Defence Act 1903 (consolidated as of December 20, 2018), Australia

Authorised Version C2019C00031 registered 14/01/2019

Defence Act 1903

No. 20, 1903

Compilation No. 75

Compilation date: 20 December 2018

Includes amendments up to: Act No. 158, 2018

Registered: 14 January 2019

This compilation includes a commenced amendment made by Act No. 156,

2018. Amendments made by Act No. 158, 2018 have not commenced but

are noted in the endnotes.

Prepared by the Office of Parliamentary Counsel, Canberra

About this compilation

This compilation

This is a compilation of the Defence Act 1903 that shows the text of the law as

amended and in force on 20 December 2018 (the compilation date).

The notes at the end of this compilation (the endnotes) include information

about amending laws and the amendment history of provisions of the compiled

law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the

compiled law. Any uncommenced amendments affecting the law are accessible

on the Legislation Register (www.legislation.gov.au). The details of

amendments made up to, but not commenced at, the compilation date are

underlined in the endnotes. For more information on any uncommenced

amendments, see the series page on the Legislation Register for the compiled

law.

Application, saving and transitional provisions for provisions and

amendments

If the operation of a provision or amendment of the compiled law is affected by

an application, saving or transitional provision that is not included in this

compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see

the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as

modified but the modification does not amend the text of the law. Accordingly,

this compilation does not show the text of the compiled law as modified. For

more information on any modifications, see the series page on the Legislation

Register for the compiled law.

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a

provision of the law, details are included in the endnotes.

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Contents

Part I—Introductory 1 1 Short title...........................................................................1

3 Commencement of Act......................................................1

4 Interpretation .....................................................................1

5 Application of Act .............................................................6

5A Extension of Act to Territories ..........................................6

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

7 Act does not appropriate money........................................6

Part II—Control and administration 7 8 The Minister ......................................................................7

9 Command of the Defence Force ........................................7

10 Administration of the Defence Force ................................7

11 Defence Instructions..........................................................8

12 Appointments ....................................................................8

13 Acting appointments..........................................................9

14 Resignation........................................................................9

15 Termination of appointment ............................................10

16 Remuneration and allowances .........................................10

Part III—The Australian Defence Force 11

Division 1—Constitution of the Australian Defence Force 11

17 The Australian Defence Force.........................................11

18 Royal Australian Navy ....................................................11

19 Australian Army..............................................................11

20 Royal Australian Air Force .............................................12

21 Ranks and corresponding ranks.......................................13

Division 2—Service in the Defence Force 14

22 Voluntary entry ...............................................................14

23 Service in the Permanent Forces .....................................14

24 Service in the Reserves....................................................15

25 Training for Reserves ......................................................15

26 Volunteer service by Reserves ........................................15

27 Service is not a civil contract...........................................15

Division 3—Calling out the Reserves 16

28 Governor-General may call out Reserves ........................16

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29 Period of service during call out......................................17

Part IIIAAA—Utilisation of Defence Force to protect

Commonwealth interests and States and self-governing

Territories 19

Division 1—Calling out and directing utilisation of Defence

Force 19

51 Interpretation ...................................................................19

51A Order about utilising Defence Force to protect

Commonwealth interests against domestic

violence ...........................................................................23

51AA Order about utilising Defence Force in the

offshore area etc. to protect Commonwealth

interests ...........................................................................25

51AB Order about utilising Defence Force to protect

Commonwealth interests against violence if

specified circumstances arise ..........................................29

51B Order about utilising Defence Force to protect

State against domestic violence.......................................32

51C Order about utilising Defence Force to protect

self-governing Territory against domestic violence.........34

51CA Expedited call out............................................................36

51CB Declaration of designated critical infrastructure..............41

51D Chief of Defence Force to utilise Defence Force as

directed............................................................................42

51E Ministerial directions.......................................................43

51F Assistance to, and cooperation with, State etc. ................43

51G Restriction on certain utilisation of Defence Force .........44

Division 2—Powers to recapture locations or things, prevent or

end acts of violence and protect persons from acts of

violence 45

51H Application of this Division and Division 4 ....................45

51I Special powers of members of the Defence Force...........45

Division 2A—Powers to protect designated critical

infrastructure 47

51IA Application of this Division and Division 4 ....................47

51IB Powers to protect designated critical infrastructure.........47

Division 3—General security area powers 49

Subdivision A—Application of this Division and Division 4 49

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51J Application of this Division and Division 4 ....................49

Subdivision B—Powers that may be exercised anywhere in a

general security area 49

51K Declaration of general security area ................................49

51L Authorisation to search premises in the general

security area for dangerous things ...................................50

51M Copy of search authorisation to be given to

occupier etc. ....................................................................52

51N Occupier etc. entitled to be present during search ...........52

51O Search of means of transport in the general

security area for dangerous things ...................................53

51P Search of persons in the general security area for

dangerous things..............................................................53

Subdivision C—Powers that may be exercised only in relation to a

designated area in the general security area 54

51Q Declaration of designated area ........................................54

51R Control of movement in relation to a designated

area in the general security area ......................................54

51S Members to wear uniforms and identification

when exercising powers ..................................................57

Division 3A—Powers in the Australian offshore area etc. 58

Subdivision A—Preliminary 58

51SA Application of this Division and Division 4 ....................58

51SB Geographic application....................................................58

51SC International obligations..................................................58

51SD Definitions.......................................................................58

Subdivision B—Special powers of members of the Defence Force 59

51SE Special powers of members of the Defence Force...........59

Subdivision C—Powers that may be exercised anywhere in an

offshore area 61

51SF Declaration of offshore general security area ..................61

51SG Authorisation to search facilities in the offshore

general security area for dangerous and other

things...............................................................................62

51SH Copy of offshore search authorisation to be given

to occupier etc. ................................................................64

51SI Occupier etc. entitled to be present during search ...........65

51SJ Search of vessel or aircraft in the offshore general

security area for dangerous or other things......................65

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51SK Search of persons in the offshore general security

area for dangerous and other things.................................66

Subdivision D—Powers that may be exercised only in relation to

an offshore designated area in the offshore general

security area 66

51SL Declaration of offshore designated area ..........................66

51SM Control of movement in relation to an offshore

designated area in the offshore general security

area ..................................................................................67

51SN Members to wear uniforms and identification

when exercising powers ..................................................70

Subdivision E—Other powers 71

51SO Power to require person to answer questions or

produce documents..........................................................71

51SP Power to require person to operate facility, vessel

or aircraft or machinery or equipment .............................72

51SQ Geographical jurisdiction for offences ............................72

Division 3B—Powers relating to aircraft 73

51SR Application of this Division and Division 4 ....................73

51SS Geographical application.................................................73

51ST Special powers of members of the Defence Force...........73

Division 4—Provisions common to Divisions 2 to 3B 76

Subdivision A—Use of reasonable and necessary force 76

51T Use of reasonable and necessary force ............................76

51U Persons to be informed of offence if detained .................77

Subdivision B—Action to be taken if things are seized 78

51V Action to be taken if things are seized.............................78

Subdivision C—Members not entitled to exercise powers if

obligations not complied with 79

51W Members not entitled to exercise powers if

obligations not complied with .........................................79

Division 4A—Applicable criminal law 80

51WA Applicable criminal law ..................................................80

51WB Defence of superior orders in certain

circumstances ..................................................................80

Division 5—Miscellaneous 82

51X Publication of order and report........................................82

51XA Review of operation of Part.............................................83

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51XB Instruments that are not legislative instruments...............85

51Y Part additional to other Defence Force utilisation

and powers ......................................................................85

Part IIIAA—Superannuation 86 52 Determination of benefit..................................................86

52A Department’s employer superannuation

contributions....................................................................87

52B Providing information to CSC in relation to

invalidity .........................................................................88

53 Trustee of scheme providing superannuation

benefit..............................................................................89

Part IIIA—Remuneration, allowances and other benefits 90

Division 1—Determinations by the Minister 90

58A Interpretation ...................................................................90

58B Minister may make determinations .................................90

58E Delegation .......................................................................92

Division 2—The Defence Force Remuneration Tribunal 94

58F Interpretation ...................................................................94

58G Establishment of Defence Force Remuneration

Tribunal ...........................................................................95

58H Functions and powers of Tribunal ...................................96

58HA Hearings in relation to discriminatory

determinations .................................................................98

58HB Review of discriminatory determinations........................99

58J Reports by Tribunal.......................................................100

58K Procedure of Tribunal....................................................100

58KA Single member may conduct Tribunal’s business .........101

58KB Procedure where single member is conducting

Tribunal’s business........................................................102

58KC Review of action etc. of single member ........................103

58KD Determinations giving effect to agreement

between the parties ........................................................104

58L Terms and tenure of office ............................................104

58M Resignation....................................................................104

58N Termination of appointment ..........................................104

58P Acting appointments......................................................104

58Q Fees and allowances ......................................................105

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Division 3—The Defence Force Advocate 106

58R Interpretation .................................................................106

58S Defence Force Advocate ...............................................106

58T Functions of Advocate...................................................106

58U Tenure and terms of office ............................................107

58V Resignation....................................................................107

58W Termination of appointment ..........................................107

58X Acting Defence Force Advocate....................................107

58Y Fees and allowances ......................................................107

Part IV—Liability to serve in the Defence Force in time of war 109

Division 1—Liability to serve 109

59 Persons liable to serve in Defence Force in time of

war.................................................................................109

60 Proclamation calling upon persons to serve in time

of war ............................................................................109

61 Registration and allotment for service ...........................110

61A Persons exempt from service.........................................110

61B Entry into Defence Force for service.............................111

61C Part not to apply to certain persons................................112

Division 2—Determination of conscientious belief 113

61CA Application for determination of conscientious

belief..............................................................................113

61CB Secretary must refer application ....................................113

61CC Function of Conscientious Objection Tribunals ............113

61CD Parties to the hearing of an application..........................114

61CE Notice of determination to be given to parties...............114

Division 3—Establishment and membership of Conscientious

Objection Tribunals 115

61CF Establishment of Conscientious Objection

Tribunals .......................................................................115

61CG Period of appointment of members................................115

61CH Remuneration and allowances of members ...................115

61CJ Other terms and conditions............................................116

61CK Leave of absence ...........................................................116

61CL Resignation....................................................................116

61CM Removal from office .....................................................116

61CN Member of a Tribunal unavailable to complete

proceeding.....................................................................116

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61CO Acting appointments......................................................117

Division 4—Procedures of Conscientious Objection Tribunals

61CP Tribunals’ way of operating ..........................................119

61CQ Powers of Tribunals.......................................................119

61CR Procedure of Tribunals ..................................................119

61CS Majority decision...........................................................120

61CT Procedure where opinion of members equally

divided...........................................................................120

61CU Hearings ........................................................................120

61CV Onus of proof ................................................................121

61CW Protection of members and persons giving

evidence etc. ..................................................................121

61CX Fees for persons giving evidence...................................121

61CY Failure of witness to attend............................................121

61CZ Refusal to be sworn or to answer questions etc. ............122

61CZA Contempt of Tribunal ....................................................124

Division 5—Reviews and appeals 125

61CZB Review of determinations of Conscientious

Objection Tribunals.......................................................125

61CZC AAT Act to apply subject to modification.....................125

61CZD Appeals from AAT........................................................126

61CZE Operation etc. of decision subject to appeal ..................126

Part V—Australian Defence Force Cadets 128 62 Australian Defence Force Cadets ..................................128

62A Direction and administration of the Cadets ...................128

62B Chief of the Defence Force may make

determinations ...............................................................129

62C Relationship to the Defence Force.................................129

62D Acceptance is not a civil contract ..................................129

62E Annual report ................................................................129

Part VI—Special powers in relation to defence 131 63 General powers for defence purposes............................131

64 Control of railways in time of war.................................131

65 Railways to carry troops etc. when required..................131

66 Conveyance by railway and tramway............................131

67 Registration and impressment of vehicles etc................132

68 Billeting and quartering.................................................132

70 Tolls ..............................................................................132

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Part VIA—Security of defence premises 133

Division 1—Preliminary 133

71 Simplified outline..........................................................133

71A Definitions.....................................................................134

Division 2—Defence security officials 137

71B Contracted defence security guards ...............................137

71C Security authorised members of the Defence Force ......138

71D Defence security screening employees ..........................138

71E Identity cards .................................................................139

71F Delegations relating to training and qualification

requirements ..................................................................140

71G Delegations relating to identity cards ............................141

Division 3—Powers exercisable with consent at defence access

control points and on defence premises 143

Subdivision A—General provisions 143

71H Consensual identification and limited search—

person about to pass a defence access control point ......143

71J Consensual search—vehicle, vessel or aircraft

about to pass a defence access control point..................144

71K Consensual identification—person on defence

premises ........................................................................145

Subdivision B—Special provisions for declared explosive

ordnance depots 145

71L Declared explosive ordnance depots .............................145

71M Consensual search—person on a declared

explosive ordnance depot ..............................................147

71N Consensual search—vehicle, vessel or aircraft on a

declared explosive ordnance depot................................147

71P Powers additional to other powers.................................148

Subdivision C—Offences 148

71Q Offences—search powers exercised without

consent ..........................................................................148

Division 4—Powers exercisable without consent at defence

access control points and on defence premises 149

71R Non-consensual identification and search—person

about to pass a defence access control point..................149

71S Non-consensual search—vehicle, vessel or aircraft

about to pass a defence access control point..................150

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71T Non-consensual identification and search—person

on defence premises ......................................................151

71U Non-consensual search—vehicle, vessel or aircraft

on defence premises ......................................................152

71V Offence—refusing to provide evidence etc.

required under this Division ..........................................153

71W Offence—hindering or obstructing a search under

this Division ..................................................................153

71X Security authorised members of the Defence Force

may respond to attack....................................................154

71Y Power to stop and detain ...............................................154

71Z Powers are in addition to powers under this Part...........154

Division 5—Seizure 155

72 Power to seize things on defence premises....................155

Division 6—Matters relating to exercise of powers under Part 156

72A Certain powers to be exercised only by security

authorised members of the Defence Force unless

not reasonably practicable .............................................156

72B Defence security officials must produce identity

cards, etc........................................................................156

72C Persons to be informed of offence .................................158

72D Conduct of searches and limited searches .....................158

72E Use of equipment to examine things etc. .......................158

72F Power to move certain unattended things on

defence premises ...........................................................159

72G Use of reasonable and necessary force, etc. by

defence security officials ...............................................159

72H Use of force involving death or grievous bodily

harm by security authorised members of the

Defence Force in responding to an attack......................160

72J Limit on power to restrain and detain............................160

72K Limit on power to arrest ................................................161

72L Powers not to be used to stop protests etc. ....................161

72M Security authorised members of the Defence Force

may use dogs .................................................................161

72N Persons assisting defence security officials ...................162

Division 7—Other matters 163

72P Unauthorised entry etc. on defence premises or

defence accommodation ................................................163

72Q Certain information may be collected and provided

to law enforcement agencies etc. ...................................163

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72R Compensation for acquisition of property .....................164

72S Other powers not affected .............................................164

Part VIB—The Woomera Prohibited Area 166 72T Definitions.....................................................................166

72TA The Woomera Prohibited Area......................................167

72TB Application of this Part and Part VII of the

Defence Force Regulations 1952 ..................................167

72TC Offence—being in the Woomera Prohibited Area

without permission ........................................................169

72TD Standing permission ......................................................170

72TE Permits ..........................................................................170

72TF Minister’s permission ....................................................171

72TG Offence—failing to comply with conditions .................171

72TH Minister may suspend permission .................................172

72TJ Minister may give directions .........................................172

72TK Compensation for acquisition of property .....................173

72TL Compensation for loss or damage .................................173

72TM Review of decisions.......................................................173

72TN Delegation .....................................................................174

72TO Infringement notices......................................................175

72TP The Woomera Prohibited Area Rules............................177

Part VII—Offences 179 73A Unlawfully giving or obtaining information as to

defences.........................................................................179

