vessel or aircraft from a place in 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;
(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;
(c) direct the person to move from a place in an offshore 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:
(c) the power to direct a person not to do either of those things 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.
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).
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
(c) any information, document or thing obtained as a direct 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.
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”.
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