An Act to provide for the Naval and Military Defence and Protection of the Commonwealth and of the several States

This Act may be cited as the Defence Act 1903.

This Act shall commence on a day to be fixed by Proclamation.

(1) In this Act, unless the contrary intention appears:

AAT means the Administrative Appeals Tribunal.

AAT Act means the Administrative Appeals Tribunal Act 1975.

Aircraft—Includes aeroplanes, seaplanes, balloons, kite balloons, airships and other machines for flying.

Aircraft Material—Includes any engines, fittings, guns, gear, instruments, ammunition, bombs or apparatus for use in connexion with aircraft, and any components or accessories of aircraft, and petrol and any other substance used for providing motive power for aircraft, and lubricating oil.

Airman—Means a member of the Air Force other than an officer.

Australia and Commonwealth includes the Territories.

Conscientious Objection Tribunal means a Conscientious Objection Tribunal established under section 61CF.

exemption from service because of conscientious beliefs means exemption from service under paragraph 61A(1)(h) or (i) or exemption from combatant duties under subsection 61A(1A).

Federal Court means the Federal Court of Australia.

Foreign Affairs Minister means the Minister administering the Diplomatic Privileges and Immunities Act 1967.

Inspector‑General ADF means the Inspector‑General of the Australian Defence Force referred to in section 110B.

Member—Includes any officer, sailor, soldier and airman.

Non‑commissioned Officer—Means a soldier (other than a warrant officer) holding non‑commissioned rank.

Officer means:

(a) in relation to the Australian Navy—a person appointed as an officer of the Australian Navy, including a person who holds the rank in the Australian Navy of Acting Sub-Lieutenant or of Midshipman; or

(b) in relation to the Australian Army or the Australian Air Force—a person appointed as an officer of the Australian Army or the Australian Air Force.

Permanent Forces means the Permanent Navy, the Regular Army and the Permanent Air Force.

Reserves means the Naval Reserve, the Army Reserve and the Air Force Reserve.

Sailor—Means a member of the Navy other than an officer.

Service Decoration—Means any order, medal, badge, clasp, bar or other insignia that was or may be conferred for valour, distinguished conduct or service, long service, good conduct, devotion to duty, efficiency, participation in a campaign or other warlike operation or for any other reason on a member of the Defence Force or of any armed force of any part of the Queen’s dominions or of any Power allied or associated with Australia in any war or warlike operations in which Australia is or has been engaged, and includes the ribbon of any such order, medal, badge, clasp or other decoration and any colourable imitation, representation or miniature of any such order, medal, badge, clasp or other decoration.

Service tribunal has the same meaning as in the Defence Force Discipline Act 1982.

Soldier—Means a member of the Army other than an officer.

The Secretary means the Secretary of the Department.

Time of Defence Emergency—Means the period between the publication of a proclamation declaring that a state of defence emergency exists in relation to Australia and the publication of a proclamation that that state of defence emergency no longer exists.

Time of War—Means any time during which a state of war actually exists, and includes the time between the issue of a proclamation of the existence of war or of danger thereof and the issue of a proclamation declaring that the war or danger thereof, declared in the prior proclamation, no longer exists.

War—Means any invasion or apprehended invasion of, or attack or apprehended attack on, Australia by an enemy or armed force.

(2) Unless the contrary intention appears, in this Act or in any other law:

(a) a reference to the Naval Forces or the Navy is to be read as a reference to the Australian Navy; and

(b) a reference to the Military Forces or the Army is to be read as a reference to the Australian Army; and

(d) a reference to the Chief of the Defence Force is to be read as a reference to the Chief of the Defence Force appointed under section 9; and

(e) a reference to the Vice Chief of the Defence Force is to be read as a reference to the Vice Chief of the Defence Force appointed under section 9AA; and

(f) a reference to the Chief of Navy is to be read as a reference to the Chief of Navy appointed under section 9; and

(g) a reference to the Chief of Army is to be read as a reference to the Chief of Army appointed under section 9; and

(h) a reference to the Chief of Air Force is to be read as a reference to the Chief of Air Force appointed under section 9; and

(i) a reference to a service chief is to be read as a reference to the Chief of Navy, the Chief of Army or the Chief of Air Force, as the case requires.

(3) For the purposes of Part IV, a person is taken to have a conscientious belief in relation to a matter if the person’s belief in respect of that matter:

(a) involves a fundamental conviction of what is morally right and morally wrong, whether or not based on religious considerations; and

(b) is so compelling in character for that person that he or she is duty bound to espouse it; and

5 Application of Act

This Act applies to, and in relation to, the Navy, Army and Air Force, and to all members of the Navy, Army and Air Force whether appointed or enlisted, or deemed to be enlisted, under this Act or under any other Act and whether serving within or beyond the territorial limits of Australia.

5A Extension of Act to Territories

This Act extends to the external Territories as if each of those Territories were part of Australia.

6 Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

7 Act does not appropriate money

Nothing in this Act shall be taken as an appropriation of any public moneys.

Part II—Administration

8 Powers of Minister in relation to Defence Force

The Minister shall have the general control and administration of the Defence Force, and the powers vested in the Chief of the Defence Force, the Chief of Navy, the Chief of Army and the Chief of Air Force by virtue of section 9, and the powers vested jointly in the Secretary and the Chief of the Defence Force by virtue of section 9A, shall be exercised subject to and in accordance with any directions of the Minister.

9 Command of Defence Force and arms of Defence Force

(1) The Governor‑General may appoint an officer of an arm of the Defence Force to be Chief of the Defence Force and:

(a) may appoint an officer of the Navy to be Chief of Navy;

(b) may appoint an officer of the Army to be Chief of Army; and

(2) Subject to section 8, the Chief of the Defence Force shall command the Defence Force, and the service chief of an arm of the Defence Force shall, under the Chief of the Defence Force, command the arm of the Defence Force of which he is service chief.

(3) It is a function of the Chief of the Defence Force to advise the Minister, in such manner as the Minister directs, on matters relating to the command by the Chief of the Defence Force of the Defence Force, and it is a function of the service chief of an arm of the Defence Force to advise the Minister, in such manner as the Minister directs, on matters relating to the command by the service chief of the arm of the Defence Force of which he is the service chief.

(5) Subsection (2) has effect subject to section 68 of the Constitution.

9A Administration of Defence Force

(1) Subject to section 8, the Secretary and the Chief of the Defence Force shall jointly have the administration of the Defence Force except with respect to:

(a) matters falling within the command of the Defence Force by the Chief of the Defence Force or the command of an arm of the Defence Force by the service chief of that arm of the Defence Force; or

(b) any other matter specified by the Minister.

(2) Instructions issued by or with the authority of the Secretary and the Chief of the Defence Force in pursuance of the powers vested in them jointly by virtue of subsection (1) shall be known as Defence Instructions (General).

(3) The powers vested in the Secretary and the Chief of the Defence Force by virtue of subsection (1) extend to authorizing a service chief of an arm of the Defence Force to administer, in accordance with that authority, matters relating to that arm of the Defence Force, and instructions or orders issued or made by or with the authority of a service chief in relation to the administration of an arm of the Defence Force shall be known as:

(a) in the case of the Navy—Defence Instructions (Navy);

(b) in the case of the Army—Defence Instructions (Army); and

(4) Where Defence Instructions (Navy), Defence Instructions (Army) or Defence Instructions (Air Force) are inconsistent with Defence Instructions (General), the Defence Instructions (General) prevail and the Defence Instructions (Navy), the Defence Instructions (Army) or the Defence Instructions (Air Force), as the case may be, shall, to the extent of the inconsistency, be of no effect.

(5) Evidence of Defence Instructions (General), Defence Instructions (Navy), Defence Instructions (Army) or Defence Instructions (Air Force) may be given in any proceedings in or before a Court, a service tribunal, the Defence Force Discipline Appeal Tribunal, or any other tribunal, by the production of a document purporting to be a copy thereof.

(6) Defence Instructions (General), Defence Instructions (Navy), Defence Instructions (Army) or Defence Instructions (Air Force) may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing, whether as in force at a particular time, or as amended and in force from time to time.

9AA Vice Chief of the Defence Force

(1) The Governor‑General may appoint an officer of an arm of the Defence Force to be Vice Chief of the Defence Force.

(2) Subject to section 8, the Vice Chief of the Defence Force shall, under the Chief of the Defence Force, be responsible for such part of the administration of the Defence Force in respect of which the Chief of the Defence Force has responsibility, whether alone or jointly with the Secretary, as the Chief of the Defence Force specifies in writing, and shall have such other functions as the Chief of the Defence Force determines in writing.

9B Remuneration and allowances

(1) An officer who is the Chief of the Defence Force, the Vice Chief of the Defence Force or a service chief shall be paid such remuneration as is determined by the Remuneration Tribunal.

(2) An officer who is the Chief of the Defence Force, the Vice Chief of the Defence Force or a service chief shall be paid such allowances as are fixed by determination under Part IIIA.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

9BA Tenure of office

(1) Subject to subsection (2) and the regulations, a person appointed under subsection 9(1) or 9AA(1) holds office for the period specified in the document of appointment, but is eligible for re‑appointment.

(2) If a person appointed under subsection 9(1) or 9AA(1) ceases to be an officer of an arm of the Defence Force, the person ceases to hold office under subsection 9(1) or 9AA(1).

9C Acting appointments

The Minister may appoint an officer who is eligible for appointment to the office of Chief of the Defence Force, Vice Chief of the Defence Force or an office of service chief of an arm of the Defence Force to act in that office:

(a) during a vacancy in that office; or

(b) during any period, or during all periods, when the holder of that office is absent from duty or from Australia or is, for any other reason, unable to perform the functions of his office.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

28 Council of Defence

(1) The Governor‑General may constitute a Council of Defence, which shall have such powers and functions as are prescribed.

Part III—The Defence Force

Division 1—Constitution of the Defence Force

30 Defence Force

The Defence Force consists of 3 arms, namely, the Australian Navy, the Australian Army and the Australian Air Force.

31 Australian Army

The Australian Army consists of 2 parts:

(a) the Regular Army; and

(b) the Army Reserve.

32 Regular Army

The Regular Army consists of:

(a) officers appointed to, and soldiers enlisted in, the Regular Army; and

(b) officers and soldiers transferred to the Regular Army from:

(i) the Army Reserve; or

(ii) the Australian Navy; or

(iii) the Australian Air Force.

32A Army Reserve

The Army Reserve consists of:

(a) officers appointed to, and soldiers enlisted in, the Army Reserve; and

(b) officers and soldiers transferred to the Army Reserve from:

(i) the Regular Army; or

(ii) the Australian Navy; or

(iii) the Australian Air Force.

32B Attachment etc. of members of an arm of the Defence Force to another arm

A member of an arm of the Defence Force may, under such conditions (if any) as are prescribed, be attached or loaned to, or seconded for service with, another arm of the Defence Force.

Division 2—The raising of the Army

34 Voluntary entry

Except as provided by Part IV of this Act or by any other Act, the Army shall be kept up by the appointment to the Army, or the enlistment in the Army, of persons who volunteer and are accepted for service in the Army.

Division 3—The service of the Army

45 Service of the Regular Army

Members of the Regular Army are bound to render continuous full time military service.

50 Service of the Army Reserve

(1) A member of the Army Reserve is not bound to render continuous full time service otherwise than:

(a) as provided in this section; or

(b) as a result of a call out order under section 50D, 51A, 51AA, 51AB, 51B, 51C or 51CA.

(2) The regulations must set, or provide for the setting of, training periods for the Army Reserve.

Note: Different training periods may be set for different parts of the Army Reserve or for different classes of members of the Army Reserve: see subsection 33(3A) of the Acts Interpretation Act 1901.

(2A) A member of the Army Reserve is bound to render, in each training period, military service (other than continuous full time military service) for such periods as are set by or under the regulations. However, a member may be exempted by or under the regulations from the obligation to render all, or a specified part, of that service.

Note: Different service may be required of different parts of the Army Reserve, or of different classes of members of the Army Reserve, or in different periods: see subsection 33(3A) of the Acts Interpretation Act 1901.

(3) A member of the Army Reserve may, at any time, voluntarily undertake to render continuous full time military service for a period specified by him and, if that undertaking is accepted, he is bound to render that form of service for that specified period or for such period or periods within that specified period as the Chief of Army directs.

(4) A member of the Army Reserve may at any time voluntarily undertake to render military service, other than continuous full time military service, for a period or periods specified by him, and, if that undertaking is accepted, the member is bound to render military service in accordance with that undertaking or for such period or periods within that specified period, or within those specified periods, as the case may be, as the Chief of Army directs.

50C Territorial limits of service of Army

Members of the Army may be required to serve either within or beyond the territorial limits of Australia.

Division 4—The calling out of the Forces

50D Calling out the Reserves

Governor‑General may call out the Reserves

(1) The Governor‑General may, by publishing a written order in the Gazette, call out for continuous full time service:

(a) the Reserves; or

(b) one or more of the following:

(i) a specified part or parts of the Reserves;

(ii) a specified class or classes of members in the Reserves;

(iii) a specified member or members of the Reserves.

Circumstances required for call out

(2) However, the Governor‑General may only make an order in circumstances (whether within or outside Australia) involving any one or more of the following:

(a) war or warlike operations;

(b) defence emergency;

(d) peacekeeping or peace enforcement;

(e) assistance to Commonwealth, State, Territory or foreign government authorities and agencies in matters involving Australia’s national security or affecting Australian defence interests;

(f) support to community activities of national or international significance;

(g) civil aid, humanitarian assistance, medical or civil emergency or disaster relief.

Advice to Governor‑General

(3) In making or revoking an order, the Governor‑General is to act with the advice of:

(a) the Executive Council; or

(b) if, after the Minister has consulted the Prime Minister, the Minister is satisfied that, for reasons of urgency, the Governor‑General should act with the advice of the Minister alone—the Minister.

When order takes effect

(4) An order takes effect on:

(a) the day specified in the order; or

(b) if no day is specified—the day on which the order is published in the Gazette.

When revocation of order takes effect

(5) A revocation of an order takes effect on:

(a) the day specified in the revocation; or

(b) if no day is specified—the day on which the revocation is published in the Gazette.

Effect of revocation of order

(6) To avoid doubt, if an order is revoked the call out under that order ends.

Further orders

(7) The fact that an order has been published under this section in relation to particular circumstances does not prevent further orders being published under this section in relation to the same circumstances.

50E Period of service during call out

Direction by Chief of the Defence Force or a service chief

(1) A member of the Reserves who is covered by a call out order under section 50D is bound to render the period of continuous full time naval, military or air force service (as appropriate) that the Chief of the Defence Force or a service chief directs in relation to the member.

Directions may be specific or general

(2) Such a direction may apply to the member specifically, by reference to a part or class of the Reserves that includes the member, or by reference to the Reserves as a whole.

Length of period of service

(3) The period of service specified in a direction under subsection (1):

(a) must start on the day on which the relevant call out order takes effect; and

(b) may be indefinite or limited.

However, a direction has no effect to the extent that it specifies a period of service after the day on which the call out under the order ends.

Direction must be in writing

(4) A direction under this section must be in writing.

Further directions

(5) The fact that a direction has been given in relation to an order under section 50D does not prevent further directions being given in relation to the same order.

Continuous full time service otherwise than under this section

(6) Nothing in this section prevents a member of the Reserves from being bound to render continuous full time naval, military or air force service otherwise than under this section.

Part IIIAAA—Utilisation of Defence Force to protect Commonwealth interests and States and self‑governing Territories

Division 1—Calling out and directing utilisation of Defence Force

51 Interpretation

Definitions

(1) In this Part:

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).

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.

authorising Ministers means the Prime Minister, the Minister and the Attorney‑General.

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.

dangerous thing means a gun, knife, bomb, chemical weapon or any other thing that is reasonably likely to be used to cause serious damage to property or death or serious injury to persons.

designated area means an area in relation to which a declaration is in force under section 51Q.

designated critical infrastructure means infrastructure, or a part of infrastructure, that is declared under section 51CB.

domestic violence has the same meaning as in section 119 of the Constitution.

general security area means an area in relation to which a declaration is in force under section 51K.

infrastructure includes physical facilities, supply chains, information technologies and communication networks or systems.

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.

means of transport means a vehicle, vessel, aircraft that is not airborne, train or other means of transporting persons or goods.

member in charge, in relation to a search authorisation, has the meaning given by paragraph 51L(2)(c).

offshore designated area means an area in relation to which a declaration is in force under section 51SL.

offshore general security area means an area in relation to which a declaration is in force under section 51SF.

offshore member in charge, in relation to an offshore search authorisation, has the meaning given by paragraph 51SG(2)(c).

offshore search authorisation means an authorisation under section 51SG.

offshore search members, in relation to a search authorisation, has the meaning given by paragraph 51SG(2)(d).

premises includes a place that is private property.

Presiding Officer means the President of the Senate or the Speaker of the House of Representatives.

search of a person means:

(a) a search of a person or of things in the possession of a person that may include:

(i) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and

(ii) an examination of those items; or

(b) a search of a person conducted by quickly running the hands over the person’s outer garments and an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person;

but does not include:

(d) an examination of the person’s body cavities.

search authorisation means an authorisation under section 51L.

search members, in relation to a search authorisation, has the meaning given by paragraph 51L(2)(d).

self‑governing Territory means the Australian Capital Territory, the Northern Territory or Norfolk Island.

substantive criminal law means law (including unwritten law):

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

(b) dealing with capacity to incur 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.

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 interests in relation to which an order under section 51AA is made that causes Division 3A to apply.

Police force etc. of certain Territories

(2) If the Australian Federal Police provides police services in relation to a Territory:

(a) the expression police force of the Territory means the Australian Federal Police, so far as it provides police services in relation to the Territory; and

(b) the expression member of the police force of the Territory means a member or special member of the Australian Federal Police providing police services in relation to the Territory.

51A Order about utilising Defence Force to protect Commonwealth interests against domestic violence

Conditions for making of order

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

(a) domestic violence is occurring or is likely to occur in Australia; and

(aa) the domestic violence would, or would be likely to, affect Commonwealth interests; and

(b) if the domestic violence is occurring or is likely to occur in a State or self‑governing Territory—the State or Territory is not, or is unlikely to be, able to protect Commonwealth interests against the domestic violence; and

(c) the Defence Force should be called out and the Chief of the Defence Force should be directed to utilise the Defence Force to protect the Commonwealth interests against the domestic violence; and

(d) one or more of Divisions 2, 2A, 3 and 3B, and Division 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, call out the Defence Force and direct the Chief of the Defence Force to utilise the Defence Force to protect the Commonwealth interests against the domestic violence.

Provided always that the Emergency Forces or the Reserve Forces shall not be called out or utilized in connexion with an industrial dispute.

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, subject to subsection (3A), consult that Government about the making of the order before the Governor‑General makes it.

Exception to paragraph (3)(b)

(3A) However, paragraph (3)(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

(4) The order:

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

(b) must specify the State or Territory in which the domestic violence is occurring or likely to occur, the Commonwealth interests and the domestic violence; 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

(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.

Advice to Governor‑General

(7) 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.

(8) 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).

Notice to State or self‑governing Territory

(8A) 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

(9) The fact that the order has been made does not prevent further orders being made in relation to the same matter.

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

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

(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

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.

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 or 51AA (as the case requires); 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

(c) the Chief of the Defence Force should be directed to utilise 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 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

(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.

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.

51B Order about utilising Defence Force to protect State against domestic violence

Conditions for making of order

(1) Subsection (2) applies if a State Government applies to the Commonwealth Government to protect the State against domestic violence that is occurring or is likely to occur in the State and the authorising Ministers are satisfied that:

(a) the State is not, or is unlikely to be, able to protect itself against the domestic violence; and

(b) the Defence Force should be called out and the Chief of the Defence Force should be directed to utilise the Defence Force to protect the State against the domestic violence; and

Power of Governor‑General to make order

Provided always that the Emergency Forces or the Reserve Forces shall not be called out or utilized in connexion with an industrial dispute.

Content of the order

(3) The order:

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

(b) must specify the State and the domestic violence; 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

(4) The order is in force as stated in accordance with paragraph (3)(d).

Revocation of order

(5) If:

(a) the State Government withdraws its application to the Commonwealth Government; or

(b) the authorising Ministers cease to be satisfied as mentioned in subsection (1);

the Governor‑General must revoke the order.

Advice to Governor‑General

(6) 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

Effect of revocation of order etc.

(7) 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).

Further orders

(8) The fact that the order has been made does not prevent further orders being made in relation to the same matter.

51C Order about utilising Defence Force to protect self‑governing Territory against domestic violence

Conditions for making of order

(1) Subsection (2) applies if the Government of a self‑governing Territory applies to the Commonwealth Government to protect the Territory against domestic violence that is occurring or is likely to occur in the Territory and the authorising Ministers are satisfied that:

(a) the Territory is not, or is unlikely to be, able to protect itself against the domestic violence; and

(b) the Defence Force should be called out and the Chief of the Defence Force should be directed to utilise the Defence Force to protect the Territory against the domestic violence; and

Power of Governor‑General to make order

Provided always that the Emergency Forces or the Reserve Forces shall not be called out or utilized in connexion with an industrial dispute.

