Federal Register of Legislation - Australian Government

Primary content

Defence Act 1903

  • - C2005C00217
  • In force - Superseded Version
  • View Series
Act No. 20 of 1903 as amended, taking into account amendments up to Act No. 26 of 2005
An Act to provide for the Naval and Military Defence and Protection of the Commonwealth and of the several States
Administered by: Attorney-General's; Defence; Veterans' Affairs; DEWR; Prime Minister and Cabinet
Registered 29 Mar 2005
Start Date 21 Mar 2005
End Date 05 Oct 2005
Table of contents.
Skip Navigation Links.
Collapse TextText
Part I—Introductory
1 Short title [see Note 1]
3 Commencement of Act [see Note 1]
4 Interpretation [see Note 2]
5 Application of Act
5A Extension of Act to Territories
6 Application of the Criminal Code
7 Act does not appropriate money
Part II—Administration
8 Powers of Minister in relation to Defence Force
9 Command of Defence Force and arms of Defence Force
9A Administration of Defence Force
9AA Vice Chief of the Defence Force
9B Remuneration and allowances
9BA Tenure of office
9C Acting appointments
28 Council of Defence
Part III—The Defence Force
Division 1—Constitution of the Defence Force
30 Defence Force
31 Australian Army
32 Regular Army
32A Army Reserve
32B Attachment etc. of members of an arm of the Defence Force to another arm
Division 2—The raising of the Army
34 Voluntary entry
Division 3—The service of the Army
45 Service of the Regular Army
50 Service of the Army Reserve
50C Territorial limits of service of Army
Division 4—The calling out of the Forces
50D Calling out the Reserves
50E Period of service during call out
Part IIIAAA—Utilisation of Defence Force to protect Commonwealth interests, and States and self‑governing Territories, against domestic violence
Division 1—Calling out and directing utilisation of Defence Force
51 Interpretation
51A Order about utilising Defence Force to protect Commonwealth interests against domestic violence
51B Order about utilising Defence Force to protect State against domestic violence
51C Order about utilising Defence Force to protect self‑governing Territory against domestic violence
51D Chief of Defence Force to utilise Defence Force as directed
51E Ministerial directions
51F Assistance to, and cooperation with, State etc.
51G Restriction on certain utilisation of Defence Force
Division 2—Powers to recapture buildings and free hostages etc.
51I Special powers of members of the Defence Force
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
51L Authorisation to search premises in the general security area for dangerous things
51M Copy of search authorisation to be given to occupier etc.
51N Occupier etc. entitled to be present during search
51O Search of means of transport in the general security area for dangerous things
51P Search of persons in the general security area for dangerous things
Subdivision C—Powers that may be exercised only in relation to a designated area in the general security area
51Q Declaration of designated area
51R Control of movement in relation to a designated area in the general security area
51S Members to wear uniforms and identification when exercising powers
Division 4—Provisions common to Divisions 2 and 3
Subdivision A—Use of reasonable and necessary force
51T Use of reasonable and necessary force
51U Persons to be informed of offence if detained
Subdivision B—Action to be taken if dangerous things are seized
51V Action to be taken if dangerous things are seized
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
Division 5—Miscellaneous
51X Publication of order and report
51XA Review of operation of Part
51Y Part additional to other Defence Force utilisation and powers
Part IIIAA—Superannuation benefit
52 Determination of benefit
53 Trustee of scheme providing superannuation benefit
Part IIIA—Remuneration, allowances and other benefits
Division 1—Determinations by the Minister
58A Interpretation
58B Minister may make determinations
58C Tabling, disallowance etc. of determinations
58E Delegation
Division 2—The Defence Force Remuneration Tribunal
58F Interpretation
58G Establishment of D efence Force Remuneration Tribunal
58H Functions and powers of Tribunal
58HA Hearings in relation to discriminatory determinations
58HB Review of discriminatory determinations
58J Reports by Tribunal
58K Procedure of Tribunal
58KA Single member may conduct Tribunal’s business
58KB Procedure where single member is conducting Tribunal’s business
58KC Review of action etc. of single member
58KD Determinations giving effect to agreement between the parties
58L Terms and tenure of office
58M Resignation
58N Termination of appointment
58P Acting appointments
58Q Fees and allowances
Division 3—The Defence Force Advocate
58R Interpretation
58S Defence Force Advocate
58T Functions of Advocate
58U Tenure and terms of office
58V Resignation
58W Termination of appointment
58X Acting Defence Force Advocate
58Y Fees and allowances
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
60 Proclamation calling upon persons to serve in time of war
61 Registration and allotment for service
61A Persons exempt from service
61B Entry into Defence Force for service
61C Part not to apply to certain persons
Division 2—Determination of conscientious belief
61CA Application for determination of conscientious belief
61CB Secretary must refer application
61CC Function of Conscientious Objection Tribunals
61CD Parties to the hearing of an application
61CE Notice of determination to be given to parties
Division 3—Establishment and membership of Conscientious Objection Tribunals
61CF Establishment of Conscientious Objection Tribunals
61CG Period of appointment of members
61CH Remuneration and allowances of members
61CJ Other terms and conditions
61CK Leave of absence
61CL Resignation
61CM Removal from of fice
61CN Member of a Tribunal unavailable to complete proceeding
61CO Acting appointments
Division 4—Procedures of Conscientious Objection Tribunals
61CP Tribunals’ way of operating
61CQ Powers of Tribunals
61CR Procedure of Tribunals
61CS Majority decision
61CT Procedure where opinion of members equally divided
61CU Hearings
61CV Onus of proof
61CW Protection of members and persons giving evidence etc.
61CX Fees for persons giving evidence
61CY Failure of witness to attend
61CZ Refusal to be sworn or to answer questions etc.
61CZA Contempt of Tribunal
Division 5—Reviews and appeals
61CZB Review of determinations of Conscientious Objection Tribunals
61CZC AAT Act to apply subject to modification
61CZD Appeals from AAT
61CZE Operation etc. of decision subject to appeal
Part V—Cadets
62 Australian Army Cadets
Part VI—Special powers in relation to defence
63 General powers for defence purposes [see Note 3]
64 Control of railways in time of war
65 Railways to carry troops etc. when required
66 Conveyance by railway and tramway
67 Registration and impressment of vehicles etc.
68 Billeting and quartering
70 Tolls
Part VII—Offences
73A Unlawfully giving or obtaining information as to defences
73F Penalty
79 Unlawfully disposing of arms etc.
80A Falsely representing to be returned soldier, sailor or airman
80B Improper use of service decorations
82 Sketching etc. of fortifications prohibited
83 Unauthorised use, possession or supply of emblems or flags
84 Penalty for bringing contempt on uniform
Part VIII—Offences in relation to service tribunals
86 Failure of witness to appear
88 False or misleading evidence
89 Contempt of service tribunals etc.
90 Failure to comply with order under section 140 of the Defence Force Discipline Act 1982
Part VIIIA—Testing for prohibited substan ces
Division 1—Preliminary
91 Application of Part
92 Object of Part
93 Definitions
93A Authorised person
93B Determinations about prohibited substances and prohibited substance tests
Division 2—Testing for prohibited substances
94 Requirement to undergo a prohibited substance test
95 Conduct of testing
96 Notice to person required to provide a sample
Division 3—Return of a positive test result
98 Application
100 Notice to be given of a positive test result
101 Termination or discharge
102 Form and date of effect of termination or discharge
103 Reduction in rank
104 Warning if a prohibited substance test returns a positive result
Division 4—Miscellaneous
106 Failure to provide sample
107 Unauthorised acts in relation to sample
108 Finding made as a result of testing not admissible in certain criminal proceedings
109 Defence Instructions
110 Other administrative action not precluded
Part IX—Legal procedure
111 Subscription, arms etc. vested in commanding officer
111A Property of Rifle Club vested in Captain
Part IXA—Provisions relating to the forces of other countries
Division 1—Interpretation
116A Interpretation
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
116C Forces serving together
116D Corresponding ranks
Division 3—Absentees without leave
116E Interpretation
116F Apprehension of absentees without leave
116G Detention of illegal absentee
116H Disposal of person in custody
116J Evidence for the purposes of this Division
116K Proof of facts by certificate
Division 4—Miscellaneous
116M Delegation
116N Orders
Part IXB—Public areas of defence land
116P Interpretation
116Q Public areas of defence land
116S Appointment of rangers
116T Rangers ex officio
116U Identity cards
116V Powers of arrest
116W General powers of rangers
116X Seizure and forfeiture
116Y Assaulting etc. rangers
116ZA Officers and employees of governments and authorities
116ZB Prosecution of offences
116ZC Concurrent operation of State and Territory laws
116ZD By‑laws
Part IXC—Salvage claims
117 Interpretation
117A Salvage claims by crew of Naval ships
117AA Apportionment of salvage between the Commonwealth and crew members
117AB Apportionment of salvage amongst crew members
Part X—Miscellaneous
117B Members and former members may bring actions for money due in respect of service
118 Penalty against raising forces without authority
118A Employer not to prevent employee from serving
118B Enlistment of apprentices in time of war
119 Forfeiture or suspension of salary in certain circumstances
120 Notice etc. need not be in writing unless required herein
120A Delegation
120B Attachment of salaries of members
121 Proof of order
122 Appointments etc. not invalid because of defect etc. in connection with appointment
122AA Taxation consequences of disposals of assets to defence companies
122A Immunity of Australian Defence Industries Pty Ltd from certain State and Territory laws
123 Immunity from certain State and Territory laws
123A Intoxicating liquor
123AA Intoxicating liquor not to be supplied to cadets
123B Religion
123F Certain persons not permitted to serve in Defence Force
123G Orders in relation to rifle ranges
Part XI—Regulations
124 Regulations [see Note 3]
Division 1—Interpretation
4 Interpretation
Division 2—Treatment of complaints lodged before starting day
Subdivision A—Treatment of complaint depends on the stage it has reached
5 Purported complaint lodged but no decision as to whether it is a complaint
6 Administrative appeal on Commission’s decision as to whether complaint
7 Complaint lodged but Commissioner not notified of it
8 Commissioner notified of complaint but had not decided to dismiss or refer it
9 Commissioner decided to dismiss complaint
10 Presidential review of Commissioner’s decision to dismiss complaint
11 Administrative review of President’s decision
12 Complaint referred to Commission but inquiry not started
13 Inquiry started
Subdivision B—Other rules about complaints lodged before starting day
14 Notice of termination
15 Work done by Commissioner is taken to have been done by President
16 Special rules apply to proceedings to enforce a determination
Division 3—Other transitional and application provisions
17 Protection from civil actions
18 Referrals under the old SDA
19 Inquiries started by Human Rights Commissioner
20 When a person cannot lodge a complaint under the new HREOCA
21 Regulations
22 Transitional—powers of a Secretary
4 Application of amendments
4 Application of family law interest‑splitting amendments