73F Penalty...........................................................................179

79 Unlawfully disposing of arms etc. .................................180

80A Falsely representing to be returned soldier, sailor

or airman .......................................................................181

80B Improper use of service decorations ..............................182

82 Sketching etc. of fortifications prohibited .....................183

83 Unauthorised use, possession or supply of

emblems or flags ...........................................................184

84 Penalty for bringing contempt on uniform ....................186

Part VIII—Offences in relation to service tribunals 187 86 Failure of witness to appear...........................................187

88 False or misleading evidence.........................................187

89 Contempt of service tribunals etc. .................................188

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90 Failure to comply with order under section 140 of

the Defence Force Discipline Act 1982 .........................188

Part VIIIA—Testing for prohibited substances 190

Division 1—Preliminary 190

91 Application of Part ........................................................190

92 Object of Part ................................................................190

93 Definitions.....................................................................190

93A Authorised person .........................................................191

93B Determinations about prohibited substances and

prohibited substance tests ..............................................192

Division 2—Testing for prohibited substances 193

94 Requirement to undergo a prohibited substance

test .................................................................................193

95 Conduct of testing .........................................................193

96 Notice to person required to provide a sample ..............194

Division 3—Return of a positive test result 195

98 Application....................................................................195

100 Notice to be given of a positive test result.....................195

101 Termination ...................................................................195

Division 4—Miscellaneous 197

106 Failure to provide sample ..............................................197

107 Unauthorised acts in relation to sample.........................197

108 Finding made as a result of testing not admissible

in certain criminal proceedings......................................198

109 Defence Instructions......................................................198

110 Other administrative action not precluded.....................199

Part VIIIB—Inspector-General of the Australian Defence

Force 200

Division 1—Establishment and functions of the

Inspector-General of the Australian Defence Force 200

110A Object of Part ................................................................200

110B Inspector-General of the Australian Defence Force ......200

110C Functions of the Inspector-General ADF ......................200

110DA Conduct of inquiry or investigation...............................202

110DB Inspector-General ADF may end an inquiry or

investigation ..................................................................202

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Division 2—Administrative provisions about the

Inspector-General of the Australian Defence Force 203

110E Appointment..................................................................203

110F Qualifications for appointment......................................203

110G Tenure ...........................................................................203

110H Resignation....................................................................203

110I Remuneration ................................................................204

110J Leave of absence ...........................................................204

110K Engaging in other paid work .........................................204

110L Termination of appointment ..........................................204

110M Disclosure of interests ...................................................205

110N Acting appointments......................................................205

110O Staff...............................................................................206

110P Inquiry officers, inquiry assistants and Assistants

IGADF ..........................................................................206

Division 3—Other matters 208

110Q Protection from civil actions .........................................208

110R Annual report by Inspector-General ADF .....................208

110S Delegation .....................................................................208

Part VIIIC—Defence Honours and Awards Appeals Tribunal 209

Division 1—Preliminary 209

110T Definitions.....................................................................209

Division 2—Establishment and functions of Defence Honours

and Awards Appeals Tribunal 211

110U Establishment of Tribunal .............................................211

110UA Functions of Tribunal ....................................................211

110UB Tribunal and Tribunal members not subject to

direction ........................................................................211

Division 3—Review of decisions by the Tribunal 212

110V What decisions are reviewable? ....................................212

110VA Who can apply for review?............................................212

110VB Review of decisions by the Tribunal .............................213

110VC Power to dismiss review applications............................214

Division 4—Inquiries by the Tribunal 216

110W Minister may direct Tribunal to hold inquiry ................216

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Division 5—General provisions relating to operation of the

Tribunal 217

110X Role of the Chair ...........................................................217

110XA Constitution of Tribunal for Tribunal proceedings ........217

110XB What happens if a Tribunal member stops being

available ........................................................................218

110XC Summoning persons to give evidence or produce

documents .....................................................................220

110XD Protection of confidential or sensitive evidence or

submissions etc..............................................................221

110XE Formal requirements relating to decisions etc. of

the Tribunal ...................................................................221

110XF Protection of Tribunal members and other persons .......222

110XG Disclosure of interests by Tribunal members ................223

110XH Procedural rules.............................................................224

Division 6—Tribunal members 225

110Y Constitution of Tribunal ................................................225

110YA Appointment of Tribunal members ...............................225

110YB Period of appointment ...................................................226

110YC Acting appointments......................................................226

110YD Other employment.........................................................227

110YE Remuneration ................................................................227

110YF Leave.............................................................................228

110YG Resignation....................................................................228

110YH Termination ...................................................................228

110YI Other terms and conditions............................................229

Division 7—Miscellaneous 230

110Z Regulations....................................................................230

Part VIIID—Director of Defence Counsel Services 231 110ZA Director of Defence Counsel Services...........................231

110ZB Functions and powers of the Director of Defence

Counsel Services ...........................................................231

110ZC Delegation .....................................................................232

110ZD Protection from action ...................................................232

Part IX—Legal procedure 234 111 Subscription, arms etc. vested in commanding

officer ............................................................................234

111A Property of Rifle Club vested in Captain.......................234

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Part IXA—Provisions relating to the forces of other countries 235

Division 1—Interpretation 235

116A Interpretation .................................................................235

Division 2—Attachment of personnel and mutual powers of

command 236

116B Attachment to the Defence Force of members of

the forces of another country and vice versa .................236

116C Forces serving together .................................................237

116D Corresponding ranks......................................................239

Division 3—Absentees without leave 240

116E Interpretation .................................................................240

116F Apprehension of absentees without leave......................240

116G Detention of illegal absentee .........................................241

116H Disposal of person in custody........................................241

116J Evidence for the purposes of this Division....................242

116K Proof of facts by certificate ...........................................243

Division 4—Miscellaneous 244

116M Delegation .....................................................................244

Part IXB—Public areas of defence land 245 116P Interpretation .................................................................245

116Q Public areas of defence land ..........................................245

116R Delegation .....................................................................245

116S Appointment of rangers.................................................246

116T Rangers ex officio .........................................................246

116U Identity cards .................................................................246

116V Powers of arrest .............................................................246

116W General powers of rangers.............................................247

116X Seizure and forfeiture ....................................................248

116Y Assaulting etc. rangers ..................................................249

116ZA Officers and employees of governments and

authorities......................................................................249

116ZB Prosecution of offences .................................................250

116ZC Concurrent operation of State and Territory laws..........250

116ZCA Infringement notices......................................................250

116ZD By-laws .........................................................................252

Part IXC—Salvage claims 254 117 Interpretation .................................................................254

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117A Salvage claims by crew of Naval ships .........................255

117AA Apportionment of salvage between the

Commonwealth and crew members...............................256

117AB Apportionment of salvage amongst crew members .......257

Part IXD—Defence aviation areas 258 117AC Defence aviation areas...................................................258

117AD Regulations in relation to defence aviation areas ..........259

117AE Monitoring powers ........................................................259

117AF Modifications of Part 2 of the Regulatory Powers

Act.................................................................................260

117AG Appointment of inspectors for defence aviation

areas ..............................................................................261

117AH Delegation of powers of Secretary or Chief of

Defence Force ...............................................................262

Part X—Miscellaneous 263 117B Members and former members may bring actions

for money due in respect of service ...............................263

118 Penalty against raising forces without authority............263

118A Employer not to prevent employee from serving ..........263

118B Enlistment of apprentices in time of war .......................264

119 Forfeiture or suspension of salary in certain

circumstances ................................................................264

120 Notice etc. need not be in writing unless required

herein.............................................................................265

120A Delegation .....................................................................265

120B Attachment of salaries of members ...............................267

121 Proof of order ................................................................272

121A Validation of declaration and past acts in relation

to the Woomera Prohibited Area ...................................272

122 Appointments etc. not invalid because of defect

etc. in connection with appointment..............................273

122AA Taxation consequences of disposals of assets to

defence companies ........................................................273

122B Exercise of rights and discharge of duties and

obligations by legal officers ..........................................274

123 Immunity from certain State and Territory laws............274

123A Intoxicating liquor .........................................................275

123B Religion.........................................................................276

123F Certain persons not permitted to serve in Defence

Force..............................................................................276

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123G Orders in relation to rifle ranges....................................276

123H Tactical payment scheme for activities of the

Defence Force outside Australia....................................277

123J Delegations in relation to the tactical payment

scheme...........................................................................278

Part XI—Regulations 279 124 Regulations....................................................................279

Schedule 1—Ranks and corresponding ranks 287 1 Ranks and corresponding ranks.....................................287

Endnotes 289

Endnote 1—About the endnotes 289

Endnote 2—Abbreviation key 291

Endnote 3—Legislation history 292

Endnote 4—Amendment history 315

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Introductory Part I

Section 1

An Act to provide for the Naval and Military

Defence and Protection of the Commonwealth and

of the several States

Part I—Introductory

1 Short title

This Act may be cited as the Defence Act 1903.

3 Commencement of Act

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

4 Interpretation

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

AAT means the Administrative Appeals Tribunal.

AAT Act means the Administrative Appeals Tribunal Act 1975.

accused person has the same meaning as in the Defence Force

Discipline Act 1982.

administration of the Defence Force: see subsection 10(2).

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.

Air Force means the Royal Australian Air Force.

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Air Force Reserve: see subsection 20(3).

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

Army means the Australian Army.

Army Reserve: see subsection 19(3).

Australia and Commonwealth includes the Territories.

Australian Air Force Cadets: see subsection 62(4).

Australian Army: see subsection 19(1).

Australian Army Cadets: see subsection 62(3).

Australian Defence Force or ADF: see section 17.

Australian Defence Force Cadets or ADF Cadets or Cadets: see

subsection 62(1).

Australian Navy Cadets: see subsection 62(2).

cadet means an officer, instructor or cadet in the Cadets.

call out order: see subsection 28(1).

Chief of the Defence Force means the Chief of the Defence Force

appointed under subsection 12(1).

Conscientious Objection Tribunal means a Conscientious

Objection Tribunal established under section 61CF.

court martial means a court martial convened under the Defence

Force Discipline Act 1982.

CSC has the same meaning as in the Governance of Australian

Government Superannuation Schemes Act 2011.

defence aviation area has the meaning given by

subsection 117AC(1).

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defence aviation area inspector has the meaning given by

subsection 117AG(1).

Defence Force means the Australian Defence Force.

Defence Force magistrate has the same meaning as in the Defence

Force Discipline Act 1982.

Defence Instructions: see subsection 11(1).

Director of Defence Counsel Services means the person appointed

under subsection 110ZA(2) as the Director of Defence Counsel

Services or a person acting as the Director of Defence Counsel

Services.

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.

flexible service determination: see subsection 23(2).

Foreign Affairs Minister means the Minister administering the

Diplomatic Privileges and Immunities Act 1967.

Inspector-General ADF means the Inspector-General of the

Australian Defence Force referred to in section 110B.

legal officer has the same meaning as in the Defence Force

Discipline Act 1982.

legal practitioner has the same meaning as in the Defence Force

Discipline Act 1982.

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

Naval Reserve: see subsection 18(3).

Navy means the Royal Australian Navy.

officer means:

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Section 4

(a) a person appointed as an officer of the Navy, Army or Air

Force and who holds a rank specified in items 1 to 12 of the

table in subclause 1(1) of Schedule 1; or

(b) a chaplain in the Defence Force.

Permanent Air Force: see subsection 20(2).

Permanent Forces means the Permanent Navy, the Regular Army

and the Permanent Air Force.

Permanent Navy: see subsection 18(2).

public resources has the same meaning as in the Public

Governance, Performance and Accountability Act 2013.

Regular Army: see subsection 19(2).

Regulatory Powers Act means the Regulatory Powers (Standard

Provisions) Act 2014.

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

Force Reserve.

Royal Australian Air Force or RAAF: see subsection 20(1).

Royal Australian Navy or RAN: see subsection 18(1).

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

service chief means:

(a) the Chief of Navy; or

(b) the Chief of Army; or

(c) the Chief of Air Force.

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

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Section 4

any war or warlike operations in which Australia is or has been

engaged, and includes the ribbon of any such order, medal, badge,

clasp or other decoration and any colourable imitation,

representation or miniature of any such order, medal, badge, clasp

or other decoration.

Service tribunal has the same meaning as in the Defence Force

Discipline Act 1982.

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

The Secretary means the Secretary of the Department.

Time of Defence Emergency—Means the period between the

publication of a proclamation declaring that a state of defence

emergency exists in relation to Australia and the publication of a

proclamation that that state of defence emergency no longer exists.

Time of War—Means any time during which a state of war

actually exists, and includes the time between the issue of a

proclamation of the existence of war or of danger thereof and the

issue of a proclamation declaring that the war or danger thereof,

declared in the prior proclamation, no longer exists.

Vice Chief of the Defence Force means the Vice Chief of the

Defence Force appointed under subsection 12(2).

War—Means any invasion or apprehended invasion of, or attack or

apprehended attack on, Australia by an enemy or armed force.

(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.

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Part I Introductory

Section 5

5 Application of Act

This Act applies to, and in relation to, the Defence Force, and to all

members of the Defence 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.

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Control and administration Part II

Section 8

Part II—Control and administration

8 The Minister

(1) The Minister has general control and administration of the Defence

Force.

Note: Command in chief of the Defence Force is vested in the

Governor-General: see section 68 of the Constitution.

(2) In performing and exercising functions and powers under this Part,

the Chief of the Defence Force and the Secretary must comply with

any directions of the Minister.

9 Command of the Defence Force

(1) The Chief of the Defence Force has command of the Defence

Force.

(2) The Chief of the Defence Force must advise the Minister on

matters relating to the command of the Defence Force.

(3) The Vice Chief of the Defence Force is to assist the Chief of the

Defence Force in the command of the Defence Force.

(4) In so assisting, the Vice Chief of the Defence Force must comply

with any directions of the Chief of the Defence Force.

10 Administration of the Defence Force

(1) The Secretary and the Chief of the Defence Force have joint

administration of the Defence Force.

(2) The administration of the Defence Force does not include any

matter:

(a) falling within the command of the Defence Force; or

(b) specified by the Minister.

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Section 11

(3) The Vice Chief of the Defence Force is to assist with the

administration of the Defence Force as directed by the Chief of the

Defence Force.

(4) An instrument made under paragraph (2)(b) is not a legislative

instrument.

11 Defence Instructions

(1) For the purposes of the administration of the Defence Force, the

Secretary and the Chief of the Defence Force together may issue

instructions known as Defence Instructions.

(2) A document purporting to be a Defence Instruction, or a copy of a

Defence Instruction, is taken to be a Defence Instruction unless the

contrary is established.

(3) Despite section 46AA of the Acts Interpretation Act 1901, a

Defence Instruction may make provision for or in relation to a

matter by applying, adopting or incorporating any matter contained

in an instrument or other writing as in force or existing from time

to time.

12 Appointments

(1) The Governor-General may, by writing, appoint an officer of an

arm of the Defence Force to be Chief of the Defence Force.

(2) The Governor-General may, by writing, appoint an officer of an

arm of the Defence Force to be Vice Chief of the Defence Force.

(3) The Chief of the Defence Force and the Vice Chief of the Defence

Force hold office for the periods specified in their instruments of

appointment.

(4) A person appointed as Chief of the Defence Force or Vice Chief of

the Defence Force ceases to hold office if he or she ceases to be an

officer of an arm of the Defence Force.

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Section 13

13 Acting appointments

Vice Chief must act as Chief of the Defence Force

(1) The Vice Chief of the Defence Force must act as the Chief of the

Defence Force:

(a) during a vacancy in the office of the Chief of the Defence

Force; or

(b) during any period, or during all periods, when the Chief of

the Defence Force:

(i) is absent from duty; or

(ii) is, for any reason, unable to perform the duties of the

office.