Content of the order

(3) The order:

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

(b) must specify the Territory and the domestic violence; 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

(4) The order is in force as stated in accordance with paragraph (3)(d).

Revocation of order

(5) If:

(a) the Government of the Territory withdraws its application to the Commonwealth Government; or

(b) the authorising Ministers cease to be satisfied as mentioned in subsection (1);

the Governor‑General must revoke the order.

Advice to Governor‑General

(6) 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

Effect of revocation of order etc.

Further orders

(8) The fact that the order has been made does not prevent further orders being made in relation to the same matter.

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

Expedited call out by an authorising Minister and another Minister

(2A) An authorising Minister, together with the Deputy Prime Minister, the Foreign Affairs Minister or the Treasurer, 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 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

(c) the remaining authorising Minister is unable to be contacted for the purposes of considering whether to make, and making, an order under subsection (2) of this section; and

(d) the circumstances referred to in subsection 51A(1), 51AA(1), 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 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) or (2A) of this section—the other 2 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 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 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 Ministers, and cause a copy of the record to be given to the other 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 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 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:

(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; or

(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

(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

(c) in relation to section 51C, includes a reference to a State 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.

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.

(5) If the infrastructure, or the part of the infrastructure, is in a State or a self‑governing Territory:

(a) the authorising Ministers may make the declaration referred to in subsection (1) whether or not the Government of the State or the self‑governing Territory requests the making of the declaration; and

(b) if the Government of the State or the self‑governing Territory does not request the making of the declaration referred to in subsection (1), an authorising Minister must, subject to subsection (6), consult that Government about the making of the declaration.

(6) However, paragraph (5)(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.

51D Chief of Defence Force to utilise Defence Force as directed

Order under section 51A

(1) If the Governor‑General makes an order under section 51A, 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, for the purpose of protecting the Commonwealth interests specified in the order, in the State or Territory specified in the order, against the domestic violence specified in the order.

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:

(c) for the purpose of protecting the State or Territory specified 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.

Order under section 51B or 51C

(2) If the Governor‑General makes an order under section 51B or 51C, 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, for the purpose of protecting the State or Territory specified in the order against the domestic violence specified in the order.

51E Ministerial directions

Subject to section 51G, in utilising the Defence Force in accordance with section 51D, the Chief of the Defence Force must comply with any direction that the Minister gives from time to time as to the way in which the Defence Force is to be utilised.

51F Assistance to, and cooperation with, State etc.

(1) Subject to subsections (2) and (3) and to sections 51E and 51G, in utilising the Defence Force in accordance with section 51D, the Chief of the Defence Force must, as far as is reasonably practicable, ensure that:

(a) the Defence Force is utilised to assist the State or Territory specified in the order and cooperates with the police force of the State or Territory; and

(b) the Defence Force is not utilised for any particular task unless a member of the police force of the State or the Territory specified in the order requests, in writing, that the Defence Force be so utilised.

(2) Subsection (1) does not require or permit the Chief of the Defence Force to transfer to any extent command of the Defence Force to the State or the Territory, or to a police force or member of the police force of the State or the Territory.

(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.

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.

Division 2—Powers to recapture locations or things, prevent or end acts of violence and protect persons from acts of violence

51H Application of this Division and Division 4

If an order states in accordance with paragraph 51A(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.

51I 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) 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 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.

Exception

(3) Subsection (2) 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.

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.

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;

(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.

Division 3—General security area powers

Subdivision A—Application of this Division and Division 4

51J Application of this Division and Division 4

Subdivision B—Powers that may be exercised anywhere in a general security area

51K Declaration of general security area

(1) The authorising Ministers may, in writing, declare that a specified area, being a part of the State or Territory specified in the order, is a 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.

Statement to be published

(2) If they do so, they must arrange for a statement that:

(a) summarises the content of the order, but without including any reference to any statement 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) states that the declaration has been made; and

to be:

(d) broadcast by a television or radio station so as to be capable of being received within the general security area; 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.

(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.

Houses to sit within 6 days

(2A) Each House of the Parliament must sit within 6 days after its Presiding Officer receives the statement that is forwarded in accordance with paragraph (2)(f).

Effect of failure to publish

(3) A failure to comply with subsection (2) does not make the declaration ineffective to any extent.

51L Authorisation to search premises in the general security area for dangerous 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 authorised by the Chief of the Defence Force for the purposes of this section;

believes on reasonable grounds that:

(d) it is necessary as a matter of urgency to make the dangerous thing safe or prevent it from being used;

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 premises; and

(b) describe the premises; and

(c) state the name, rank and service number of a member of the Defence Force (the 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 search members) to carry out the search; and

(e) authorise each search member to seize any thing found on the premises in the course of the search that he or she believes on reasonable grounds to be a dangerous thing; and

(f) state that, if any search member believes on reasonable grounds that a person who is at or near the premises while the search is being carried out has any dangerous thing in his or her possession, the member is authorised to:

(i) search the person; and

(ii) seize any dangerous thing 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 dangerous 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 premises.

51M Copy of search authorisation to be given to occupier etc.

Right of occupier to be given copy of search authorisation etc.

(1) If the occupier of the premises specified in the search authorisation, or another person who apparently represents the occupier, is present at the premises when the search is being carried out, the member in charge must:

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

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

Right of person searched to be shown copy of search authorisation

(2) The member in charge must, before any person (other than a person who has been given a copy of the search authorisation under subsection (1)) is searched in accordance with the search authorisation, show the person a copy of the search authorisation.

51N Occupier etc. entitled to be present during search

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 premises being searched at the same time.

51O Search of means of transport in the general security area for dangerous 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 is in or on a means of transport in the general security area, the member may:

(a) erect barriers or other structures for the purpose of stopping the means of transport; and

(b) whether or not the member does so:

(i) stop and detain the means of transport; and

(ii) search the means of transport, and any thing found in or on the means of transport, for the dangerous thing; and

(iii) seize any dangerous thing that the member finds in the search.

Note: Subdivision B of Division 4 sets out what is to happen if a dangerous thing is seized under this subsection.

(2) If the member stops the means of transport, the member must not detain it for longer than is reasonable and necessary to search it and any thing found in or on it.

51P Search of persons in the general security area for dangerous 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 general security area has a dangerous thing 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 dangerous thing is seized under this section.

Subdivision C—Powers that may be exercised only in relation to a designated area in the general security area

51Q Declaration of designated area

(1) The authorising Ministers may, in writing, declare that a specified area, being the whole or a part of a general security area, is a 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.

Where no longer a general security area

(2) To avoid doubt, if the whole or part of the area later ceases to be within a general security area, the whole or the part ceases to be a designated area.

Declaration to be published

(3) If the authorising Ministers make a declaration under subsection (1), they must take reasonable steps to make the public aware of the declaration of the designated area and of its boundaries.

(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.

51R Control of movement in relation to a designated area in the general security area

Powers in relation to persons in charge of means of transport

(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 means of transport:

(a) if the means of transport is in a part of the general security area that is outside a designated area—direct the person not to bring the means of transport into the designated area;

(b) direct the person to take the means of transport out of a designated area;

(c) direct the person to take the means of transport from a place in a designated area to another place in the designated area;

(d) direct the person not to take the means of transport from a place in a designated area to any other place, or to a specified place, in the 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, a designated area for the purpose of stopping persons from bringing means of transport into the designated area or to a place in the designated area.

Powers in relation to means of transport

(3) If there is no person in charge of a means of transport that is in a 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 means of transport to a place in the general security area that is outside the designated area;

(b) to take the means of transport to another place in the 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 means of transport):

(a) if the person is in the general security area but outside a designated area—direct the person not to enter the designated area;

(b) direct the person to leave a 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 means of transport into a designated area; or

(b) not to enter a designated area;

includes:

(i) in either case—the person; and

(ii) in a paragraph (a) case—the means of transport and any thing in or on the means of transport;

for dangerous things; and

(d) if the person agrees, the power to conduct such a search and to seize any dangerous thing that the member finds in the search.

Note: Subdivision B of Division 4 sets out what is to happen if a dangerous thing is seized under this subsection.

Powers to enter premises etc. to give directions

(6) A member of the Defence Force may enter premises or a means of transport for the purpose of giving a direction under any provision of this section.

51S 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

(4) The Chief of the Defence Force must take such steps as are reasonable and necessary to ensure that members do not contravene subsection (1).

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.

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;

(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;

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.

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

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

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:

(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:

(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).

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

(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.

(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.

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.

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.

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.

Division 4—Provisions common to Divisions 2 to 3B

Subdivision A—Use of reasonable and necessary force

51T Use of reasonable and necessary force

(1) A member of the Defence Force may, in exercising any power under Division 2, 2A, 3, 3A or 3B or this Division, use such force against persons and things as is reasonable and necessary in the circumstances.

(1A) However, subsection (1) does not apply to the powers under Subdivision E of Division 3A.

(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.

Further restrictions on use of force

(2) Despite subsection (1), in exercising powers under Division 2, 3 or 3A (other than subparagraph 51SE(1)(a)(i) or (ii)) or this Division, 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 protect the life of, or to prevent serious injury to, another person (including the member); or

(b) subject the person to greater indignity than is reasonable and necessary in the circumstances.

(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.

(2B) Despite subsection (1), in exercising powers under subparagraph 51SE(1)(a)(i) or (ii) or Division 3B, a member of the Defence 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

(c) doing that thing is necessary and reasonable to give effect to the order under which, or under the authority of which, the member is acting.

(3) In addition to the relevant limitation in paragraph (2)(a), subparagraph (2A)(a)(i) or (ii) or paragraph (2B)(a), (b) or (c), if a person is attempting to escape being detained by fleeing, a member of the Defence Force must not do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the person has, if practicable, been called on to surrender and the member believes on reasonable grounds that the person cannot be apprehended in any other manner.

51U Persons to be informed of offence if detained

(1) A member of the Defence Force who, in accordance with subparagraph 51I(1)(b)(ii), 51IB(b)(i) or 51SE(1)(b)(ii) or paragraph 51V(e), detains a person must inform the person, at the time the person is detained, of the offence mentioned in that provision.

(2) It is sufficient if the person is informed of the substance of the offence, and it is not necessary that this be done in language of a precise or technical nature.

(3) Subsection (1) does not apply to the detention of a person if:

(a) the person should, in the circumstances, know the substance of the offence; or

(b) the person’s actions make it impracticable for the member to inform the person of the offence.

Subdivision B—Action to be taken if things are seized

51V Action to be taken if things are seized

If a member of the Defence Force seizes a thing under Division 2, 2A, 3 or 3A, the member:

(a) may take such action as is reasonable and necessary to make the thing safe or prevent it being used; and

(b) if the member seized the thing from a person—must, if it is practicable to do so, give the person a receipt for the thing; and

(c) if the member believes on reasonable grounds that the thing has been used or otherwise involved in the commission of an offence against a law of the Commonwealth, a State or a Territory—must give the thing to a member of a police force at the earliest practicable time; and

(d) if paragraph (c) does not apply—must:

(i) if the member seized the thing from a person and it is practicable to do so—return the thing to the person; or

(ii) if not, give it to a member of a police force; and

(e) if:

(i) the member seized the thing from a person; and

(ii) the member believes on reasonable grounds that the person used the thing in the commission of an offence against a law of the Commonwealth, a State or a Territory;

may detain the person for the purpose of placing him or her in the custody of a member of a police force at the earliest practicable time.

Subdivision C—Members not entitled to exercise powers if obligations not complied with

51W Members not entitled to exercise powers if obligations not complied with

If, before, during or after exercising a power under Division 2, 2A, 3, 3A or 3B or this Division, a member of the Defence Force fails to comply with any obligation imposed under any of those Divisions that relates to the exercise of the power, the member is not, or is taken not to have been, entitled to exercise the power.

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.

(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.

Note: It is not intended that this section or Act restrict or limit the power of State or Territory police to investigate any criminal acts done, or purported to be done, by Defence Force members when operating under Part IIIAAA of this 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.

Division 5—Miscellaneous

51X Publication of order and report

Single order

(1) If:

(a) an order under Division 1 ceases to be in force; and

(b) the order is not one of 2 or more orders to which subsection (2) applies;

the Minister must arrange for presentation to the Parliament in accordance with subsection (3) of:

(i) the order; and

(ii) any declarations of general security areas or designated areas, or of offshore general security areas or offshore designated areas, under the order; and

(d) a report on any utilisation of the Defence Force that occurred under the order.

Successive orders

(2) If 2 or more orders under Division 1 about the same or related circumstances come into force in succession, without any intervening period when no such order is in force, the Minister must arrange for presentation to the Parliament in accordance with subsection (3) of:

(a) a copy of:

(i) all of the orders; and

(ii) any declarations of general security areas or designated areas, or of offshore general security areas or offshore designated areas, under the orders; and

(b) a report on any utilisation of the Defence Force that occurred under the orders.

Reporting to Parliament

(3) For the purposes of subsection (1) or (2), presentation to the Parliament of the copy and report is in accordance with this subsection if the copy and report are forwarded to the Presiding Officer of each House:

(a) if that House sits before the end of 7 days after the order mentioned in subsection (1) or the last of the orders mentioned in subsection (2) ceases to be in force—for tabling in that House before the end of that 7 days; or

(b) if not—before the end of that 7 days for distribution to all Senators or Members of the House of Representatives, as the case may be.

Effect of revocation

(5) To avoid doubt, a reference to an order ceasing to be in force includes a reference to an order ceasing to be in force because it is revoked.

51XA Review of operation of Part

Independent review where first orders made

(1) If:

(a) before the end of 3 years after the commencement of this Part:

(i) an order under Division 1 ceases to be in force, where the order is not one of 2 or more orders to which subparagraph (ii) applies; or

(ii) 2 or more orders under Division 1 cease to be in force, where the orders were about the same or related circumstances and came into force in succession, without any intervening period when no such order was in force; and

(b) no order under Division 1 had previously been made;

the Minister must, subject to subsection (2), before the end of 6 months after the order mentioned in subparagraph (a)(i), or the last of the orders mentioned in subparagraph (a)(ii), ceases to be in force, arrange for the carrying out of an independent review (see subsection (6)) of the operation of this Part in relation to the order or orders.

Independent review not required if Parliamentary committee report

(2) Subsection (1) does not apply if a committee of one or both of the Houses of the Parliament has already presented a report to that House or both of the Houses, as the case may be, about the operation of this Part in relation to the order or orders.

Independent review where no orders made

(3) If no order under Division 1 ceases to be in force before the end of 3 years after the commencement of this Part, the Minister must, subject to subsection (4), as soon as practicable after those 3 years, arrange for the carrying out of an independent review of the operation of this Part during those 3 years.

Independent review not required if Parliamentary committee report

(4) Subsection (3) does not apply if a committee of one or both of the Houses of the Parliament has already presented a report to that House or those Houses, as the case may be, about the operation of this Part during those 3 years.

Tabling of report of independent review

(5) The Minister must arrange for a copy of the report of any independent review under subsection (1) or (3) to be tabled in each House of the Parliament within 5 sitting days of that House after the Minister is given the report.

Meaning of “independent review”

(6) In this section:

independent review means a review, and report to the Minister, by 2 or more persons who:

(a) in the Minister’s opinion, possess appropriate qualifications to carry out the review; and

(b) include at least one person who:

(i) is not employed by the Commonwealth or a Commonwealth authority; and

(ii) has not, since the commencement of this Part, provided services to the Commonwealth or a Commonwealth authority under or in connection with a contract.

51XB Instruments that are not legislative instruments

An order, authorisation or declaration made under this Part is not a legislative instrument.

51Y Part additional to other Defence Force utilisation and powers

This Part does not affect any utilisation of the Defence Force that would be permitted or required, or any powers that the Defence Force would have, if this Part were disregarded.

Part IIIAA—Superannuation benefit

52 Determination of benefit

(1) The Minister may, by legislative instrument, make determinations for the purpose of providing a superannuation benefit in respect of:

(a) service on and after 1 January 1988 by members of the Permanent Forces; and

(b) continuous full time naval, military or air force service on and after that day by members of the Reserves.

(2) A determination:

(a) shall not be inconsistent with this Act, the Naval Defence Act 1910 or the Air Force Act 1923; and

(b) shall not be expressed to take effect from a day before 1 January 1988.

(3) In making determinations, the Minister shall have regard to:

(a) principle 3 of the wage fixing principles adopted by the Conciliation and Arbitration Commission in its national wage case decision of 23 September 1983, as modified by its national wage case decision of 26 June 1986;

(b) the provisions of the Superannuation (Productivity Benefit) Act 1988; and

(c) matters relating to the terms and conditions of service of members of the Defence Force and the arrangements for the administration of the Defence Force.

(3A) The Minister may not make a determination that would have the effect that the Commonwealth, as employer, would have an individual superannuation guarantee shortfall for a member referred to in subsection (1) for any quarter under the Superannuation Guarantee (Administration) Act 1992.

(4) Determinations are legislative instruments for the purposes of the Legislative Instruments Act 2003.

(4A) Paragraph 14(1)(a) of the Legislative Instruments Act 2003 applies as if the reference to disallowable legislative instruments included a reference to instruments made under section 58B or 58H of the Defence Act 1903.

(5) Determinations may make provision for, and in relation to, reducing a superannuation benefit under the determinations in a case where a person becomes entitled to benefits under the Military Superannuation and Benefits Act 1991 in circumstances mentioned in subparagraph 5A(1)(b)(i) of that Act.

Note: Section 5A of the Military Superannuation and Benefits Act 1991 provides for superannuation benefits for a non‑member spouse in respect of splitting agreements and splitting orders under the Family Law Act 1975.

(6) Reductions referred to in subsection (5) are to be disregarded in applying subsection (3A).

53 Trustee of scheme providing superannuation benefit

For the purposes of the definition of trustee in section 43 of the Superannuation Contributions Tax (Assessment and Collection) Act 1997, CSC (within the meaning of the Governance of Australian Government Superannuation Schemes Act 2011) is taken to be the person who manages the scheme constituted by the Defence Force (Superannuation) (Productivity Benefit) Determination made under section 52 of the Defence Act 1903.

Note: The definitions of public sector superannuation scheme, superannuation fund and trustee in section 43 of the Superannuation Contributions Tax (Assessment and Collection) Act 1997 are relevant to this section.

Part IIIA—Remuneration, allowances and other benefits

Division 1—Determinations by the Minister

58A Interpretation

In this Division, unless the contrary intention appears:

cadet means an officer, instructor or cadet in the Australian Army Cadets, the Australian Navy Cadets or the Australian Air Force Cadets, and includes a person who has ceased to be such an officer, instructor or cadet, whether by reason of death or otherwise.

determination means a determination made under section 58B.

member includes a person who has ceased to be a member, whether by reason of death or otherwise.

member of the family includes:

(a) in relation to a member—a member of the household of the member and a dependant of the member; or

(b) in relation to a cadet—a member of the household of the cadet and a dependant of the cadet.

remuneration means remuneration by way of salary, pay, allowances or otherwise.

58B Minister may make determinations

(1) The Minister may, by instrument in writing, make determinations, not inconsistent with this Act, the Naval Defence Act 1910 or the Air Force Act 1923, providing for and in relation to:

(a) the remuneration of members or cadets; and

(b) the payment of allowances or other pecuniary benefits (except allowances or benefits by way of remuneration) to or for members or cadets, including the payment of additional compensation to members of the Reserves to whom compensation is payable under the Safety, Rehabilitation and Compensation Act 1988; and

(c) the payment of allowances or other pecuniary benefits to or in respect of members of the families of members or cadets; and

(d) leave of absence and long service leave of members; and

(e) the provision of other benefits to or in respect of members or cadets, or to or in respect of members of the families of members or cadets; and

(f) the payment of allowances and expenses to or in respect of, and the provision of travelling facilities for, applicants for appointment or engagement as members in respect of attendance at an enlistment centre of the Defence Force or attendance for interview or examination; and

(g) deductions from the remuneration of a member or cadet or from allowances or other pecuniary benefits referred to in paragraphs (b) and (c); and

(ga) payments, by way of compensation, incentives or other benefits, to:

(i) members of the Reserves; or

(ii) their dependants; or

(iii) their employers, business or professional partners or other associates; or

(iv) other persons;

in relation to the availability of the members for defence service, or for losses incurred or inconvenience suffered because of the members’ absence on defence service (including losses incurred or inconvenience suffered because of the operation of the Defence Reserve Service (Protection) Act 2001); and

(h) the meanings to be attributed to words and expressions used in existing determinations and future determinations made under this section, and the circumstances in which those meanings are to apply.

(1AA) Expressions used in paragraph (1)(ga) that are defined in the Defence Reserve Service (Protection) Act 2001 have the same meaning as in that Act.

(1A) Paragraph 46AA(1)(a) of the Acts Interpretation Act 1901 applies, in relation to a determination, as if the reference in that paragraph to disallowable legislative instruments also included a reference to:

(a) determinations made under section 58B or 58H of the Defence Act 1903; and

(b) determinations made under section 24 of the Public Service Act 1999.

Note: Section 46AA of the Acts Interpretation Act 1901 deals with prescribing matters by reference to other instruments.