Defence Act 1903

Act No. 20 of 1903 as amended

This compilation was prepared on 29 March 2005
taking into account amendments up to Act No. 26 of 2005

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra

  

  

  


Contents

Part I—Introductory                                                                                                              1

1............ Short title [see Note 1]....................................................................... 1

3............ Commencement of Act [see Note 1].................................................. 1

4............ Interpretation [see Note 2]................................................................. 1

5............ Application of Act............................................................................. 4

5A......... Extension of Act to Territories........................................................... 4

6............ Application of the Criminal Code...................................................... 4

7............ Act does not appropriate money....................................................... 4

Part II—Administration                                                                                                       5

8............ Powers of Minister in relation to Defence Force............................... 5

9............ Command of Defence Force and arms of Defence Force.................... 5

9A......... Administration of Defence Force....................................................... 6

9AA...... Vice Chief of the Defence Force......................................................... 7

9B......... Remuneration and allowances............................................................. 7

9BA...... Tenure of office.................................................................................. 7

9C......... Acting appointments.......................................................................... 8

28.......... Council of Defence............................................................................. 8

Part III—The Defence Force                                                                                           9

Division 1—Constitution of the Defence Force                                             9

30.......... Defence Force..................................................................................... 9

31.......... Australian Army................................................................................. 9

32.......... Regular Army..................................................................................... 9

32A....... Army Reserve..................................................................................... 9

32B....... Attachment etc. of members of an arm of the Defence Force to another arm         10

Division 2—The raising of the Army                                                                  11

34.......... Voluntary entry................................................................................ 11

Division 3—The service of the Army                                                                12

45.......... Service of the Regular Army............................................................. 12

50.......... Service of the Army Reserve............................................................ 12

50C....... Territorial limits of service of Army................................................ 13

Division 4—The calling out of the Forces                                                       14

50D....... Calling out the Reserves................................................................... 14

50E........ Period of service during call out........................................................ 15

Part IIIAAA—Utilisation of Defence Force to protect Commonwealth interests, and States and self-governing Territories, against domestic violence                  17

Division 1—Calling out and directing utilisation of Defence Force   17

51.......... Interpretation.................................................................................... 17

51A....... Order about utilising Defence Force to protect Commonwealth interests against domestic violence     19

51B....... Order about utilising Defence Force to protect State against domestic violence     21

51C....... Order about utilising Defence Force to protect self-governing Territory against domestic violence       23

51D....... Chief of Defence Force to utilise Defence Force as directed............ 25

51E........ Ministerial directions........................................................................ 25

51F........ Assistance to, and cooperation with, State etc................................. 26

51G....... Restriction on certain utilisation of Defence Force.......................... 26

Division 2—Powers to recapture buildings and free hostages etc.   27

51H....... Application of this Division and Division 4.................................... 27

51I......... Special powers of members of the Defence Force............................ 27

Division 3—General security area powers                                                      29

Subdivision A—Application of this Division and Division 4                              29

51J........ Application of this Division and Division 4.................................... 29

Subdivision B—Powers that may be exercised anywhere in a general security area         29

51K....... Declaration of general security area.................................................. 29

51L........ Authorisation to search premises in the general security area for dangerous things                30

51M...... Copy of search authorisation to be given to occupier etc................ 31

51N....... Occupier etc. entitled to be present during search............................ 32

51O....... Search of means of transport in the general security area for dangerous things       32

51P........ Search of persons in the general security area for dangerous things. 33

Subdivision C—Powers that may be exercised only in relation to a designated area in the general security area      33

51Q....... Declaration of designated area.......................................................... 33

51R....... Control of movement in relation to a designated area in the general security area   34

51S........ Members to wear uniforms and identification when exercising powers  36

Division 4—Provisions common to Divisions 2 and 3                              37

Subdivision A—Use of reasonable and necessary force                                     37

51T....... Use of reasonable and necessary force............................................. 37

51U....... Persons to be informed of offence if detained.................................. 37

Subdivision B—Action to be taken if dangerous things are seized                 38

51V....... Action to be taken if dangerous things are seized............................. 38

Subdivision C—Members not entitled to exercise powers if obligations not complied with              39

51W...... Members not entitled to exercise powers if obligations not complied with            39