Acting Vice Chief of the Defence Force

(2) The Governor-General may, by writing, appoint an officer of an

arm of the Defence Force to act as the Vice Chief of the Defence

Force:

(a) during a vacancy in the office of the Vice Chief of the

Defence Force; or

(b) during any period, or during all periods, when the Vice Chief

of the Defence Force:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

14 Resignation

(1) The Chief of the Defence Force or the Vice Chief of the Defence

Force may resign his or her appointment by giving the

Governor-General a written resignation.

(2) However, the resignation does not have effect unless and until it is

accepted by the Governor-General.

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15 Termination of appointment

(1) The Governor-General may, on the recommendation of the Prime

Minister and by notice in writing, terminate the appointment of the

Chief of the Defence Force or the Vice Chief of the Defence Force.

(2) Before recommending to the Governor-General that the

appointment be terminated, the Prime Minister must have received

a report about the proposed termination from the Minister.

16 Remuneration and allowances

(1) The Chief of the Defence Force and the Vice Chief of the Defence

Force are to be paid the remuneration that is determined by the

Remuneration Tribunal. If no determination of that remuneration

by the Tribunal is in operation, they are to be paid the

remuneration that is prescribed by the regulations.

(2) The Chief of the Defence Force and the Vice Chief of the Defence

Force are to be paid the allowances determined under Part IIIA.

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

1973.

Note: The remuneration of the Chief of Navy, the Chief of Army and the

Chief of Air Force is also determined by the Remuneration Tribunal.

For appointment etc. of service chiefs, see the regulations.

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The Australian Defence Force Part III

Constitution of the Australian Defence Force Division 1

Section 17

Part III—The Australian Defence Force

Division 1—Constitution of the Australian Defence Force

17 The Australian Defence Force

The Australian Defence Force (or ADF) consists of the following

arms:

(a) the Royal Australian Navy;

(b) the Australian Army;

(c) the Royal Australian Air Force.

18 Royal Australian Navy

(1) The Royal Australian Navy (or RAN) consists of:

(a) the Chief of Navy; and

(b) the Permanent Navy; and

(c) the Naval Reserve.

(2) The Permanent Navy consists of:

(a) officers appointed to, and sailors enlisted in, the Permanent

Navy; and

(b) members of the Defence Force transferred to the Permanent

Navy.

(3) The Naval Reserve consists of:

(a) officers appointed to, and sailors enlisted in, the Naval

Reserve; and

(b) members of the Defence Force transferred to the Naval

Reserve.

19 Australian Army

(1) The Australian Army consists of:

(a) the Chief of Army; and

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Part III The Australian Defence Force

Division 1 Constitution of the Australian Defence Force

Section 20

(b) the Regular Army; and

(c) the Army Reserve.

(2) The Regular Army consists of:

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

Army; and

(b) members of the Defence Force transferred to the Regular

Army.

(3) The Army Reserve consists of:

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

Reserve; and

(b) members of the Defence Force transferred to the Army

Reserve.

20 Royal Australian Air Force

(1) The Royal Australian Air Force (or RAAF) consists of:

(a) the Chief of Air Force; and

(b) the Permanent Air Force; and

(c) the Air Force Reserve.

(2) The Permanent Air Force consists of:

(a) officers appointed to, and airmen enlisted in, the Permanent

Air Force; and

(b) members of the Defence Force transferred to the Permanent

Air Force.

(3) The Air Force Reserve consists of:

(a) officers appointed to, and airmen enlisted in, the Air Force

Reserve; and

(b) members of the Defence Force transferred to the Air Force

Reserve.

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Constitution of the Australian Defence Force Division 1

Section 21

21 Ranks and corresponding ranks

The ranks and corresponding ranks of members of the Defence

Force (other than chaplains) are set out in Schedule 1.

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Part III The Australian Defence Force

Division 2 Service in the Defence Force

Section 22

Division 2—Service in the Defence Force

22 Voluntary entry

(1) Members of the Defence Force must be persons who volunteer and

are accepted for service in the Defence Force.

(2) Subsection (1) has effect subject to Part IV and any other Act.

23 Service in the Permanent Forces

(1) Members of the Permanent Forces are bound to render continuous

full time service.

Note: Permanent Forces means the Permanent Navy, the Regular Army and

the Permanent Air Force: see subsection 4(1).

Flexible service determinations

(2) The requirement to render continuous full time service does not

prevent the Chief of the Defence Force determining hours of duty

or periods of duty for a member of the Permanent Forces under a

flexible service determination.

(3) A flexible service determination:

(a) must be in writing; and

(b) may be revoked or varied by the Chief of the Defence Force

at any time; and

(c) has effect subject to any terms and conditions (the flexible

service terms and conditions) set out in the determination.

(4) Flexible service terms and conditions may relate to remuneration,

allowances, availability for duty outside the hours of duty or

periods of duty set out in the determination or any other relevant

matter.

(5) A flexible service determination is not a legislative instrument.

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Service in the Defence Force Division 2

Section 24

24 Service in the Reserves

A member of the Reserves is not bound to render continuous full

time service unless the member:

(a) is involved in a period of training that requires continuous

full time service; or

(b) is required to render continuous full time service after

volunteering to do so (see section 26); or

(c) is called out under Division 3 of this Part or Division 1 of

Part IV.

Note: Reserves means the Naval Reserve, the Army Reserve and the Air

Force Reserve: see subsection 4(1).

25 Training for Reserves

Members of the Reserves must render service during training

periods in accordance with the regulations.

26 Volunteer service by Reserves

(1) A member of the Reserves may volunteer to render the following

for a period or periods specified by the member:

(a) continuous full time service;

(b) service other than continuous full time service.

(2) The Chief of the Defence Force may accept some or all of the

service.

(3) The member is bound to render the service accepted by the Chief

of the Defence Force.

27 Service is not a civil contract

No civil contract of any kind is created with the Crown or the

Commonwealth in connection with a member’s service in the

Defence Force.

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Part III The Australian Defence Force

Division 3 Calling out the Reserves

Section 28

Division 3—Calling out the Reserves

28 Governor-General may call out Reserves

(1) The Governor-General may, by call out order published in the

Gazette, call out some or all of the Reserves for continuous full

time service.

(2) A call out order is not a legislative instrument.

Circumstances for call out order

(3) However, a call out order may only be made in circumstances

(whether within or outside Australia) involving one or more of the

following:

(a) war or warlike operations;

(b) a time of 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

(4) In making or revoking a call out 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

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Section 29

Governor-General should act with the advice of the Minister

alone—the Minister.

When call out order takes effect

(5) A call out 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 takes effect

(6) A revocation of a call out 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

(7) To avoid doubt, if a call out order is revoked the call out under that

order ends.

Further orders

(8) The making of a call out order in relation to particular

circumstances does not prevent the making of further call out

orders in relation to those circumstances.

29 Period of service during call out

Period specified by Chief of the Defence Force

(1) A member of the Reserves covered by a call out order is bound to

render continuous full time service for the period specified in

writing by the Chief of the Defence Force.

Length of period

(2) The period of service:

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Division 3 Calling out the Reserves

Section 29

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

and

(b) may be indefinite or limited.

(3) Unless it ends earlier, and despite any specification by the Chief of

the Defence Force, the period ends on the day on which the call out

ends.

Further periods

(4) The specification of a period under a call out order does not

prevent the specification of further periods under the call out order.

Other continuous full time service not affected

(5) This section does not limit a requirement to render continuous full

time service otherwise than under this section.

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Utilisation of Defence Force to protect Commonwealth interests and States and self-

governing Territories Part IIIAAA

Calling out and directing utilisation of Defence Force Division 1

Section 51

Part IIIAAA—Utilisation of Defence Force to

protect Commonwealth interests and States

and self-governing Territories

Division 1—Calling out and directing utilisation of Defence

Force

51 Interpretation

Definitions

(1) In this Part:

Australian offshore area means:

(a) Australian waters; or

(b) the exclusive economic zone of Australia (including its

external Territories); or

(c) the sea over the continental shelf of Australia (including its

external Territories); or

(d) an area prescribed by the regulations;

and includes the airspace over an area covered by paragraph (a),

(b), (c) or (d).

Australian waters means:

(a) the territorial sea of Australia; and

(b) the waters of the sea on the landward side of the territorial

sea of Australia; and

(c) the territorial sea of each external Territory; and

(d) the waters of the sea on the landward side of the territorial

sea of each external Territory;

but does not include the internal waters of a State or self-governing

Territory.

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Part IIIAAA Utilisation of Defence Force to protect Commonwealth interests and

States and self-governing Territories

Division 1 Calling out and directing utilisation of Defence Force

Section 51

authorising Ministers means the Prime Minister, the Minister and

the Attorney-General.

criminal act means an act or omission that would, if done or

omitted to be done in the Jervis Bay Territory, contravene the

substantive criminal law of the Jervis Bay Territory.

dangerous thing means a gun, knife, bomb, chemical weapon or

any other thing that is reasonably likely to be used to cause serious

damage to property or death or serious injury to persons.

designated area means an area in relation to which a declaration is

in force under section 51Q.

designated critical infrastructure means infrastructure, or a part of

infrastructure, that is declared under section 51CB.

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

Constitution.

general security area means an area in relation to which a

declaration is in force under section 51K.

infrastructure includes physical facilities, supply chains,

information technologies and communication networks or systems.

internal waters, in relation to a State or self-governing Territory,

means the waters of the sea within the limits of the State or

Territory and includes the airspace over those waters.

means of transport means a vehicle, vessel, aircraft that is not

airborne, train or other means of transporting persons or goods.

member in charge, in relation to a search authorisation, has the

meaning given by paragraph 51L(2)(c).

offshore designated area means an area in relation to which a

declaration is in force under section 51SL.

offshore general security area means an area in relation to which a

declaration is in force under section 51SF.

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Section 51

offshore member in charge, in relation to an offshore search

authorisation, has the meaning given by paragraph 51SG(2)(c).

offshore search authorisation means an authorisation under

section 51SG.

offshore search members, in relation to a search authorisation, has

the meaning given by paragraph 51SG(2)(d).

premises includes a place that is private property.

Presiding Officer means the President of the Senate or the Speaker

of the House of Representatives.

search of a person means:

(a) a search of a person or of things in the possession of a person

that may include:

(i) requiring the person to remove his or her overcoat, coat

or jacket and any gloves, shoes and hat; and

(ii) an examination of those items; or

(b) a search of a person conducted by quickly running the hands

over the person’s outer garments and an examination of

anything worn or carried by the person that is conveniently

and voluntarily removed by the person;

but does not include:

(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:

(a) the Australian Capital Territory; or

(b) the Northern Territory.

substantive criminal law means law (including unwritten law):

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Part IIIAAA Utilisation of Defence Force to protect Commonwealth interests and

States and self-governing Territories

Division 1 Calling out and directing utilisation of Defence Force

Section 51

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

or

(b) dealing with capacity to incur criminal liability; or

(c) providing a defence or providing for the reduction of the

degree of criminal liability; or

(d) providing for the confiscation of property used in, or derived

from, the commission of an offence; or

(e) dealing with other subjects declared by regulation to be

within the ambit of the substantive criminal law of the Jervis

Bay Territory; or

(f) providing for the interpretation of laws of the kinds

mentioned above.

threat concerned means:

(a) for the purposes of the application of section 51IB or

subsection 51T(2A)—the threat of damage or disruption in

relation to which the authorising Ministers make a

declaration under section 51CB; or

(b) for the purposes of the application of one or more of the

provisions of Division 3A—the threat to Commonwealth

interests in relation to which an order under section 51AA is

made that causes Division 3A to apply.

Police force etc. of certain Territories

(2) If the Australian Federal Police provides police services in relation

to a Territory:

(a) the expression police force of the Territory means the

Australian Federal Police, so far as it provides police services

in relation to the Territory; and

(b) the expression member of the police force of the Territory

means a member or special member of the Australian Federal

Police providing police services in relation to the Territory.

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51A Order about utilising Defence Force to protect Commonwealth

interests against domestic violence

Conditions for making of order

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

that:

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

Australia; and

(aa) the domestic violence would, or would be likely to, affect

Commonwealth interests; and

(b) if the domestic violence is occurring or is likely to occur in a

State or self-governing Territory—the State or Territory is

not, or is unlikely to be, able to protect Commonwealth

interests against the domestic violence; and

(c) the Defence Force should be called out and the Chief of the

Defence Force should be directed to utilise the Defence Force

to protect the Commonwealth interests against the domestic

violence; and

(d) one or more of Divisions 2, 2A, 3 and 3B, and Division 4,

should apply in relation to the order.

Power of Governor-General to make order

(2) If this subsection applies, the Governor-General may, by written

order, call out the Defence Force and direct the Chief of the

Defence Force to utilise the Defence Force to protect the

Commonwealth interests against the domestic violence.

Provided always that the 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

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(b) if the Government of the State or the self-governing Territory

does not request the making of the order, an authorising

Minister must, subject to subsection (3A), consult that

Government about the making of the order before the

Governor-General makes it.

Exception to paragraph (3)(b)

(3A) However, paragraph (3)(b) does not apply if the authorising

Ministers are satisfied that, for reasons of urgency, it is

impracticable to comply with the requirements of that paragraph.

Content of the order

(4) The order:

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

(b) must specify the State or Territory in which the domestic

violence is occurring or likely to occur, the Commonwealth

interests and the domestic violence; and

(c) must state that one or more of Divisions 2, 2A, 3 and 3B, 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, the Governor-General is to act

with the advice of:

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(a) except where paragraph (b) applies—the Executive Council;

or

(b) if an authorising Minister is satisfied that, for reasons of

urgency, the Governor-General should, for the purposes of

this subsection, act with the advice of the authorising

Minister—the authorising Minister.

Effect of revocation of order etc.

(8) To avoid doubt, if the order is revoked or ceases to be in force, the

call out of the Defence Force under the order ends and the Chief of

the Defence Force must cease utilising the Defence Force as

mentioned in subsection (2).

Notice to State or self-governing Territory

(8A) As soon as is reasonably practicable after the order is made or

revoked, an authorising Minister must arrange for the Government

of the State or the self-governing Territory specified in the order to

be notified of the making or revocation of the order. However, if

this is not done, the validity of the making or revocation of the

order is not affected.

Further orders

(9) The fact that the order has been made does not prevent further

orders being made in relation to the same matter.

51AA Order about utilising Defence Force in the offshore area etc.

to protect Commonwealth interests

Conditions for making of order utilising the Defence Force in the

offshore area

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

that:

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(a) there is a threat in the Australian offshore area to

Commonwealth interests (whether in that area or elsewhere);

and

(b) the Defence Force should be called out and the Chief of the

Defence Force should be directed to utilise the Defence Force

in the Australian offshore area to protect the Commonwealth

interests against the threat; and

(c) either Division 2A or 3A, or both, and Division 4 should

apply in relation to the order.

Power of Governor-General to make order utilising the Defence

Force in the Australian offshore area

(2) If this subsection applies, the Governor-General may, by written

order, call out the Defence Force and direct the Chief of the

Defence Force to utilise the Defence Force in the Australian

offshore area to protect the Commonwealth interests against the

threat concerned.

(3) However, the Reserves must not be called out or utilised in

connection with an industrial dispute.

Conditions for also utilising the Defence Force in the internal

waters

(4) Subsection (5) applies if the authorising Ministers are satisfied

that:

(a) in relation to the threat mentioned in paragraph (1)(a),

domestic violence is occurring or is likely to occur in the

internal waters of a State or self-governing Territory; and

(b) the State or Territory is not, or is unlikely to be, able to

protect the Commonwealth interests against the domestic

violence; and

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

the Defence Force in the internal waters of the State or

Territory to protect the Commonwealth interests against the

domestic violence.

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Power of Governor-General to direct utilising the Defence Force

in the internal waters

(5) If this subsection applies, the Governor-General may, in the order

under subsection (2), also direct the Chief of the Defence Force to

utilise the Defence Force in the internal waters of the State or

Territory to protect the Commonwealth interests against the

domestic violence.