(1B) A determination under this section may provide that, where an amount has been paid (whether before or after the commencement of this subsection) to a member or cadet or to a member of the family of a member or cadet under the regulations or under a determination made under this section or under Division 2, the member or cadet or the member of the family of the member or cadet is required to pay to the Commonwealth an amount, not exceeding the first‑mentioned amount, upon the occurrence of an event specified in the determination, and may provide for the manner of recovery of such an amount.

(2) Subsection (1) does not authorize the making of a determination providing for or in relation to the payment to or in respect of a member, or to or in respect of a member of the family of a member, of a benefit in the nature of a pension.

(3) A determination shall not be made providing for or in relation to the forfeiture or assignment of the whole or part of:

(a) the remuneration of a member or cadet; or

(b) allowances or other pecuniary benefits referred to in paragraph (1)(b) or (c).

(4) A determination is a disallowable instrument for the purposes of section 46B of the Acts Interpretation Act 1901. However:

(a) subsections (5) to (5C) of this section apply to a determination instead of subsections 46B(5) to (8) of that Act; and

(b) paragraph 46B(2)(d) and subsection 46B(3) of that Act have effect in relation to a determination as if references to subsection (5) of section 46B were instead references to subsection (5) of this section.

(5) A determination must be notified in the Gazette and, if the determination is not so notified by being published in full in the Gazette, a notice in the Gazette of the determination’s having been made, and of the website on which it is available, is sufficient compliance with that requirement.

(5A) If a notice of the making of a determination is published in accordance with subsection (5), the determination must, at the time of publication of the notice or as soon as practicable thereafter, be made available on the website specified in the notice.

(5B) If, on the day of publication of a notice referred to in subsection (5), the determination to which the notice relates is not available on the website specified in the notice, the Minister must cause to be laid before each House of the Parliament, within 15 sitting days of that House after that day, a statement that the determination was not so available and the reason why it was not so available.

(5C) Failure to comply with a requirement of subsection (5A) or (5B) in relation to a determination does not constitute a failure to comply with subsection (5).

(6) The determinations made in each secular year (including determinations amending or revoking other determinations) shall be numbered in regular arithmetic series, beginning with the number 1, as nearly as possible in the order in which they are made.

(7) A determination may, without prejudice to any other manner of citation, be cited by reference to its number and the secular year in which it was made.

(9) In this section, a reference to this Act does not include a reference to the regulations.

58E Delegation

The regulations may make provision for and in relation to the delegation by the Minister of his power to make determinations with respect to such of the matters with respect to which determinations may be made as are specified in the regulations.

Division 2—The Defence Force Remuneration Tribunal

58F Interpretation

In this Division, unless the contrary intention appears:

AIRC means the Australian Industrial Relations Commission referred to in section 61 of the Workplace Relations Act 1996, as in force immediately before the commencement of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

Defence Force Advocate means the Defence Force Advocate appointed under section 58S.

FWC means the Fair Work Commission.

member of the Tribunal means a member of the Tribunal appointed under section 58G, and includes the President.

President means the President of the Tribunal appointed under section 58G.

relevant allowances, in relation to a member, means allowances by way of remuneration payable to the member and, without limiting the generality of the foregoing, includes any allowance payable to the member:

(a) in respect of the service of the member on a ship or aircraft;

(b) as general compensation for the disadvantages of rendering naval, military or air force service;

(d) as compensation for the hazardous nature of the duties that the member is required to perform or for the conditions under which the member is required to perform his or her duties.

Remuneration Tribunal means the Remuneration Tribunal established by subsection 4(1) of the Remuneration Tribunal Act 1973.

salary includes pay.

single member means a member of the Tribunal specified in a direction made under subsection 58KA(1).

Tribunal means the Defence Force Remuneration Tribunal established by section 58G.

58G Establishment of Defence Force Remuneration Tribunal

(1) There is established by this section a Defence Force Remuneration Tribunal.

(2) The Tribunal shall consist of:

(a) a President;

(b) a person who is experienced in industrial relations matters; and

(c) a person who was, but is no longer, a member of the Permanent Forces (although the person may be a member of the Reserves).

Note: The Permanent Forces are made up of the Permanent Navy, the Regular Army and the Permanent Air Force which are established respectively by the Naval Defence Act 1910, this Act and the Air Force Act 1923. Those Acts also establish the Naval Reserve, the Army Reserve and the Air Force Reserve, which together make up the Reserves.

(3) The members of the Tribunal shall be appointed by the Governor‑General on a part‑time basis.

(4) The person appointed as President shall be a Deputy President of the FWC.

(5) A person must not be appointed as a member of the Tribunal if he or she has, at any time during the year preceding the appointment, been a member of the Permanent Forces.

(6) The performance of the duties and functions and the exercise of the powers of the Tribunal are not affected by reason only of there being one vacancy in the membership of the Tribunal.

58H Functions and powers of Tribunal

(1) The functions of the Tribunal are to inquire into and determine, in accordance with this section, the matters referred to in subsection (2).

(2) The Tribunal shall, as provided for by this section:

(a) inquire into and determine the salaries and relevant allowances to be paid to members; and

(b) inquire into and make determinations in respect of prescribed matters that have been referred to the Tribunal.

(3) The Minister or, subject to subsection (4), the Secretary or the Chief of the Defence Force may, by notice in writing given to the President, refer a prescribed matter to the Tribunal.

(4) The Secretary or the Chief of the Defence Force shall not, without the approval in writing of the Minister, refer a prescribed matter to the Tribunal pursuant to subsection (3) if:

(a) at any time during the preceding 12 months, the Minister has made a determination under section 58B that relates, in whole or in part, to that matter; or

(b) the Secretary or the Chief of the Defence Force is aware that, at any time during the preceding 12 months, submissions have been made to the Minister requesting the Minister to make a determination that relates, in whole or in part, to that matter and the Minister has not made such a determination.

(5) The Tribunal shall, within 2 years of the commencement of this section or within such shorter period as the Minister, by notice in writing given to the President, determines, inquire into and make a determination in respect of the salaries and relevant allowances to be paid to members.

(6) Where a determination of the Tribunal in respect of the salaries and relevant allowances to be paid to members is in force, the Tribunal shall inquire into and make a further determination in respect of those salaries and allowances:

(a) within 2 years of the first‑mentioned determination taking effect; or

(b) if the Minister, by notice in writing given to the President, requests the Tribunal to make a further determination in respect of those salaries and allowances within a shorter period of the first‑mentioned determination taking effect—within that shorter period.

(7) A determination of the Tribunal shall be in writing and shall take effect, or shall be deemed to have taken effect, on such day as the Tribunal specifies for the purpose in the determination.

(8) The Tribunal shall not specify as the day on which a determination of the Tribunal takes effect a day earlier than the day on which the determination is made in any case where, if the determination so took effect:

(a) the rights of a person (other than the Commonwealth) which existed immediately before the last‑mentioned day would be affected in a manner prejudicial to that person; or

(b) liabilities would be imposed on a person (other than the Commonwealth) in respect of anything done or omitted to be done before that last‑mentioned day;

and where, in a determination of the Tribunal, any provision is made in contravention of this subsection, that provision shall be of no effect.

(9) The President shall give a copy of each determination made by the Tribunal to the Minister, to the Secretary and to the Chief of the Defence Force.

(10) Where the Tribunal has made a determination (not being a determination made pursuant to subsection (12)), the Minister, the Secretary or the Chief of the Defence Force may, by notice in writing given to the President within 28 days of the determination being made, request the Tribunal to reconsider the determination.

(11) A notice of request under subsection (10) shall set out the grounds on which the reconsideration is being sought.

(12) As soon as practicable after a request is made under subsection (10) for reconsideration of a determination, the Tribunal shall reconsider the determination and shall make a further determination affirming, varying or replacing the first‑mentioned determination.

(13) The Minister shall cause a copy of each determination of the Tribunal to be laid before each House of the Parliament within 15 sitting days of that House after the determination is received by the Minister.

(14) Any regulation made under this Act, the Air Force Act 1923 or the Naval Defence Act 1910, and any determination made under section 58B of this Act, has no effect to the extent that it is inconsistent with any determination of the Tribunal.

(15) In this section, prescribed matter means a matter in relation to which the Minister may make determinations under section 58B, not being a matter referred to in paragraph (2)(a).

58HA Hearings in relation to discriminatory determinations

(1) If a determination is referred to the Tribunal under section 46PY of the Australian Human Rights Commission Act 1986, the Tribunal must hold a hearing to review the determination.

(2) Unless the hearing takes place before a single member of the Tribunal, subsections 58K(1) to (6) apply to the hearing as if it were a meeting of the Tribunal.

(3) The Tribunal must decide whether or not the hearing is to be held in public.

(4) If the Tribunal decides that the hearing is not to be held in public, then, subject to subsection (5) and subsections 58K(9) and 58KB(5), the Tribunal may decide the people who may be present.

(5) The Sex Discrimination Commissioner is entitled to notice of, and to be present at, the hearing and may make submissions to the Tribunal.

(6) In this section:

determination includes a variation to a determination.

Tribunal includes a single member conducting the Tribunal’s business under a direction under subsection 58KA(1).

58HB Review of discriminatory determinations

(1) If:

(a) a determination has been referred to the Tribunal under section 46PY of the Australian Human Rights Commission Act 1986; and

(b) the Tribunal considers that the determination is a discriminatory determination;

the Tribunal must take the necessary action to remove the discrimination, by setting aside the determination, setting aside terms of the determination or varying the determination.

(2) In this section:

determination has the same meaning as in section 58HA.

discriminatory determination means a determination that:

(a) has been referred to the Tribunal under section 46PY of the Australian Human Rights Commission Act 1986; and

(b) requires a person to do an act that would be unlawful under Part II of the Sex Discrimination Act 1984 except for the fact that the act would be done in direct compliance with the determination.

Tribunal has the same meaning as in section 58HA.

(3) For the purposes of the definition of discriminatory determination in subsection (2), the fact that an act is done in direct compliance with the determination does not of itself mean that the act is reasonable.

58J Reports by Tribunal

(1) The Minister may, by notice in writing given to the President, request the Tribunal to inquire into and report to the Minister on a matter specified in the notice, being a matter in relation to which the Tribunal may make a determination pursuant to section 58H.

(2) When a request is made under subsection (1), the Tribunal shall inquire into the matter concerned and give to the Minister a report in writing on that matter.

58K Procedure of Tribunal

(1) The President shall convene such meetings of the Tribunal as he or she considers necessary for the efficient performance of its functions.

(2) Meetings of the Tribunal shall be held at such places as the President determines.

(3) The President shall preside at all meetings of the Tribunal at which he or she is present.

(4) If the President is not present at a meeting of the Tribunal, another member of the Tribunal nominated by the President shall preside at the meeting.

(5) The Tribunal shall keep records of its meetings.

(6) At a meeting of the Tribunal:

(a) 2 members of the Tribunal constitute a quorum;

(b) all questions shall be decided by a majority of votes of the members of the Tribunal present and voting; and

(c) the member of the Tribunal presiding has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

(7) The Tribunal shall, in making a determination, have regard to:

(a) any decision of, or principles established by, the FWC that is or are relevant to the making of the determination; or

(b) if the FWC has not yet made any such decision or established any such principles, any decision of, or principles established by, the AIRC that is or are relevant to the making of the determination.

(8) In the performance of the functions of the Tribunal:

(a) the Tribunal may regulate the conduct of its proceedings as it thinks fit and is not bound to act in a formal manner; and

(b) the Tribunal may inform itself on any matter in such manner as it thinks fit and is not bound by the rules of evidence.

(9) The Defence Force Advocate and a person representing the Commonwealth are entitled to be present, and to make submissions to the Tribunal, during any proceedings before the Tribunal.

(10) Where the Tribunal thinks that a person or body should be heard in relation to a matter that is being, or is to be, considered by the Tribunal, the Tribunal may permit the person or body to be present, and to make submissions to the Tribunal, during proceedings before the Tribunal in relation to that matter.

58KA Single member may conduct Tribunal’s business

(1) Subject to subsection (2), the President may:

(a) if a person referred to in subsection 58K(9) requests the President to do so and the President considers it appropriate; or

(b) in any case, on the Chairman’s initiative;

direct, in writing, that a member of the Tribunal specified in the direction is to conduct the Tribunal’s business in relation to any matter that is specified in the direction, being a matter that is being, or is to be, dealt with by the Tribunal.

(2) The President must not, in a direction made under subsection (1), direct that a single member is to deal with a request made under subsection 58KC(1).

(3) The President may, at any time, in writing, terminate a direction made under subsection (1).

(4) Where a single member is conducting the Tribunal’s business in relation to a matter:

(a) the single member may exercise any powers or perform any functions of the Tribunal in relation to that matter; and

(b) any act of the single member in relation to that matter is taken to be an act of the Tribunal.

(5) In this section, a reference to a matter that is being, or is to be, dealt with by the Tribunal includes a reference to any part of such a matter.

58KB Procedure where single member is conducting Tribunal’s business

(1) Where a single member is conducting the Tribunal’s business:

(a) section 58K does not apply to the single member’s conduct of such business; and

(b) the following provisions apply.

(2) The single member may conduct such proceedings relating to the matter to which the direction relates as he or she considers necessary.

(3) In the conduct of the Tribunal’s business:

(a) the single member is not bound to act in a formal manner; and

(b) the single member may inform himself or herself on any matter in such manner as he or she thinks fit and is not bound by the rules of evidence.

(4) The single member must, in making a determination, have regard to:

(a) any decision of, or principles established by, the FWC that is or are relevant to the making of the determination; or

(5) The Defence Force Advocate and a person representing the Commonwealth are entitled to be present, and to make submissions to the single member, during any proceedings conducted by the single member.

(6) Where the single member thinks that a person or body should be heard in relation to a matter that is being, or is to be, considered by him or her, the single member may permit the person or body to be present, and to make submissions to the single member, during proceedings conducted by the single member in relation to that matter.

58KC Review of action etc. of single member

(1) Where:

(a) a single member is conducting the Tribunal’s business in relation to a matter; and

(b) in dealing with the matter, the single member exercises a power or performs a function of the Tribunal;

the Minister, the Secretary or the Chief of the Defence Force may, by notice in writing given to the President within 28 days after the single member has completed his or her conduct of that business, request the Tribunal to reconsider the exercise of the power or performance of the function.

(2) The notice must specify the exercise of the power or the performance of the function requested to be reconsidered and the grounds for seeking the reconsideration.

(3) As soon as practicable after the request is made, the Tribunal must:

(a) reconsider the exercise of the power or performance of the function specified in the request; and

(b) make a determination affirming, varying or replacing anything done by the single member in exercising that power or performing that function.

58KD Determinations giving effect to agreement between the parties

The Tribunal may, in making a determination, give effect to any agreement reached between the Minister, acting on behalf of the Commonwealth, and the Chief of the Defence Force, acting on behalf of the members of the Australian Defence Force, in relation to a matter to which the determination relates.

58L Terms and tenure of office

(1) Subject to this Division, a member of the Tribunal holds office for such period, not exceeding 5 years, as is specified in his or her instrument of appointment, but is eligible for re‑appointment.

(2) A person must not continue to hold office as a member of the Tribunal if:

(a) he or she becomes a member of the Permanent Forces (although he or she may become a member of the Reserves); or

(b) he or she becomes the Defence Force Advocate; or

58M Resignation

A member of the Tribunal may resign his or her office by writing signed by him or her and delivered to the Governor‑General.

58N Termination of appointment

The Governor‑General may terminate the appointment of a member of the Tribunal by reason of misbehaviour or physical or mental incapacity.

58P Acting appointments

(1) The Minister may appoint a person to act as a member (including the President) of the Tribunal:

(a) during a vacancy in the office of that member; or

(b) during any period, or during all periods, when that member is absent from duty or from Australia or is, for any other reason (including the reason that, in the case of a member not being the President, he or she is acting as President), unable to perform the duties of his or her office.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

(8) A reference in section 58H, 58J, 58K, 58KA, 58KC or 58U to the President or to a member of the Tribunal shall be read as including a reference to a person acting as the President or as a member of the Tribunal, as the case may be.

58Q Fees and allowances

(1) A member of the Tribunal shall be paid such fees and allowances as the Remuneration Tribunal determines.

(2) The appointment of the holder of a prescribed office as a member of the Tribunal, or service by the holder of a prescribed office as such a member, does not affect his or her tenure of that prescribed office or his or her rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of that prescribed office and, for all purposes, his or her service as a member of the Tribunal shall be taken to be service as the holder of the prescribed office.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

(4) In this section, prescribed office means an office, appointment or other employment which is referred to in subsection 7(11) of the Remuneration Tribunals Act 1973 as an office, appointment or other employment on a full‑time basis or a judicial office referred to in subsection 7(12) of that Act.

Division 3—The Defence Force Advocate

58R Interpretation

In this Division, unless the contrary intention appears:

Advocate means the Defence Force Advocate appointed under section 58S.

Remuneration Tribunal means the Remuneration Tribunal established by subsection 4(1) of the Remuneration Tribunal Act 1973.

Tribunal means the Defence Force Remuneration Tribunal established by section 58G.

58S Defence Force Advocate

(1) There shall be a Defence Force Advocate, who shall be appointed by the Minister on a part‑time basis.

(2) The person appointed as the Advocate shall be a person who:

(a) is experienced in industrial relations matters; and

(b) has a knowledge of the nature of service in the Defence Force.

(3) In making an appointment under subsection (1), the Minister shall have regard to any recommendations made by the Chief of the Defence Force.

58T Functions of Advocate

The functions of the Advocate are:

(a) to advise the Chief of the Defence Force in relation to matters that have been, or may be, referred to the Tribunal by the Chief of the Defence Force pursuant to subsection 58H(3);

(b) to prepare submissions to be made to the Tribunal on behalf of the Defence Force concerning any matter that is being considered by the Tribunal; and

58U Tenure and terms of office

(1) Subject to this Division, the Advocate holds office for 3 years, but is eligible for re‑appointment.

(2) A person shall not continue to hold the office of Advocate if he becomes a member of the Tribunal.

58V Resignation

The Advocate may resign his office by writing signed by him and delivered to the Minister.

58W Termination of appointment

The Minister may terminate the appointment of the Advocate by reason of misbehaviour or physical or mental incapacity.

58X Acting Defence Force Advocate

The Minister may appoint a person to act as the Advocate:

(a) during a vacancy in the office of the Advocate; or

(b) during any period, or during all periods, when the Advocate is absent from duty or from Australia or is, for any other reason, unable to perform the duties of his office.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

58Y Fees and allowances

(1) The Defence Force Advocate shall be paid such fees and allowances as the Remuneration Tribunal determines.

(2) This section has effect subject to the Remuneration Tribunal Act 1973.

Part IV—Liability to serve in the Defence Force in time of war

Division 1—Liability to serve

59 Persons liable to serve in Defence Force in time of war

All persons (except those who are exempt from service under this Part or to whom this Part does not apply) who:

(a) have resided in Australia for not less than 6 months; and

are liable, when called upon under section 60, to serve in the Defence Force.

60 Proclamation calling upon persons to serve in time of war

(1) In time of war the Governor‑General may, by proclamation, call upon persons specified in section 59 to serve in the Defence Force in accordance with this Act for the duration of the time of war.

(2) A Proclamation under this section must call on persons in the order in which they are included in classes established for the purposes of this subsection under subsection (3).

(3) The regulations may establish a series of classes of persons for the purposes of subsection (2).

(4) A Proclamation must be laid before each House of the Parliament before, but not more than 90 days before, the day on which it is expressed to come into effect.

(5) A Proclamation does not come into effect unless, within the period of 90 days before it is expressed to come into effect, it is approved, by resolution, by each House of the Parliament.

61 Registration and allotment for service

(1) The regulations may make provision for and in relation to:

(a) the registration of persons who are or may become liable to serve in the Defence Force in time of war;

(b) the deferment of the service of persons, or persons included in classes of persons, who have been called upon under section 60 to serve in the Defence Force;

(f) the choice, by ballot or otherwise, from persons who have been called upon to serve in the Defence Force of those persons who are required so to serve; and

(g) the allotment of persons required so to serve for service in a part of the Navy, the Army or the Air Force.

61A Persons exempt from service

(1) The following persons are exempt from service in the Defence Force in time of war so long as the employment, condition, status, belief, or other reason stated in regulations made for the purposes of paragraph (j), on which the exemption is based continues:

(a) persons subject to a prescribed mental or physical disability;

(b) members and officers of the Parliament of the Commonwealth or of a State;

(d) ministers of religion;

(e) members of a religious order who devote the whole of their time to the duties of the order;

(f) persons who are students at a college maintained solely for training persons to become members of a religious order;

(g) persons who are students at a theological college as defined by the regulations or are theological students as prescribed;

(h) persons whose conscientious beliefs do not allow them to participate in war or warlike operations;

(i) persons whose conscientious beliefs do not allow them to participate in a particular war or particular warlike operations; and

(j) persons who, for a reason stated in the Regulations, are declared by the Regulations to be exempt from service in the Defence Force in time of war.

(1A) Persons whose conscientious beliefs do not allow them to engage in duties of a combatant nature (either generally or during a particular war or particular warlike operations) are not exempt from liability to serve in the Defence Force in time of war but are exempt from such duties while members of the Defence Force as long as those beliefs continue.

