An Act to provide for the Protection of Special Defence Undertakings
1 Short title [see Note 1]
This Act may be cited as the Defence (Special Undertakings) Act 1952.
2 Commencement [see Note 1]
This Act shall come into operation on the day on which it receives the Royal Assent.
2A Purposes of Act
The purposes of this Act are:
(a) to provide for the protection by the Commonwealth of works and undertakings that are carried out for or in relation to:
(i) the defence of Australia; or
(ii) the defence of Australia and the defence of another country; and
(b) to provide for the protection by the Commonwealth of areas that are reserved for:
(i) the defence of Australia; or
(ii) the defence of Australia and the defence of another country; and
(c) to provide for the protection by the Commonwealth of works, undertakings and areas that require special security measures; and
(d) to provide for the protection by the Commonwealth of works, undertakings and areas in order to enable Australia to fulfil its obligations under treaties, conventions and international agreements relating to defence or security.
3 Application
This Act applies both within and without the Commonwealth and to all the Territories.
4 Interpretation
In this Act, unless the contrary intention appears:
Australia includes all the Territories.
Commonwealth officer means a person holding office under, or employed by, the Commonwealth and includes:
(a) a person appointed or engaged under the Public Service Act 1999;
(b) a person permanently or temporarily employed or serving in the Public Service of a Territory, or in, or in connection with, the Defence Force, or in the service of an authority or body constituted by or under an Act.
constable includes a member or special member of the Australian Federal Police or a member of the police force of a State or Territory.
prohibited area means a place, or an area, that is a prohibited area under section 7, 8 or 8A.
restricted area means an area that is a restricted area under section 14.
special defence undertaking means a work or undertaking that is a special defence undertaking under section 6 or 8A.
5 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.
6 Special defence undertakings
A work or undertaking which:
(a) is being carried out, or is to be carried out, whether within or without Australia, for or in relation to the defence of Australia, or in part for or in relation to the defence of Australia and in part for or in relation to the defence of some other part of the Queen’s dominions or of some other country associated with Australia in resisting or preparing to resist international aggression; and
(b) is declared by the Minister, by notice in the Gazette, to be a special defence undertaking;
is a special defence undertaking.
7 Prohibited areas
(1) A place (whether or not it belongs to or is used for the purposes of the Queen, the Commonwealth or a State) used or occupied for the purposes of a special defence undertaking is a prohibited area.
(2) Subsection (1) does not apply to:
(a) a railway, tramway, roadway, wharf, pier or jetty, or a work or structure which is part of or connected with a means of transport by land, water or air;
(b) the area on which is erected or situated a searchlight, lighthouse, buoy or other navigational aid;
(c) a public building, fire station, aerodrome, air station or runway for aircraft;
(d) a signal, telegraph, telephone, radar or wireless station or office; or
(e) a place used for gas, water or electricity works or other works for purposes of a public character;
unless it is used or occupied exclusively for the purposes of a special defence undertaking.
8 Minister may declare prohibited areas
If it is necessary for the purposes of the defence of the Commonwealth so to do, the Minister may, by notice published in the Gazette, declare an area of land or water or an area of land and water (whether or not it belongs to or is used for the purposes of the Queen, the Commonwealth or a State) to be a prohibited area.
8A Joint Defence Facility Pine Gap
Prohibited area
(1) The whole of the area (the JDFPG area) described in Certificate of Title Volume 321 Folio 075 being NT Portion 4130 from Plan LT091/006 is a prohibited area.
Special defence undertaking
(2) A work or undertaking that is carried out at the JDFPG area is a special defence undertaking.
9 Unlawful entry etc.
(1) A person is guilty of an offence if:
(a) the person is in, enters or flies over an area; and
(b) the area is a prohibited area.
Maximum penalty: Imprisonment for 7 years.
(1A) Subsection (1) does not apply if the person holds a permit under section 11 in respect of the prohibited area.
Note: The defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3) of the Criminal Code.
(1B) If a permit under section 11 has been issued to the master of a ship or the pilot of an aircraft for the purpose of enabling the ship or aircraft to enter, pass through or be over a prohibited area, a person lawfully on board the ship or aircraft does not commit an offence under subsection (1) by reason only of his or her presence on board the ship or aircraft.
Note: The defendant bears an evidential burden in relation to the matter in subsection (1B). See subsection 13.3(3) of the Criminal Code.
(2) A person is guilty of an offence if:
(a) the person:
(i) makes a photograph, sketch, plan, model, article, note or other document of, or relating to, an area or anything in an area; or
(ii) obtains, collects, records, uses, has in his or her possession, publishes or communicates to some other person a photograph, sketch, plan, model, article, note or other document or information relating to, or used in, an area, or relating to anything in an area; and
(b) the area is a prohibited area.
Maximum penalty: Imprisonment for 7 years.
(3) Subsection (2) does not apply if the person has lawful authority or excuse for the relevant conduct.
Note: The defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3) of the Criminal Code.