Involvement of State or Territory

(6) If subsection (5) applies:

(a) the Governor-General may make the direction referred to in

subsection (5) whether or not the Government of the State or

the self-governing Territory requests the making of the

direction; and

(b) if the Government of the State or the self-governing Territory

does not request the making of the direction referred to in

subsection (5), an authorising Minister must, subject to

subsection (7), consult that Government about the making of

the direction.

Exception to paragraph (6)(b)

(7) However, paragraph (6)(b) does not apply if the authorising

Ministers are satisfied that, for reasons of urgency, it is

impracticable to comply with the requirements of that paragraph.

Content of the order

(8) The order:

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

(b) must specify:

(i) the threat to which the order relates; and

(ii) the Commonwealth interests; and

(iii) if the order includes a direction mentioned in

subsection (5)—the State or Territory to which the

direction relates and the domestic violence; and

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(c) must state that Division 2A or 3A, or both, and Division 4

apply in relation to the order; and

(d) must state that the order comes into force when it is made

and that, unless it is revoked earlier, it ceases to be in force

after a specified period (which must not be more than 20

days).

When order is in force

(9) The order is in force as stated in accordance with paragraph (8)(d).

Revocation of order

(10) If the authorising Ministers cease to be satisfied as mentioned in

subsection (1), the Governor-General must revoke the order.

Advice to Governor-General

(11) In making or revoking the order, the Governor-General is to act

with the advice of:

(a) except where paragraph (b) applies—the Executive Council;

or

(b) if an authorising Minister is satisfied that, for reasons of

urgency, the Governor-General should, for the purposes of

this subsection, act with the advice of the authorising

Minister—the authorising Minister.

Effect of revocation of order etc.

(12) To avoid doubt, if the order is revoked or ceases to be in force, the

call out of the Defence Force under the order ends and the Chief of

the Defence Force must cease utilising the Defence Force as

mentioned in subsection (2) or (5).

Notice to State or self-governing Territory

(13) If the order includes a direction mentioned in subsection (5), then

as soon as is reasonably practicable after the order is made or

revoked, an authorising Minister must arrange for the Government

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of the State or the self-governing Territory specified in the order to

be notified of the making or revocation of the order. However, if

this is not done, the validity of the making or revocation of the

order is not affected.

Further orders

(14) The fact that the order has been made does not prevent further

orders being made in relation to the same matter.

51AB Order about utilising Defence Force to protect

Commonwealth interests against violence if specified

circumstances arise

Conditions for making of order

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

that:

(a) if specified circumstances were to arise:

(i) domestic violence would occur or would be likely to

occur in Australia that would, or would be likely to,

affect Commonwealth interests; or

(ii) there would be, or it is likely there would be, a threat in

the Australian offshore area to Commonwealth interests

(whether in that area or elsewhere);

and, for reasons of urgency, it would be impracticable for the

Governor-General to make an order under section 51A or

51AA (as the case requires); and

(b) if subparagraph (a)(i) applies—the domestic violence would

occur or would be likely to occur in a State or self-governing

Territory that would not be, or is unlikely to be, able to

protect the Commonwealth interests against the domestic

violence; and

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

the Defence Force to protect the Commonwealth interests

against the violence, or the threat in the Australian offshore

area, if the specified circumstances arise; and

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(d) Divisions 3B and 4 should apply in relation to the order.

Power of Governor-General to make order

(2) If this subsection applies, the Governor-General may, by written

order, direct the Chief of the Defence Force to utilise the Defence

Force to protect the Commonwealth interests against the domestic

violence, or the threat in the Australian offshore area, if the

specified circumstances arise.

Involvement of State or Territory

(3) If paragraph (1)(b) applies:

(a) the Governor-General may make the order whether or not the

Government of the State or the self-governing Territory

requests the making of the order; and

(b) if the Government of the State or the self-governing Territory

does not request the making of the order, an authorising

Minister must consult that Government about the making of

the order before the Governor-General makes it.

Content of the order

(4) The order:

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

(b) must specify:

(i) the circumstances to which the order relates; and

(ii) if paragraph (1)(b) applies—the State or Territory in

which the domestic violence would occur or would be

likely to occur; and

(iii) the Commonwealth interests; and

(iv) the domestic violence, or the threat in the Australian

offshore area, as the case requires; and

(c) must state that Divisions 3B and 4 apply in relation to the

order; and

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(d) must state that the order comes into force when it is made

and that, unless it is revoked earlier, it ceases to be in force at

the end of the period specified in the order.

When order is in force

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

Revocation of order

(6) If the authorising Ministers cease to be satisfied as mentioned in

subsection (1), the Governor-General must revoke the order.

Advice to Governor-General

(7) In making or revoking the order the Governor-General is to act

with the advice of the Executive Council.

Effect of revocation of order etc.

(8) To avoid doubt, if the order is revoked or ceases to be in force, the

Chief of the Defence Force must cease utilising the Defence Force

as mentioned in subsection (2).

Notice to State or self-governing Territory

(9) If the order specifies a State or Territory under

subparagraph (4)(b)(ii), as soon as is reasonably practicable after

the order is made or revoked, an authorising Minister must arrange

for the Government of the State or Territory to be notified of the

making or revocation of the order. However, if this is not done, the

validity of the making or revocation of the order is not affected.

Further orders

(10) The fact that the order has been made does not prevent further

orders being made in relation to the same matter.

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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) one or more of Divisions 2, 2A, 3 and 3B, and Division 4,

should apply in relation to the order.

Power of Governor-General to make order

(2) If this subsection applies, the Governor-General may, by written

order, call out the Defence Force and direct the Chief of the

Defence Force to utilise the Defence Force to protect the State

against the domestic violence.

Provided always that 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 one or more of Divisions 2, 2A, 3 and 3B, 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).

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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.

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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) one or more of Divisions 2, 2A, 3 and 3B, and Division 4,

should apply in relation to the order.

Power of Governor-General to make order

(2) If this subsection applies, the Governor-General may, by written

order, call out the Defence Force and direct the Chief of the

Defence Force to utilise the Defence Force to protect the Territory

against the domestic violence.

Provided always that 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 one or more of Divisions 2, 2A, 3 and 3B, 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

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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.

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51CA Expedited call out

Expedited call out by the Prime Minister

(1) The Prime Minister may make an order of a kind that the

Governor-General is empowered to make under section 51A,

51AA, 51AB, 51B or 51C if the Prime Minister is satisfied that:

(a) because a sudden and extraordinary emergency exists, it is

not practicable for an order to be made under that section;

and

(b) the circumstances referred to in subsection 51A(1), 51AA(1),

51AB(1), 51B(1) or 51C(1) (as the case requires) exist.

Expedited call out by the other 2 authorising Ministers

(2) The other 2 authorising Ministers may jointly make an order of a

kind that the Governor-General is empowered to make under

section 51A, 51AA, 51AB, 51B or 51C if those authorising

Ministers are satisfied that:

(a) because a sudden and extraordinary emergency exists, it is

not practicable for an order to be made under that section;

and

(b) the Prime Minister is unable to be contacted for the purposes

of considering whether to make, and making, an order under

subsection (1) of this section; and

(c) the circumstances referred to in subsection 51A(1), 51AA(1),

51AB(1), 51B(1) or 51C(1) (as the case requires) exist.

Expedited call out by an authorising Minister and another Minister

(2A) An authorising Minister, together with the Deputy Prime Minister,

the Foreign Affairs Minister or the Treasurer, may make an order

of a kind that the Governor-General is empowered to make under

section 51A, 51AA, 51AB, 51B or 51C if the Ministers are

satisfied that:

(a) because a sudden and extraordinary emergency exists, it is

not practicable for an order to be made under that section;

and

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(b) the Prime Minister is unable to be contacted for the purposes

of considering whether to make, and making, an order under

subsection (1) of this section; and

(c) the remaining authorising Minister is unable to be contacted

for the purposes of considering whether to make, and

making, an order under subsection (2) of this section; and

(d) the circumstances referred to in subsection 51A(1), 51AA(1),

51AB(1), 51B(1) or 51C(1) (as the case requires) exist.

Orders applying in internal waters

(3) If the order is an order of a kind that Governor-General is

empowered to make under section 51AA, the order must not direct

the Chief of the Defence Force to utilise the Defence Force in the

internal waters of the State or self-governing Territory unless:

(a) if the order is made under subsection (1) of this section—the

Prime Minister is satisfied that the circumstances referred to

in subsection 51AA(4) exist in relation to that State or

Territory; or

(b) if the order is made under subsection (2) or (2A) of this

section—the other 2 Ministers are satisfied that the

circumstances referred to in subsection 51AA(4) exist in

relation to that State or Territory.

Order not in writing

(4) An order under this section need not be in writing. If it is not in

writing, the Prime Minister or the other 2 Ministers (as the case

requires), and the Chief of the Defence Force, must each:

(a) make a written record of the order; and

(b) sign the record; and

(c) cause the signing of the record to be witnessed; and

(d) in the case of the Prime Minister or another Minister—as

soon as practicable:

(i) cause the record to be given to the Chief of the Defence

Force; and

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(ii) cause a copy of the record to be given to the

Governor-General; and

(e) in the case of the Chief of the Defence Force—as soon as

practicable:

(i) cause the record to be given to the Prime Minister; or

(ii) cause the record to be given to one of the other 2

Ministers, and cause a copy of the record to be given to

the other Minister;

as the case requires.

However, a failure to comply with paragraph (d) or (e) does not

affect the validity of the order.

The effect of the order

(5) Subject to subsections (7) and (8) of this section, an order made

under this section has effect, for all purposes (other than this

section), as if it were an order made by the Governor-General

under section 51A, 51AA, 51AB, 51B or 51C (as the case

requires). In particular:

(a) subsection 51A(4), 51AA(8), 51AB(4), 51B(3) or 51C(3) (as

the case requires) applies to the order; and

(b) the Governor-General may revoke the order in the same way,

and in the same circumstances, as he or she may revoke an

order under section 51A, 51AA, 51AB, 51B or 51C (as the

case requires).

(6) For the purposes of paragraph (5)(b), the reference in

subsection 51A(6), 51AA(10) or 51AB(6) or paragraph 51B(5)(b)

or 51C(5)(b) (as the case requires) to the authorising Ministers

ceasing to be satisfied is taken to be a reference to them not being

satisfied.

Content of the order

(7) An order made under this section:

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

effect as if it were an order made by the Governor-General

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under section 51A, 51AA, 51AB, 51B or 51C (as the case

requires); and

(b) despite paragraph 51A(4)(d), 51AA(8)(d), 51AB(4)(d),

51B(3)(d) or 51C(3)(d) (as the case requires), must state that,

unless it is revoked earlier, it ceases to be in force after a

specified period (which must not be more than 5 days).

When order is in force

(8) The order:

(a) comes into force when it is made, or (if it is not in writing)

when:

(i) the Prime Minister, or the other 2 Ministers; and

(ii) the Chief of the Defence Force;

have complied with paragraph (4)(c); and

(b) ceases to be in force as stated in accordance with

paragraph (7)(b).

Authorisations and declarations during an expedited call out

(9) If:

(a) one or more authorising Ministers have the power to give an

authorisation or make a declaration under a provision of

Division 2, 3, 3A or 3B; and

(b) that Division applies because of an order made under this

section;

the authorisation or declaration need not be in writing, despite any

requirement of the provision to the contrary.

(10) If the authorisation or declaration is not in writing, the authorising

Minister or authorising Ministers, and the Chief of the Defence

Force, must each:

(a) make a written record of the authorisation or declaration; and

(b) sign the record; and

(c) cause the signing of the record to be witnessed; and

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Division 1 Calling out and directing utilisation of Defence Force

Section 51CA

(d) in the case of an authorising Minister—as soon as practicable

cause the record to be given to the Chief of the Defence

Force; and

(e) in the case of the Chief of the Defence Force—as soon as

practicable:

(i) cause the record to be given to the authorising Minister;

or

(ii) cause the record to be given to one of the authorising

Ministers, and cause a copy of the record to be given to

the other authorising Minister;

as the case requires.

However, a failure to comply with paragraph (d) or (e) does not

affect the validity of the authorisation or declaration.

(11) If the authorisation or declaration is not in writing, it comes into

force when the authorising Minister or authorising Ministers, and

the Chief of the Defence Force, have complied with

paragraph (10)(c).

References to certain circumstances

(12) To avoid doubt, a reference in this section to the circumstances

referred to in subsection 51A(1), 51AA(1), 51AB(1), 51B(1) or

51C(1):

(a) does not include a reference to the authorising Ministers

being satisfied as to particular matters; and

(b) in relation to section 51B, includes a reference to a State

Government having made an application of a kind referred to

in subsection 51B(1); and

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

Government having made an application of a kind referred to

in subsection 51C(1).

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Calling out and directing utilisation of Defence Force Division 1

Section 51CB

Involvement of State or Territory under subsection 51A(3) not

required

(13) To avoid doubt, paragraph 51A(3)(b) does not apply to an order

under this section that would have effect as if it were an order

made by the Governor-General under section 51A.

51CB Declaration of designated critical infrastructure

(1) The authorising Ministers may, in writing, declare that particular

infrastructure, or a part of particular infrastructure, in Australia or

in the Australian offshore area is designated critical infrastructure.

(2) However, the authorising Ministers may do so only if they believe

on reasonable grounds that:

(a) there is a threat of damage or disruption to the operation of

the infrastructure or the part of the infrastructure; and

(b) the damage or disruption would directly or indirectly

endanger the life of, or cause serious injury to, other persons.

(3) If the authorising Ministers no longer believe those matters, they

must revoke the declaration.

(4) To avoid doubt, the authorising Ministers may make a declaration

under this section whether or not an order is in force under this

Division.

(5) If the infrastructure, or the part of the infrastructure, is in a State or

a self-governing Territory:

(a) the authorising Ministers may make the declaration referred

to in subsection (1) whether or not the Government of the

State or the self-governing Territory requests the making of

the declaration; and

(b) if the Government of the State or the self-governing Territory

does not request the making of the declaration referred to in

subsection (1), an authorising Minister must, subject to

subsection (6), consult that Government about the making of

the declaration.

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States and self-governing Territories

Division 1 Calling out and directing utilisation of Defence Force

Section 51D

(6) However, paragraph (5)(b) does not apply if the authorising

Ministers are satisfied that, for reasons of urgency, it is

impracticable to comply with the requirements of that paragraph.

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

Order under section 51A

(1) If the Governor-General makes an order under section 51A, the

Chief of the Defence Force must, subject to sections 51E, 51F and

51G, utilise the Defence Force, in such manner as is reasonable

and necessary, for the purpose of protecting the Commonwealth

interests specified in the order, in the State or Territory specified in

the order, against the domestic violence specified in the order.

Order under section 51AA

(1A) If the Governor-General makes an order under section 51AA, the

Chief of the Defence Force must, subject to sections 51E, 51F and

51G, utilise the Defence Force, in such manner as is reasonable

and necessary:

(a) in the Australian offshore area, for the purpose of protecting

the Commonwealth interests specified in the order against the

threat concerned; and

(b) if the order includes a direction mentioned in

subsection 51AA(5)—in the internal waters of the State or

Territory to which the direction relates, for the purpose of

protecting the Commonwealth interests specified in the order

against the domestic violence specified in the order.

Order under section 51AB

(1B) If:

(a) the Governor-General makes an order under section 51AB;

and

(b) the circumstances specified in the order arise;

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Calling out and directing utilisation of Defence Force Division 1

Section 51E

the Chief of the Defence Force must, subject to sections 51E, 51F

and 51G, utilise the Defence Force, in such manner as is

reasonable and necessary:

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

in the order against the domestic violence specified in the

order; or

(d) for the purpose of protecting the Commonwealth interests

specified in the order against the threat specified in the order;

as the case requires.

Order under section 51B or 51C

(2) If the Governor-General makes an order under section 51B or 51C,

the Chief of the Defence Force must, subject to sections 51E, 51F

and 51G, utilise the Defence Force, in such manner as is

reasonable and necessary, for the purpose of protecting the State or

Territory specified in the order against the domestic violence

specified in the order.