(2) A person who, in pursuance of section 60, has been called upon to serve in the Defence Force and is, by virtue of this section, exempt from service shall, notwithstanding the exemption, do any act that such a person is required, by or under the regulations, to do.

Penalty: $40.

61B Entry into Defence Force for service

(1) A person who, in accordance with the regulations, is allotted for service in a part of the Navy, the Army or the Air Force shall, as from the time at which he presents himself for service in that part, be deemed to have been enlisted in that part and to have been engaged to serve in that part for the duration of the time of war.

(2) A person who, in pursuance of section 60, has been called upon to serve in the Defence Force and fails, when required by or under the regulations, to present himself for examination or service or to do any other act required to be done by persons so called upon remains liable to do that act, notwithstanding that the time originally appointed for the doing of that act has expired or that he has been convicted for failing to do that act.

61C Part not to apply to certain persons

Nothing in this Part applies to:

(a) a person whose presence in Australia is occasioned solely by his or her employment in the service of a government outside Australia; or

(b) a prescribed official of any international organisation; or

Division 2—Determination of conscientious belief

61CA Application for determination of conscientious belief

(1) A person who claims to be exempt from service because of conscientious beliefs must, within 7 days after he or she is called on for service under section 60 apply to the Secretary, in writing, to have his or her claim determined by a Conscientious Objection Tribunal.

(2) At any time after a Tribunal has made a determination that a person is or is not exempt from service because of conscientious beliefs either the applicant for that determination or the Commonwealth may apply to the Secretary, in writing, to have a Tribunal set aside the previous determination and, where appropriate, make a new determination in substitution for it on the grounds of a change in circumstances.

61CB Secretary must refer application

If the Secretary receives an application under subsection 61CA(1) or (2), the Secretary must refer the application to a Conscientious Objection Tribunal for determination.

61CC Function of Conscientious Objection Tribunals

(1) The function of a Conscientious Objection Tribunal is to determine, following an application that is referred to it by the Secretary, whether the person to whom the application related is exempt from service because of conscientious beliefs.

(2) Subject to this Part, a determination under subsection (1) is final and binding for all purposes.

61CD Parties to the hearing of an application

In this Part, the parties to the hearing of an application by a Conscientious Objection Tribunal are the applicant and the Commonwealth.

61CE Notice of determination to be given to parties

(1) If a Conscientious Objection Tribunal makes a determination it must notify the parties of the result of the determination as soon as possible.

(2) A Tribunal must give the parties a statement in writing of the reasons for its determination within 28 days of making that determination.

Division 3—Establishment and membership of Conscientious Objection Tribunals

61CF Establishment of Conscientious Objection Tribunals

(1) The Minister may, by notice in the Gazette, establish such Conscientious Objection Tribunals as he or she thinks necessary for the purposes of this Part.

(2) Each Tribunal is to comprise:

(a) a presiding member; and

(b) 2 other members.

(3) Members are to be appointed in writing by the Minister and may be appointed as either full‑time or part‑time members.

(4) A person is not to be appointed as a presiding member of a Tribunal unless he or she is a legal practitioner of not less than 7 years standing.

(5) A person is not to be appointed as another member of a Tribunal unless the Minister is satisfied that he or she is capable, by reason of training or experience, of ascertaining facts other than by adversarial procedures.

61CG Period of appointment of members

Members are to hold office for such period, not exceeding 5 years, as is specified in the instrument of appointment.

61CH Remuneration and allowances of members

(1) Members are to be paid:

(a) such remuneration as is determined by the Remuneration Tribunal; and

(b) such allowances as are prescribed.

(2) If no determination of the remuneration of members by the Remuneration Tribunal is in operation, members are to be paid such remuneration as is prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

61CJ Other terms and conditions

A member holds office on such terms and conditions (if any) in respect of matters not provided for by this Part as are determined by the Minister in writing.

61CK Leave of absence

The Minister may grant leave of absence to a member on such terms and conditions as to remuneration or otherwise as the Minister determines in writing.

61CL Resignation

A member may resign in writing signed by him or her and sent to the Minister.

61CM Removal from office

The Minister may remove a member from office for proved misbehaviour or physical or mental incapacity.

61CN Member of a Tribunal unavailable to complete proceeding

(1) If the hearing of an application has been commenced or completed by a Conscientious Objection Tribunal but, before the proceeding has been determined, one of the members constituting the Tribunal for the purposes of the application has:

(a) ceased to be a member; or

(b) ceased to be available for the purposes of the application;

the following provisions have effect:

(c) if the member concerned is a member other than a member appointed as a presiding member—the hearing and determination, or the determination, of the application may be completed by the Tribunal constituted by the remaining 2 members;

(d) in any other case—the proceeding must be reheard by another Tribunal.

(2) If an application that was being dealt with by one Tribunal is reheard by another Tribunal, that other Tribunal may, for the purposes of that application, have regard to any record of the proceedings before the first‑mentioned Tribunal.

(3) The reference in subsection (2) to a record of proceedings includes a reference to a record of any evidence taken in the proceeding.

61CO Acting appointments

(1) The Minister may appoint a person to act as a full‑time member of a Conscientious Objection Tribunal during any period, or during all periods, when the member is absent from duty or from Australia or is, for any reason, unable to perform the duties of the member’s office.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

(2) The Minister may appoint a person to act as a part‑time member of a Tribunal during any period, or during all periods, when the member is, for any reason, unable to perform the duties of the member’s office.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

(3) Where a person has been appointed under subsection (1) or (2), the Minister may direct that the person is to continue to act in the appointment after the normal terminating event occurs.

(4) A direction under subsection (3) must specify the period during which the person may continue to act in the appointment.

(5) The period specified under subsection (4) may be specified by reference to the happening of a particular event or the existence of particular circumstances.

(6) A direction under subsection (3):

(a) is to be given only if there is a pending determination or other special circumstances justifying the giving of the direction; and

(b) may only be given before the normal terminating event occurs.

(7) A person continuing to act under a direction under subsection (3) must not continue to act for more than 12 months after the normal terminating event occurs.

(8) If a Tribunal includes a person acting or purporting to act under an appointment under this section, any decision of, or any direction given or any other act done by, the Tribunal is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the appointment; or

(d) the occasion to act had not arisen or had ceased.

(10) For the purposes of this section, the normal terminating event for an appointment under subsection (1) or (2) is:

(a) if the appointment is made under subsection (1)—the member ceasing to be absent or ceasing to be unable to perform the duties of the member’s office; or

(b) if the appointment is made under subsection (2)—the member ceasing to be unable to perform the duties of the member’s office.

Division 4—Procedures of Conscientious Objection Tribunals

61CP Tribunals’ way of operating

A Conscientious Objection Tribunal, in carrying out its functions under this Part:

(a) must provide procedures which are informal, quick, fair, just and economical; and

(b) must act according to substantial justice and the merits of the case; and

61CQ Powers of Tribunals

For the purposes of making a determination, a Conscientious Objection Tribunal may:

(a) take evidence on oath or affirmation; and

(b) summon a person to appear before it to give evidence; and

(d) require a person appearing before it to give evidence either to take an oath or to make an affirmation that the evidence that the person will give will be true.

61CR Procedure of Tribunals

(1) The presiding member of a Conscientious Objection Tribunal may convene such hearings of the Tribunal as he or she thinks necessary for the performance of its functions.

(2) The presiding member is to preside at all hearings of the Tribunal.

(3) A Tribunal must keep records of its hearings.

61CS Majority decision

A question before a Conscientious Objection Tribunal on an application for a determination is to be decided according to the opinion of a majority of the members of the Tribunal.

61CT Procedure where opinion of members equally divided

If:

(a) an application is referred to a Conscientious Objection Tribunal for a determination; and

(b) section 61CS does not apply to a question before the Tribunal on the application;

the question is to be decided according to the opinion of the member presiding.

61CU Hearings

(1) Subject to this section, a Conscientious Objection Tribunal is to take oral evidence in public.

(2) If a Tribunal is satisfied that it is necessary, in the interests of determining a matter which is before it, the Tribunal may direct that oral evidence is to be taken in private.

(3) If a Tribunal makes a direction under subsection (2), it may give directions as to the persons who may be present when the oral evidence is given.

(4) If a Tribunal is satisfied that it would be difficult for a person to give oral evidence, the Tribunal may accept a written statement from that person.

(5) An applicant may be assisted in presenting his or her case by another person, whether or not that person is a lawyer.

61CV Onus of proof

(1) In proceedings before a Conscientious Objection Tribunal the onus of proving exemption from service because of conscientious belief rests with an applicant.

(2) Such onus is to be discharged on the balance of probabilities.

61CW Protection of members and persons giving evidence etc.

(1) A member of a Conscientious Objection Tribunal has, in the performance of his or her duties as a member, the same protection and immunity as a Judge of the Federal Court.

(2) Subject to this Part, an applicant, a person summoned to attend, or appearing, before a Conscientious Objection Tribunal to give evidence, a person representing the Commonwealth or a person who assists an applicant at a hearing, has the same protection and is, in addition to the penalties provided by this Part, subject to the same liabilities, as a witness in proceedings in the Federal Court.

61CX Fees for persons giving evidence

(1) A person, other than the applicant, summoned to appear before a Conscientious Objection Tribunal to give evidence is entitled to be paid, in respect of his or her attendance, fees, and allowances for expenses, ascertained in accordance with a determination under subsection (2).

(2) The Minister may, by legislative instrument, determine the amounts of fees and allowances to be paid under subsection (1).

(4) The fees and allowances referred to in subsection (1) are to be paid by the Commonwealth.

61CY Failure of witness to attend

(1) A person is guilty of an offence if:

(a) the person is served under paragraph 61CQ(b) with a summons to appear before a Conscientious Objection Tribunal to give evidence and is tendered reasonable expenses; and

(b) the person:

(i) fails to attend as required by the summons; or

(ii) fails to appear and report from day to day and has not been excused, or released from further attendance, by a member.

Penalty: Imprisonment for 6 months.

(2) Subsection (1) does not apply if the person has a reasonable excuse.

Note: The defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal Code.

(3) In paragraph (1)(a), strict liability applies to the physical element of circumstance, that the summons is under paragraph 61CQ(b).

Note: For strict liability, see section 6.1 of the Criminal Code.

61CZ Refusal to be sworn or to answer questions etc.

(1) A person is guilty of an offence if the person:

(a) is required to produce a document by a summons under paragraph 61CQ(c) served on the person; and

(b) refuses or fails to do so.

Penalty: Imprisonment for 6 months.

(2) In paragraph (1)(a), strict liability applies to the physical element of circumstance, that the summons is under paragraph 61CQ(c).

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) A person is guilty of an offence if the person:

(a) is appearing before a Conscientious Objection Tribunal to give evidence; and

(b) is required under paragraph 61CQ(d) either to take an oath or to make an affirmation; and

Penalty: Imprisonment for 6 months.

(4) In paragraph (3)(b), strict liability applies to the physical element of circumstance, that the requirement is under paragraph 61CQ(d).

Note: For strict liability, see section 6.1 of the Criminal Code.

(5) A person is guilty of an offence if the person:

(a) is appearing before a Conscientious Objection Tribunal to give evidence; and

(b) is required to answer a question by the presiding member; and

Penalty: Imprisonment for 6 months.

(6) Subsections (1), (3) and (5) do not apply if the person has a reasonable excuse.

Note: The defendant bears an evidential burden in relation to the matter in subsection (6). See subsection 13.3(3) of the Criminal Code.

(7) A person is guilty of an offence if the person:

(a) is appearing before a Conscientious Objection Tribunal to give evidence; and

(b) gives evidence that is false or misleading in a material particular; and

Penalty: Imprisonment for 6 months.

61CZA Contempt of Tribunal

A person must not:

(a) obstruct or hinder a Conscientious Objection Tribunal, or a member of such a tribunal, in the performance of the functions of the Tribunal; or

(b) disrupt the taking of evidence by a Conscientious Objection Tribunal.

Penalty: Imprisonment for 12 months.

Division 5—Reviews and appeals

61CZB Review of determinations of Conscientious Objection Tribunals

A party to a determination by a Conscientious Objection Tribunal may apply to the AAT for review of that determination.

61CZC AAT Act to apply subject to modification

(1) The AAT Act applies in relation to the review of a determination of a Conscientious Objection Tribunal subject to the modifications set out in this section.

(2) Section 30 of the AAT Act applies in relation to such a review as if it read as follows:

30 Parties to proceedings before Tribunal

“The parties to a proceeding before the AAT for a review of a determination of a Conscientious Objection Tribunal are:

(a) the person in relation to whom the determination was made; and

(b) the Commonwealth.”.

(3) Sections 30A, 31, 44 and 44A of the AAT Act do not apply in relation to such a review.

(4) Subsection 46(1) of the AAT Act applies in relation to such a review as if the words preceding paragraph (a) of that subsection read as follows:

“(1) When a question of law is referred to the Federal Court of Australia in accordance with section 45:”.

61CZD Appeals from AAT

(1) A party to a proceeding before the AAT may appeal to the Federal Court, on a question of law only, from any decision of the AAT in that proceeding.

(2) An appeal by a person under subsection (1) must be instituted:

(a) within 28 days after the day on which the document setting out the terms of the decision of the AAT is given to the person or within such further time (whether before or after the end of that period) as the Federal Court allows; and

(b) in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976.

(3) The Federal Court has jurisdiction to hear and determine appeals instituted in the Court in accordance with subsection (2) and that jurisdiction must be exercised by the Court constituted as a Full Court.

(4) The Federal Court:

(a) must hear and determine the appeal; and

(b) may affirm, vary or set aside the order of the AAT; and

(c) may give such judgment, or make such order, as in all the circumstances it thinks fit, or refuse to make an order; and

(d) may remit the case for rehearing and determination, either with or without the hearing of further evidence, by the AAT.

61CZE Operation etc. of decision subject to appeal

(1) Subject to this section, the institution of an appeal to the Federal Court from a decision of the AAT does not:

(a) affect the operation of the decision; or

(b) prevent the taking of action to implement the decision; or

(2) If an appeal is instituted in the Federal Court from a decision of the AAT, the Federal Court or a Judge of the Federal Court may make such orders of the kind referred to in subsection (3) as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.

(3) The orders that may be made under subsection (2) are orders staying, or otherwise affecting the operation or implementation of, either or both of the following:

(a) the decision of the AAT or a part of that decision;

(b) the decision to which the proceeding before the AAT related or a part of that decision.

(4) The Federal Court or a Judge of that Court may, by order, vary or revoke an order in force under subsection (2) (including an order that has previously been varied under this subsection).

(5) An order in force under subsection (2):

(a) is subject to such conditions as are specified in the order; and

(b) has effect until:

(i) where a period for the operation of the order is specified in the order—the end of that period or, if a decision is given on the appeal before the end of that period, the giving of the decision; or

(ii) where no period is so specified—the giving of a decision on the appeal.

Part V—Cadets

62 Australian Army Cadets

(1) The body known immediately before the commencement of this subsection as the Australian Cadet Corps is continued in existence with the new name, Australian Army Cadets.

Constitution of the Australian Army Cadets

(2) The Australian Army Cadets consists of:

(a) persons appointed in accordance with the regulations to be officers in that body;

(aa) persons appointed in accordance with the regulations to be instructors in that body; and

(b) subject to subsections (5) and (6), persons who volunteer, and are accepted, in accordance with the regulations as cadets in that body.

Relationship to the Army

(3) A person appointed to be an officer or instructor in the Australian Army Cadets does not become a member of the Army by virtue of that appointment.

(4) A cadet in the Australian Army Cadets is not a member of the Army.

Age requirements for cadets

(5) A person is not entitled to volunteer, or to be accepted, as a cadet unless he or she:

(a) has attained such age as is prescribed; and

(b) has not attained the age of 20 years.

(6) A person ceases to be a cadet when he or she attains the age of 21 years or such lower age as is prescribed.

Regulations about the Australian Army Cadets

(7) The regulations may make provision for and in relation to the organization, maintenance, regulation, control and discipline of the Australian Army Cadets, and, in particular, for and in relation to:

(a) the periods and conditions of service of members, other than conditions of service with respect to which determinations under section 58B may be made; and

(b) the promotion of members.

(8) In subsection (7), member means an officer, instructor or cadet in the Australian Army Cadets.

Administration of the Australian Army Cadets

(9) Subject to the regulations, to any determinations in force under section 58B, to any directions of the Minister and to any directions of the Chief of the Defence Force, the Chief of Army is to administer the Australian Army Cadets.

(10) A direction of the Chief of the Defence Force under subsection (9) is subject to, and must be in accordance with, any directions of the Minister.

Part VI—Special powers in relation to defence

63 General powers for defence purposes [see Note 3]

(1) The Governor‑General may:

(f) Subject to the provisions of this Act do all matters and things deemed by him to be necessary or desirable for the efficient defence and protection of the Commonwealth or of any State.

64 Control of railways in time of war

The Governor‑General may in time of war authorize any officer to assume control of any railway for transport for naval, military or air‑force purposes.

65 Railways to carry troops etc. when required

The principal railway official in any State or the owner, controller, or manager of any railway or tramway in any State shall when required by the Governor‑General, and as prescribed, convey and carry members of the Defence Force, together with their horses, guns, ammunition, forage, baggage, aircraft, aircraft material and stores from any place to any place on the railway or tramway, and shall provide all engines, carriages, trucks and rolling‑stock necessary for the purpose.

66 Conveyance by railway and tramway

Members of the Defence Force when on duty in uniform or carrying a rifle shall, subject to the Regulations, be conveyed over the railways and tramways of the Commonwealth or of any State for the purpose of attending musters, parades, and rifle practices, and returning therefrom, on production of a pass signed by a commanding officer or an officer authorised in writing by a commanding officer to sign such passes.

67 Registration and impressment of vehicles etc.

The owner of any vehicle, horse, mule, bullock, aircraft, aircraft material, boat or vessel, or of any goods, required for naval, military or air‑force purposes, shall, when required to do so by an officer authorized in that behalf by the regulations, furnish it for those purposes, and shall be recompensed therefor in the manner prescribed, and the owners of any vehicles, horses, mules, bullocks, aircraft, aircraft material, boats or vessels may be required by the regulations to register them periodically.

68 Billeting and quartering

Members of the Defence Force may in time of war as prescribed be billeted, quartered or cantoned, but nothing in this Act shall authorize the quartering or billeting of any member of the Defence Force in any house solely occupied by women or by women and children.

70 Tolls

No toll or due, whether demandable by virtue of any Act or State Act or otherwise, at any wharf, landing place, aerodrome, bridge gate, or bar on a public road shall be demanded or taken in respect of:

(a) Any member of the Defence Force on march or duty or any prisoner under his charge;

(b) Any horse ridden or used by any member of the Defence Force on march or duty or by any prisoner under his charge;

(c) Any vehicle employed only in conveying members of the Defence Force on march or duty or any prisoner under their charge or conveying naval, military or air‑force arms, stores, baggage, aircraft or aircraft material; or

(d) Any animal drawing any such vehicle.

Part VIA—Security of defence premises

Division 1—Preliminary

71 Simplified outline

(1) The following is a simplified outline of this Part.

(2) This Division sets out the meaning of expressions used in this Part.

(3) Division 2 provides for matters relating to defence security officials.

(4) Division 3 sets out the powers exercisable by defence security officials with consent at defence access control points and on defence premises. Subdivision B of Division 3 contains special provisions relating to declared explosive ordnance depots.

(5) Division 4 sets out the powers exercisable by special defence security officials without consent at defence access control points and on defence premises, and provides for related matters, including offences relating to non‑compliance with requirements, hindering and obstructing.

(6) Division 5 relates to seizure of things.

(7) Division 6 sets out provisions that apply generally in relation to the exercise of powers under this Part, including the following:

(a) the production of identity cards;

(b) informing persons of offences;

(d) limits on the exercise of certain powers.

(8) Division 7 provides for other matters, including:

(a) an offence of unauthorised entry on, or being on, defence premises or defence accommodation; and

(b) the provision of information obtained by certain surveillance devices to law enforcement and other agencies.

71A Definitions

(1) In this Part:

contracted defence security guard has the meaning given by section 71B.

criminal offence means an offence against a law of the Commonwealth, a State or a Territory.

declared explosive ordnance depot has the meaning given by section 71L.

defence access control point means a point of entry to, or exit from, defence premises or a part of defence premises, where entry or exit is controlled or limited by any means, including but not limited to control by means of:

(a) guarding by defence security officials; or

(b) physical barriers such as security screens, locked doors or gates.

defence accommodation means any building or other structure, or any place, that:

(a) is in Australia; and

(b) is used for, or in connection with, the accommodation of a group of members of any part of the Defence Force.

defence premises means any of the following that is in Australia, and is owned or occupied by the Commonwealth for use by the Defence Force or the Department:

(a) an area of land or any other place (whether or not it is enclosed or built on);

(b) a building or other structure;

(c) a vehicle, vessel or aircraft, including any fixed or moveable ramp, stairs or other means of access to, or exit from, the vehicle, vessel or aircraft;

(d) a prohibited area, within the meaning of the Defence (Special Undertakings) Act 1952.

defence security official means:

(a) a contracted defence security guard (see section 71B); or

(b) a security authorised member of the Defence Force (see section 71C); or

defence security screening employee has the meaning given by section 71D.

intelligence or security agency means any of the following:

(a) the Australian Secret Intelligence Service;

(b) the Australian Security Intelligence Organisation;

limited search of a person means:

(a) a search of things in the possession of a person that may include:

(i) requesting the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and

(ii) an examination of any of those items that the person consents to remove; or

but does not include requesting the person to remove all of his or her garments.

optical surveillance device means any device capable of being used to record visually or observe an activity, but does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment.

personal information has the same meaning as in the Privacy Act 1988.

person assisting a defence security official has the meaning given by section 72N.

protective service officer has the same meaning as in the Australian Federal Police Act 1979.

search:

(a) of a person—has the same meaning as in section 51; and

(b) of a vehicle, vessel or aircraft—includes a search of a thing in the vehicle, vessel or aircraft.

security authorised member of the Defence Force has the meaning given by section 71C.

special defence security official means:

(a) a security authorised member of the Defence Force (see section 71C); or

(b) a defence security screening employee (see section 71D).

vessel has the same meaning as in section 51SD.