10 Officer in charge
The Minister may, in writing, appoint a person to be the officer in charge of a prohibited area.
11 Permits
(1) The Minister, the officer in charge of a prohibited area, or some other person appointed by the Minister for the purpose, may, in writing, issue a permit authorizing a person to be in, enter or fly over a prohibited area.
(2) A permit under this section may be issued subject to such conditions and restrictions as are specified in the permit.
(3) A person authorized to issue a permit under this section may suspend a permit issued under this section and may revoke the suspension.
(4) A person is guilty of an offence if the person:
(a) holds a permit under this section; and
(b) does not comply with the conditions and restrictions specified in the permit.
Maximum penalty: Imprisonment for 7 years.
(5) A person is guilty of an offence if:
(a) the person holds a permit under this section; and
(b) the permit is revoked or suspended; and
(c) the person does not immediately deliver it to the officer in charge of the prohibited area or to a person specified by the person revoking or suspending the permit.
Maximum penalty: Imprisonment for 2 years.
12 Compliance with directions of officer in charge
A person is guilty of an offence if the person:
(a) holds a permit under section 11; and
(b) enters or is in a prohibited area; and
(c) is given a direction by the officer in charge of the prohibited area for regulating his or her conduct in the prohibited area; and
(d) does not comply with the direction.
Maximum penalty: Imprisonment for 2 years.
13 Sabotage
(1) A person is guilty of an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to, the destruction of, obstruction of or interference with any of the things listed in subsection (2); and
(c) the person intends to bring about that result; and
(d) the thing is used or occupied either wholly or in part for the purposes of a special defence undertaking.
Maximum penalty: Imprisonment for 7 years.
(2) The following are the listed things:
(a) a railway, tramway, roadway, wharf, pier or jetty, or a work or structure which is part of or connected with a means of transport by land, water or air;
(b) a searchlight, lighthouse, buoy or other navigational aid;
(c) a public building, fire station, aerodrome, air station or runway for aircraft;
(d) a signal, telegraph, telephone, radar or wireless station or office;
(e) a place used for gas, water or electricity works or other works for purposes of a public character.
14 Restricted areas
(1) If it is necessary so to do for the protection of a special defence undertaking, the Minister may, by notice published in the Gazette, declare an area of land or water or an area of land and water to be a restricted area.
(2) Where an area is declared to be a restricted area, the Minister may, by order published in the Gazette:
(a) prohibit the flight over that area of persons or aircraft, or of the persons or aircraft included in a class of persons or aircraft specified in the order;
(b) impose conditions and restrictions subject to which flight over that area by persons or aircraft, or by the persons or aircraft included in a class of persons or aircraft specified in the order, is permitted; and
(c) prohibit, or impose conditions in respect of, the possession, carriage and use of cameras and other photographic apparatus and material by persons within, or about to fly over, a restricted area.
(3) A person is guilty of an offence if:
(a) an order under this section applies to the person; and
(b) the person contravenes or fails to comply with the order.
Maximum penalty for a contravention of this subsection: Imprisonment for 2 years.
15 Orders
(1) Orders made under section 14 are legislative instruments for the purposes of the Legislative Instruments Act 2003.
(4) An order made under section 14 takes effect on the date on which the order is published in the Gazette or on such later date as is specified in the order.
16 Procedure in emergency
The pilot of an aircraft is guilty of an offence if the pilot:
(a) is over a prohibited area or a restricted area; and
(b) knows of that fact; and
(c) does not have lawful authority to be there; and
(d) does not:
(i) immediately cause the aircraft to be flown outside the area; and
(ii) as soon as possible, report the circumstances to the nearest air traffic control centre established under the Air Navigation Regulations; and
(iii) cause the aircraft to land at such place as is designated by the air traffic control centre and, for that purpose, obey any instructions given by the air traffic control centre as to the movement of that aircraft.
Maximum penalty: Imprisonment for 2 years.
17 Use of cameras etc.
(1) A person is guilty of an offence if:
(a) the person is in or is passing over a prohibited area; and
(b) the person has in his or her possession, carries or uses a camera or other photographic apparatus or material.
Maximum penalty: Imprisonment for 2 years.
(2) Subsection (1) does not apply if the person does have the authority of the officer in charge of the prohibited area for the conduct mentioned in paragraph (1)(b).
Note: The defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal Code.
18 Sea and air traffic
Where a permit under section 11 has been issued to the master of a ship or the pilot of an aircraft for the purpose of enabling the ship or aircraft to enter, pass through or be over a prohibited area, a person lawfully on board the ship or aircraft does not commit an offence against section 9 by reason only of his or her presence on board the ship or aircraft.
19 Suspension etc. of licences and certificates
Where a person is convicted of an offence against this Act, the Secretary of the Department administered by the Minister administering the Air Navigation Act 1920 may suspend or cancel any licence or certificate issued to that person under or by virtue of the Air Navigation Regulations and, upon a licence or certificate being so suspended or cancelled, the same consequences follow as if the suspension or cancellation had been made under or by virtue of those Regulations.