Division 5—Miscellaneous                                                                                      40

51X....... Publication of order and report......................................................... 40

51XA.... Review of operation of Part............................................................. 41

51Y....... Part additional to other Defence Force utilisation and powers........ 43

Part IIIAA—Superannuation benefit                                                                         44

52.......... Determination of benefit................................................................... 44

53.......... Trustee of scheme providing superannuation benefit....................... 45

Part IIIA—Remuneration, allowances and other benefits                            46

Division 1—Determinations by the Minister                                                 46

58A....... Interpretation.................................................................................... 46

58B....... Minister may make determinations.................................................. 46

58C....... Tabling, disallowance etc. of determinations.................................... 49

58E........ Delegation......................................................................................... 50

Division 2—The Defence Force Remuneration Tribunal                       51

58F........ Interpretation.................................................................................... 51

58G....... Establishment of Defence Force Remuneration Tribunal................. 52

58H....... Functions and powers of Tribunal................................................... 53

58HA.... Hearings in relation to discriminatory determinations...................... 55

58HB.... Review of discriminatory determinations......................................... 56

58J........ Reports by Tribunal......................................................................... 56

58K....... Procedure of Tribunal....................................................................... 57

58KA.... Single member may conduct Tribunal’s business............................. 58

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

58KC.... Review of action etc. of single member............................................ 59

58KD.... Determinations giving effect to agreement between the parties....... 60

58L........ Terms and tenure of office................................................................ 60

58M...... Resignation....................................................................................... 61

58N....... Termination of appointment............................................................ 61

58P........ Acting appointments........................................................................ 61

58Q....... Fees and allowances.......................................................................... 62

Division 3—The Defence Force Advocate                                                     63

58R....... Interpretation.................................................................................... 63

58S........ Defence Force Advocate................................................................... 63

58T....... Functions of Advocate..................................................................... 63

58U....... Tenure and terms of office................................................................ 64

58V....... Resignation....................................................................................... 64

58W...... Termination of appointment............................................................ 64

58X....... Acting Defence Force Advocate....................................................... 64

58Y....... Fees and allowances.......................................................................... 65

Part IV—Liability to serve in the Defence Force in time of war               66

Division 1—Liability to serve                                                                                66

59.......... Persons liable to serve in Defence Force in time of war................... 66

60.......... Proclamation calling upon persons to serve in time of war.............. 66

61.......... Registration and allotment for service.............................................. 66

61A....... Persons exempt from service............................................................ 67

61B....... Entry into Defence Force for service................................................ 68

61C....... Part not to apply to certain persons................................................ 68

Division 2—Determination of conscientious belief                                    69

61CA.... Application for determination of conscientious belief..................... 69

61CB..... Secretary must refer application....................................................... 69

61CC..... Function of Conscientious Objection Tribunals............................... 69

61CD.... Parties to the hearing of an application............................................ 69

61CE..... Notice of determination to be given to parties................................. 70

Division 3—Establishment and membership of Conscientious Objection Tribunals     71

61CF..... Establishment of Conscientious Objection Tribunals...................... 71

61CG.... Period of appointment of members.................................................. 71

61CH.... Remuneration and allowances of members....................................... 71

61CJ...... Other terms and conditions.............................................................. 72

61CK.... Leave of absence............................................................................... 72

61CL..... Resignation....................................................................................... 72

61CM... Removal from office......................................................................... 72

61CN.... Member of a Tribunal unavailable to complete proceeding.............. 72

61CO.... Acting appointments........................................................................ 73

Division 4—Procedures of Conscientious Objection Tribunals          75

61CP..... Tribunals’ way of operating............................................................. 75

61CQ.... Powers of Tribunals......................................................................... 75

61CR..... Procedure of Tribunals..................................................................... 75

61CS..... Majority decision............................................................................. 76

61CT..... Procedure where opinion of members equally divided..................... 76

61CU.... Hearings............................................................................................ 76

61CV..... Onus of proof................................................................................... 76

61CW.... Protection of members and persons giving evidence etc................... 77

61CX.... Fees for persons giving evidence...................................................... 77

61CY..... Failure of witness to attend.............................................................. 77

61CZ..... Refusal to be sworn or to answer questions etc............................... 78

61CZA.. Contempt of Tribunal....................................................................... 79

Division 5—Reviews and appeals                                                                        80

61CZB.. Review of determinations of Conscientious Objection Tribunals.... 80

61CZC.. AAT Act to apply subject to modification...................................... 80

61CZD.. Appeals from AAT.......................................................................... 80

61CZE.. Operation etc. of decision subject to appeal.................................... 81

Part V—Cadets                                                                                                                      83

62.......... Australian Army Cadets................................................................... 83

Part VI—Special powers in relation to defence                                                   85

63.......... General powers for defence purposes [see Note 3]......................... 85

64.......... Control of railways in time of war................................................... 85

65.......... Railways to carry troops etc. when required................................... 85

66.......... Conveyance by railway and tramway.............................................. 85

67.......... Registration and impressment of vehicles etc................................... 86

68.......... Billeting and quartering..................................................................... 86

70.......... Tolls.................................................................................................. 86

Part VII—Offences                                                                                                              87

73A....... Unlawfully giving or obtaining information as to defences.............. 87

73F........ Penalty.............................................................................................. 87

79.......... Unlawfully disposing of arms etc..................................................... 88

80A....... Falsely representing to be returned soldier, sailor or airman............ 89

80B....... Improper use of service decorations................................................. 89

82.......... Sketching etc. of fortifications prohibited........................................ 90

83.......... Unauthorised use, possession or supply of emblems or flags......... 92

84.......... Penalty for bringing contempt on uniform....................................... 93

Part VIII—Offences in relation to service tribunals                                         94

86.......... Failure of witness to appear............................................................. 94

88.......... False or misleading evidence............................................................. 94

89.......... Contempt of service tribunals etc..................................................... 94

90.......... Failure to comply with order under section 140 of the Defence Force Discipline Act 1982   95

Part VIIIA—Testing for prohibited substances                                                   96

Division 1—Preliminary                                                                                            96

91.......... Application of Part........................................................................... 96

92.......... Object of Part................................................................................... 96

93.......... Definitions........................................................................................ 96

93A....... Authorised person............................................................................ 98

93B....... Determinations about prohibited substances and prohibited substance tests         98

Division 2—Testing for prohibited substances                                            99

94.......... Requirement to undergo a prohibited substance test........................ 99

95.......... Conduct of testing............................................................................ 99

96.......... Notice to person required to provide a sample................................ 99

Division 3—Return of a positive test result                                                 100

98.......... Application..................................................................................... 100

100........ Notice to be given of a positive test result..................................... 100

101........ Termination or discharge................................................................ 101

102........ Form and date of effect of termination or discharge....................... 102

103........ Reduction in rank............................................................................ 103

104........ Warning if a prohibited substance test returns a positive result.... 103

Division 4—Miscellaneous                                                                                    105

106........ Failure to provide sample............................................................... 105

107........ Unauthorised acts in relation to sample......................................... 105

108........ Finding made as a result of testing not admissible in certain criminal proceedings  105

109........ Defence Instructions....................................................................... 106

110........ Other administrative action not precluded..................................... 107

Part IX—Legal procedure                                                                                              108

111........ Subscription, arms etc. vested in commanding officer.................... 108

111A..... Property of Rifle Club vested in Captain....................................... 108

Part IXA—Provisions relating to the forces of other countries                109

Division 1—Interpretation                                                                                     109

116A..... Interpretation.................................................................................. 109