(2) To avoid doubt, a thing includes a substance, a vehicle, vessel or aircraft and a thing in electronic or magnetic form.

Division 2—Defence security officials

71B Contracted defence security guards

(1) A person is a contracted defence security guard if:

(a) the person is one of the following:

(i) a party to a contract with the Commonwealth or a Commonwealth entity;

(ii) a subcontractor for a contract with the Commonwealth or a Commonwealth entity;

(iii) an employee of a person referred to in subparagraph (i) or (ii); and

(b) the contract is for, or includes, the provision of security services at one or more defence premises; and

(i) the person is authorised under subsection (2);

(ii) the person is included in a class of persons authorised under subsection (2) (including a person who becomes a member of the class after the authorisation is given); and

(d) the person satisfies the training and qualification requirements determined under subsection (4).

(2) The Minister may, in writing, authorise a person, or a class of persons, for the purposes of paragraph (1)(c).

(3) An authorisation made under subsection (2) is not a legislative instrument.

(4) The Minister must, by legislative instrument, determine the training and qualification requirements for contracted defence security guards.

(5) Without limiting the training and qualification requirements that may be determined in a legislative instrument under subsection (4), different training and qualification requirements may apply to different kinds of contracted defence security guards.

71C Security authorised members of the Defence Force

(1) A person is a security authorised member of the Defence Force if the person:

(a) is a member of the Defence Force; and

(b) either of the following applies:

(i) the person is authorised under subsection (2);

(ii) the person is included in a class of persons authorised under subsection (2) (including a person who becomes a member of the class after the authorisation is given); and

(2) The Minister may, in writing, authorise a person, or a class of persons, for the purposes of paragraph (1)(b).

(3) An authorisation made under subsection (2) is not a legislative instrument.

(4) The Minister must, by legislative instrument, determine the training and qualification requirements for security authorised members of the Defence Force.

(5) Without limiting the training and qualification requirements that may be determined in a legislative instrument under subsection (4):

(a) different training and qualification requirements may apply to different kinds of security authorised members of the Defence Force; and

(b) the Minister must determine training and qualification requirements that apply to security authorised members of the Defence Force in relation to the use of dogs as referred to in section 72M.

71D Defence security screening employees

(1) A person is a defence security screening employee if the person:

(a) is an APS employee in the Department; and

(b) either of the following applies:

(i) the person is authorised under subsection (2);

(ii) the person is included in a class of persons authorised under subsection (2) (including a person who becomes a member of the class after the authorisation is given); and

(2) The Minister may, in writing, authorise a person, or a class of persons, for the purposes of paragraph (1)(b).

(3) An authorisation made under subsection (2) is not a legislative instrument.

(4) The Minister must, by legislative instrument, determine the training and qualification requirements for defence security screening employees.

71E Identity cards

(1) The Secretary must issue an identity card to each defence security official.

Form of identity card

(2) The identity card must:

(a) be in the form approved in writing by the Secretary; and

(b) contain a recent photograph of the defence security official.

Offence

(3) A person commits an offence if:

(a) the person has been issued with an identity card; and

(b) the person ceases to be a defence security official; and

Penalty: 5 penalty units.

(4) Subsection (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Defence—card lost or destroyed

(5) Subsection (3) does not apply if the identity card was lost or destroyed.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

Defence security official must carry card

(6) A defence security official must carry the identity card at all times when performing functions or exercising powers as a defence security official.

71F Delegations relating to training and qualification requirements

Contracted defence security guards and defence security screening employees

(1) The Minister may, by writing, delegate the Minister’s power under subsection 71B(4) or 71D(4) (training and qualification requirements for contracted defence security guards and defence security screening employees) to:

(a) the Secretary; or

(b) an APS employee who holds or performs the duties of an SES Band 3 position, or an equivalent or higher position, in the Department.

Security authorised members of the Defence Force

(2) The Minister may, by writing, delegate the Minister’s power under subsection 71C(4) (training and qualification requirements for security authorised members of the Defence Force) to:

(a) an officer of the Army who holds the rank of Brigadier or a higher rank; or

(b) an officer of the Navy who holds the rank of Commodore or a higher rank; or

71G Delegations relating to identity cards

Issue of identity cards

(1) The Secretary may, by writing, delegate the Secretary’s power under subsection 71E(1) (issue of identity cards) to:

(a) an APS employee who holds or performs the duties of an Executive Level 2 position, or an equivalent or higher position, in the Department; or

(b) an officer of the Army who holds the rank of Colonel or a higher rank; or

(d) an officer of the Air Force who holds the rank of Group Captain or a higher rank.

Return of identity cards

(2) The Secretary may, by writing, delegate the Secretary’s function under paragraph 71E(3)(c) (return of identity cards) to:

(a) an APS employee who holds or performs the duties of an APS 5 position, or an equivalent or higher position, in the Department; or

(b) an officer of the Army who holds the rank of Captain or a higher rank; or

(d) an officer of the Air Force who holds the rank of Flight Lieutenant or a higher rank.

Division 3—Powers exercisable with consent at defence access control points and on defence premises

Subdivision A—General provisions

71H Consensual identification and limited search—person about to pass a defence access control point

Power to request identification etc.

(1) A defence security official may request a person who is about to pass a defence access control point to provide evidence of the following:

(a) the person’s name;

(b) the person’s residential address;

Power to request limited search

(2) A defence security official may request a person who is about to pass a defence access control point to undergo a limited search.

Power to refuse access etc.

(3) A defence security official may refuse to allow a person to pass a defence access control point if:

(a) the person refuses a request by a defence security official under subsection (1) or (2); or

(b) as a result of the person complying with such a request, a defence security official reasonably believes that the person:

(i) is not authorised to pass the defence access control point; or

(ii) constitutes a threat to the safety of persons on the defence premises; or

(iii) has committed, or may commit, a criminal offence on, or in relation to, the defence premises.

Additional powers if person is on defence premises

(4) If a defence security official refuses to allow a person to pass a defence access control point under subsection (3), a defence security official may, if the person is on defence premises, restrain and detain the person.

71J Consensual search—vehicle, vessel or aircraft about to pass a defence access control point

(1) A defence security official may request a person apparently in control of a vehicle, vessel or aircraft that is about to pass a defence access control point to permit a search of the vehicle, vessel or aircraft.

(2) A defence security official may refuse to allow a vehicle, vessel or aircraft to pass a defence access control point if:

(a) a person refuses to permit a search of a vehicle, vessel or aircraft requested by a defence security official under subsection (1); or

(b) as a result of the person complying with such a request, a defence security official reasonably believes that the vehicle, vessel or aircraft, or a thing in it:

(i) is not authorised to pass the defence access control point; or

(ii) constitutes a threat to the safety of persons on the defence premises; or

(iii) relates to a criminal offence committed, or that may be committed, on or in relation to the defence premises.

Additional powers if vehicle, vessel or aircraft is on defence premises

(3) If a defence security official refuses to allow a vehicle, vessel or aircraft to pass a defence access control point under subsection (2), a defence security official may, if the vehicle, vessel or aircraft is on defence premises, restrain or detain any person in the vehicle, vessel or aircraft.

71K Consensual identification—person on defence premises

(1) This section applies if:

(a) a person is on defence premises; and

(b) a defence security official reasonably believes that the person is not authorised to be on the premises.

(2) The defence security official may request the person to provide evidence of the following:

(a) the person’s name;

(b) the person’s residential address;

(3) A defence security official may restrain and detain a person if:

(a) the person refuses a request by a defence security official under subsection (2); or

(b) as a result of the person complying with such a request, a defence security official reasonably believes that the person:

(i) is not authorised to be on the defence premises; or

(ii) constitutes a threat to the safety of persons on the defence premises; or

(iii) has committed, or may commit, a criminal offence on, or in relation to, the defence premises.

Subdivision B—Special provisions for declared explosive ordnance depots

71L Declared explosive ordnance depots

(1) A specified area of land or any other place (whether or not it is enclosed or built on), or a building or other structure, is a declared explosive ordnance depot if:

(a) the area of land or the place, building or structure is specified in an instrument in force under subsection (2); and

(b) signs stating that it is a condition of entry to the area of land or the place, building or structure that a person consent to undergo searches as provided by this Subdivision are prominently displayed:

(i) at the entrance to the area of land or the place, building or structure; and

(ii) at regular intervals around the perimeter of the area of land or the place, building or structure.

(2) The Minister may, by legislative instrument, specify an area of land or any other place (whether or not it is enclosed or built on), or a building or other structure if:

(a) the area of land or the place, building or structure is defence premises used wholly or partly for the storage of explosive ordnance; and

(b) members of the Defence Force are not normally present at the area of land or the place, building or structure.

(3) An instrument under subsection (2) may specify more than one area of land, place, building or structure.

(4) Each area of land, place, building or structure specified in an instrument under subsection (2) must be specified by reference to one of the following:

(a) its geographical location;

(b) a unique code or number.

(5) If an area of land or a place, building or structure is specified by a unique code or number as mentioned in paragraph (4)(b), the code or number must correspond with a code or number that is held in the records of the Department as a code or number applicable to that area of land or that place, building or structure.

71M Consensual search—person on a declared explosive ordnance depot

(1) A contracted defence security guard may request a person who is on a declared explosive ordnance depot to undergo a limited search.

(2) A contracted defence security guard may restrain and detain a person if:

(a) the person refuses a request by a contracted defence security guard under subsection (1); or

(b) as a result of the person complying with such a request, a contracted defence security guard reasonably believes that the person:

(i) is not authorised to be on the declared explosive ordnance depot; or

(ii) constitutes a threat to the safety of persons on the defence explosive ordnance depot; or

(iii) has committed, or may commit, a criminal offence on, or in relation to, the defence explosive ordnance depot.

71N Consensual search—vehicle, vessel or aircraft on a declared explosive ordnance depot

(1) A contracted defence security guard may request a person apparently in control of a vehicle, vessel or aircraft that is on a declared explosive ordnance depot to permit a search of the vehicle, vessel or aircraft.

(2) A contracted defence security guard may restrain and detain any person in the vehicle, vessel or aircraft if:

(a) a person refuses to permit a search of the vehicle, vessel or aircraft requested under subsection (1); or

(b) as a result of a person complying with such a request, a contracted defence security guard reasonably believes that the vehicle, vessel or aircraft, or a thing in it:

(i) is not authorised to be on the declared explosive ordnance depot; or

(ii) constitutes a threat to the safety of persons on the declared explosive ordnance depot; or

(iii) relates to a criminal offence committed, or that may be committed, on or in relation to the declared explosive ordnance depot.

71P Powers additional to other powers

To avoid doubt, this Subdivision does not limit any other power of a contracted defence security guard under this Part.

Subdivision C—Offences

71Q Offences—search powers exercised without consent

(1) A defence security official commits an offence if:

(a) the defence security official conducts a limited search of a person purportedly under this Division; and

(b) the person did not consent to the search.

Penalty: 50 penalty units.

(2) A defence security official commits an offence if:

(a) the defence security official conducts a search of a vehicle, vessel or aircraft purportedly under this Division; and

(b) the person apparently in control of the vehicle, vessel or aircraft did not consent to the search.

Penalty: 30 penalty units.

Division 4—Powers exercisable without consent at defence access control points and on defence premises

71R Non‑consensual identification and search—person about to pass a defence access control point

Power to require identification etc.

(1) A special defence security official may require a person who is about to pass a defence access control point to provide evidence of the following:

(a) the person’s name;

(b) the person’s residential address;

Power to search at defence access control point on defence premises

(2) A special defence security official may search a person who is about to pass a defence access control point on defence premises.

Note: If the defence access control point is not on defence premises, a defence security official may request the person to undergo a search under Division 3.

Power to refuse access etc.

(3) A special defence security official may refuse to allow a person to pass a defence access control point if:

(a) the person refuses to comply with a requirement imposed by a special defence security official under subsection (1); or

(b) the person hinders or obstructs a search of the person by a special defence security official under subsection (2); or

(c) as a result of the person complying with such a requirement or undergoing such a search, a special defence security official reasonably believes that the person:

(i) is not authorised to pass the defence access control point; or

(ii) constitutes a threat to the safety of persons on the defence premises; or

(iii) has committed, or may commit, a criminal offence on, or in relation to, the defence premises.

Additional powers if person is on defence premises

(4) If a special defence security official refuses to allow a person to pass a defence access control point under subsection (3), a special defence security official may, if the person is on defence premises:

(a) restrain and detain the person; or

(b) request the person to leave the defence premises and, if he or she refuses, remove the person from the defence premises.

71S Non‑consensual search—vehicle, vessel or aircraft about to pass a defence access control point

Power to search vehicles, vessels or aircraft

(1) A special defence security official may search a vehicle, vessel or aircraft that is about to pass a defence access control point on defence premises.

Note: If the defence access control point is not on defence premises, a defence security official may request a search under Division 3.

(2) A special defence security official may refuse to allow a vehicle, vessel or aircraft to pass a defence access control point if:

(a) a person hinders or obstructs a search of the vehicle, vessel or aircraft conducted by a special defence security official under subsection (1); or

(b) as a result of a search conducted under subsection (1), the official reasonably believes that the vehicle, vessel or aircraft, or a thing in it:

(i) is not authorised to pass the defence access control point; or

(ii) constitutes a threat to the safety of persons on the defence premises; or

(iii) relates to a criminal offence committed, or that may be committed, on or in relation to the defence premises.

Additional powers if vehicle, vessel or aircraft is on defence premises

(3) If a special defence security official refuses to allow a vehicle, vessel or aircraft to pass a defence access control point under subsection (2), a special defence security official may, if the vehicle, vessel or aircraft is on defence premises, restrain and detain any person in the vehicle, vessel or aircraft.

Note: For other powers in relation to persons in a vehicle, vessel or aircraft see section 71R.

71T Non‑consensual identification and search—person on defence premises

When section applies

(1) This section applies if:

(a) a person is on defence premises; and

(b) a special defence security official reasonably believes that the person:

(i) is not authorised to be on the premises; or

(ii) constitutes a threat to the safety of persons on the defence premises; or

(iii) has committed, or may commit, a criminal offence on, or in relation to, the premises.

Power to require identification etc.

(2) A special defence security official may require the person to provide evidence of the following:

(a) the person’s name;

(b) the person’s residential address;

Power to search

(3) A special defence security official may search the person.

Power to restrain and detain, remove etc.

(4) A special defence security official may:

(a) restrain and detain the person; or

(b) request the person to leave the defence premises and if he or she refuses, remove the person from the defence premises.

71U Non‑consensual search—vehicle, vessel or aircraft on defence premises

When section applies

(1) This section applies if:

(a) a vehicle, vessel or aircraft is on defence premises; and

(b) a special defence security official reasonably believes that the vehicle, vessel or aircraft:

(i) is not authorised to be on the premises; or

(ii) constitutes a threat to the safety of persons on the defence premises; or

(iii) relates to a criminal offence committed, or that may be committed, on or in relation to the defence premises.

Power to search

(2) A special defence security official may search the vehicle, vessel or aircraft.

Power to restrain and detain

(3) A special defence security official may restrain and detain any person in the vehicle, vessel or aircraft.

71V Offence—refusing to provide evidence etc. required under this Division

A person commits an offence if:

(a) a special defence security official requires the person to provide evidence under this Division; and

(b) section 72B (which deals with the production of identity cards, etc.) was complied with in relation to the requirement; and

(c) the person refuses or fails to provide the evidence, or gives a name or address that is false in a material particular; and

(d) the person is on defence premises.

Penalty: 20 penalty units.

Note: An offence under this section is a protective service offence for the purposes of the Australian Federal Police Act 1979.

71W Offence—hindering or obstructing a search under this Division

A person commits an offence if the person hinders or obstructs a search under this Division, and:

(a) if paragraphs 72B(3)(a) and (b) apply in relation to the search—at the time the person hindered or obstructed the search, the special defence security official who conducted the search had done the things referred to in subparagraphs 72B(3)(c)(i) and (ii); or

(b) otherwise—subsection 72B(2) was complied with in relation to the search.

Penalty: 50 penalty units.

Note 1: An offence under this section is a protective service offence for the purposes of the Australian Federal Police Act 1979.

Note 2: Subsections 72B(2) and (3) deal with the production of identity cards before conducting a search.

71X Security authorised members of the Defence Force may respond to attack

(1) This section applies if:

(a) an attack on defence premises is occurring or is imminent; and

(b) the attack is likely to, or is intended to, result in the death of or serious injury to one or more persons on the defence premises.

(2) Subject to sections 72G and 72H, a security authorised member of the Defence Force may take action on defence premises to protect persons from the attack.

Note: Section 72G provides that defence security officials may use reasonable and necessary force in exercising powers under this Part. Section 72H provides that security authorised members of the Defence Force may, in limited circumstances involving an attack, do a thing that is likely to cause the death of, or grievous bodily harm to, another person. Other defence security officials are not so authorised (see subsection 72G(2)).

71Y Power to stop and detain

A special defence security official may stop and detain a person, or a vehicle, vessel or aircraft, for the purposes of exercising a power under this Division:

(a) to require the person to provide evidence of particular matters; or

(b) to search the person or the vehicle, vessel or aircraft.

71Z Powers are in addition to powers under this Part

To avoid doubt, a power conferred upon a special defence security official under this Division may be exercised in addition to a power conferred on the special defence security official under another Division of this Part.

Division 5—Seizure

72 Power to seize things on defence premises

(1) A special defence security official may seize a thing (including a vehicle, vessel or aircraft or an unattended thing) on defence premises, or a thing found as a result of a search (including a limited search) under this Part, if the official believes on reasonable grounds that the thing may:

(a) constitute a threat to the safety of a person on the defence premises; or

(b) relate to a criminal offence committed, or that may be committed, on or in relation to the defence premises.

(2) If a special defence security official seizes a thing under subsection (1):

(a) a security authorised member of the Defence Force may take such action as is reasonable and necessary to make the thing safe or prevent the thing being used; and

(b) if the official seized the thing from a person—a special defence security official must, if it is practicable to do so, give the person a receipt for the thing; and

(c) if the official believes on reasonable grounds that the thing has been used or otherwise involved in the commission of a criminal offence—a special defence security official must give the thing to a member or special member of the Australian Federal Police or a member of the police force of a State or Territory at the earliest practicable time; and

(d) if paragraph (c) does not apply:

(i) if the official seized the thing from a person and it is practicable to do so—a special defence security official must return the thing to the person within 7 days; or

(ii) otherwise—a special defence security official must give it to a member or special member of the Australian Federal Police or a member of the police force of a State or Territory at the earliest practicable time.

Division 6—Matters relating to exercise of powers under Part

72A Certain powers to be exercised only by security authorised members of the Defence Force unless not reasonably practicable

A power conferred upon a special defence security official under Division 4 (powers exercisable without consent) or Division 5 (seizure powers) may be exercised by a defence security screening employee only if it is not reasonably practicable in all the circumstances for the power to be exercised by a security authorised member of the Defence Force.

72B Defence security officials must produce identity cards, etc.

Production of identity card before making request or requirement

(1) A defence security official is not entitled to make a request or requirement of a person under this Part unless, before making the request or requirement:

(a) the defence security official produces his or her identity card for inspection by the person; and

(b) the person is informed of the effect of refusal by the person to comply with the request or requirement.

Production of identity card before search

(2) Subject to subsection (3), a defence security official is not entitled to conduct a search (including a limited search) of a person, or a vehicle, vessel or aircraft apparently under the control of a person, under this Part unless, before conducting the search:

(a) the defence security official produces his or her identity card for inspection by the person; and

(b) if the search is under Division 4 (powers exercisable without consent)—the person is informed of the effect of hindering or obstructing the search.

(3) A defence security official is not required to comply with subsection (2) before conducting a search of a person, or of a vehicle, vessel or aircraft apparently under the control of a person, if:

(a) the search is conducted under subsection 71R(2), 71S(1), 71T(3) or 71U(2); and

(b) a defence security official reasonably believes that the person, or the vehicle, vessel or aircraft, constitutes a threat to the safety of persons on the defence premises concerned; and

(i) the defence security official who is conducting, or has conducted, the search produces his or her identity card for inspection by the person; and

(ii) the person is informed of the effect of hindering or obstructing the search.