20 Search of persons in or entering prohibited areas
(1) A Commonwealth officer acting in the course of his or her duty or employment, or a constable, may, without warrant, detain for the purpose of search, and search, a person in the neighbourhood of, entering, seeking to enter, being within, leaving or seeking to leave a prohibited area, and any bag or other article in the possession of the person.
(2) A person conducting a search pursuant to subsection (1) may seize anything which appears to that person to have been made, obtained, collected, recorded, possessed or used in contravention of this Act or which that person has reasonable ground for believing to be evidence of an offence against this Act.
(3) A female shall not be searched under this section except by a female.
21 Search and detention of aircraft
If it appears to a Commonwealth officer acting in the course of his or her duty or employment, or to a constable, that an aircraft is intended or is likely to be flown in contravention of this Act or of an order under section 14, the officer or constable may enter, search and detain the aircraft and may remove or direct the removal of the aircraft, or any part of it, for the purposes of ensuring its detention or preservation.
22 Power to arrest
A person who is found committing an offence against this Act, or is reasonably suspected of having committed, or of having attempted to commit or of being about to commit, such an offence, may be arrested without warrant by a constable or person in the same manner as a person who is found committing a felony may, at common law, be arrested by a constable or person.
23 Arrest of suspected persons
(1) A person who is in, or in the neighbourhood of, a prohibited area and is reasonably suspected of having committed, having attempted to commit or of being about to commit an offence against this Act may be apprehended, without warrant, by or under the direction of the officer in charge of the prohibited area, a Commonwealth officer, a constable or a person authorized by the Minister to act under this section and may be removed from, or from the neighbourhood of, the prohibited area and given into the custody of a constable to be dealt with according to law.
(2) A person is guilty of an offence if:
(a) the person is in, or in the neighbourhood of, a prohibited area; and
(b) the person is required by the officer in charge of the prohibited area or by a Commonwealth officer or a constable to give his or her name and address to the officer or constable; and
(c) the person does not do so.
Maximum penalty: Imprisonment for 2 years.
25 Forfeiture of articles etc.
A photograph, sketch, plan, model, article, note or other document which is made, obtained, collected, recorded, possessed or otherwise dealt with in contravention of this Act is forfeited to the Commonwealth.
26 No action against Commonwealth
No action lies against the Commonwealth, a State, a Commonwealth officer, a constable or any other person acting in accordance with this Act in respect of an arrest, apprehension, detention, search, seizure or act in pursuance of this Act, but, if the Governor‑General is satisfied that an arrest, apprehension, detention, search, seizure or act was made or done without reasonable cause, he or she may award reasonable compensation in respect of it.
27 Application of Approved Defence Projects Protection Act
The Approved Defence Projects Protection Act 1947 applies to and in relation to a special defence undertaking as if that undertaking were an approved defence project within the meaning of that Act.
28 Prosecution of offences
(1) A prosecution under this Act or the regulations shall be instituted only by or with the consent of the Attorney‑General or of a person acting under his or her direction.
(2) A person charged with an offence against this Act or the regulations may be arrested, or a warrant for his or her arrest may be issued and executed, and he or she may be remanded in custody or on bail, notwithstanding that the consent of the Attorney‑General or of a person acting under his or her direction has not been obtained, but no further proceedings shall be taken until that consent has been obtained.
(3) Nothing in this section prevents the discharge of a person charged if proceedings are not continued within a reasonable time.
29 Punishment of offences
(1) An offence against this Act is an indictable offence and, subject to subsections (2) and (3), is punishable on conviction by a penalty not exceeding the penalty provided by this Act in respect of the offence.
(2) Notwithstanding that an offence against this Act is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and prosecutor consent.
(3) Where, in accordance with subsection (2), a court of summary jurisdiction convicts a person of an offence against this Act, the penalty that the court may impose is a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months, or both.
31 Hearing in camera etc.
(1) At any time before or during the hearing of proceedings in respect of an offence against this Act or the regulations, the judge, magistrate or other person presiding or competent to preside over the proceedings may, if satisfied that such a course is expedient in the interests of the defence of the Commonwealth:
(a) order that some or all of the members of the public shall be excluded during the whole or a part of the proceedings;
(b) order that no report of the whole or a specified part of the proceedings shall be published; or
(c) make such other order and give such directions as he or she thinks necessary for ensuring that an affidavit, exhibit, information or other document used in the proceedings does not remain on the file in the court or in the records of the court after the hearing of the proceedings has been completed.
(2) A person is guilty of an offence if:
(a) an order is made or a direction is given under this section; and
(b) the person contravenes or fails to comply with the order or direction.
Maximum penalty: Imprisonment for 5 years.
32 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and in particular for prescribing penalties for offences against the regulations, but so that no prescribed period of imprisonment shall exceed 6 months and no prescribed pecuniary penalty shall exceed $400.