Division 2—Attachment of personnel and mutual powers of command 110

116B..... Attachment to the Defence Force of members of the forces of another country and vice versa             110

116C..... Forces serving together................................................................... 111

116D..... Corresponding ranks....................................................................... 113

Division 3—Absentees without leave                                                              114

116E...... Interpretation.................................................................................. 114

116F...... Apprehension of absentees without leave...................................... 114

116G..... Detention of illegal absentee........................................................... 114

116H..... Disposal of person in custody....................................................... 115

116J...... Evidence for the purposes of this Division.................................... 116

116K..... Proof of facts by certificate............................................................ 116

Division 4—Miscellaneous                                                                                    118

116M.... Delegation....................................................................................... 118

116N..... Orders............................................................................................. 119

Part IXB—Public areas of defence land                                                                120

116P...... Interpretation.................................................................................. 120

116Q..... Public areas of defence land............................................................ 120

116R..... Delegation....................................................................................... 120

116S...... Appointment of rangers................................................................. 121

116T..... Rangers ex officio............................................................................ 121

116U..... Identity cards.................................................................................. 121

116V..... Powers of arrest.............................................................................. 121

116W.... General powers of rangers.............................................................. 122

116X..... Seizure and forfeiture...................................................................... 123

116Y..... Assaulting etc. rangers.................................................................... 124

116ZA.. Officers and employees of governments and authorities................ 124

116ZB... Prosecution of offences.................................................................. 124

116ZC... Concurrent operation of State and Territory laws......................... 125

116ZD.. By-laws.......................................................................................... 125

Part IXC—Salvage claims                                                                                             128

117........ Interpretation.................................................................................. 128

117A..... Salvage claims by crew of Naval ships........................................... 129

117AA.. Apportionment of salvage between the Commonwealth and crew members          130

117AB.. Apportionment of salvage amongst crew members........................ 131

Part X—Miscellaneous                                                                                                    132

117B..... Members and former members may bring actions for money due in respect of service          132

118........ Penalty against raising forces without authority............................ 132

118A..... Employer not to prevent employee from serving.......................... 132

118B..... Enlistment of apprentices in time of war....................................... 133

119........ Forfeiture or suspension of salary in certain circumstances........... 133

120........ Notice etc. need not be in writing unless required herein............... 133

120A..... Delegation....................................................................................... 134

120B..... Attachment of salaries of members................................................ 136

121........ Proof of order................................................................................. 140

122........ Appointments etc. not invalid because of defect etc. in connection with appointment          141

122AA.. Taxation consequences of disposals of assets to defence companies 141

122A..... Immunity of Australian Defence Industries Pty Ltd from certain State and Territory laws  142

123........ Immunity from certain State and Territory laws............................ 143

123A..... Intoxicating liquor........................................................................... 144

123AA.. Intoxicating liquor not to be supplied to cadets............................. 145

123B..... Religion........................................................................................... 145

123F...... Certain persons not permitted to serve in Defence Force.............. 146

123G..... Orders in relation to rifle ranges..................................................... 146

Part XI—Regulations                                                                                                       148

124........ Regulations [see Note 3]................................................................. 148

Notes                                                                                                                                          155


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

Part IIntroductory

  

1  Short title [see Note 1]

                   This Act may be cited as the Defence Act 1903.

3  Commencement of Act [see Note 1]

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

4  Interpretation [see Note 2]

             (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.

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 SubLieutenant 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 to 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 shall be read as a reference to the Australian Navy;

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

                     (c)  a reference to the Air Force shall be read as a reference to the Australian Air Force;

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

                     (e)  a reference to the Chief of Navy shall be read as a reference to the Chief of Navy appointed under section 9;

                      (f)  a reference to the Chief of Army shall be read as a reference to the Chief of Army appointed under section 9;

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

                     (h)  a reference to a service chief shall 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

                     (c)  is likely to be of a long standing nature.

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 IIAdministration

  

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

                     (c)  may appoint an officer of the Air Force to be Chief of Air Force.

             (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

                     (c)  in the case of the Air Force—Defence Instructions (Air Force).

             (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

             (1)  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;

but an officer appointed to act during a vacancy shall not continue so to act for more than 12 months.

             (2)  Anything done by or in relation to an officer purporting to act under an appointment under subsection (1) is not invalid merely because:

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

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

                     (c)  the appointment had ceased to have effect; or

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

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 IIIThe Defence Force

Division 1Constitution 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 2The 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 3The 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, 51B or 51C.

             (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 4The 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;

                     (c)  defence preparation;

                     (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 IIIAAAUtilisation of Defence Force to protect Commonwealth interests, and States and self-governing Territories, against domestic violence

Division 1Calling out and directing utilisation of Defence Force

51  Interpretation

Definitions

             (1)  In this Part:

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

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.

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.

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).

order means an order under section 51A, 51B or 51C.

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:

                     (c)  requiring the person to remove all of his or her garments; or

                     (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.

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

                     (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)  either Division 2 or Division 3, or both, 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 Governor-General is 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

                     (c)  must state that Division 2 or Division 3, or both, and Division 4 apply in relation to the order; and

                     (d)  must state that the order comes into force when it is made and that, unless it is revoked earlier, it ceases to be in force after a specified period (which must not be more than 20 days).

When order is in force

             (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, or in deciding whether he or she is satisfied as mentioned in subsection (3A), 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.

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

                     (c)  either Division 2 or Division 3, or both, 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 State 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.

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

                     (c)  must state that Division 2 or Division 3, or both, and Division 4 apply in relation to the order; and

                     (d)  must state that the order comes into force when it is made and that, unless it is revoked earlier, it ceases to be in force after a specified period (which must not be more than 20 days).

When order is in force

             (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

                     (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.

             (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

                     (c)  either Division 2 or Division 3, or both, 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 Territory 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.

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

                     (c)  must state that Division 2 or Division 3, or both, and Division 4 apply in relation to the order; and

                     (d)  must state that the order comes into force when it is made and that, unless it is revoked earlier, it ceases to be in force after a specified period (which must not be more than 20 days).

When order is in force

             (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

                     (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.

             (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.

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 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 subsection (2) 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.

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:

                     (a)  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; or

                     (b)  utilise the Reserves unless the Minister, after consulting the Chief of the Defence Force, is satisfied that sufficient numbers of the Permanent Forces are not available.


 

Division 2Powers to recapture buildings and free hostages etc.

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

Recapturing premises etc.

             (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:

                     (a)  recapture premises, a place, a means of transport or other thing (the subject premises etc.); and

                     (b)  in connection with any such recapture, do any one or more of the following:

                              (i)  free any hostage from the subject premises etc.;

                             (ii)  if the member finds in the subject premises etc. a person whom the member believes on reasonable grounds has 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)  evacuate persons found in the subject premises etc. to a place of safety;

                            (iv)  search the subject premises etc. for dangerous things;

                             (v)  seize any dangerous thing found in such a search; and

                     (c)  do anything incidental to anything in paragraph (a) or (b).

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

Ministerial authorisation

             (2)  However, the member must not recapture the subject premises etc., or do any of the things mentioned in paragraphs (1)(b) or (c) in connection with any recapture of the subject premises etc., unless an authorising Minister has in writing authorised the recapture.

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.


 

Division 3General security area powers

Subdivision AApplication of this Division and Division 4

51J  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.

Subdivision BPowers 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

                     (c)  describes the general security area and its boundaries;

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.

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:

                     (c)  there is a dangerous thing on any premises in the general security area; and

                     (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

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

Search not to be impeded

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

Multiple searches

             (3)  This section does not prevent 2 or more areas of the 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 CPowers 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.