51E Ministerial directions

Subject to section 51G, in utilising the Defence Force in

accordance with section 51D, the Chief of the Defence Force must

comply with any direction that the Minister gives from time to time

as to the way in which the Defence Force is to be utilised.

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

(1) Subject to subsections (2) and (3) and to sections 51E and 51G, in

utilising the Defence Force in accordance with section 51D, the

Chief of the Defence Force must, as far as is reasonably

practicable, ensure that:

(a) the Defence Force is utilised to assist the State or Territory

specified in the order and cooperates with the police force of

the State or Territory; and

(b) the Defence Force is not utilised for any particular task

unless a member of the police force of the State or the

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Division 1 Calling out and directing utilisation of Defence Force

Section 51G

Territory specified in the order requests, in writing, that the

Defence Force be so utilised.

(2) Subsection (1) does not require or permit the Chief of the Defence

Force to transfer to any extent command of the Defence Force to

the State or the Territory, or to a police force or member of the

police force of the State or the Territory.

(3) This section does not apply in relation to an order under

section 51AA to the extent that the Defence Force is being utilised

in the Australian offshore area.

Note: This section will still apply in relation to an order under section 51AA

to the extent that the Defence Force is being utilised in the internal

waters of a State or self-governing Territory.

51G Restriction on certain utilisation of Defence Force

In utilising the Defence Force in accordance with section 51D, the

Chief of the Defence Force must not stop or restrict any protest,

dissent, assembly or industrial action, except where there is a

reasonable likelihood of the death of, or serious injury to, persons

or serious damage to property.

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Powers to recapture locations or things, prevent or end acts of violence and protect

persons from acts of violence Division 2

Section 51H

Division 2—Powers to recapture locations or things,

prevent or end acts of violence and protect

persons from acts of violence

51H Application of this Division and Division 4

If an order states in accordance with paragraph 51A(4)(c),

51B(3)(c) or 51C(3)(c) that this Division and Division 4 apply in

relation to the order, the following provisions of this Division, and

the provisions of Division 4, apply.

51I Special powers of members of the Defence Force

Special powers

(1) Subject to this section, a member of the Defence Force who is

being utilised in accordance with section 51D may, under the

command of the Chief of the Defence Force do any one or more of

the following:

(a) take any one or more of the following actions:

(i) recapture a location or thing;

(ii) prevent, or put an end to, acts of violence;

(iii) protect persons from acts of violence;

(b) in connection with taking any such action, do any one or

more of the following:

(i) free any hostage from a location or thing;

(ii) if the member finds a person whom the member

believes on reasonable grounds to have committed an

offence against a law of the Commonwealth, a State or

Territory—detain the person for the purpose of placing

the person in the custody of a member of a police force

at the earliest practicable time;

(iii) control the movement of persons or of means of

transport;

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Division 2 Powers to recapture locations or things, prevent or end acts of violence and

protect persons from acts of violence

Section 51I

(iv) evacuate persons to a place of safety;

(v) search persons or locations or things for dangerous

things or other things related to the domestic violence

that is occurring or is likely to occur;

(vi) seize any dangerous thing, or other thing related to the

domestic violence that is occurring or is likely to occur,

found in such a search; and

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

Note: Subdivision B of Division 4 sets out what is to happen if a thing is

seized under this subsection.

Ministerial authorisation

(2) However, the member must not:

(a) take any action mentioned in paragraph (1)(a); or

(b) do any of the things mentioned in paragraph (1)(b) or (c) in

connection with taking that action;

unless an authorising Minister has in writing authorised taking that

action.

Exception

(3) Subsection (2) does not apply if the member believes on reasonable

grounds that there is insufficient time to obtain the authorisation

because a sudden and extraordinary emergency exists.

Definitions

(4) In this section:

location includes any premises or place.

thing includes any means of transport, but does not include an

aircraft that is airborne.

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Powers to protect designated critical infrastructure Division 2A

Section 51IA

Division 2A—Powers to protect designated critical

infrastructure

51IA Application of this Division and Division 4

(1) If an order states in accordance with paragraph 51A(4)(c),

51AA(8)(c), 51B(3)(c) or 51C(3)(c) that this Division and

Division 4 apply in relation to the order, the following provisions

of this Division, and the provisions of Division 4, apply.

(2) In relation to an order under section 51AA, this Division and

Division 4 (in its operation in relation to this Division) apply only

in:

(a) the Australian offshore area; and

(b) if the order includes a direction mentioned in

subsection 51AA(5)—the internal waters of the State or

self-governing Territory specified in the order.

51IB Powers to protect designated critical infrastructure

A member of the Defence Force who is being utilised in

accordance with section 51D may, under the command of the Chief

of the Defence Force, do any one or more of the following for the

purpose of protecting designated critical infrastructure:

(a) take one or both of the following actions:

(i) prevent, or put an end to, damage or disruption to the

operation of the designated critical infrastructure;

(ii) prevent, or put an end to, acts of violence;

(b) in connection with taking any such action, do any one or

more of the following:

(i) if the member finds a person whom the member

believes on reasonable grounds to have committed an

offence against a law of the Commonwealth, a State or

Territory—detain the person for the purpose of placing

the person in the custody of a member of a police force

at the earliest practicable time;

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Division 2A Powers to protect designated critical infrastructure

Section 51IB

(ii) protect persons from acts of violence;

(iii) control the movement of persons or of means of

transport;

(iv) evacuate persons to a place of safety;

(v) search persons or things for dangerous things or other

things related to the threat concerned;

(vi) seize any dangerous thing or other thing related to the

threat concerned found in such a search;

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

Note: Subdivision B of Division 4 sets out what is to happen if a thing is

seized under this section.

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General security area powers Division 3

Section 51J

Division 3—General security area powers

Subdivision A—Application 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 B—Powers that may be exercised anywhere in a

general security area

51K Declaration of general security area

(1) The authorising Ministers may, in writing, declare that a specified

area, being a part of the State or Territory specified in the order, is

a general security area for the purposes of the application of this

Division and Division 4 in relation to members of the Defence

Force who are being utilised in accordance with section 51D.

Statement to be published

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

(a) summarises the content of the order, but without including

any reference to any statement in accordance with

paragraph 51A(4)(c), 51B(3)(c) or 51C(3)(c) that Division 2

applies in relation to the order; and

(b) states that the declaration has been made; and

(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

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Section 51L

(f) forwarded, within 24 hours after the declaration is made, to

the Presiding Officer of each House of the Parliament for

tabling in that House.

(2AA) However, subsection (2) does not apply if:

(a) the order mentioned in section 51J also states, in accordance

with paragraph 51A(4)(c), 51B(3)(c) or 51C(3)(c), that

Division 2 applies in relation to the order; and

(b) the authorising Ministers declare, in writing, that they are

satisfied that the application of subsection (2) would

prejudice the exercise of powers under Division 2 by

members of the Defence Force who are being utilised in

accordance with section 51D.

Houses to sit within 6 days

(2A) Each House of the Parliament must sit within 6 days after its

Presiding Officer receives the statement that is forwarded in

accordance with paragraph (2)(f).

Effect of failure to publish

(3) A failure to comply with subsection (2) does not make the

declaration ineffective to any extent.

51L Authorisation to search premises in the general security area

for dangerous things

(1) If, while the Defence Force is being utilised in accordance with

section 51D:

(a) the Chief of the Defence Force; or

(b) an officer of the Defence Force authorised by the Chief of the

Defence Force for the purposes of this section;

believes on reasonable grounds that:

(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;

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Section 51L

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.

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Section 51M

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.

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Section 51O

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.

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Section 51Q

Subdivision C—Powers that may be exercised only in relation

to a designated area in the general security area

51Q Declaration of designated area

(1) The authorising Ministers may, in writing, declare that a specified

area, being the whole or a part of a general security area, is a

designated area for the purposes of the application of this Division

and Division 4 in relation to members of the Defence Force who

are being utilised in accordance with section 51D.

Where no longer a general security area

(2) To avoid doubt, if the whole or part of the area later ceases to be

within a general security area, the whole or the part ceases to be a

designated area.

Declaration to be published

(3) If the authorising Ministers make a declaration under

subsection (1), they must take reasonable steps to make the public

aware of the declaration of the designated area and of its

boundaries.

(4) However, subsection (3) does not apply if the authorising Ministers

declare, in writing, that they are satisfied that the application of

subsection (3) would prejudice the exercise of powers under

Division 2 by members of the Defence Force who are being

utilised in accordance with section 51D.

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

general security area

Powers in relation to persons in charge of means of transport

(1) A member of the Defence Force who is being utilised in

accordance with section 51D may do any one or more of the

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Section 51R

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):

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Section 51R

(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.

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Section 51S

51S Members to wear uniforms and identification when exercising

powers

(1) While any member of the Defence Force is exercising powers

under this Division, or under Division 4 in its operation in relation

to this Division, he or she must at all times:

(a) wear his or her uniform; and

(b) for the purposes of identification, have:

(i) his or her surname; or

(ii) his or her numbers or a combination of numbers and

letters of the alphabet;

on or attached to the front of his or her uniform.

Penalty: 30 penalty units.

Situation where no offence committed

(2) A member who contravenes paragraph (1)(b) does not commit 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).

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Division 3A Powers in the Australian offshore area etc.

Section 51SA

Division 3A—Powers in the Australian offshore area etc.

Subdivision A—Preliminary

51SA Application of this Division and Division 4

If an order states in accordance with paragraph 51AA(8)(c) that

this Division and Division 4 apply in relation to the order, the

following provisions of this Division, and the provisions of

Division 4, apply.

51SB Geographic application

This Division and Division 4 (in its operation in relation to this

Division) apply only in:

(a) the Australian offshore area; and

(b) if the order under section 51AA includes a direction

mentioned in subsection 51AA(5)—the internal waters of the

State or self-governing Territory specified in the order.

51SC International obligations

The authorising Ministers or an authorising Minister must, in

giving an authorisation or making a declaration under this

Division, have regard to Australia’s international obligations.

51SD Definitions

In this Division:

facility includes a fixed or floating structure or installation of any

kind.

vessel means:

(a) a ship, boat, raft, pontoon or submersible craft; or

(b) any other thing capable of carrying persons or goods through

or on water;

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Section 51SE

and includes a hovercraft (or other non-displacement craft) and a

floating structure or installation.

Subdivision B—Special powers of members of the Defence

Force

51SE Special powers of members of the Defence Force

Special powers

(1) Subject to this section, a member of the Defence Force who is

being utilised in accordance with section 51D may, under the

command of the Chief of the Defence Force, do any one or more of

the following:

(a) take any one or more of the following actions:

(i) take measures (including the use of force) against a

vessel or an aircraft, up to and including destroying the

vessel or aircraft;

(ii) give an order relating to the taking of such measures;

(iii) capture a vessel or aircraft;

(iv) board a facility, vessel or aircraft;

(v) recapture a facility, vessel or aircraft;

(vi) prevent, or put an end to, acts of violence;

(vii) protect persons from acts of violence;

(b) in connection with taking any such action, do any one or

more of the following:

(i) free any hostage from a facility, vessel or aircraft;

(ii) if the member finds a person whom the member

believes on reasonable grounds to have committed an

offence against a law of the Commonwealth, a State or

Territory—detain the person for the purpose of placing

the person in the custody of a member of a police force

at the earliest practicable time;

(iii) control the movement of persons, vessels or aircraft;

(iv) evacuate persons to a place of safety;

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Section 51SE

(v) search persons, facilities, vessels or aircraft for

dangerous things or other things related to the threat

concerned;

(vi) seize any dangerous thing or other thing related to the

threat concerned found in such a search;

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

Note: Subdivision B of Division 4 sets out what is to happen if a thing is

seized under this subsection.

(2) Subparagraph (1)(a)(i) does not apply to the taking of measures

unless:

(a) the member of the Defence Force takes the measures under,

or under the authority of, an order of a superior; and

(b) the member was under a legal obligation to obey the order;

and

(c) the order was not manifestly unlawful; and

(d) the member has no reason to believe that circumstances have

changed in a material way since the order was given; and

(e) the member has no reason to believe that the order was based

on a mistake as to a material fact; and

(f) taking the measures was reasonable and necessary to give

effect to the order.

(3) Subparagraph (1)(a)(ii) does not apply to giving an order unless:

(a) the member of the Defence Force gives the order under, or

under the authority of, an order (a superior order) of a

superior; and

(b) the member was under a legal obligation to obey the superior

order; and

(c) the superior order was not manifestly unlawful; and

(d) the member has no reason to believe that circumstances have

changed in a material way since the superior order was given;

and

(e) the member has no reason to believe that the superior order

was based on a mistake as to a material fact; and

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Section 51SF

(f) giving the order was reasonable and necessary to give effect

to the superior order.

Ministerial authorisation

(4) However, the member must not:

(a) take any action mentioned in paragraph (1)(a); or

(b) do any of the things mentioned in paragraph (1)(b) or (c) in

connection with taking that action;

unless an authorising Minister has in writing authorised taking that

action.

Exception

(5) Subsection (4) does not apply if the member believes on reasonable

grounds that there is insufficient time to obtain the authorisation

because a sudden and extraordinary emergency exists.

Subdivision C—Powers that may be exercised anywhere in an

offshore area

51SF Declaration of offshore general security area

(1) The authorising Ministers may, in writing, declare that a specified

area is an offshore general security area for the purposes of the

application of this Division and Division 4 in relation to members

of the Defence Force who are being utilised in accordance with

section 51D.

(2) The area:

(a) may be specified by reference to an area surrounding one or

more vessels or aircraft, or surrounding a class of vessels or

aircraft, being an area the boundaries of which change as the

location of the vessels or aircraft changes; and

(b) may include areas within the internal waters of a State or

Territory if the order under section 51AA includes the

internal waters of the State or Territory.

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Section 51SG

Statement to be made available

(3) If the authorising Ministers make a declaration under

subsection (1), they must arrange for a statement that:

(a) summarises the content of the order under section 51AA; and

(b) states that the declaration has been made; and

(c) describes the offshore general security area and its

boundaries;

to be:

(d) notified to persons in the offshore general security area to the

extent that this is practicable; and

(e) published in the Gazette; and

(f) forwarded, within 24 hours after the declaration is made, to

the Presiding Officer of each House of the Parliament for

tabling in that House.

(4) However, subsection (3) does not apply if the authorising Ministers

declare, in writing, that they are satisfied that the application of

subsection (3) would prejudice the exercise of powers under

Subdivision B by members of the Defence Force who are being

utilised in accordance with section 51D.

Houses to sit within 6 days

(5) Each House of the Parliament must sit within 6 days after its

Presiding Officer receives the statement that is forwarded in

accordance with paragraph (3)(f).

Effect of failure to publish

(6) A failure to comply with subsection (3) does not make the

declaration ineffective to any extent.

51SG Authorisation to search facilities in the offshore general

security area for dangerous and other things

(1) If, while the Defence Force is being utilised in accordance with

section 51D:

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Section 51SG

(a) the Chief of the Defence Force; or

(b) an officer of the Defence Force, or an officer of the Defence

Force included in a class of officers, authorised by the Chief

of the Defence Force for the purposes of this section;

believes on reasonable grounds that:

(c) there is a dangerous thing on a facility in the offshore general

security area and it is necessary as a matter of urgency to

make the dangerous thing safe or prevent it from being used;

or

(d) there is another thing on a facility in the offshore general

security area that is related to the threat concerned and it is

necessary as a matter of urgency to seize the thing;

he or she may give an authorisation under this section.

What the authorisation must say

(2) The authorisation must:

(a) authorise entry to, and search of, the facility; and

(b) describe the facility; and

(c) state the name, rank and service number of a member of the

Defence Force (the offshore member in charge) who is to be

in charge of the search; and

(d) authorise the member in charge, and any other member of the

Defence Force assisting the member, (the offshore search

members) to carry out the search; and

(e) authorise each offshore search member to seize any thing

found on the facility in the course of the search that he or she

believes on reasonable grounds to be a dangerous thing or a

thing that is related to the threat concerned; and

(f) state that, if any offshore search member believes on

reasonable grounds that a person who is on or near the

facility while the search is being carried out has a dangerous

thing or a thing that is related to the threat concerned in his or

her possession, the member is authorised to:

(i) search the person; and

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Section 51SH

(ii) seize any dangerous thing or other thing related to the

threat concerned found in the search; and

(g) state the time during which the authorisation remains in

force, which must not be more than 24 hours.