Production of identity card before removal of a person

(4) A defence security official is not entitled to exercise powers under this Part to remove a person from defence premises unless, before exercising the power, the official produces his or her identity card for inspection by the person.

Production of identity card as soon as practicable after detaining a person

(5) A defence security official is not entitled to restrain and detain, or stop and detain, a person under this Part unless, as soon as practicable after restraining and detaining, or stopping and detaining, the person, the official produces his or her identity card for inspection by the person.

72C Persons to be informed of offence

(1) A defence security official who, in accordance with this Part, exercises a power on the basis that the official reasonably believes that a person has committed, or may commit, a criminal offence must inform the person of the offence.

(2) It is sufficient if the person is informed of the substance of the offence, and it is not necessary that this be done in language of a precise or technical nature.

(3) Subsection (1) does not apply if:

(a) the person should, in the circumstances, know the substance of the offence; or

(b) the person’s actions make it impracticable for the defence security official to inform the person of the offence.

72D Conduct of searches and limited searches

A search or a limited search of a person under this Part must, if practicable, be conducted by a person of the same sex as the person being searched.

72E Use of equipment to examine things etc.

For the purposes of conducting a search or a limited search of a person, or a search of a thing, under this Part or determining whether a thing may be seized under this Part, a defence security official may do one or more of the following:

(a) use any equipment, including electronic equipment, reasonably necessary for the search or the limited search, or the examination or processing of the thing;

(b) in the case of a thing that is on defence premises, and that a defence security official suspects on reasonable grounds:

(i) constitutes a threat to the safety of persons on the defence premises; or

(ii) relates to a criminal offence committed, or that may be committed, on or in relation to the defence premises;

move the thing to another part of the defence premises for immediate examination or processing;

(d) obtain expert assistance to do a thing referred to in paragraph (a), (b) or (c).

72F Power to move certain unattended things on defence premises

If a thing is left unattended on defence premises as a result of, or in connection with, the exercise of a power under this Part, a defence security official may move the thing to another place if the defence security official reasonably believes that it is necessary or desirable to do so.

72G Use of reasonable and necessary force, etc. by defence security officials

Use of force—general rule

(1) A defence security official may, subject to this section and section 72H, use such force against persons and things as is reasonable and necessary in the circumstances in exercising powers under this Part.

Limit on use of force—defence security guards and defence security screening employees

(2) Despite subsection (1), a contracted defence security guard or a defence security screening employee must not, in using force against a person in exercising powers under this Part, do anything that is likely to cause the death of, or grievous bodily harm to, the person.

Note 1: For security authorised members of the Defence Force, see section 72H.

Note 2: This provision does not affect a person’s rights under other laws: see section 72S.

Indignity

(3) A defence security official must not, in exercising powers under this Part, subject the person to greater indignity than is reasonable and necessary in the circumstances.

72H Use of force involving death or grievous bodily harm by security authorised members of the Defence Force in responding to an attack

(1) Despite subsection 72G(1), a security authorised member of the Defence Force must not, in using force against a person in exercising powers under this Part, 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 prevent the death of, or serious injury to, another person (including the official); and

(b) the threat of death or injury is caused by an attack on defence premises, or on people on defence premises, that is occurring or is imminent.

(2) In addition to the limitations in paragraphs (1)(a) and (b), if a person is attempting to escape being detained by fleeing, a security authorised member of the Defence Force must not, in exercising powers under this Part, do anything that is likely to cause the death of, or grievous bodily harm to, the person unless:

(a) the person has, if practicable, been called on to surrender; and

(b) the official believes on reasonable grounds that the person cannot be apprehended in any other manner.

72J Limit on power to restrain and detain

A provision of this Part that confers a power on a defence security official to restrain and detain a person is limited to a power to restrain and detain the person for the purpose of placing the person, at the earliest practicable time, in the custody of:

(a) a member or special member of the Australian Federal Police; or

(b) a member of the police force of a State or Territory; or

72K Limit on power to arrest

If a member of the Defence Force arrests a person under section 72P (which deals with trespass), he or she must, as soon as practicable after the arrest, bring the person, or cause the person to be brought, before:

(a) a member or special member of the Australian Federal Police; or

(b) a member of the police force of a State or Territory.

Note 1: The Crimes Act 1914 provides for arrest powers of police officers and how arrested persons are to be dealt with.

Note 2: The Australian Federal Police Act 1979 provides for arrest powers of protective service officers and how arrested persons are to be dealt with.

72L Powers not to be used to stop protests etc.

In exercising powers under this Part, a defence security official must not stop or restrict any protest, dissent, assembly or industrial action, unless there is a reasonable likelihood of:

(a) death of, or serious injury to, persons; or

(b) the commission of a criminal offence.

72M Security authorised members of the Defence Force may use dogs

A security authorised member of the Defence Force may, if the security authorised member considers it is reasonably necessary to do so, use a dog:

(a) to assist a defence security official to conduct a search (including a limited search) under this Part; or

(b) to assist a defence security official to restrain or detain, or remove, a person under this Part; or

(d) to assist a defence security official to perform a function or exercise a power under this Part.

72N Persons assisting defence security officials

(1) A defence security official may, in exercising powers under any of the following provisions, be assisted by other persons if that assistance is necessary and reasonable:

(a) subsection 71J(1) (search of a vehicle, etc. with consent);

(b) subsection 71N(1) (search of a vehicle, etc. on declared explosive ordnance depot);

(d) subsection 71U(2) (search of a vehicle, etc. without consent);

(e) section 72E (use of equipment, etc.);

(f) section 72F (moving things, etc.).

(2) A person giving such assistance is a person assisting the defence security official.

(3) A person assisting the defence security official may exercise the powers of the defence security official, but only in accordance with a direction given to the person by the defence security official.

(4) A power exercised by a person assisting the defence security official as mentioned in subsection (3) is taken for all purposes to have been exercised by a defence security official.

(5) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.

Division 7—Other matters

72P Unauthorised entry etc. on defence premises or defence accommodation

(1) A person commits an offence if:

(a) the person enters or is on:

(i) defence premises; or

(ii) defence accommodation; and

(b) the person is not authorised to be on the premises or accommodation.

Penalty: 50 penalty units.

Note: An offence under this section is a protective service offence for the purposes of the Australian Federal Police Act 1979.

(2) A member of the Defence Force, a member or special member of the Australian Federal Police, a protective service officer or a member of the police force of a State or Territory may, without warrant, arrest any person if the member reasonably believes that the person has committed an offence against subsection (1).

(3) Nothing in this section prevents the arrest of a person in accordance with any other law.

72Q Certain information may be collected and provided to law enforcement agencies etc.

(1) The Department, the Defence Force or a contracted security guard may, on defence premises, collect information, including personal information, by means of an optical surveillance device.

(2) The Department or the Defence Force may disclose information collected under subsection (1) to one or more of the following persons or bodies, for the purposes of the performance of the functions of the person or body:

(a) an intelligence or security agency;

(b) the Australian Federal Police or the police force of a State or Territory;

(3) A disclosure of personal information under subsection (2) is taken to be authorised by law for the purposes of Information Privacy Principle 11 in section 14 of the Privacy Act 1988.

Note: Paragraph 3 of Information Privacy Principle 11 in section 14 of the Privacy Act 1988 applies to further disclosures of the personal information.

(4) This provision has effect despite any law of the Commonwealth or of a State or Territory.

72R Compensation for acquisition of property

(1) If, apart from this section, the operation of this Part would result in the acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay reasonable compensation to the person.

(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may apply to the Federal Court to determine a reasonable amount of compensation.

(3) The jurisdiction of the Federal Court is exclusive of the jurisdiction of all other courts except that of the High Court.

(4) In this section:

acquisition of property and just terms have the same meaning as in paragraph 51(xxxi) of the Constitution.

72S Other powers not affected

(1) This Part does not, by implication, limit the exercise of the powers, or the rights, of a defence security official, a member of the Defence Force or any other person:

(a) under this Act; or

(b) under any other law (including the common law); or

(c) otherwise in the performance of his or her duties as a defence security official, a member of the Defence Force or otherwise.

(2) Without limiting subsection (1), this Part does not affect any right of an owner or occupier of premises to refuse to allow a person to enter, or remain on, the premises.

(3) Without limiting subsection (1), this Part does not affect any right of a person to defend himself or herself or another person.

Part VII—Offences

73A Unlawfully giving or obtaining information as to defences

(1) A person who is a member of the Defence Force or a person appointed or engaged under the Public Service Act 1999 is guilty of an offence if:

(a) the person communicates to any other person any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or to any defences of the Commonwealth, or to any factory, or air force aerodrome or establishment or any other naval, military or air force information; and

(b) the communication is not in the course of the first‑mentioned person’s official duty.

(2) A person is guilty of an offence if:

(a) the person obtains any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or air force aerodrome or establishment, or to any of the defences of the Commonwealth or any other naval, military or air force information; and

(b) that conduct is unlawful.

73F Penalty

(1) An offence under section 73A may be prosecuted either summarily or upon indictment, but an offender shall not be liable to be punished more than once in respect of the same offence.

(2) The punishment for an offence under section 73A shall be:

(a) if the offence is prosecuted summarily—a fine not exceeding $200 or imprisonment for 6 months or both; or, in the case of a body corporate, a fine not exceeding $2,000; or

(b) if the offence is prosecuted upon indictment—a fine of any amount or imprisonment for any term, or both.

79 Unlawfully disposing of arms etc.

(1) Any person who:

(a) unlawfully disposes of or removes or

(b) fails to deliver up when lawfully required so to do or

any arms accoutrements or other naval, military or air‑force articles belonging to the Commonwealth or to any corps, unit or station, shall be liable to a penalty not exceeding $40, and may be ordered by the Court by which he is tried to be imprisoned for a period not exceeding 3 months unless in the meantime he delivers up the article or pays its value.

(1AA) An offence under subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(1AB) Paragraph (1)(c) does not apply if the person proves that he or she had lawful cause for possessing the thing in question.

Note: The defendant bears a legal burden in relation to the matter in subsection (1AB). See section 13.4 of the Criminal Code.

(1A) In any prosecution under this section for failure to deliver up when lawfully required so to do any arms, accoutrements or other naval, military or air‑force articles belonging to the Commonwealth or to any corps, unit or station:

(a) if it is proved to the satisfaction of the Court that any such article was in the possession of the defendant at any time prior to the time at which he was required to deliver up the article, he shall be deemed, in the absence of proof by him of the lawful disposal of the article, to have continued in possession of the article up to the time when he was required to deliver up the article; and

(b) inability to deliver up the article shall not be a defence unless the defendant proves to the satisfaction of the Court that such inability did not arise from any negligence or wrongful act or omission on his part.

Note: The defendant bears a legal burden in relation to the matter in paragraph (1A)(b). See section 13.4 of the Criminal Code.

(2) When an order has been made under this section the Court may by warrant in writing authorize any member or special member of the Australian Federal Police or member of the Police Force of a State or Territory to take possession of the article and to deliver it to an officer or as the Court thinks fit to direct.

(3) Any member or special member of the Australian Federal Police or member of the Police Force of a State or Territory having any warrant under this section may in the day time enter any building, premises, or place where the article is or is supposed to be, and may break open any part of the building, premises, or place, or any chest, receptacle, or thing therein, and may seize or take possession of the article and deliver it in accordance with the warrant.

80A Falsely representing to be returned soldier, sailor or airman

(1) A person is guilty of an offence if:

(a) the person represents himself or herself to be a returned soldier, sailor or airman; and

(b) the representation is false.

Penalty: 30 penalty units or imprisonment for 6 months, or both.

(2) For the purposes of this section:

(a) returned soldier means a person who has served abroad during any war as a member of any Military Force raised in Australia or in any other part of the British Empire, or as a member of the Military Forces of any Ally of Great Britain;

(b) returned sailor means a person who has served abroad during any war as a member of any Naval Force raised in Australia or in any other part of the British Empire, or as a member of the Naval Forces of any Ally of Great Britain; and

(c) returned airman means a person who has served abroad during any war as a member of any Air Force, air service or flying corps raised in Australia or in any other part of the British Empire or as a member of the air forces of any Ally of Great Britain.

80B Improper use of service decorations

(1) A person is guilty of an offence if:

(a) the person wears a service decoration; and

(b) the person is not the person on whom the decoration was conferred.

Penalty: 30 penalty units or imprisonment for 6 months, or both.

(2) Where the person upon whom a service decoration was conferred has died, it is not an offence against subsection (1) for a member of the family of that person to wear the service decoration if the member of the family does not represent himself as being the person upon whom the decoration was conferred.

Note: The defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal Code.

(3) It is not an offence against subsection (1) for a person to wear a service decoration in the course of a dramatic or other visual representation (including such a representation to be televised) or in the making of a cinematograph film.

Note: The defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3) of the Criminal Code.

(4) A person shall not falsely represent himself as being the person upon whom a service decoration has been conferred.

Penalty: 30 penalty units or imprisonment for 6 months, or both.

(5) A person shall not deface or destroy, by melting or otherwise, a service decoration.

Penalty: 60 penalty units or imprisonment for 12 months, or both.

82 Sketching etc. of fortifications prohibited

(1) If:

(a) a person makes a sketch, drawing, photograph, picture or painting of any defence installation in Australia or of any part of one; and

(b) the person has no lawful authority to do so;

then:

(d) all sketches, drawings, photographs, pictures, and paintings, and all tools and all materials or apparatus for sketching, drawing, photographing or painting found in his or her possession are forfeited and may be destroyed, sold, or otherwise disposed of, as the Governor‑General directs.

(1A) The maximum penalty for an offence under subsection (1) is a fine of $200, imprisonment for 6 months, or both.

(2) If:

(a) a person enters or approaches any defence installation with sketching, drawing, photographing, or painting materials or apparatus in his or her possession; and

(b) the person has no lawful authority for that conduct; and

then:

(d) the person is guilty of an offence; and

(e) all tools and all materials or apparatus for sketching, drawing, photographing or painting found in his or her possession are forfeited and may be destroyed, sold, or otherwise disposed of, as the Governor‑General directs.

(2A) The maximum penalty for an offence under subsection (2) is a fine of $100.

(4) Any member of the Defence Force, member or special member of the Australian Federal Police or member of the Police Force of a State or Territory, may, without warrant, arrest any person who he has reasonable ground to believe has committed an offence against this section, and take him before a Court of summary jurisdiction to be dealt with according to law.

(5) In this section:

defence installation means any fort, battery, fieldwork, fortification, aircraft, air force establishment or aircraft material or any naval, military or air force work of defence.

83 Unauthorised use, possession or supply of emblems or flags

(1) A person who is not a member of the Defence Force is guilty of an offence if:

(a) the person uses or wears a defence emblem or an emblem so nearly resembling a defence emblem as to be capable of being mistaken for such an emblem; and

(b) the person does not have the written authority of the Minister, or of a person authorised in writing by the Minister, to do so.

Penalty: $200.

(2) A person is guilty of an offence if:

(a) the person makes, supplies or offers to supply a defence emblem or an emblem so nearly resembling a defence emblem as to be capable of being mistaken for such an emblem; and

(b) the person does not have the written authority of the Minister, or of a person authorised in writing by the Minister, to do so.

Penalty: $500.

(3) A person is guilty of an offence if:

(a) the person flies or displays a defence flag; and

(b) the person is not a member of the Defence Force acting in the course of his or her duties; and

(c) the person does not have the written authority of the Minister, or of a person authorised in writing by the Minister, to do so.

Penalty: $200.

(3A) An authority under subsection (1), (2) or (3) shall be subject to such limitations (if any) as are specified in the authority.

(4) A person on whose behalf or at whose place of business an article is supplied or offered in contravention of this section, whether contrary to the instructions of that person or not, shall be guilty of an offence, and shall, on conviction, be liable to a fine not exceeding $200.

(4A) An offence under subsection (4) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(5) It is not an offence against this section for a person to use or wear a defence emblem or fly a defence flag in the course of a dramatic or other visual representation (including such a representation to be televised) or in the making of a cinematograph film.

Note: The defendant bears an evidential burden in relation to the matter in subsection (5). See subsection 13.3(3) of the Criminal Code.

(6) Where an offence against this section has been committed, the court may, if it thinks fit, order the forfeiture of any emblem or flag in respect of which that offence was committed.

(7) In this section:

defence emblem means an emblem of the Defence Force or an arm of the Defence Force.

defence flag means a flag of the Defence Force or an arm of the Defence Force.

emblem includes a badge, a regimental or other similar distinctive mark, an armlet or an accoutrement.

flag includes an ensign or a standard.

84 Penalty for bringing contempt on uniform

(1) Any person who wears any uniform of the Defence Force, or any dress having the appearance or bearing any of the regimental or other distinctive marks of any such uniform, in such a manner or under such circumstances as to be likely to bring contempt upon that uniform, shall be liable to a penalty not exceeding $200.

(2) An offence under this section is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Part VIII—Offences in relation to service tribunals

86 Failure of witness to appear

(1) A person is guilty of an offence if:

(a) the person has been served with a summons under the Defence Force Discipline Act 1982 to appear as a witness before a service tribunal; and

(b) the person:

(i) fails to appear as required by the summons; or

(ii) fails to appear and report himself or herself from day to day and has not been excused or released by the tribunal from further attendance.

Penalty: $1,000 or imprisonment for 6 months, or both.

(2) An offence under this section is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) Subsection (1) does not apply if the person has a reasonable excuse.

Note: The defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3) of the Criminal Code.

88 False or misleading evidence

A person who is appearing as a witness before a service tribunal is guilty of an offence if:

(a) the person gives evidence; and

(b) the evidence is false or misleading; and

Penalty: $1,000 or imprisonment for 6 months, or both.

89 Contempt of service tribunals etc.

(1) A person shall not:

(a) insult a member of a court martial, a judge advocate, a Defence Force magistrate or a summary authority in or in relation to the exercise of his or her powers or functions as such a member, judge advocate, magistrate or authority, as the case may be;

(b) interrupt the proceedings of a service tribunal;

(c) create a disturbance or take part in creating or continuing a disturbance in or near a place where a service tribunal is sitting; or

(d) do any other act or thing that would, if a service tribunal were a court of record, constitute a contempt of that court.

Penalty: $1,000 or imprisonment for 6 months.

(1A) An offence under this section is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(2) In this section, court martial, judge advocate, Defence Force magistrate and summary authority have the same respective meanings as they have in the Defence Force Discipline Act 1982.

90 Failure to comply with order under section 140 of the Defence Force Discipline Act 1982

(1) A person is guilty of an offence if:

(a) an order under section 140 of the Defence Force Discipline Act 1982 applies to the person; and

(b) the person contravenes or fails to comply with the order.

Penalty: $1,000 or imprisonment for 6 months, or both.

(2) In paragraph (1)(a), strict liability applies to the physical element of circumstance, that the order is under section 140 of the Defence Force Discipline Act 1982.

Note: For strict liability, see section 6.1 of the Criminal Code.

Part VIIIA—Testing for prohibited substances

Division 1—Preliminary

91 Application of Part

This Part applies to the following persons:

(a) defence members;

(b) defence civilians.

92 Object of Part

The object of this Part is to make provision for the testing of persons to whom this Part applies to determine whether they have used any prohibited substance.

93 Definitions

In this Part, unless the contrary intention appears:

accredited authority means a laboratory or other body, or a person, specified in the Defence Instructions to be an accredited authority for the purposes of this Part.

authorised person means a person determined under section 93A to be an authorised person for the purposes of the provision of this Part in which the expression occurs.

defence civilian has the same meaning as in the Defence Force Discipline Act 1982.

Defence Instructions means Defence Instructions (General), Defence Instructions (Navy), Defence Instructions (Army) or Defence Instructions (Air Force) issued under section 9A.

defence member has the same meaning as in the Defence Force Discipline Act 1982.

narcotic substance has the same meaning as in the Customs Act 1901.

positive test result, in relation to a prohibited substance test in respect of a person, means a finding by an accredited authority that the test in respect of the person reveals:

(a) the presence of a prohibited substance in a sample provided by the person, or otherwise reveals the use by the person of a prohibited substance; and

(b) if a permitted level for that substance is specified in the Defence Instructions—that the permitted level has been exceeded.

prohibited substance means:

(a) a narcotic substance; or

(b) any substance that is a prohibited substance because of a determination under subsection 93B(1).

prohibited substance test means:

(a) urinalysis; or

(b) another test that:

(i) is for the purpose of determining whether a person has used a prohibited substance, whether by means of testing a sample provided by the person or by other means; and

(ii) is a prohibited substance test because of a determination under subsection 93B(2).

relevant authority means:

(a) in relation to a defence member who holds a rank not below the rank of Major‑General (or an equivalent rank)—the Governor‑General; or

(b) in relation to a defence member who holds a rank below the rank of Major‑General (or an equivalent rank)—the relevant service chief; or

sample means:

(a) any human biological fluid; or

(b) any human biological tissue (whether alive or otherwise); or

93A Authorised person

The Chief of the Defence Force or a service chief may, by written instrument, determine that a person is an authorised person for the purposes of a provision of this Part.