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;

                     (c)  direct the person to move from a place in a designated area to another place in the 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:

                     (c)  the power to direct a person not to do either of those things unless the person agrees to a member searching:

                              (i)  in either case—the person; and

                             (ii)  in a paragraph (a) case—the 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 his or her surname and:

                              (i)  numbers; or

                             (ii)  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 4Provisions common to Divisions 2 and 3

Subdivision AUse 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 or 3 or this Division, use such force against persons and things as is reasonable and necessary in the circumstances.

Further restrictions on use of force

             (2)  However, 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.

             (3)  In addition, 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) 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 BAction to be taken if dangerous things are seized

51V  Action to be taken if dangerous things are seized

                   If a member of the Defence Force seizes a dangerous thing under Division 2 or 3, 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 CMembers 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 or 3 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 5Miscellaneous

51X  Publication of order and report

Single order

             (1)  If:

                     (a)  an order under this Part 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:

                     (c)  a copy of:

                              (i)  the order; and

                             (ii)  any declarations of general security areas or 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 this Part 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 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 this Part 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 this Part 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 this Part 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 this Part 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.

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 IIIAASuperannuation benefit

  

52  Determination of benefit

             (1)  The Minister may, by instrument in writing, 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 disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901, but that section applies to determinations as if subparagraph 46A(1)(b)(ii) were omitted and the following subparagraph were substituted:

                            “(ii)  the reference in paragraph (1)(a) to regulations included a reference to other instruments made under section 52 of the Defence Act 1903 and instruments made under section 58B or 58H of that Act;”.

             (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, the Authority established under section 8 of the Defence Force Retirement and Death Benefits Act 1973 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 IIIARemuneration, allowances and other benefits

Division 1Determinations 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)  A determination made under this section may make provision for or in relation to a matter by applying, adopting or incorporating, with or without modification:

                     (a)  the provisions of any Act or of any regulations made under an Act or of any determination made under this section, section 58H of this Act or section 24 of the Public Service Act 1999, as in force at a particular time or as in force from time to time; or

                     (b)  any matter contained in any other instrument or writing as in force or existing at the time when the first-mentioned determination takes effect.

          (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 takes effect:

                     (a)  on the day on which it is made; or

                     (b)  where another day (which may be a day earlier than the day on which it is made) is specified for the purpose in the determination, on the day so specified.

             (5)  A determination shall not be expressed to take effect on a day earlier than the day on which it is made in any case where, if the determination so took effect:

                     (a)  the rights of a person (other than the Commonwealth) existing 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, any provision is made in contravention of this subsection, that provision shall be void and of no effect.

             (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.

             (8)  The Minister shall cause to be published in the Gazette, in respect of each determination, notice of:

                     (a)  the fact that the determination has been made; and

                     (b)  the place or places where copies of the determination can be obtained.

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

58C  Tabling, disallowance etc. of determinations

             (1)  The provisions of section 48 (other than paragraphs (1)(a) and (b) and subsection (2)) and sections 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to determinations as if:

                     (a)  references in those provisions to regulations were references to determinations and references to a regulation were references to a provision of a determination; and

                     (b)  references in those provisions to the repeal of a regulation were references to the revocation of a determination or of a provision of a determination, as the case requires.

             (3)  Determinations shall not be deemed to be statutory rules within the meaning of the Statutory Rules Publication Act 1903.

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 2The Defence Force Remuneration Tribunal

58F  Interpretation

                   In this Division, unless the contrary intention appears:

Commission means the Australian Industrial Relations Commission established by section 8 of the Workplace Relations Act 1996.

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

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.

presidential member of the Commission means the President of the Commission or the Vice President, a Senior Deputy President or a Deputy President of the Commission appointed under section 9 of the Industrial Relations Act 1988.

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;

                     (c)  in respect of particular skills or qualifications possessed by the member; or

                     (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 presidential member of the Commission.

             (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 Human Rights and Equal Opportunity 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 Human Rights and Equal Opportunity 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 Human Rights and Equal Opportunity 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 any decision of, or principles established by, the Commission that is or are, in the opinion of the Tribunal, relevant to the making of that 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 any decision of, or principles established by, the Commission that is or are, in the opinion of the single member, relevant to the making of that determination.

             (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

                     (c)  in the case of the President, he or she ceases to be a presidential member of the Commission.

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.

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;

but a person appointed to act during a vacancy shall not continue so to act for more than 12 months.

             (2)  While a person is acting as President or as a member of the Tribunal other than the President, the person has and may exercise all the powers, and shall perform all the functions, of the President or that member, as the case may be.

             (3)  An appointment of a person under subsection (1) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.

             (4)  The Minister may:

                     (a)  determine the terms and conditions of appointment, including fees and allowances, of a person acting as a member of the Tribunal; and

                     (b)  terminate such an appointment at any time.

             (5)  Where a person is acting as a member of the Tribunal in accordance with paragraph (1)(b) and that office becomes vacant while that person is so acting, then, subject to subsection (3), that person may continue so to act until the Minister otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurred expires, whichever first happens.

             (6)  The appointment of a person to act as a member of the Tribunal ceases to have effect if the person resigns his or her appointment by writing signed by him or her and delivered to the Minister.

             (7)  The validity of anything done by a person purporting to act under this section shall not be called in question on the ground that the occasion for his or her appointment had not arisen, that there was a defect or irregularity in or in connection with his or her appointment, that the appointment had ceased to have effect or that the occasion for the person to act had not arisen or had ceased.

             (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 3The 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

                     (c)  to represent the Defence Force in proceedings before the Tribunal.

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

             (1)  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;

but a person appointed to act during a vacancy shall not continue so to act for more than 12 months.

             (2)  While a person is acting as the Advocate, he has and may exercise all the powers, and shall perform all the functions, of the Advocate.

             (3)  An appointment of a person under subsection (1) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.

             (4)  The Minister may:

                     (a)  determine the terms and conditions of appointment, including remuneration and allowances, of a person acting as the Advocate; and

                     (b)  terminate such an appointment at any time.

             (5)  Where a person is acting as the Advocate in accordance with paragraph (1)(b) and the office becomes vacant while that person is so acting, then, subject to subsection (3), that person may continue so to act until the Minister otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurred expires, whichever first happens.

             (6)  The appointment of a person to act as the Advocate ceases to have effect if he resigns his appointment by writing signed by him and delivered to the Minister.

             (7)  The validity of anything done by a person purporting to act under this section shall not be called in question on the ground that the occasion for his appointment had not arisen, that there was a defect or irregularity in or in connection with his appointment, that the appointment had ceased to have effect or that the occasion for him to act had not arisen or had ceased.

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 IVLiability to serve in the Defence Force in time of war

Division 1Liability 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

                     (c)  have attained the age of 18 years but have not attained the age of 60 years;

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;

                     (c)  medical and other examinations of persons who have been so called upon;

                      (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;

                     (c)  judges of federal or State courts and police, stipendiary or special magistrates of a Territory 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

                     (c)  a member of the Defence Force.


 

Division 2Determination 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 3Establishment 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.

             (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.

             (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

                     (c)  the appointment had ceased to have effect; or

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

             (9)  Anything done by or in relation to a person purporting to act under an appointment under this section 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

                     (c)  the appointment had ceased to have effect; 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 4Procedures 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

                     (c)  is not bound by technicalities, legal forms or rules of evidence.

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

                     (c)  summon a person to produce to it such documents as are referred to in the summons; 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 determine the amounts of fees and allowances to be paid under subsection (1).