Note: Subdivision B of Division 4 sets out what is to happen if a thing is

seized under this subsection.

Effect of the authorisation

(3) The authorisation has effect according to its terms.

Further authorisations possible

(4) Paragraph (2)(g) does not prevent the issue of further

authorisations in relation to the same facility.

51SH Copy of offshore search authorisation to be given to occupier

etc.

Right of occupier to be given copy of offshore search authorisation

etc.

(1) If the occupier of the facility specified in the offshore search

authorisation, or another person who apparently represents the

occupier, is present on the facility when the search is being carried

out, the offshore member in charge must:

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

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

Right of person searched to be shown copy of offshore search

authorisation

(2) The offshore member in charge must, before any person (other

than a person who has been given a copy of the offshore search

authorisation under subsection (1)) is searched in accordance with

the offshore search authorisation, show the person a copy of the

offshore search authorisation.

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Section 51SI

51SI Occupier etc. entitled to be present during search

(1) If the occupier of the facility specified in the offshore search

authorisation, or another person who apparently represents the

occupier, is present on the facility when the search is being carried

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

Search not to be impeded

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

the person impedes the search.

Multiple searches

(3) This section does not prevent 2 or more areas of the facility being

searched at the same time.

51SJ Search of vessel or aircraft in the offshore general security

area for dangerous or other things

(1) If a member of the Defence Force who is being utilised in

accordance with section 51D believes on reasonable grounds that a

dangerous thing, or another thing that is related to the threat

concerned, is in or on a vessel or aircraft in the offshore general

security area, the member may:

(a) erect barriers or other structures for the purpose of stopping

the vessel or aircraft; and

(b) whether or not the member does so:

(i) stop and detain the vessel or aircraft; and

(ii) search the vessel or aircraft, and any thing found in or

on the vessel or aircraft, for the dangerous thing or other

thing that is related to the threat concerned; and

(iii) seize any dangerous thing or other thing that is related

to the threat concerned that the member finds in the

search.

Note: Subdivision B of Division 4 sets out what is to happen if a thing is

seized under this subsection.

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Section 51SK

(2) If the member stops the vessel or aircraft, the member must not

detain it for longer than is reasonable and necessary to search it and

any thing found in or on it.

(3) The master of the vessel, or the captain of the aircraft, is entitled to

observe the search being carried out.

(4) The entitlement to observe the search being carried out ceases if

the master or captain impedes the search.

(5) This section does not prevent 2 or more areas of the vessel or

aircraft being searched at the same time.

51SK Search of persons in the offshore general security area for

dangerous and other things

If a member of the Defence Force who is being utilised in

accordance with section 51D believes on reasonable grounds that a

person in the offshore general security area has a dangerous thing,

or a thing that is related to the threat concerned, in the person’s

possession, the member may:

(a) search the person for such a thing; and

(b) seize any such thing found in the search.

Note: Subdivision B of Division 4 sets out what is to happen if a thing is

seized under this section.

Subdivision D—Powers that may be exercised only in relation

to an offshore designated area in the offshore general

security area

51SL Declaration of offshore designated area

(1) The authorising Ministers may, in writing, declare that a specified

area, being the whole or a part of an offshore general security area,

is an offshore designated area for the purposes of the application of

this Division and Division 4 in relation to members of the Defence

Force who are being utilised in accordance with section 51D.

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Section 51SM

(2) The area:

(a) may be specified by reference to an area surrounding one or

more vessels or aircraft, or surrounding a class of vessels or

aircraft, being an area the boundaries of which change as the

location of the vessels or aircraft changes; and

(b) may include areas within the internal waters of a State or

Territory if the order under section 51AA includes the

internal waters of the State or Territory.

Where no longer an offshore general security area

(3) To avoid doubt, if the whole or part of the area later ceases to be

within an offshore general security area, the whole or the part

ceases to be an offshore designated area.

Declaration to be notified

(4) If the authorising Ministers make a declaration under

subsection (1), they must arrange for a statement that:

(a) states that the declaration has been made; and

(b) describes the offshore designated area and its boundaries;

to be notified to persons in the offshore designated area to the

extent that this is practicable.

(5) However, subsection (4) does not apply if the authorising Ministers

declare, in writing, that they are satisfied that the application of

subsection (4) would prejudice the exercise of powers under

Subdivision B by members of the Defence Force who are being

utilised in accordance with section 51D.

51SM Control of movement in relation to an offshore designated

area in the offshore general security area

Powers in relation to persons in charge of vessels or aircraft

(1) A member of the Defence Force who is being utilised in

accordance with section 51D may do any one or more of the

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Section 51SM

following in relation to a person who is in charge of a vessel or

aircraft:

(a) if the vessel or aircraft is in a part of the offshore general

security area that is outside an offshore designated area—

direct the person not to bring the vessel or aircraft into the

offshore designated area;

(b) direct the person to take the vessel or aircraft out of an

offshore designated area;

(c) direct the person to take the vessel or aircraft from a place in

an offshore designated area to another place in the offshore

designated area;

(d) direct the person not to take the vessel or aircraft from a

place in an offshore designated area to any other place, or to

a specified place, in the offshore designated area;

(e) compel the person to comply with a direction under any of

the above paragraphs.

Erection of barriers etc.

(2) A member of the Defence Force may erect barriers or other

structures at the boundary of, or in, an offshore designated area for

the purpose of stopping persons from bringing a vessel or aircraft

into the offshore designated area or to a place in the offshore

designated area.

No person in charge of vessel

(3) If there is no person in charge of a vessel or aircraft that is in an

offshore designated area, a member of the Defence Force may do

such things as are reasonable and necessary for either of the

following purposes:

(a) to take the vessel or aircraft to a place in the offshore general

security area that is outside the offshore designated area;

(b) to take the vessel or aircraft to another place in the offshore

designated area.

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Section 51SM

Powers in relation to persons generally

(4) A member of the Defence Force may do any one or more of the

following in relation to a person (whether or not in charge of a

vessel or aircraft):

(a) if the person is in the offshore general security area but

outside an offshore designated area—direct the person not to

enter the offshore designated area;

(b) direct the person to leave an offshore designated area;

(c) direct the person to move from a place in an offshore

designated area to another place in the offshore designated

area;

(d) compel the person to comply with a direction under any of

the above paragraphs.

Powers to carry out consent searches

(5) The power of a member under paragraph (1)(a) or (4)(a) to direct a

person:

(a) not to bring a vessel or aircraft into an offshore designated

area; or

(b) not to enter an offshore designated area;

includes:

(c) the power to direct a person not to do either of those things

unless the person agrees to a member searching:

(i) in either case—the person; and

(ii) in a paragraph (a) case—the vessel or aircraft and any

thing on the vessel or aircraft;

for dangerous things or other things related to the threat

concerned; and

(d) if the person agrees, the power to conduct such a search and

to seize any such thing that the member finds in the search.

Note: Subdivision B of Division 4 sets out what is to happen if a thing is

seized under this subsection.

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Section 51SN

Powers to board vessel or aircraft to give directions

(6) A member of the Defence Force may board any vessel or aircraft

for the purpose of giving a direction under any provision of this

section.

51SN Members to wear uniforms and identification when exercising

powers

(1) While any member of the Defence Force is exercising powers

under this Division, or under Division 4 in its operation in relation

to this Division, he or she must at all times:

(a) wear his or her uniform; and

(b) for the purposes of identification, have:

(i) his or her surname; or

(ii) his or her numbers or a combination of numbers and

letters of the alphabet;

on or attached to the front of his or her uniform.

Penalty: 30 penalty units.

Situation where no offence committed

(2) A member who contravenes paragraph (1)(b) does not commit an

offence if the contravention occurs because of an act of another

person (not being a member) done without the consent of the

member.

Note: A defendant bears an evidential burden in relation to the matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code).

Members to be given means to comply with obligations

(3) The Chief of the Defence Force must take such steps as are

reasonable and necessary to ensure that members do not

contravene subsection (1).

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Section 51SO

Geographical application

(4) Section 15.1 of the Criminal Code (extended geographical

jurisdiction—category B) applies to an offence against

subsection (1).

Subdivision E—Other powers

51SO Power to require person to answer questions or produce

documents

(1) A member of the Defence Force who is being utilised in

accordance with section 51D may, in connection with the exercise

of any power under this Division, require a person to answer a

question put by the member or to produce a particular document to

the member.

(2) However, the member may do so only if the member believes on

reasonable grounds that it is necessary for the purpose of

preserving the life or safety of other persons or to protect

Commonwealth interests against the threat concerned.

(3) A person commits an offence if:

(a) the person is required to answer a question or produce a

document under this section; and

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

Penalty: 30 penalty units.

Self-incrimination

(4) A person is not excused from answering a question or producing a

document under this section on the ground that the answer to the

question, or the production of the document, may tend to

incriminate the person or make the person liable to a penalty.

(5) However:

(a) the answer given or document produced; or

(b) answering the question or producing the document; or

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Section 51SP

(c) any information, document or thing obtained as a direct or

indirect consequence of the answering of the question or the

production of the document;

is not admissible in evidence against the person in criminal

proceedings other than:

(d) proceedings for an offence against subsection (3); or

(e) proceedings for an offence against section 137.1 or 137.2 of

the Criminal Code (about false or misleading information or

documents) that relates to this section.

51SP Power to require person to operate facility, vessel or aircraft

or machinery or equipment

(1) A member of the Defence Force who is being utilised in

accordance with section 51D may, in connection with the exercise

of any power under this Division, require a person to operate a

facility, vessel or aircraft, or machinery or equipment on a facility,

vessel or aircraft, in a particular manner.

(2) However, the member may do so only if the member believes on

reasonable grounds that it is necessary for the purpose of

preserving the life or safety of other persons or to protect

Commonwealth interests against the threat concerned.

(3) A person commits an offence if:

(a) the person is required to operate a facility, vessel or aircraft,

or machinery or equipment on a facility, vessel or aircraft, in

a particular manner under this section; and

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

Penalty for contravention of this subsection: 30 penalty units.

51SQ Geographical jurisdiction for offences

Section 15.4 of the Criminal Code (extended geographical

jurisdiction—category D) applies to an offence against

section 51SO or 51SP.

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Powers relating to aircraft Division 3B

Section 51SR

Division 3B—Powers relating to aircraft

51SR Application of this Division and Division 4

If an order states in accordance with paragraph 51A(4)(c),

51AB(4)(c), 51B(3)(c) or 51C(3)(c) that this Division and

Division 4 apply in relation to the order, the following provisions

of this Division, and the provisions of Division 4, apply.

51SS Geographical application

This Division and Division 4 (in its operation in relation to this

Division) extend to the Australian offshore area.

51ST Special powers of members of the Defence Force

Taking measures against aircraft

(1) A member of the Defence Force who is being utilised in

accordance with section 51D may, under the command of the Chief

of the Defence Force:

(a) take measures (including the use of force) against an aircraft,

up to and including destroying the aircraft; or

(b) give an order relating to the taking of such measures;

whether or not the aircraft is airborne.

(2) Paragraph (1)(a) does not apply to the taking of measures unless:

(a) the member of the Defence Force takes the measures under,

or under the authority of, an order of a superior; and

(b) the member was under a legal obligation to obey the order;

and

(c) the order was not manifestly unlawful; and

(d) the member has no reason to believe that circumstances have

changed in a material way since the order was given; and

(e) the member has no reason to believe that the order was based

on a mistake as to a material fact; and

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Section 51ST

(f) taking the measures was reasonable and necessary to give

effect to the order.

(3) Paragraph (1)(b) does not apply to giving an order unless:

(a) the member of the Defence Force gives the order under, or

under the authority of, an order (a superior order) of a

superior; and

(b) the member was under a legal obligation to obey the superior

order; and

(c) the superior order was not manifestly unlawful; and

(d) the member has no reason to believe that circumstances have

changed in a material way since the superior order was given;

and

(e) the member has no reason to believe that the superior order

was based on a mistake as to a material fact; and

(f) giving the order was reasonable and necessary to give effect

to the superior order.

Ministerial authorisation

(4) However, the member must not take measures against an aircraft,

or give an order of a kind mentioned in paragraph (1)(b) in

connection with an aircraft, unless an authorising Minister has in

writing authorised the taking of measures against the aircraft.

Exception

(5) Subsection (4) does not apply if:

(a) the member believes on reasonable grounds that there is

insufficient time to obtain the authorisation because a sudden

and extraordinary emergency exists; or

(b) the measures are taken in specified circumstances that an

authorising Minister has authorised under subsection (6).

(6) An authorising Minister may in writing authorise the taking of

measures against an aircraft in specified circumstances if this

Division applies because an order states in accordance with

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Section 51ST

paragraph 51AB(4)(c) that this Division and Division 4 apply in

relation to the order.

Authorising Minister must be satisfied of reasonableness and

necessity

(7) An authorising Minister must not authorise the taking of measures

against an aircraft unless the Minister is satisfied that:

(a) in the case of an authorisation under subsection (4)—taking

action against the aircraft is reasonable and necessary; or

(b) in the case of an authorisation under subsection (6)—taking

action against the aircraft would be reasonable and necessary

if the specified circumstances in question were to arise.

International obligations

(8) An authorising Minister must, in giving an authorisation under this

section, have regard to Australia’s international obligations.

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Part IIIAAA Utilisation of Defence Force to protect Commonwealth interests and

States and self-governing Territories

Division 4 Provisions common to Divisions 2 to 3B

Section 51T

Division 4—Provisions common to Divisions 2 to 3B

Subdivision A—Use of reasonable and necessary force

51T Use of reasonable and necessary force

(1) A member of the Defence Force may, in exercising any power

under Division 2, 2A, 3, 3A or 3B or this Division, use such force

against persons and things as is reasonable and necessary in the

circumstances.

(1A) However, subsection (1) does not apply to the powers under

Subdivision E of Division 3A.

(1B) To avoid doubt, any use of force by a member of the Defence

Force under this Part must be in accordance with this section.

Further restrictions on use of force

(2) Despite subsection (1), in exercising powers under Division 2, 3 or

3A (other than subparagraph 51SE(1)(a)(i) or (ii)) or this Division,

a member of the Defence Force must not, in using force against a

person:

(a) do anything that is likely to cause the death of, or grievous

bodily harm to, the person unless the member believes on

reasonable grounds that doing that thing is necessary to

protect the life of, or to prevent serious injury to, another

person (including the member); or

(b) subject the person to greater indignity than is reasonable and

necessary in the circumstances.

(2A) Despite subsection (1), in exercising powers under Division 2A, a

member of the Defence Force must not, in using force against a

person:

(a) do anything that is likely to cause the death of, or grievous

bodily harm to, the person unless the member believes on

reasonable grounds that doing that thing is necessary to:

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Section 51U

(i) protect the life of, or to prevent serious injury to,

another person (including the member); or

(ii) protect, against the threat concerned, the designated

critical infrastructure in respect of which the powers are

being exercised; or

(b) subject the person to greater indignity than is reasonable and

necessary in the circumstances.

(2B) Despite subsection (1), in exercising powers under

subparagraph 51SE(1)(a)(i) or (ii) or Division 3B, a member of the

Defence Force must not, in using force against a person or thing,

do anything that is likely to cause the death of, or grievous bodily

harm to, the person unless the member believes on reasonable

grounds that:

(a) doing that thing is necessary to protect the life of, or to

prevent serious injury to, another person (including the

member); or

(b) doing that thing is necessary to protect designated critical

infrastructure against a threat of damage or disruption to its

operation; or

(c) doing that thing is necessary and reasonable to give effect to

the order under which, or under the authority of which, the

member is acting.