93B Determinations about prohibited substances and prohibited substance tests

(1) The Chief of the Defence Force may, by legislative instrument, determine that a substance, or a substance included in a class of substances, is a prohibited substance for the purposes of this Part.

(2) The Chief of the Defence Force may, by legislative instrument, determine that a test, or a test included in a class of tests, is a prohibited substance test for the purposes of this Part.

Division 2—Testing for prohibited substances

94 Requirement to undergo a prohibited substance test

An authorised person may require a person to whom this Part applies:

(a) to undergo a prohibited substance test; and

(b) if the prohibited substance test involves testing a sample—to provide a sample for the purposes of the test.

95 Conduct of testing

(1) The conduct of a prohibited substance test under section 94 must be supervised by an authorised person.

(2) A prohibited substance test:

(a) must be conducted in circumstances affording reasonable privacy to the person being tested; and

(b) must not be conducted in the presence of a person whose presence is not necessary for the purposes of conducting or supervising the test; and

(i) the removal of more clothing; or

(ii) more visual inspection;

than is necessary for the purposes of conducting the test.

96 Notice to person required to provide a sample

If a person is required to provide a sample for the purposes of a prohibited substance test under section 94, the authorised person supervising the test must, before the sample is provided, give to the person a written notice explaining such matters relating to dealing with the sample as are specified in the Defence Instructions.

Division 3—Return of a positive test result

98 Application

(1) This Division applies if a prohibited substance test in respect of a person returns a positive test result.

(2) A positive test result is to be disregarded if an authorised person is satisfied that the presence of any prohibited substance revealed by the testing was wholly attributable to something done in accordance with the directions or recommendations of a legally qualified medical practitioner.

100 Notice to be given of a positive test result

(1) If a prohibited substance test in respect of a person returns a positive test result, the relevant authority in relation to the person must:

(a) give the person written notice of the positive test result; and

(b) invite the person to give to the relevant authority a written statement of reasons as to:

(i) if the person is an officer—why the officer’s appointment should not be terminated; or

(ii) if the person is a defence member other than an officer—why the defence member should not be discharged; or

(iii) if the person is a defence civilian—why the arrangement under which the person is a defence civilian should not be terminated.

Note: Subsection 98(2) provides that a positive test result is to be disregarded in specified circumstances, so in such circumstances a notice under this section would not be given.

(2) A notice under subsection (1) must specify a period ending not less than 28 days after the day on which the notice is given as the period within which a statement of reasons must be given to the relevant authority.

101 Termination or discharge

(1) If a defence member to whom a notice is given under section 100 is an officer who holds a rank not below the rank of Major‑General (or equivalent rank) and:

(a) the officer does not give the relevant authority, within the period specified in the notice, a statement of reasons why the officer’s appointment should not be terminated; or

(b) having considered such a statement given by the officer, the relevant authority is of the opinion that the officer’s appointment should be terminated;

the Governor‑General must terminate the appointment.

(2) If a defence member to whom a notice is given under section 100 is an officer who holds a rank below the rank of Major‑General (or equivalent rank) and:

(a) the officer does not give the relevant authority, within the period specified in the notice, a statement of reasons why the officer’s appointment should not be terminated; or

(b) having considered such a statement given by the officer, the relevant authority is of the opinion that the officer’s appointment should be terminated;

the relevant authority must terminate the appointment.

(3) If a defence member to whom a notice is given under section 100 is not an officer and:

(a) the defence member does not give the relevant authority, within the period specified in the notice, a statement of reasons why the defence member should not be discharged; or

(b) having considered such a statement given by the defence member, the relevant authority is of the opinion that the defence member should be discharged;

the relevant authority must discharge the defence member.

(4) If a person to whom a notice is given under section 100 is a defence civilian and:

(a) the person does not give the relevant authority, within the period specified in the notice, a statement of reasons why the arrangement under which the person is a defence civilian should not be terminated; or

(b) having considered such a statement given by the person, the relevant authority is of the opinion that the arrangement under which the person is a defence civilian should be terminated;

the relevant authority must terminate that arrangement.

(5) In considering under this section whether:

(a) an officer’s appointment should be terminated; or

(b) a defence member other than an officer should be discharged; or

the relevant authority must take into consideration any warning previously given to the officer, defence member or defence civilian under section 104.

(5A) If a delegate of the Governor‑General or another relevant authority gives a notice to a defence member or a defence civilian under section 100, the same delegate must not:

(a) terminate the appointment of, or discharge, the defence member; or

(b) terminate an arrangement under which the person is a defence civilian.

Note 1: Action referred to in paragraphs (a) and (b) may be taken by another delegate or by the relevant authority.

Note 2: For delegations, see section 120A.

(6) Nothing in this section or in section 104 is to be taken to require that a notice under section 104 must have been given in respect of a previous positive test result before:

(a) an officer’s appointment is terminated; or

(b) a defence member is discharged; or

under this section.

102 Form and date of effect of termination or discharge

(1) The termination under subsection 101(1) or (2) of the appointment of an officer, the discharge under subsection 101(3) of a defence member or the termination under subsection 101(4) of an arrangement in relation to a defence civilian must be in writing.

(2) The document effecting the termination or discharge must specify the day on which the termination or discharge is to take effect.

(3) A copy of the document effecting the termination or discharge must be given to the defence member or defence civilian.

(4) The day to be specified is a day:

(a) not earlier than the day on which the defence member or defence civilian is given a copy of the document effecting the termination or discharge; and

(b) not later than 3 months after the day referred to in paragraph (a).

(5) The termination of appointment or the discharge, as the case may be, takes effect on the day specified.

103 Reduction in rank

(1) This section applies if a prohibited substance test in respect of a defence member returns a positive test result and:

(a) if the defence member is an officer—the officer’s appointment is not terminated under subsection 101(1) or (2); or

(b) if the defence member is not an officer—the member is not discharged under subsection 101(3).

(2) Subject to the following provisions of this section, the relevant service chief may reduce the defence member to the next lower rank.

(3) If the relevant service chief proposes to reduce a defence member’s rank, he or she must:

(a) inform the defence member in writing of the proposal; and

(b) give the defence member a reasonable opportunity to show cause why the defence member’s rank should not be reduced.

(4) A reduction in rank must be in writing.

(5) The document effecting the reduction in rank must specify the day on which the reduction in rank is to take effect.

(6) A copy of the document effecting the reduction in rank is to be given to the officer or other defence member.

104 Warning if a prohibited substance test returns a positive result

(1) If a prohibited substance test in respect of a defence member returns a positive test result, the relevant authority may give to the defence member a notice containing a warning that, if a subsequent prohibited substance test in respect of the defence member also returns a positive test result:

(a) if the defence member is an officer—the officer’s appointment may be terminated; or

(b) if the defence member is not an officer—the defence member may be discharged; or

(2) If a prohibited substance test in respect of a defence civilian returns a positive test result, the relevant authority may give to the defence civilian a notice containing a warning that, if a subsequent prohibited substance test in respect of the defence civilian also returns a positive test result, the arrangement under which the person is a defence civilian may be terminated.

Division 4—Miscellaneous

106 Failure to provide sample

(1) A defence member or defence civilian is guilty of an offence if:

(a) an authorised person has required the defence member or defence civilian under section 94 to provide a sample; and

(b) the defence member or defence civilian refuses or fails to provide the sample.

Maximum penalty: Imprisonment for 6 months.

(2) In paragraph (1)(a), strict liability applies to the physical element of circumstance, that the requirement is under section 94.

Note: For strict liability, see section 6.1 of the Criminal Code.

107 Unauthorised acts in relation to sample

(1) A person is guilty of an offence if:

(a) a sample is provided by a defence member or defence civilian pursuant to a requirement made by an authorised person under section 94; and

(aa) the person interferes with, or otherwise deals with, the sample; and

(b) the person is not authorised under this Part or the Defence Instructions to do so.

Maximum penalty: Imprisonment for 6 months.

(2) In paragraph (1)(a), strict liability applies to the physical element of circumstance, that the requirement is under section 94.

Note: For strict liability, see section 6.1 of the Criminal Code.

108 Finding made as a result of testing not admissible in certain criminal proceedings

A finding made by an accredited authority by means of testing a sample provided by a defence member or defence civilian under this Part is not admissible in evidence in any proceeding against the defence member or defence civilian for:

(a) an offence under the Defence Force Discipline Act 1982; or

(b) an offence against section 6 of the Crimes Act 1914, or against section 11.1, 11.4 or 11.5 of the Criminal Code, in relation to an offence under the Defence Force Discipline Act 1982.

109 Defence Instructions

(1) Without limiting section 9A, the Defence Instructions may make provision, not inconsistent with this Part, in relation to the following:

(a) the persons or classes of persons who may be required to undergo prohibited substance tests under section 94;

(b) laboratories, bodies or persons that are accredited authorities for the purposes of this Part;

(d) the conduct of, and procedures relating to, prohibited substance tests under section 94;

(e) the devices used in conducting prohibited substance tests under section 94, including the calibration, inspection and testing of those devices;

(f) levels of prohibited substances that are permitted levels for the purposes of this Part;

(g) the procedures for the handling and analysis of the following:

(i) samples taken in connection with prohibited substance tests under section 94;

(ii) the giving of prohibited substance test results in certificates or other documents and the evidentiary effect of such certificates or other documents;

(h) the confidentiality of prohibited substance test results;

(i) notices to be given to persons who are to undergo, or who have undergone, prohibited substance tests;

(j) any other matter or thing that relates to, or is for the purposes of, this Part.

(2) The Defence Instructions may provide that strict compliance with procedures specified in the Defence Instructions is not required and substantial compliance is sufficient, other than in respect of procedures relating to the following matters:

(a) ensuring that a sample is not interfered with;

(b) ensuring that a sample is securely contained and identified.

110 Other administrative action not precluded

Nothing in this Part precludes the taking, in relation to a defence member, of any administrative action that could, if this Part had not been enacted, be lawfully taken because he or she is a defence member.

Part VIIIB—Inspector‑General of the Australian Defence Force

Division 1—Establishment and functions of the Inspector‑General of the Australian Defence Force

110A Object of Part

The object of this Part is to provide the Chief of the Defence Force with:

(a) a mechanism for internal audit and review of the military justice system independent of the ordinary chain of command; and

(b) an avenue by which failures and flaws in the military justice system can be exposed and examined so that the cause of any injustice (whether systemic or otherwise) may be remedied.

110B Inspector‑General of the Australian Defence Force

There is to be an Inspector‑General of the Australian Defence Force, to be known as the Inspector‑General ADF.

110C Functions of the Inspector‑General ADF

(1) The Inspector‑General ADF has the following functions:

(a) to inquire into or investigate matters concerning the military justice system;

(b) to conduct performance reviews of the military justice system, including internal audits, at the times and in the manner the Inspector‑General ADF considers appropriate;

(d) to promote military justice values across the Defence Force;

(e) to do anything incidental or conducive to the performance of any of the preceding functions.

(2) In addition to his or her functions under subsection (1), the Inspector‑General ADF also has:

(a) the functions conferred on the Inspector‑General ADF by or under this Act or any other law of the Commonwealth; and

(b) such other functions as are prescribed by the regulations.

(3) The function referred to in paragraph (1)(a) includes the following:

(a) carrying out preliminary assessments as to whether an inquiry or investigation should be conducted by the Inspector‑General ADF;

(b) referring matters to other appropriate authorities to be dealt with.

Note: The regulations may make provision in relation to the procedures and powers of the Inspector‑General ADF in respect of the performance of the Inspector‑General ADF’s functions (see paragraph 124(1)(h)).

110D When the Inspector‑General ADF can conduct inquiries or investigations

(1) The Inspector‑General ADF may conduct an inquiry or an investigation on his or her own initiative.

(2) The Inspector‑General ADF may be directed to conduct an inquiry or an investigation by the Chief of the Defence Force.

(3) The Inspector‑General ADF may be requested to conduct an inquiry or an investigation by a service chief, but is not required to comply with the request.

(4) The Inspector‑General ADF may be requested to conduct an inquiry or an investigation by any other individual, but is not required to comply with the request.

Division 2—Administrative provisions about the Inspector‑General of the Australian Defence Force

110E Appointment

(1) The Inspector‑General ADF is to be appointed by the Minister by written instrument.

(2) In making an appointment under subsection (1), the Minister must have regard to any recommendations made by the Chief of the Defence Force.

(3) The Inspector‑General ADF holds office on a full‑time basis.

(4) A person holding office as the Inspector‑General ADF holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

110F Qualifications for appointment

A person must not be appointed as the Inspector‑General ADF unless the person has knowledge of and experience in relation to military justice issues and an understanding of their relevance to the role of the Defence Force.

110G Tenure

(1) The Inspector‑General ADF holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

(2) The Inspector‑General ADF is eligible for reappointment.

110H Resignation

The Inspector‑General ADF may resign his or her appointment by giving the Minister a written resignation.

110I Remuneration

(1) The Inspector‑General ADF is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, he or she is to be paid the remuneration that is prescribed.

(2) The Inspector‑General ADF is to be paid the allowances that are prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

110J Leave of absence

(1) The Inspector‑General ADF has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2) The Chief of the Defence Force may grant the Inspector‑General ADF leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Chief of the Defence Force determines.

110K Engaging in other paid work

The Inspector‑General ADF must not engage in paid employment outside the duties of his or her office without the Minister’s consent.

110L Termination of appointment

(1) The Minister must terminate the appointment of the Inspector‑General ADF if the Inspector‑General ADF:

(a) becomes bankrupt; or

(b) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(d) assigns his or her remuneration for the benefit of his or her creditors; or

(e) is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(f) fails, without reasonable excuse, to comply with section 110M.

(2) The Minister may terminate the appointment of the Inspector‑General ADF on the ground of:

(a) misbehaviour; or

(b) physical or mental incapacity.

(3) The Minister may terminate the appointment of the Inspector‑General ADF if the Inspector‑General ADF engages in paid employment outside the duties of his or her office other than with the Minister’s consent.

110M Disclosure of interests

The Inspector‑General ADF must give written notice to the Minister of all interests (financial or otherwise) that the Inspector‑General ADF has or acquires that could conflict with the proper performance of the functions of his or her office.

110N Acting appointments

(1) The Minister may appoint a person to act as the Inspector‑General ADF:

(a) during a vacancy in the office of Inspector‑General ADF (whether or not an appointment has previously been made to that office); or

(b) during any period, or during all periods, when the Inspector‑General ADF is absent from duty or from Australia, or is, for any other reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

(3) The Minister must not appoint a person to act as the Inspector‑General ADF unless the person has knowledge of and experience in relation to military justice issues and an understanding of their relevance to the role of the Defence Force.

(4) In making an appointment under subsection (1), the Minister must have regard to any recommendations made by the Chief of the Defence Force.

110O Staff

(1) The staff necessary to assist the Inspector‑General ADF are to be the following:

(a) members of the Defence Force made available for the purpose by the appropriate service chief;

(b) persons engaged under the Public Service Act 1999 and made available for the purpose by the Secretary of the Department.

(2) The Inspector‑General ADF may engage persons having suitable qualifications and experience as consultants to, or to perform services for, the Inspector‑General ADF.

(3) An engagement under subsection (2) is to be made:

(a) on behalf of the Commonwealth; and

(b) by written agreement.

110P Inquiry officers, inquiry assistants and Assistants IGADF

(1) The Inspector‑General ADF may appoint a person as:

(a) an inquiry officer; or

(b) an inquiry assistant; or

(2) The Inspector‑General ADF must not appoint a person under subsection (1) unless the person is eligible to be so appointed under the regulations.

(3) The regulations may prescribe matters relating to the roles, functions and powers of a person appointed under subsection (1).

Division 3—Other matters

110Q Protection from civil actions

(1) This section applies to the following persons (protected persons):

(a) the Inspector‑General ADF;

(b) a person acting under the authority of the Inspector‑General ADF.

(2) A protected person is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of the performance or exercise, in good faith, of the protected person’s functions, powers or duties under or in relation to this Act.

110R Reports

The Inspector‑General ADF must prepare and give to the Chief of the Defence Force such reports on the operations of the Inspector‑General ADF as the Chief of the Defence Force directs.

110S Delegation

The Inspector‑General ADF may, by instrument in writing, delegate his or her power under section 110P to an officer holding a rank not lower than the naval rank of captain or the rank of colonel or group captain.

Part VIIIC—Defence Honours and Awards Appeals Tribunal

Division 1—Preliminary

110T Definitions

In this Part:

Chair means the Chair of the Tribunal.

defence award has the meaning given by the regulations.

defence honour has the meaning given by the regulations.

eligible service means:

(a) service in the Defence Force; or

(b) service under the control, or at the direction, of the Defence Force or a member of the Defence Force.

foreign award means an honour or award given by a government of a foreign country, or by an international organisation.

inquiry means an inquiry under Division 4.

lawyer means a person who is enrolled as a barrister, a solicitor, a barrister and solicitor, or a legal practitioner, of a federal court or a court of a State or Territory.

procedural rules means the procedural rules made under section 110XH.

reviewable decision has the meaning given by section 110V.

review of a reviewable decision means a review under Division 3.

Tribunal means the Defence Honours and Awards Appeals Tribunal established by section 110U.

Tribunal member means a member of the Tribunal, including the Chair.

Tribunal proceeding means:

(a) a review of a reviewable decision; or

(b) an inquiry.

Division 2—Establishment and functions of Defence Honours and Awards Appeals Tribunal

110U Establishment of Tribunal

(1) The Defence Honours and Awards Appeals Tribunal is established by this section.

(2) The Tribunal has the privileges and immunities of the Crown.

110UA Functions of Tribunal

The functions of the Tribunal are:

(a) to review reviewable decisions in accordance with Division 3; and

(b) to inquire into matters concerning honours or awards for eligible service in accordance with Division 4.

110UB Tribunal and Tribunal members not subject to direction

Except as provided by this Part (including the procedural rules) or another law of the Commonwealth, neither the Tribunal, nor any Tribunal member, is subject to direction from anyone in relation to the performance or exercise of the Tribunal’s or member’s functions or powers.

Division 3—Review of decisions by the Tribunal

110V What decisions are reviewable?

(1) A reviewable decision is a decision (whether made before or after the commencement of this Part) in relation to which the following conditions are satisfied:

(a) the decision is or was a refusal to recommend a person or group of persons for any of the following in relation to eligible service:

(i) a defence honour;

(ii) a defence award;

(iii) a foreign award;

(b) the decision is or was made:

(i) by or on behalf of the Minister, or a former Minister (a former Defence Minister) whose ministerial responsibilities included defence or matters related to defence; or

(ii) by a person within the Department, or a former Department of State of the Commonwealth that was administered by a former Defence Minister; or

(iii) by a person within the Defence Force, or an arm of the Defence Force;

(2) However, a decision is not a reviewable decision if the decision:

(a) was made before 3 September 1939; or

(b) relates to service rendered before 3 September 1939.

110VA Who can apply for review?

An application for review of a reviewable decision can only be made by the person, or one or more of the persons, who made the application referred to in paragraph 110V(1)(c).

110VB Review of decisions by the Tribunal

Decisions relating to defence honours

(1) If an application is properly made to the Tribunal for review of a reviewable decision relating to a defence honour, the Tribunal:

(a) must review the decision; and

(b) may make any recommendations to the Minister that the Tribunal considers appropriate.

Note 1: The Tribunal does not have power to affirm or set aside the decision.

Note 2: Formal requirements relating to decisions etc. of the Tribunal are dealt with in section 110XE.

Decisions relating to defence awards and foreign awards

(2) If an application is properly made to the Tribunal for review of a reviewable decision relating to a defence award or a foreign award, the Tribunal must review the decision and:

(a) affirm the decision; or

(b) set the decision aside and:

(i) substitute a new decision (being a decision to recommend a person or group of persons for a defence award or a foreign award); or

(ii) refer the matter to a person determined by the Tribunal, for reconsideration in accordance with any directions of the Tribunal.

Note: Formal requirements relating to decisions etc. of the Tribunal are dealt with in section 110XE.

(3) The Tribunal may also make any recommendations to the Minister that the Tribunal considers appropriate and that arise out of, or relate to, the Tribunal’s review under subsection (2) of a reviewable decision.

(4) If, under subsection (2), the Tribunal sets aside a reviewable decision and substitutes a new decision then, unless the Tribunal determines otherwise, the substituted decision:

(a) is taken to be a decision of the person who made the reviewable decision (except for the purpose of any review of the substituted decision, whether by the Tribunal or otherwise); and

(b) has effect, or is taken to have had effect, on and from the date determined by the Tribunal.

(5) If, under subsection (2), the Tribunal sets aside a reviewable decision and refers the matter to a person determined by the Tribunal, for reconsideration in accordance with any directions of the Tribunal:

(a) the person must reconsider the matter accordingly; and

(b) if the person’s decision on the reconsideration is a refusal of a kind described in paragraph 110V(1)(a)—the decision is taken to be a reviewable decision made by that person in response to an application made by the person or persons who made the application referred to in subsection (2) of this section.

Tribunal is bound by eligibility criteria that governed making of reviewable decision

(6) In reviewing a reviewable decision, the Tribunal is bound by the eligibility criteria that governed the making of the reviewable decision.