             (3)  A determination under subsection (2) must be in writing and is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (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

                     (c)  refuses or fails to comply with the requirement.

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

                     (c)  refuses or fails to answer the question.

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

                     (c)  knows that the evidence is false or misleading in the material particular.

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 5Reviews 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

                     (c)  prevent the taking of action in reliance on the making of the decision.

             (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 VCadets

  

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.

             (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.

             (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.

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

                     (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 attains the age of 21 years or such lower age as is prescribed.

             (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.

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


 

Part VISpecial 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 VIIOffences

  

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

                     (c)  has in his possession;

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 if 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:

                     (c)  the person is guilty of an offence; and

                     (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

                     (c)  the person intends to contravene subsection (1);

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.

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

                     (a)  a defence installation, or on any land reserved for or forming part of one (whether or not any erection, fort, fortification, or work of any kind is on the land); or

                     (b)  a building or land reserved or set apart for or used in connection with the administration, accommodation, or training of any part of the Defence Force; or

                     (c)  an aircraft.

Penalty:  $40.

             (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, 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 VIIIOffences 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

                     (c)  the person knows that the evidence is false or misleading.

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 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 VIIIATesting for prohibited substances

Division 1Preliminary

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

                     (c)  in relation to a defence civilian—the commanding officer who has responsibility for the defence civilian.

sample means:

                     (a)  any human biological fluid; or

                     (b)  any human biological tissue (whether alive or otherwise); or

                     (c)  any human breath.

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 2Testing 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

                     (c)  must not involve:

                              (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 3Return 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

                     (c)  the arrangement under which a person is a defence civilian should be terminated;

the relevant authority must take into consideration any warning previously given to the officer, defence member or defence civilian under section 104.

             (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

                     (c)  the arrangement under which a person is a defence civilian is terminated;

                            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 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

                     (c)  in either case—the defence member may be reduced, or further reduced, in rank.

             (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 4Miscellaneous

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, 7 or 7A or subsection 86(1) of the Crimes Act 1914 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;

                     (c)  the provision of samples for the purpose of prohibited substance tests under section 94;

                     (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 IXLegal 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 IXAProvisions relating to the forces of other countries

Division 1Interpretation

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 2Attachment 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 were an officer of the Defence Force holding that appointment and the rank in that Force corresponding with the rank that he holds in the force to which he 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 restricted to the ranks of officers.


 

Division 3Absentees without leave

116E  Interpretation

             (1)  In this Division, authorized officer means an officer authorized by the Chief of the Defence Force or a service chief, by order in writing, for the purposes of this Division.

             (2)  A reference in this Division to the designated authority of a country is a reference to an authority designated for the purposes of this Division by the appropriate authority or officer of that country.

             (3)  A reference in this Division to the country to which a person belongs is a reference to the country from whose forces he is suspected of being, or, where he has surrendered himself, appears from his confession to be, an absentee without leave.

             (4)  For the purposes of the application of this Division in relation to the forces of a country, it is immaterial whether or not any body, contingent or detachment of those forces is present in Australia.

116F  Apprehension of absentees without leave

                   Where the designated authority of a country in relation to which this section applies, by writing signed by him, requests an authorized officer for assistance in the apprehension of a member of the forces of that country, not being an Australian citizen, who is an absentee without leave from those forces, the authorized officer may, in his discretion, issue a warrant in accordance with the prescribed form authorizing a member or special member of the Australian Federal Police or a member of the police force of a State or Territory or any member of the Defence Force to arrest that absentee.

116G  Detention of illegal absentee

             (1)  A person who is arrested under section 116F or who surrenders himself as being illegally absent from the forces of a country in relation to which this section applies may be detained:

                     (a)  by a member or special member of the Australian Federal Police or a member of a police force of a State or Territory at a police station or at a place provided for the confinement of persons in lawful custody; or

                     (b)  by a member of the Defence Force at a place provided for the confinement of members of the Defence Force who are accused or convicted of offences;

for such time as is reasonably necessary to enable the person to be dealt with in accordance with section 116H.

             (2)  As soon as practicable after a person is taken into custody under subsection (1), the person holding him in custody shall:

                     (a)  cause an authorized officer to be notified that the person has been taken into custody; and

                     (b)  take all reasonable steps to ensure that the person in custody understands his right to make a request under subsection (3).

             (3)  A person in custody under this section may, on grounds specified by him, request that he be released from that custody.

             (4)  Where a person makes a request under subsection (3), the person holding him in custody shall cause the request to be referred to an authorized officer.

116H  Disposal of person in custody

             (1)  Where an authorized officer is notified under paragraph 116G(2)(a) that a person has been taken into custody under subsection 116G(1), he shall, after such investigation of the matter as he thinks necessary:

                     (a)  if he is satisfied that there is a good and sufficient reason why the person held in custody should be released—direct that the person be released from custody under this Division; or

                     (b)  if he is not so satisfied—refer the matter to the Minister.

             (2)  For the purposes of the carrying out of an investigation referred to in subsection (1), the authorized officer shall have due regard to any request made by a person under subsection 116G(3).

             (3)  Where the matter is referred to the Minister under subsection (1), the Minister shall:

                     (a)  direct that the person held in custody be released from custody under this Division; or

                     (b)  issue a warrant for the delivery of the person held in custody under this Division into the custody of a specified service authority of the country to which the person belongs at a place in Australia:

                              (i)  specified in the warrant; or

                             (ii)  determined by the authorized officer.

             (4)  A service authority into whose custody a person is delivered in pursuance of a warrant issued under paragraph (3)(b) may remove the person from Australia, but nothing in this subsection shall be taken to limit any other powers that the authority may have with respect to the person.

             (5)  Where under this section the Minister or an authorized officer directs that a person be released from custody under this Division, that person shall be so released.

116J  Evidence for the purposes of this Division

                   For the purposes of any proceedings in a court or otherwise arising in connection with any action taken in pursuance of the provisions of this Division, where the designated authority of a country in relation to which section 116F applies certifies in writing that a person named and described in that certificate was, on a specified date, an absentee without leave from the forces of that country, that certificate is prima facie evidence of the facts so certified.

116K  Proof of facts by certificate

             (1)  Where in a certificate given for the purposes of this Division reference is made to a person by name and that certificate includes a description of the person named by reference to his physical characteristics and a court is satisfied that a person before it is a person having that name and answering to the description in the certificate, the certificate shall be deemed to refer to that person, unless the contrary is proved.

             (2)  A document purporting to be a certificate, request or notification given or made for the purposes of a provision of this Division, and to be signed by an authority or person specified in the document, shall, upon mere production in any proceedings in a court, be received in evidence and, unless the contrary is proved, be deemed to be a certificate, request or notification given or made by that authority or person.

             (3)  Where under a provision of this Division a certificate or request is given or made by the designated authority of a country, and a certificate or request purports to be signed by a person described in that document as the designated authority of that country, that person shall, in any proceedings in a court, be deemed to be the designated authority of that country for the purposes of that provision, unless the contrary is proved.


 

Division 4Miscellaneous

116M  Delegation

             (1)  Subject to subsection (2), the Chief of the Defence Force or a service chief may, in relation to a matter or a class of matters, or to a State, Territory, or other part of Australia, another country or part of another country, by writing signed by him, delegate to an officer who holds a rank not below the rank of Captain in the Australian Navy, Colonel in the Australian Army or Group Captain in the Australian Air Force, all or any of his powers under this Part, other than this power of delegation.