(3) In addition to the relevant limitation in paragraph (2)(a),

subparagraph (2A)(a)(i) or (ii) or paragraph (2B)(a), (b) or (c), if a

person is attempting to escape being detained by fleeing, a member

of the Defence Force must not do anything that is likely to cause

the death of, or grievous bodily harm to, the person unless the

person has, if practicable, been called on to surrender and the

member believes on reasonable grounds that the person cannot be

apprehended in any other manner.

51U Persons to be informed of offence if detained

(1) A member of the Defence Force who, in accordance with

subparagraph 51I(1)(b)(ii), 51IB(b)(i) or 51SE(1)(b)(ii) or

paragraph 51V(e), detains a person must inform the person, at the

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Division 4 Provisions common to Divisions 2 to 3B

Section 51V

time the person is detained, of the offence mentioned in that

provision.

(2) It is sufficient if the person is informed of the substance of the

offence, and it is not necessary that this be done in language of a

precise or technical nature.

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

(a) the person should, in the circumstances, know the substance

of the offence; or

(b) the person’s actions make it impracticable for the member to

inform the person of the offence.

Subdivision B—Action to be taken if things are seized

51V Action to be taken if things are seized

If a member of the Defence Force seizes a thing under Division 2,

2A, 3 or 3A, the member:

(a) may take such action as is reasonable and necessary to make

the thing safe or prevent it being used; and

(b) if the member seized the thing from a person—must, if it is

practicable to do so, give the person a receipt for the thing;

and

(c) if the member believes on reasonable grounds that the thing

has been used or otherwise involved in the commission of an

offence against a law of the Commonwealth, a State or a

Territory—must give the thing to a member of a police force

at the earliest practicable time; and

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

(i) if the member seized the thing from a person and it is

practicable to do so—return the thing to the person; or

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

(e) if:

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

(ii) the member believes on reasonable grounds that the

person used the thing in the commission of an offence

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Section 51W

against a law of the Commonwealth, a State or a

Territory;

may detain the person for the purpose of placing him or her

in the custody of a member of a police force at the earliest

practicable time.

Subdivision C—Members not entitled to exercise powers if

obligations not complied with

51W Members not entitled to exercise powers if obligations not

complied with

If, before, during or after exercising a power under Division 2, 2A,

3, 3A or 3B or this Division, a member of the Defence Force fails

to comply with any obligation imposed under any of those

Divisions that relates to the exercise of the power, the member is

not, or is taken not to have been, entitled to exercise the power.

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Part IIIAAA Utilisation of Defence Force to protect Commonwealth interests and

States and self-governing Territories

Division 4A Applicable criminal law

Section 51WA

Division 4A—Applicable criminal law

51WA Applicable criminal law

(1) The substantive criminal law of the Jervis Bay Territory, as in

force from time to time, applies in relation to a criminal act of a

member of the Defence Force that is done, or purported to be done,

under this Part.

(2) The substantive criminal law of the States and the other Territories,

as in force from time to time, does not apply in relation to a

criminal act of a member of the Defence Force that is done, or

purported to be done, under this Part.

(3) To avoid doubt, Chapter 2 of the Criminal Code does not apply to

an act done, or purported to be done, under this Part that is a

criminal act (except to the extent that it constitutes an offence

against the law of the Commonwealth).

(4) To avoid doubt, the functions of the Director of Public

Prosecutions under section 6 of the Director of Public

Prosecutions Act 1983 in relation to the law of the Jervis Bay

Territory as applied by subsection (1) are exclusive of the

corresponding functions of any officer of a State or Territory, in

relation to the law of the Jervis Bay Territory as so applied, under a

law corresponding to that Act.

Note: It is not intended that this section or Act restrict or limit the power of

State or Territory police to investigate any criminal acts done, or

purported to be done, by Defence Force members when operating

under Part IIIAAA of this Act.

51WB Defence of superior orders in certain circumstances

(1) Subject to subsection (2), the fact that a criminal act was done, or

purported to be done, by a member of the Defence Force under this

Part under an order of a superior does not relieve the member of

criminal responsibility.

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Section 51WB

(2) It is a defence to a criminal act done, or purported to be done, by a

member of the Defence Force under this Part that:

(a) the criminal act was done by the member under an order of a

superior; and

(b) the member was under a legal obligation to obey the order;

and

(c) the order was not manifestly unlawful; and

(d) the member had no reason to believe that circumstances had

changed in a material respect since the order was given; and

(e) the member had no reason to believe that the order was based

on a mistake as to a material fact; and

(f) the action taken was reasonable and necessary to give effect

to the order.

(3) Subsection (2) does not limit the defences that may be available to

the person.

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Division 5 Miscellaneous

Section 51X

Division 5—Miscellaneous

51X Publication of order and report

Single order

(1) If:

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

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

subsection (2) applies;

the Minister must arrange for presentation to the Parliament in

accordance with subsection (3) of:

(c) a copy of:

(i) the order; and

(ii) any declarations of general security areas or designated

areas, or of offshore general security areas or offshore

designated areas, under the order; and

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

under the order.

Successive orders

(2) If 2 or more orders under Division 1 about the same or related

circumstances come into force in succession, without any

intervening period when no such order is in force, the Minister

must arrange for presentation to the Parliament in accordance with

subsection (3) of:

(a) a copy of:

(i) all of the orders; and

(ii) any declarations of general security areas or designated

areas, or of offshore general security areas or offshore

designated areas, under the orders; and

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

under the orders.

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Miscellaneous Division 5

Section 51XA

Reporting to Parliament

(3) For the purposes of subsection (1) or (2), presentation to the

Parliament of the copy and report is in accordance with this

subsection if the copy and report are forwarded to the Presiding

Officer of each House:

(a) if that House sits before the end of 7 days after the order

mentioned in subsection (1) or the last of the orders

mentioned in subsection (2) ceases to be in force—for tabling

in that House before the end of that 7 days; or

(b) if not—before the end of that 7 days for distribution to all

Senators or Members of the House of Representatives, as the

case may be.

Effect of revocation

(5) To avoid doubt, a reference to an order ceasing to be in force

includes a reference to an order ceasing to be in force because it is

revoked.

51XA Review of operation of Part

Independent review where first orders made

(1) If:

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

Part:

(i) an order under Division 1 ceases to be in force, where

the order is not one of 2 or more orders to which

subparagraph (ii) applies; or

(ii) 2 or more orders under Division 1 cease to be in force,

where the orders were about the same or related

circumstances and came into force in succession,

without any intervening period when no such order was

in force; and

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

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Section 51XA

the Minister must, subject to subsection (2), before the end of 6

months after the order mentioned in subparagraph (a)(i), or the last

of the orders mentioned in subparagraph (a)(ii), ceases to be in

force, arrange for the carrying out of an independent review (see

subsection (6)) of the operation of this Part in relation to the order

or orders.

Independent review not required if Parliamentary committee

report

(2) Subsection (1) does not apply if a committee of one or both of the

Houses of the Parliament has already presented a report to that

House or both of the Houses, as the case may be, about the

operation of this Part in relation to the order or orders.

Independent review where no orders made

(3) If no order under Division 1 ceases to be in force before the end of

3 years after the commencement of this Part, the Minister must,

subject to subsection (4), as soon as practicable after those 3 years,

arrange for the carrying out of an independent review of the

operation of this Part during those 3 years.

Independent review not required if Parliamentary committee

report

(4) Subsection (3) does not apply if a committee of one or both of the

Houses of the Parliament has already presented a report to that

House or those Houses, as the case may be, about the operation of

this Part during those 3 years.

Tabling of report of independent review

(5) The Minister must arrange for a copy of the report of any

independent review under subsection (1) or (3) to be tabled in each

House of the Parliament within 5 sitting days of that House after

the Minister is given the report.

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Miscellaneous Division 5

Section 51XB

Meaning of “independent review”

(6) In this section:

independent review means a review, and report to the Minister, by

2 or more persons who:

(a) in the Minister’s opinion, possess appropriate qualifications

to carry out the review; and

(b) include at least one person who:

(i) is not employed by the Commonwealth or a

Commonwealth authority; and

(ii) has not, since the commencement of this Part, provided

services to the Commonwealth or a Commonwealth

authority under or in connection with a contract.

51XB Instruments that are not legislative instruments

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

legislative instrument.

51Y Part additional to other Defence Force utilisation and powers

This Part does not affect any utilisation of the Defence Force that

would be permitted or required, or any powers that the Defence

Force would have, if this Part were disregarded.

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Part IIIAA Superannuation

Section 52

Part IIIAA—Superannuation

52 Determination of benefit

(1) The Minister may, by legislative instrument, make determinations

for the purpose of providing a superannuation benefit in respect of:

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

Permanent Forces; and

(b) continuous full time naval, military or air force service on

and after that day by members of the Reserves.

(2) A determination:

(a) shall not be inconsistent with this Act; 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.

(4A) Paragraph 14(1)(a) of the Legislation Act 2003 applies in relation

to a determination under this section as if the reference in that

paragraph to legislative instruments covered by subsection 14(3) of

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Section 52A

that Act included a reference to determinations under section 58H

of this Act.

Note: Section 14 of the Legislation Act 2003 allows legislative instruments

to provide for matters by reference to disallowable legislative

instruments as in force at a particular time or from time to time. That

section would, for example, allow a determination under this section

to provide for matters by reference to a determination under

section 58B as in force at a particular time or from time to time.

(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).

52A Department’s employer superannuation contributions

(1) This section applies in relation to a person if:

(a) the person:

(i) renders service as a member of the Permanent Forces on

or after 1 July 2016; or

(ii) renders continuous full time naval, military or air force

service as a member of the Reserves on or after that

day; and

(b) the person:

(i) is a member of the Australian Defence Force

Superannuation Scheme; or

(ii) would have been a member of ADF Super except that

another fund has become the person’s chosen fund for

contributions by the Department.

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Part IIIAA Superannuation

Section 52B

Employer superannuation contributions

(2) Each payday for the person, the Department must contribute to the

person’s chosen fund, for the benefit of the person, 16.4% of the

ordinary time earnings paid by the Department for the person for

the pay period.

Definitions

(3) In this section:

ADF Super has the meaning given by the Australian Defence

Force Superannuation Act 2015.

chosen fund for a person:

(a) if the person has chosen a fund under section 32F of the

Superannuation Guarantee (Administration) Act 1992—has

the same meaning as in that section; or

(b) otherwise—means ADF Super.

ordinary time earnings for a person is the number of dollars in the

person’s ordinary time earnings (within the ordinary meaning of

the expression):

(a) including any payments of parental leave; but

(b) excluding any amount that is deducted from those earnings

under a salary sacrifice arrangement.

payday for a person means the day on which the person’s ordinary

time earnings are ordinarily paid for a pay period.

pay period for a person means the period in relation to which

person’s ordinary time earnings are ordinarily paid.

52B Providing information to CSC in relation to invalidity

The Department may disclose information obtained by the

Department to CSC if:

(a) the information relates to a person:

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(i) who has been, or is to be, retired from the Defence

Force; or

(ii) whose service in the Defence Force has been, or is to

be, terminated;

as a result of physical or mental impairment; and

(b) the information is provided to CSC for the purposes of:

(i) Part V of the Defence Force Retirement and Death

Benefits Act 1973 (invalidity benefits); or

(ii) Division 2 of Part 3 of the Schedule to the Military

Superannuation and Benefits Trust Deed (invalidity

benefits) made under section 4 of the Military

Superannuation and Benefits Act 1991.

Note: This section constitutes an authorisation for the purposes of other

laws, such as the Privacy Act 1988.

53 Trustee of scheme providing superannuation benefit

For the purposes of the definition of trustee in section 43 of the

Superannuation Contributions Tax (Assessment and Collection)

Act 1997, CSC 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.

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Part IIIA Remuneration, allowances and other benefits

Division 1 Determinations by the Minister

Section 58A

Part IIIA—Remuneration, allowances and other

benefits

Division 1—Determinations by the Minister

58A Interpretation

In this Division, unless the contrary intention appears:

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, in relation to a member, includes a member

of the household of the member and a dependant of the member.

remuneration means remuneration by way of salary, pay,

allowances or otherwise.

58B Minister may make determinations

(1) The Minister may, by legislative instrument, make determinations,

not inconsistent with this Act, providing for and in relation to:

(a) the remuneration of members; and

(b) the payment of allowances or other pecuniary benefits

(except allowances or benefits by way of remuneration) to or

for members, including the payment of additional

compensation to members of the Reserves to whom

compensation is payable under the Safety, Rehabilitation and

Compensation (Defence-related Claims) Act 1988; and

(c) the payment of allowances or other pecuniary benefits to or

in respect of members of the families of members; 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

to or in respect of members of the families of members; and

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Section 58B

(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 from

allowances or other pecuniary benefits referred to in

paragraphs (b) and (c); and

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

benefits, to:

(i) members of the Reserves; or

(ii) their dependants; or

(iii) their employers, business or professional partners or

other associates; or

(iv) other persons;

in relation to the availability of the members for defence

service, or for losses incurred or inconvenience suffered

because of the members’ absence on defence service

(including losses incurred or inconvenience suffered because

of the operation of the Defence Reserve Service (Protection)

Act 2001); and

(h) the meanings to be attributed to words and expressions used

in existing determinations and future determinations made

under this section, and the circumstances in which those

meanings are to apply.

(1AA) Expressions used in paragraph (1)(ga) that are defined in the

Defence Reserve Service (Protection) Act 2001 have the same

meaning as in that Act.

(1A) Paragraph 14(1)(a) of the Legislation Act 2003 applies in relation

to a determination under this section as if the reference in that

paragraph to legislative instruments covered by subsection 14(3) of

that Act included a reference to:

(a) determinations under section 58H of this Act; and

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

1999.

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Part IIIA Remuneration, allowances and other benefits

Division 1 Determinations by the Minister

Section 58E

Note: Section 14 of the Legislation Act 2003 allows legislative instruments

to provide for matters by reference to disallowable legislative

instruments as in force at a particular time or from time to time.

(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 to a member of the family of a

member under the regulations or under a determination made under

this section or under Division 2, the member or the member of the

family of the member 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.

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

to the regulations.

58E Delegation

(1) The Minister may delegate his or her powers to make

determinations under subsection 58B(1) to one or more of the

following:

(a) the Secretary;

(b) an SES employee performing duty in the Department;

(c) an APS employee who holds, or performs the duties of, a

position not below an Executive Level 2 position, or

equivalent, in the Department;

(d) an officer of the Navy who holds a rank not below the rank

of Captain;

(e) an officer of the Army who holds a rank not below the rank

of Colonel;

(f) an officer of the Air Force who holds a rank not below the

rank of Group Captain.

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Section 58E

(2) However, the Minister must not delegate his or her power under

paragraph 58B(1)(ga) to make determinations for and in relation to

payments, by way of compensation, incentives or other benefits.

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Part IIIA Remuneration, allowances and other benefits

Division 2 The Defence Force Remuneration Tribunal

Section 58F

Division 2—The Defence Force Remuneration Tribunal

58F Interpretation

In this Division, unless the contrary intention appears:

AIRC means the Australian Industrial Relations Commission

referred to in section 61 of the Workplace Relations Act 1996, as in

force immediately before the commencement of Schedule 1 to the

Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009.

Defence Force Advocate means the Defence Force Advocate

appointed under section 58S.

FWC means the Fair Work Commission.

member of the Tribunal means a member of the Tribunal

appointed under section 58G, and includes the President.

President means the President of the Tribunal appointed under

section 58G.

relevant allowances, in relation to a member, means allowances by

way of remuneration payable to the member and, without limiting

the generality of the foregoing, includes any allowance payable to

the member:

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

(b) as general compensation for the disadvantages of rendering

naval, military or air force service;

(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.

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Section 58G

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).

(3) The members of the Tribunal shall be appointed by the

Governor-General on a part-time basis.

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

the FWC.

(5) A person must not be appointed as a member of the Tribunal if he

or she has, at any time during the year preceding the appointment,

been a member of the Permanent Forces.