(7) The regulations may define or otherwise clarify the meaning of eligibility criteria for the purpose of subsection (6).

110VC Power to dismiss review applications

(1) Despite section 110VB, the Chair may, in writing, dismiss an application for review of a reviewable decision if the Chair considers that:

(a) there is another process for review, by the Commonwealth, of the decision, and it would be preferable for the decision to first be reviewed by that process; or

(b) the question whether the person, or group of persons, concerned should be recommended for the defence honour, defence award or foreign award concerned has already been adequately reviewed (whether by the Tribunal or otherwise); or

(2) The Chair’s power under subsection (1) to dismiss an application for review of a reviewable decision may be exercised at any time, whether before or after the Tribunal has started to review the decision.

(3) A dismissal under subsection (1) is not a legislative instrument.

Division 4—Inquiries by the Tribunal

110W Minister may direct Tribunal to hold inquiry

(1) The Minister may, in writing, give the Tribunal a direction to hold an inquiry into a specified matter concerning honours or awards for eligible service.

(2) If the Minister gives the Tribunal a direction under subsection (1), the Tribunal:

(a) must hold an inquiry into the specified matter; and

(b) must report to the Minister on the outcomes of the inquiry.

Note: Formal requirements relating to decisions etc. of the Tribunal are dealt with in section 110XE.

(3) The report to the Minister may include any recommendations that the Tribunal considers appropriate and that arise out of, or relate to, the inquiry.

(4) A direction under subsection (1) is not a legislative instrument.

Division 5—General provisions relating to operation of the Tribunal

110X Role of the Chair

(1) The Chair is the executive officer of the Tribunal and is responsible for its overall operation and administration.

(2) The Chair may, in writing, delegate all or any of his or her functions or powers to another Tribunal member.

(3) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Chair.

Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

110XA Constitution of Tribunal for Tribunal proceedings

How the Tribunal is to be constituted

(1) Subject to this section, for a particular Tribunal proceeding, the Tribunal is to be constituted by one or more Tribunal members determined by the Chair.

(2) If the Tribunal proceeding is an inquiry, the Tribunal must be constituted by 3 or more Tribunal members.

(3) The Chair must also comply with any requirements of the procedural rules relating to the constitution of the Tribunal for Tribunal proceedings.

What happens if the Tribunal is constituted by more than one Tribunal member

(4) If the Tribunal is constituted by more than one Tribunal member, the following provisions have effect:

(a) the presiding Tribunal member is:

(i) if the Chair is a member of the Tribunal as so constituted—the Chair; or

(ii) otherwise—the Tribunal member who is directed by the Chair to preside;

(b) a decision of the majority of the Tribunal members who constitute the Tribunal prevails;

Formal requirements for determinations and directions

(5) A determination or direction by the Chair under this section must be in writing.

(6) A determination or direction by the Chair under this section is not a legislative instrument.

110XB What happens if a Tribunal member stops being available

When this section applies

(1) This section applies if:

(a) a Tribunal member (the unavailable member) constitutes, or is one of the Tribunal members who constitute, the Tribunal for the purpose of a Tribunal proceeding; and

(b) before the proceeding is completed:

(i) the Tribunal member stops being a Tribunal member for any reason; or

(ii) the Tribunal member is not available for the purpose of the proceeding for any reason; or

(iii) the Tribunal member is prohibited by section 110XG from continuing to take part in the proceeding; or

(iv) the Tribunal member is directed by the Chair not to continue to take part in the proceeding.

Chair to direct course of action

(2) The Chair must either:

(a) direct that the Tribunal proceeding be started afresh; or

(b) direct that the Tribunal proceeding be completed.

If Chair directs that proceeding be started afresh

(3) If the Chair directs that the Tribunal proceeding be started afresh:

(a) the Chair must, in accordance with section 110XA, determine the Tribunal member or members who are to constitute the Tribunal for that purpose; and

(b) subject to paragraph (c) of this subsection, the Tribunal, as so constituted, must start to deal with the proceeding afresh; and

(c) the Tribunal, as so constituted, may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence given or submissions made).

If Chair directs that proceeding be completed

(4) If the Chair directs that the Tribunal proceeding be completed:

(a) if the unavailable member constituted the Tribunal—the Chair must direct another Tribunal member or Tribunal members to constitute the Tribunal for the purpose of completing the proceeding; or

(b) if the unavailable member is one of the Tribunal members who constituted the Tribunal—the Chair must:

(i) direct the remaining Tribunal member or Tribunal members to constitute the Tribunal for the purpose of completing the Tribunal proceeding; or

(ii) direct a Tribunal member or Tribunal members to constitute the Tribunal for the purpose of completing the Tribunal proceeding.

(5) If subsection (4) applies in relation to a Tribunal proceeding:

(a) if the Tribunal proceeding is an inquiry—the requirement in subsection 110XA(2) that the Tribunal must be constituted by 3 or more Tribunal members does not apply; and

(b) a direction under subparagraph (4)(b)(ii) of this section may be given to any Tribunal member (including the remaining Tribunal member or one of the remaining Tribunal members); and

(c) the Tribunal, as constituted in accordance with a direction under subsection (4) of this section, must complete the Tribunal proceeding; and

(d) for the purpose of completing the Tribunal proceeding, the Tribunal, as so constituted, may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence given or submissions made).

Formal requirements for directions

(6) A direction by the Chair under this section must be in writing.

(7) A direction by the Chair under this section is not a legislative instrument.

110XC Summoning persons to give evidence or produce documents

(1) The Tribunal may summon a person to attend before the Tribunal to give evidence or produce documents for the purpose of a Tribunal proceeding.

(2) A person commits an offence if:

(a) the person has been given a summons under subsection (1); and

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

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

(3) Subsection (2) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

(4) Without limiting subsection (3), it is a reasonable excuse for a person to refuse or fail to give evidence or produce a document if giving the evidence, or producing the document, would tend to incriminate the person.

(5) A person summoned under subsection (1) is entitled to be paid the same fees, and allowances for expenses, as apply under section 67 of the Administrative Appeals Tribunal Act 1975 in relation to persons summoned under that Act. The fees and allowances are payable by the Commonwealth.

110XD Protection of confidential or sensitive evidence or submissions etc.

(1) The Tribunal may make an order prohibiting or restricting the publication of any of the following if the Tribunal is satisfied that it is desirable to do so, whether for reasons of confidentiality or sensitivity:

(a) evidence given, documents produced or submissions made to the Tribunal in relation to a Tribunal proceeding;

(b) the names and addresses of persons giving evidence, producing documents, or making submissions to the Tribunal in relation to a Tribunal proceeding;

(c) the whole or any part of any decision or report made or given by the Tribunal, or the Tribunal’s reasons for any such decision or report.

Note: Formal requirements relating to decisions etc. of the Tribunal are dealt with in section 110XE.

(2) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct contravenes an order made under subsection (1).

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

110XE Formal requirements relating to decisions etc. of the Tribunal

Decisions etc. to be in writing

(1) Decisions, orders, determinations, reports and recommendations of the Tribunal must be in writing.

Review decisions

(2) The Tribunal’s decision on the review of a reviewable decision must include a statement of the Tribunal’s reasons for its decision.

(3) Subject to any orders under section 110XD:

(a) the Tribunal must cause a copy of its decision on the review of a reviewable decision to be given to the person or persons who applied for the review; and

(b) the Tribunal may also give a copy of its decision on the review of a reviewable decision to any other person that the Tribunal considers appropriate.

Inquiry reports

(4) Subject to any orders under section 110XD, the Tribunal must cause a copy of its report on an inquiry to be published on the Tribunal’s website or by another means that the Tribunal considers appropriate.

110XF Protection of Tribunal members and other persons

(1) A Tribunal member has, in performing his or her functions or exercising his or her powers as a Tribunal member, the same protection and immunity as a Justice of the High Court.

(2) A person representing another person before the Tribunal has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.

(3) A person summoned to attend, or appearing, before the Tribunal to give evidence or make submissions has the same protection, and is (in addition to the penalties provided by this Part) subject to the same liabilities, as a witness in proceedings in the High Court.

110XG Disclosure of interests by Tribunal members

When this section applies

(1) This section applies if a Tribunal member who constitutes, or is one of the Tribunal members who constitute, the Tribunal for the purpose of a Tribunal proceeding has or acquires any interest (the potential conflict) that conflicts or could conflict with the proper performance of the member’s functions in relation to the proceeding.

Note: Failure to comply with the requirements of this section is a ground for termination: see section 110YH.

If the Tribunal member is the Chair

(2) If the Tribunal member is the Chair:

(a) the Chair must disclose the potential conflict to the Minister, and to all persons who appear or have appeared before the Tribunal in the Tribunal proceeding; and

(b) the Chair must not continue to take part in the proceeding unless the Minister consents in writing.

If the Tribunal member is not the Chair

(3) If the Tribunal member is not the Chair:

(a) the Tribunal member must disclose the potential conflict to the Chair, and to all persons who appear or have appeared before the Tribunal in the Tribunal proceeding; and

(b) the Tribunal member must not continue to take part in the proceeding unless the Chair consents in writing.

Consent is not a legislative instrument

(4) A consent by the Minister or the Chair under subsection (2) or (3) is not a legislative instrument.

110XH Procedural rules

(1) After consulting the other Tribunal members, the Chair may, by legislative instrument, make procedural rules (not inconsistent with this Part) in relation to the practice and procedure to be followed by or in relation to the Tribunal.

(2) Without limiting subsection (1), the procedural rules may provide for the following:

(a) the constitution of the Tribunal for Tribunal proceedings;

(b) how the work of the Tribunal is to be allocated between the Tribunal members;

(c) the nature or form of Tribunal proceedings (for example, whether proceedings are to take the form of a hearing, and whether a hearing is to be in public or private);

(d) the circumstances in which a person may be represented by a lawyer or other person in a Tribunal proceeding;

(e) how applications are to be made to the Tribunal;

(f) requiring lodgment with the Tribunal of material relating to the making of reviewable decisions that are the subject of applications to the Tribunal;

(g) how evidence is to be given, or submissions are to be made, to the Tribunal;

(h) how people are to be summoned to attend before the Tribunal;

(i) any other matters that the Chair considers necessary or convenient.

(3) The procedural rules must be complied with in relation to Tribunal proceedings.

Division 6—Tribunal members

110Y Constitution of Tribunal

The Tribunal consists of the following Tribunal members:

(a) the Chair of the Tribunal;

(b) a minimum of 6, and maximum of 10, other Tribunal members.

110YA Appointment of Tribunal members

(1) The Tribunal members are to be appointed by the Minister, in writing, on a part‑time basis.

(2) The instrument of appointment of a Tribunal member must specify whether the member is appointed as the Chair of the Tribunal, or as one of the other Tribunal members.

(3) In making appointments, the Minister must have regard to the desirability of:

(a) reflecting a diversity of expertise, experience and gender among the Tribunal members; and

(b) the Tribunal members being independent of those who usually make reviewable decisions.

(4) A person is not eligible to be appointed as the Chair if:

(a) the person is, or has at any time been, a member of the Defence Force rendering continuous full‑time service; or

(b) in the Minister’s opinion, the person does not have an appropriate level of security clearance.

(5) A person is not eligible to be appointed as one of the other Tribunal members if:

(a) the person is, or has at any time within the previous 12 months been, a member of the Defence Force rendering continuous full‑time service; or

(b) in the Minister’s opinion, the person does not have an appropriate level of security clearance.

110YB Period of appointment

(1) A Tribunal member holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.

(2) Subject to subsections (3) and (4), a Tribunal member is eligible for reappointment as a Tribunal member.

(3) A person must not hold office as Chair for more than 6 consecutive years.

(4) A person must not hold office as one of the other Tribunal members for more than 6 consecutive years.

110YC Acting appointments

Appointment of acting Chair

(1) The Minister may, in writing, appoint a Tribunal member to act as the Chair:

(a) during a vacancy in the office of Chair (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the Chair:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

Appointment of other acting Tribunal members

(2) The Chair may, in writing, appoint a person to act as a Tribunal member (other than the Chair):

(a) during a vacancy in an office of Tribunal member (other than the Chair), whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when a Tribunal member (other than the Chair):

(i) is acting as the Chair; or

(ii) is absent from duty or from Australia; or

(iii) is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

(3) In appointing a person to act as a Tribunal member, the Chair must have regard to the desirability of:

(a) reflecting a diversity of expertise, experience and gender among the Tribunal members; and

(b) the Tribunal members being independent of those who usually make reviewable decisions.

Determining whether there is a vacancy in an office of Tribunal member

(5) For the purpose of:

(a) a reference in this section to a vacancy in an office of Tribunal member; or

(b) a reference in the Acts Interpretation Act 1901 to a vacancy in the membership of a body;

there are taken to be 10 offices of Tribunal members in addition to the Chair.

110YD Other employment

A Tribunal member must not engage in any paid employment that, in the Minister’s opinion, conflicts or may conflict with the proper performance of the member’s functions.

110YE Remuneration

(1) A Tribunal member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Tribunal member is to be paid the remuneration that is prescribed by the regulations.

(2) A Tribunal member is to be paid the allowances that are prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

110YF Leave

(1) The Minister may grant leave of absence to the Chair on the terms and conditions that the Minister determines.

(2) The Chair may grant leave of absence to any other Tribunal member on the terms and conditions that the Chair determines.

110YG Resignation

(1) A Tribunal member may resign his or her appointment by giving the Minister a written resignation.

(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

110YH Termination

(1) The Minister may terminate the appointment of a Tribunal member for misbehaviour or physical or mental incapacity.

(2) The Minister may terminate the appointment of a Tribunal member if:

(a) the Tribunal member:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or

(b) the Tribunal member fails, without reasonable excuse, to comply with section 110XG (disclosure of interests by Tribunal members); or

(c) the Tribunal member engages in paid employment that, in the Minister’s opinion, conflicts or may conflict with the proper performance of the member’s functions.

(3) If the Chair ceases to be eligible for appointment (see subsection 110YA(4)), the Minister must terminate the appointment of the Chair.

(4) If a Tribunal member (other than the Chair) ceases to be eligible for appointment (see subsection 110YA(5)), the Minister must terminate the appointment of the Tribunal member.

110YI Other terms and conditions

A Tribunal member holds office on the terms and conditions (if any) in relation to matters not covered by this Part that are determined by the Minister.

Division 7—Miscellaneous

110Z Regulations

Without limiting the generality of section 124, the regulations may make provision for or in relation to any of the following:

(a) any fees that are to be payable in relation to applications to the Tribunal;

(b) prohibiting the disclosure of information obtained by the Tribunal, a member of the Tribunal or a person assisting the Tribunal;

Part IX—Legal procedure

111 Subscription, arms etc. vested in commanding officer

(1) For the purposes of legal proceedings, all moneys subscribed by or for or otherwise appropriated to the use of any corps or part thereof, or ship’s company or part thereof, or air‑force unit or station or part thereof, and all arms, ammunition, accoutrements, clothing, musical instruments, or other things, belonging to or used by any corps or part thereof, or ship’s company or part thereof, or air‑force unit or station or part thereof, and not being the private property of a member of the corps or ship’s company or air‑force unit or station, as the case may be, shall be deemed to be the property of the commanding officer of the corps or ship’s company or air‑force unit or station, as the case may be.

(2) For the purposes of this section, corps includes unit.

111A Property of Rifle Club vested in Captain

For the purposes of legal proceedings, all arms, ammunition, or other military articles, belonging to or used by any Rifle Club, shall be deemed to be the property of the Captain of the Rifle Club.

Part IXA—Provisions relating to the forces of other countries

Division 1—Interpretation

116A Interpretation

(1) In this Part, unless the contrary intention appears:

forces, in relation to a country, means the naval, military or air forces of that country.

service authorities, in relation to a country, means the naval, military or air force authorities of that country.

(2) A reference in this Part to a country in relation to which a provision of this Part applies shall be read as a reference to a country declared by the regulations to be a country in relation to which that provision applies.

(3) For the purposes of this Part, a member of a force of a country that (by whatever name called) is in the nature of a reserve or auxiliary force shall be deemed to be a member of the forces of that country so long as, but only so long as, he is called into actual service (by whatever expression described) with those forces or is called out for training with those forces.

Division 2—Attachment of personnel and mutual powers of command

116B Attachment to the Defence Force of members of the forces of another country and vice versa

(1) The Chief of Navy, the Chief of Army or the Chief of Air Force may, by order in writing:

(a) attach temporarily to any part of the Defence Force under his command a specified member, or a member included in a specified class of members, of the forces of a country in relation to which this section applies who is placed at his disposal by the service authorities of that country for the purpose of being so attached; and

(b) subject to anything to the contrary in the conditions applicable to his service, place a specified member, or a member included in a specified class of members, of any part of the Defence Force under his command at the disposal of the service authorities of a country in relation to which this section applies in order that he may be attached temporarily by those authorities to the forces of that country.

(2) Where a member of the forces of a country in relation to which this section applies is attached temporarily to a part of the Defence Force, he shall, for the period for which he is so attached, be regarded as a member of that part of the Defence Force, as holding the rank in that part of the Defence Force that corresponds with the rank that he holds in those forces and as having, for the purposes of command and discipline, the same status and powers, including the power to arrest and to impose punishments, as:

(a) a member of that rank in that part of the Defence Force; and

(b) if he is given an appointment in that part of the Defence Force—a member of that part of the Defence Force holding the like appointment.

(3) The application of the law governing the Australian Navy, the Australian Army or the Australian Air Force, as the case may be, to a person to whom subsection (2) applies is subject to such exceptions, modifications and adaptations as are specified by the Minister by order in writing.

(4) A member of the Defence Force referred to in paragraph (1)(b) does not cease to be subject to the law governing that part of the Defence Force to which he belongs by reason only of his being temporarily attached as provided by that paragraph.

(5) This section applies to and in relation to a part of the Defence Force serving either within or beyond the territorial limits of Australia.

116C Forces serving together

(1) Whenever a part of the Defence Force and a part of the forces of a country in relation to which this subsection applies are serving together, either within or beyond the territorial limits of Australia, and either alone or together with any other force, a member of the force of that country has the same powers of command over members of that part of the Defence Force as a member of the Defence Force holding the rank in that Force that corresponds with the rank that he holds in the force of the country to which he belongs.

(2) Whenever a part of the Defence Force and a part of the forces of another country to which this subsection applies are acting in combination, either within or beyond the territorial limits of Australia, an officer of the forces of that other country may be appointed by the Governor‑General, by order in writing, to command the combined force, or any part of the combined force, and an officer so appointed:

(a) has, subject to such restrictions and limitations as are specified by the Chief of the Defence Force by order in writing, over members of the Defence Force serving in that combined force or part of that force, the same powers of command and discipline, including the power to impose punishments; and

(b) may be invested by the Governor‑General, by order in writing, with the same power to convene, and confirm the findings and sentences of, courts‑martial;

as if he or she were an officer of the Defence Force holding that appointment and the rank in that Force corresponding with the rank that he or she holds in the force to which he or she belongs.

(3) Where a part of the Defence Force and a part of the forces of a country in relation to which subsection (1) applies are serving together beyond the territorial limits of Australia, the officer in command of that part of the Defence Force, or an officer authorized in writing by the Chief of the Defence Force or a service chief for the purposes of this subsection, may request the appropriate service authority of that country to direct, by general or special orders, members of the forces of that country to arrest any member of that part of the Defence Force who is alleged to have committed, or is reasonably suspected of having committed, an offence punishable under Australian service law and to deliver him into the custody of such service authority of the Defence Force as is designated by or under the orders.

(4) A member of the Defence Force arrested and held in custody in pursuance of subsection (3) shall be deemed to have been arrested and held in custody in accordance with Australian service law.

(5) The Governor‑General may declare that specified parts of the Defence Force and specified parts of the forces of specified countries are to be taken for the purposes of this section to be serving together or acting in combination.

(5A) The Governor‑General may declare that, whenever specified parts of the Defence Force and specified parts of the forces of specified countries are in fact serving together or acting in combination, the forces are to be taken for the purposes of this section to be serving together or acting in combination.

(5B) A declaration under subsection (5) or (5A) has effect accordingly. Except as provided in such a declaration, forces are not taken for the purposes of this section to be serving together or acting in combination.

(5C) A declaration under subsection (5) or (5A) must be in writing.

(6) In this section, Australian service law means the law (including any instrument having the force of law) governing the Defence Force or a part of the Defence Force.

116D Corresponding ranks

(1) For the purposes of this division, the Chief of the Defence Force may, by order in writing, determine the ranks in the several parts of the Defence Force that are to be regarded as corresponding with specified ranks in the forces of any other specified country.

(2) Where, in the course of preparing an order under subsection (1) in relation to a country, the Chief of the Defence Force determines that there is no rank in a part of the Defence Force that can reasonably be regarded as corresponding with a particular rank in the forces of that country, he may specify in the order, for the purposes of this Division or any specified provision of this Division and either generally or for any other specified purposes:

(a) a rank in that part of the Defence Force that is to be regarded as corresponding with that particular rank; or

(b) the relationship that is to be regarded as existing between a member of those forces holding that particular rank and the members of that part of the Defence Force.

(3) References in this section to ranks shall be read as including references to ratings in naval forces and, generally, as not restr