             (2)  The Chief of the Defence Force or a service chief shall not delegate:

                     (a)  his power to authorize an officer for the purposes of subsection 116C (3); or

                     (b)  his power to authorize an officer for the purposes of Division 3;

except to an officer who holds a rank not below the rank of Rear-Admiral in the Australian Navy, Major-General in the Australian Army or Air Vice-Marshal in the Australian Air Force.

             (3)  A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Chief of the Defence Force or a service chief.

             (4)  A delegation under this section does not prevent the exercise of a power by the Chief of the Defence Force or a service chief.

             (5)  A delegation under this section continues in force notwithstanding a change in the occupancy of, or a vacancy in, the office of the Chief of the Defence Force or a service chief.

             (6)  A document purporting to be a copy of a delegation by the Chief of the Defence Force or a service chief, or an order or written authority made or given by the Chief of the Defence Force or a service chief or by a delegate of the Chief of the Defence Force or a service chief, and purporting to bear the signature or a facsimile of the signature of the Chief of the Defence Force or a service chief or of the delegate, as the case may be, with an endorsement in writing that the delegation, order or written authority is, or was on a specified date, in force, is, upon mere production in a court or otherwise for any purpose arising under this Part, prima facie evidence that the delegation, order or written authority was duly given or made in the terms set out in the document and is, or was on the date specified, in force.

116N  Orders

                   Orders made in pursuance of a provision of this Part shall be deemed not to be statutory rules within the meaning of the Statutory Rules Publication Act 1903.


 

Part IXBPublic areas of defence land

  

116P  Interpretation

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

by-laws means by-laws under this Part.

public area means a public area declared under section 116Q.

ranger means:

                     (a)  a person appointed under section 116S; and

                     (b)  a person referred to in section 116T.

             (2)  A reference in this Part to a member of the Australian Federal Police or to a member of a police force includes a reference to a special member of the Australian Federal Police.

116Q  Public areas of defence land

             (1)  The Minister may, by notice published in the Gazette, declare an area specified in the notice to be a public area and assign a name to that area.

             (2)  In subsection (1), area means an area of land that is owned or held under lease by the Commonwealth and used, or intended for use, for the purposes of defence.

116R  Delegation

             (1)  The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to an officer of the Defence Force or an officer of the Department of Defence all or any of his powers under this Part or the by-laws, other than this power of delegation or his powers under section 116ZD to make by-laws.

             (2)  A power so delegated, when exercised by the delegate, shall, for the purposes of this Act or the by-laws, be deemed to have been exercised by the Minister.

             (3)  A delegation under this section does not prevent the exercise of a power by the Minister.

             (4)  Subsections 120A(8) and (9) apply in relation to a delegation under this section as if it were a delegation under section 120A.

116S  Appointment of rangers

                   The Minister may, by instrument in writing, appoint a person as a ranger.

116T  Rangers ex officio

                   By force of this section, any member of the Australian Federal Police or member of the police force of a Territory is a ranger.

116U  Identity cards

             (1)  The Minister may cause to be issued to a ranger, other than a member of a police force, an identity card in a form approved by the Minister.

             (2)  A person who ceases to be a ranger shall forthwith return his identity card to the Minister.

             (3)  A person who contravenes subsection (2) is guilty of an offence punishable on conviction by a fine not exceeding $100.

116V  Powers of arrest

             (1)  A ranger may, without warrant, arrest any person, if the ranger believes on reasonable grounds:

                     (a)  that the person is committing or has committed an offence against this Part or the by-laws; and

                     (b)  that proceedings against the person by summons would not be effective.

             (2)  Where a ranger (other than a member of a police force who is in uniform) arrests a person under subsection (1), he shall:

                     (a)  in the case of a member of a police force—produce, for inspection by that person, written evidence of the fact that he is a member of a police force; or

                     (b)  in any other case—produce his identity card for inspection by that person.

             (3)  Where a person is arrested under subsection (1), a ranger shall forthwith bring the person, or cause him to be brought, before a Justice of the Peace or other proper authority to be dealt with in accordance with law.

             (4)  Nothing in this section prevents the arrest of a person in accordance with any other law.

116W  General powers of rangers

             (1)  A ranger may search any vehicle, aircraft or vessel if he believes on reasonable grounds that there is in or on that vehicle, aircraft or vessel anything that will afford evidence as to the commission of an offence against this Part or the by-laws, and for that purpose stop or detain that vehicle, aircraft or vessel.

             (2)  A ranger may:

                     (a)  require any person whom he finds committing or whom he suspects on reasonable grounds of having committed an offence against this Part or the by-laws to state his full name and usual place of residence; and

                     (b)  require any person in a public area whom he finds committing, or whom he suspects on reasonable grounds of having committed, an offence against this Part or the by-laws to leave the public area.

             (3)  Where a ranger (other than a member of a police force who is in uniform) stops, or proposes to search or detain, a vehicle, aircraft or vessel, he shall:

                     (a)  in the case of a member of a police force—produce, for inspection by the person in charge of that vehicle, aircraft or vessel, written evidence of the fact that he is a member of a police force; or

                     (b)  in any other case—produce his identity card for inspection by that person;

and, if he fails to do so, he is not authorized to search or detain that aircraft, vehicle or vessel.

             (4)  Where a ranger (other than a member of a police force who is in uniform) makes a requirement of a person under this section, he shall:

                     (a)  in the case of a member of a police force—produce, for inspection by that person, written evidence of the fact that he is a member of a police force; or

                     (b)  in any other case—produce his identity card for inspection by that person;

and, if he fails to do so, that person is not obliged to comply with the requirement.

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

                     (a)  a ranger makes a requirement of the person under this section; and

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

Penalty:  $1,000.

             (6)  An offence under subsection (5) is an offence of strict liability.

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

             (7)  Subsection (5) does not apply if the person has a reasonable excuse.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (7). See subsection 13.3(3) of the Criminal Code.

116X  Seizure and forfeiture

             (1)  Where a court convicts a person of an offence against this Part or the by-laws, the court may order the forfeiture to the Commonwealth of any vehicle, aircraft, vessel or article used or otherwise involved in the commission of the offence.

             (2)  A ranger may seize any vehicle, aircraft, vessel or article that he believes on reasonable grounds to have been used or otherwise involved in the commission of an offence against this Part or the by-laws and may retain it until the expiration of a period of 60 days after the seizure, or, if proceedings for an offence against this Part or the by-laws in the commission of which it may have been used or otherwise involved are instituted within that period, until the proceedings are terminated.

             (3)  The Minister may authorize a vehicle, aircraft, vessel or article seized under subsection (2) or anything on, in or attached to such a vehicle, aircraft or vessel to be released to its owner, or to the person from whose possession it was seized, either unconditionally or on such conditions as he thinks fit, including conditions as to the giving of security for payment of its value if it is forfeited.

             (4)  A vehicle, aircraft, vessel or article forfeited under this section may be sold or otherwise disposed of as the Minister thinks fit.

116Y  Assaulting etc. rangers

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

                     (a)  the person assaults or threatens another person; and

                     (b)  that other person is a ranger performing his or her duties under this Part or the by-laws.

Penalty:  $5,000 or imprisonment for 2 years, or both.

             (2)  In paragraph (1)(b), strict liability applies to the physical element of circumstance, that the performance of the duties is under this Part or the by-laws.

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

116ZA  Officers and employees of governments and authorities

                   The Minister may make arrangements with a Minister of a State or Territory for the performance of functions and the exercise of powers under this Part or the by-laws by officers or employees of that State or Territory or of an authority of that State or Territory, as the case may be.

116ZB  Prosecution of offences

             (1)  Notwithstanding that an offence against this Part is expressed to be 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 the prosecutor consent.

             (2)  Where, in accordance with subsection (1), a court of summary jurisdiction convicts a person of an offence, 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.

116ZC  Concurrent operation of State and Territory laws

             (1)  This Part and the by-laws, in so far as they apply in relation to public areas, are not intended to exclude or limit the concurrent operation of a law of a State or Territory.

             (2)  In interpreting whether, in relation to land owned or held under lease by the Commonwealth, any provision of this Act (other than this Part) is intended to exclude or limit the concurrent operation of a law of a State or Territory, subsection (1) shall be disregarded.

116ZD  By-laws

             (1)  The Minister may make by-laws, not inconsistent with this Act, for and in relation to the control and management of public areas.

             (2)  Without limiting the generality of subsection (1), by-laws may be made:

                     (a)  providing for functions and powers to be conferred, and duties to be imposed, upon rangers;

                     (b)  regulating or prohibiting the pollution of soil, air or water in a manner that is, or is likely to be, harmful to people or wildlife in, or to the natural features of, public areas;

                     (c)  regulating or prohibiting tourism in public areas;

                     (d)  providing for the protection and preservation of public areas and property and things in public areas;

                     (e)  regulating or prohibiting access to public areas by persons or classes of persons;

                      (f)  providing for the removal of trespassers from public areas;

                     (g)  regulating or prohibiting camping in public areas;

                     (h)  providing for the safety of persons in public areas;

                      (j)  regulating or prohibiting the use of fire in public areas;

                     (k)  regulating the conduct of persons in public areas;

                    (m)  regulating or prohibiting the carrying on of any trade or commerce in a public area;

                     (n)  regulating or prohibiting the use of vehicles in public areas and providing for signs and road markings for those purposes;

                     (p)  providing for the removal of vehicles, aircraft or vessels from places in public areas where they have been left in contravention of the by-laws or have been abandoned and for the impounding of such vehicles, aircraft or vessels;

                     (q)  making provision to the effect that, where a contravention of a provision of the by-laws relating to the parking or stopping of vehicles in a public area occurs in respect of a motor vehicle, the person who is to be regarded as the owner of the motor vehicle for the purposes of the by-laws (who may, in accordance with the by-laws, be or include a person in whose name the motor vehicle is registered under the law of a State or Territory) is to be, except as provided otherwise, deemed to have committed an offence against the provision so contravened, whether or not he in fact contravened that provision;

                      (r)  enabling a person who is alleged to have contravened a provision of the by-laws relating to:

                              (i)  littering;

                             (ii)  the use of vehicles or vessels;

                            (iii)  the parking or stopping of vehicles;

                            (iv)  the mooring or landing of vessels; or

                             (v)  the landing and use of aircraft;

                            to pay to the Commonwealth, as an alternative to prosecution, a specified penalty, not exceeding the maximum penalty by which a contravention of that provision is otherwise punishable;

                      (s)  regulating or prohibiting the use of vessels, and the landing and use of aircraft, in public areas;

                      (t)  regulating or prohibiting the taking of animals or plants into, or out of, public areas;

                     (u)  providing for the impounding, removal, destruction or disposal of animals found straying in public areas;

                     (v)  regulating or prohibiting the taking into public areas, and the use in public areas, of weapons, traps, nets, snares, fishing apparatus and other devices;

                    (w)  regulating or prohibiting the laying of baits and the use of explosives and poisons in public areas;

                     (x)  providing for the collection of specimens and the pursuit of research in public areas for scientific purposes;

                     (y)  providing for the issue of licences, permits and authorities, the conditions subject to which they are issued and the charging of fees by the Minister in respect of such licences, permits and authorities;

                      (z)  the imposition of charges for:

                              (i)  the parking or stopping of vehicles;

                             (ii)  the landing of aircraft; and

                            (iii)  the use of vehicles and vessels;

                            in public areas;

                    (za)  providing for penalties, not exceeding a fine of $500, for offences against the by-laws; and

                    (zb)  providing for any matter incidental to or connected with any of the foregoing.

             (3)  Sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to by-laws as if, in those sections, references to regulations were references to by-laws.


 

Part IXCSalvage claims

  

117  Interpretation

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

member of the crew, in relation to a Naval ship, means any member of the Defence Force, whether an officer or a sailor, who belonged to, and was on board, the ship at the time the salvage services were rendered and includes any other member of the Defence Force who was on board the ship at that time and who took part in the rendering of such services.

Naval ship means a ship belonging to the Australian Navy.

officer means an officer of the Australian Navy.

salvage includes all expenses properly incurred by a Naval ship in the performance of salvage services.

salvage services means any act or activity undertaken to assist a vessel or property in danger in whatever waters the act or activity takes place.

vessel means any ship, craft or structure capable of navigating the high seas.

             (2)  Where, before a claim for salvage in respect of salvage services rendered by a Naval ship is commenced or settled, a person who was the commanding officer of that ship at the time when the ship rendered salvage services:

                     (a)  dies; or

                     (b)  is absent from duty or from Australia or is, for any other reason, unable to act or continue to act on behalf of the members of the crew in accordance with subsection 117A (3);

the Chief of Navy shall, by instrument in writing, appoint a member of the crew of that ship to act on that person’s behalf.

             (3)  Where, before a claim for salvage in respect of salvage services rendered by a Naval ship is commenced or settled, a person who was the commanding officer of that ship at the time when the ship rendered salvage services:

                     (a)  ceases (otherwise than by reason of death) to be the commanding officer of that ship; or

                     (b)  ceases (otherwise than by reason of death) to be a member of the Australian Navy;

that person shall, for the purposes of this Part, be taken to be the commanding officer of that ship until the claim for salvage is settled.

117A  Salvage claims by crew of Naval ships

             (1)  Without, by implication, affecting the right of the Commonwealth to claim salvage in respect of salvage services rendered by a Naval ship, the members of the crew of that ship may, subject to subsection (2), also claim salvage in respect of those services.

             (2)  A claim for salvage on behalf of the members of the crew of a Naval ship:

                     (a)  shall not be made without the prior written approval of the Chief of Navy; and

                     (b)  shall be commenced and prosecuted only by the Australian Government Solicitor.

             (3)  Where the Chief of Navy approves the making of a claim for salvage in respect of salvage services rendered by a Naval ship on behalf of the members of the crew of that ship, the commanding officer of that ship is authorised, on behalf of each member of the crew of that ship:

                     (a)  to instruct the Australian Government Solicitor to act for the members of the crew in relation to the claim; and

                     (b)  to accept an offer in settlement of the claim.

             (4)  An acceptance of an offer by the commanding officer is binding on each member of the crew.

117AA  Apportionment of salvage between the Commonwealth and crew members

             (1)  Where salvage is payable in respect of salvage services rendered by a Naval ship and a part of that salvage has been claimed on behalf of the members of the crew of that ship, the salvage so payable:

                     (a)  shall be applied in meeting the expenses incurred by the Commonwealth in providing such salvage services; and

                     (b)  to the extent that it is not so applied shall be apportioned between the Commonwealth and the members of the crew of the ship:

                              (i)  if the apportionment between the Commonwealth and the members of the crew forms part of the terms of settlement between the owners of the vessel or property saved, the Commonwealth and the members of the crew—in accordance with those terms;

                             (ii)  if a court or other tribunal has determined the apportionment between the Commonwealth and the members of the crew—in accordance with that determination; or

                            (iii)  in any other case—on the basis that the Commonwealth shall be entitled to receive 80% of the salvage not so applied and the members of the crew shall be entitled to receive 20% of the amount of salvage not so applied.

     &nb