(6) The performance of the duties and functions and the exercise of the

powers of the Tribunal are not affected by reason only of there

being one vacancy in the membership of the Tribunal.

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Section 58H

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:

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(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.

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Section 58HA

(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, and any determination made

under section 58B of this Act, has no effect to the extent that it is

inconsistent with any determination of the Tribunal.

(15) In this section, prescribed matter means a matter in relation to

which the Minister may make determinations under section 58B,

not being a matter referred to in paragraph (2)(a).

58HA Hearings in relation to discriminatory determinations

(1) If a determination is referred to the Tribunal under section 46PY of

the Australian Human Rights Commission Act 1986, the Tribunal

must hold a hearing to review the determination.

(2) Unless the hearing takes place before a single member of the

Tribunal, subsections 58K(1) to (6) apply to the hearing as if it

were a meeting of the Tribunal.

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

in public.

(4) If the Tribunal decides that the hearing is not to be held in public,

then, subject to subsection (5) and subsections 58K(9) and

58KB(5), the Tribunal may decide the people who may be present.

(5) The Sex Discrimination Commissioner is entitled to notice of, and

to be present at, the hearing and may make submissions to the

Tribunal.

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Section 58HB

(6) In this section:

determination includes a variation to a determination.

Tribunal includes a single member conducting the Tribunal’s

business under a direction under subsection 58KA(1).

58HB Review of discriminatory determinations

(1) If:

(a) a determination has been referred to the Tribunal under

section 46PY of the Australian Human Rights Commission

Act 1986; and

(b) the Tribunal considers that the determination is a

discriminatory determination;

the Tribunal must take the necessary action to remove the

discrimination, by setting aside the determination, setting aside

terms of the determination or varying the determination.

(2) In this section:

determination has the same meaning as in section 58HA.

discriminatory determination means a determination that:

(a) has been referred to the Tribunal under section 46PY of the

Australian Human Rights Commission Act 1986; and

(b) requires a person to do an act that would be unlawful under

Part II of the Sex Discrimination Act 1984 except for the fact

that the act would be done in direct compliance with the

determination.

Tribunal has the same meaning as in section 58HA.

(3) For the purposes of the definition of discriminatory determination

in subsection (2), the fact that an act is done in direct compliance

with the determination does not of itself mean that the act is

reasonable.

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Section 58J

58J Reports by Tribunal

(1) The Minister may, by notice in writing given to the President,

request the Tribunal to inquire into and report to the Minister on a

matter specified in the notice, being a matter in relation to which

the Tribunal may make a determination pursuant to section 58H.

(2) When a request is made under subsection (1), the Tribunal shall

inquire into the matter concerned and give to the Minister a report

in writing on that matter.

58K Procedure of Tribunal

(1) The President shall convene such meetings of the Tribunal as he or

she considers necessary for the efficient performance of its

functions.

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

President determines.

(3) The President shall preside at all meetings of the Tribunal at which

he or she is present.

(4) If the President is not present at a meeting of the Tribunal, another

member of the Tribunal nominated by the President shall preside at

the meeting.

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

(6) At a meeting of the Tribunal:

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

(b) all questions shall be decided by a majority of votes of the

members of the Tribunal present and voting; and

(c) the member of the Tribunal presiding has a deliberative vote

and, in the event of an equality of votes, also has a casting

vote.

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

(a) any decision of, or principles established by, the FWC that is

or are relevant to the making of the determination; or

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(b) if the FWC has not yet made any such decision or established

any such principles, any decision of, or principles established

by, the AIRC that is or are relevant to the making of the

determination.

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

(a) the Tribunal may regulate the conduct of its proceedings as it

thinks fit and is not bound to act in a formal manner; and

(b) the Tribunal may inform itself on any matter in such manner

as it thinks fit and is not bound by the rules of evidence.

(9) The Defence Force Advocate and a person representing the

Commonwealth are entitled to be present, and to make submissions

to the Tribunal, during any proceedings before the Tribunal.

(10) Where the Tribunal thinks that a person or body should be heard in

relation to a matter that is being, or is to be, considered by the

Tribunal, the Tribunal may permit the person or body to be present,

and to make submissions to the Tribunal, during proceedings

before the Tribunal in relation to that matter.

58KA Single member may conduct Tribunal’s business

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

(a) if a person referred to in subsection 58K(9) requests the

President to do so and the President considers it appropriate;

or

(b) in any case, on the President’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).

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Section 58KB

(4) Where a single member is conducting the Tribunal’s business in

relation to a matter:

(a) the single member may exercise any powers or perform any

functions of the Tribunal in relation to that matter; and

(b) any act of the single member in relation to that matter is

taken to be an act of the Tribunal.

(5) In this section, a reference to a matter that is being, or is to be,

dealt with by the Tribunal includes a reference to any part of such a

matter.

58KB Procedure where single member is conducting Tribunal’s

business

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

(a) section 58K does not apply to the single member’s conduct

of such business; and

(b) the following provisions apply.

(2) The single member may conduct such proceedings relating to the

matter to which the direction relates as he or she considers

necessary.

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

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

and

(b) the single member may inform himself or herself on any

matter in such manner as he or she thinks fit and is not bound

by the rules of evidence.

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

to:

(a) any decision of, or principles established by, the FWC that is

or are relevant to the making of the determination; or

(b) if the FWC has not yet made any such decision or established

any such principles, any decision of, or principles established

by, the AIRC that is or are relevant to the making of the

determination.

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(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.

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Section 58KD

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 Deputy

President of the FWC.

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:

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

(b) during any period, or during all periods, when that member is

absent from duty or from Australia or is, for any other reason

(including the reason that, in the case of a member not being

the President, he or she is acting as President), unable to

perform the duties of his or her office.

Note: For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901.

(8) A reference in section 58H, 58J, 58K, 58KA, 58KC or 58U to the

President or to a member of the Tribunal shall be read as including

a reference to a person acting as the President or as a member of

the Tribunal, as the case may be.

58Q Fees and allowances

(1) A member of the Tribunal shall be paid such fees and allowances

as the Remuneration Tribunal determines.

(2) The appointment of the holder of a prescribed office as a member

of the Tribunal, or service by the holder of a prescribed office as

such a member, does not affect his or her tenure of that prescribed

office or his or her rank, title, status, precedence, salary, annual or

other allowances or other rights or privileges as the holder of that

prescribed office and, for all purposes, his or her service as a

member of the Tribunal shall be taken to be service as the holder of

the prescribed office.

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

1973.

(4) In this section, prescribed office means an office, appointment or

other employment which is referred to in subsection 7(11) of the

Remuneration Tribunal 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.

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Section 58R

Division 3—The Defence Force Advocate

58R Interpretation

In this Division, unless the contrary intention appears:

Advocate means the Defence Force Advocate appointed under

section 58S.

Remuneration Tribunal means the Remuneration Tribunal

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

1973.

Tribunal means the Defence Force Remuneration Tribunal

established by section 58G.

58S Defence Force Advocate

(1) There shall be a Defence Force Advocate, who shall be appointed

by the Minister on a part-time basis.

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

(a) is experienced in industrial relations matters; and

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

Force.

(3) In making an appointment under subsection (1), the Minister shall

have regard to any recommendations made by the Chief of the

Defence Force.

58T Functions of Advocate

The functions of the Advocate are:

(a) to advise the Chief of the Defence Force in relation to

matters that have been, or may be, referred to the Tribunal by

the Chief of the Defence Force pursuant to

subsection 58H(3);

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(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 or

she becomes a member of the Tribunal.

58V Resignation

The Advocate may resign his or her office by writing signed by

him or her and delivered to the Minister.

58W Termination of appointment

The Minister may terminate the appointment of the Advocate by

reason of misbehaviour or physical or mental incapacity.

58X Acting Defence Force Advocate

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

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

(b) during any period, or during all periods, when the Advocate

is absent from duty or from Australia or is, for any other

reason, unable to perform the duties of his or her office.

Note: For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901.

58Y Fees and allowances

(1) The Defence Force Advocate shall be paid such fees and

allowances as the Remuneration Tribunal determines.

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Section 58Y

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

1973.

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Section 59

Part IV—Liability to serve in the Defence Force in

time of war

Division 1—Liability to serve

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

All persons (except those who are exempt from service under this

Part or to whom this Part does not apply) who:

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

(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.

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Section 61

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;

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(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: 1 penalty unit.

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 or she presents himself or herself 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 or herself 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

or she has been convicted for failing to do that act.

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Section 61C

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.

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Section 61CA

Division 2—Determination of conscientious belief

61CA Application for determination of conscientious belief

(1) A person who claims to be exempt from service because of

conscientious beliefs must, within 7 days after he or she is called

on for service under section 60 apply to the Secretary, in writing, to

have his or her claim determined by a Conscientious Objection

Tribunal.

(2) At any time after a Tribunal has made a determination that a person

is or is not exempt from service because of conscientious beliefs

either the applicant for that determination or the Commonwealth

may apply to the Secretary, in writing, to have a Tribunal set aside

the previous determination and, where appropriate, make a new

determination in substitution for it on the grounds of a change in

circumstances.

61CB Secretary must refer application

If the Secretary receives an application under subsection 61CA(1)

or (2), the Secretary must refer the application to a Conscientious

Objection Tribunal for determination.

61CC Function of Conscientious Objection Tribunals

(1) The function of a Conscientious Objection Tribunal is to

determine, following an application that is referred to it by the

Secretary, whether the person to whom the application related is

exempt from service because of conscientious beliefs.

(2) Subject to this Part, a determination under subsection (1) is final

and binding for all purposes.

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Division 2 Determination of conscientious belief

Section 61CD

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.

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Establishment and membership of Conscientious Objection Tribunals Division 3

Section 61CF

Division 3—Establishment and membership of

Conscientious Objection Tribunals

61CF Establishment of Conscientious Objection Tribunals

(1) The Minister may, by notice in the Gazette, establish such

Conscientious Objection Tribunals as he or she thinks necessary

for the purposes of this Part.

(2) Each Tribunal is to comprise:

(a) a presiding member; and

(b) 2 other members.

(3) Members are to be appointed in writing by the Minister and may be

appointed as either full-time or part-time members.

(4) A person is not to be appointed as a presiding member of a

Tribunal unless he or she is a legal practitioner of not less than 7

years standing.

(5) A person is not to be appointed as another member of a Tribunal

unless the Minister is satisfied that he or she is capable, by reason

of training or experience, of ascertaining facts other than by

adversarial procedures.

61CG Period of appointment of members

Members are to hold office for such period, not exceeding 5 years,

as is specified in the instrument of appointment.

61CH Remuneration and allowances of members

(1) Members are to be paid:

(a) such remuneration as is determined by the Remuneration

Tribunal; and

(b) such allowances as are prescribed.

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Section 61CJ

(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:

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Section 61CO

(c) if the member concerned is a member other than a member

appointed as a presiding member—the hearing and

determination, or the determination, of the application may

be completed by the Tribunal constituted by the remaining 2

members;

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

another Tribunal.

(2) If an application that was being dealt with by one Tribunal is

reheard by another Tribunal, that other Tribunal may, for the

purposes of that application, have regard to any record of the

proceedings before the first-mentioned Tribunal.

(3) The reference in subsection (2) to a record of proceedings includes

a reference to a record of any evidence taken in the proceeding.

61CO Acting appointments

(1) The Minister may appoint a person to act as a full-time member of

a Conscientious Objection Tribunal during any period, or during all

periods, when the member is absent from duty or from Australia or

is, for any reason, unable to perform the duties of the member’s

office.

Note: For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901.

(2) The Minister may appoint a person to act as a part-time member of

a Tribunal during any period, or during all periods, when the

member is, for any reason, unable to perform the duties of the

member’s office.

Note: For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901.

(3) Where a person has been appointed under subsection (1) or (2), the

Minister may direct that the person is to continue to act in the

appointment after the normal terminating event occurs.

(4) A direction under subsection (3) must specify the period during

which the person may continue to act in the appointment.

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Section 61CO

(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.

(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.

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Procedures of Conscientious Objection Tribunals Division 4

Section 61CP

Division 4—Procedures of Conscientious Objection

Tribunals

61CP Tribunals’ way of operating

A Conscientious Objection Tribunal, in carrying out its functions

under this Part:

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

and economical; and

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

case; and

(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.

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Division 4 Procedures of Conscientious Objection Tribunals

Section 61CS

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 legal practitioner.

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Section 61CV

61CV Onus of proof

(1) In proceedings before a Conscientious Objection Tribunal the onus

of proving exemption from service because of conscientious belief

rests with an applicant.

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

61CW Protection of members and persons giving evidence etc.

(1) A member of a Conscientious Objection Tribunal has, in the

performance of his or her duties as a member, the same protection

and immunity as a Judge of the Federal Court.

(2) Subject to this Part, an applicant, a person summoned to attend, or

appearing, before a Conscientious Objection Tribunal to give

evidence, a person representing the Commonwealth or a person

who assists an applicant at a hearing, has the same protection and

is, in addition to the penalties provided by this Part, subject to the

same liabilities, as a witness in proceedings in the Federal Court.

61CX Fees for persons giving evidence

(1) A person, other than the applicant, summoned to appear before a

Conscientious Objection Tribunal to give evidence is entitled to be

paid, in respect of his or her attendance, fees, and allowances for

expenses, ascertained in accordance with a determination under

subsection (2).

(2) The Minister may, by legislative instrument, determine the

amounts of fees and allowances to be paid under subsection (1).

(4) The fees and allowances referred to in subsection (1) are to be paid

by the Commonwealth.

61CY Failure of witness to attend

(1) A person commits an offence if:

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Section 61CZ

(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 commits 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 commits an offence if the person:

(a) is appearing before a Conscientious Objection Tribunal to

give evidence; and

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(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 commits 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 commits 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.

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Division 4 Procedures of Conscientious Objection Tribunals

Section 61CZA

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.

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Section 61CZB

Division 5—Reviews and appeals

61CZB Review of determinations of Conscientious Objection

Tribunals

A party to a determination by a Conscientious Objection Tribunal

may apply to the AAT for review of that determination.

61CZC AAT Act to apply subject to modification

(1) The AAT Act applies in relation to the review of a determination

of a Conscientious Objection Tribunal subject to the modifications

set out in this section.

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

it read as follows:

30 Parties to proceedings before Tribunal

“The parties to a proceeding before the AAT for a review of a

determination of a Conscientious Objection Tribunal are:

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

and

(b) the Commonwealth.”.

(3) Sections 30A, 31, 44 and 44A of the AAT Act do not apply in

relation to such a review.

(4) Subsection 46(1) of the AAT Act applies in relation to such a

review as if the words preceding paragraph (a) of that subsection

read as follows:

“(1) When a question of law is referred to the Federal Court of

Australia in accordance with section 45:”.

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Division 5 Reviews and appeals

Section 61CZD

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

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Section 61CZE

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.

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Part V Australian Defence Force Cadets

Section 62

Part V—Australian Defence Force Cadets

62 Australian Defence Force Cadets

(1) The Australian Defence Force Cadets (or ADF Cadets or Cadets)

consists of the following:

(a) the Australian Navy Cadets;

(b) the Australian Army Cadets;

(c) the Australian Air Force Cadets.

(2) The Australian Navy Cadets consists of persons who have

volunteered and been accepted by the Chief of the Defence Force

as officers, instructors or cadets in the Australian Navy Cadets.

(3) The Australian Army Cadets consists of persons who have

volunteered and been accepted by the Chief of the Defence Force

as officers, instructors or cadets in the Australian Army Cadets.

(4) The Australian Air Force Cadets consists of persons who have

volunteered and been accepted by the Chief of the Defence Force

as officers, instructors or cadets in the Australian Air Force Cadets.

62A Direction and administration of the Cadets

(1) The Chief of the Defence Force is to direct and administer the

Cadets.

(2) In directing and administering the Cadets, the Chief of the Defence

Force must comply with any directions of the Minister.

(3) The Chief of the Defence Force may direct the Vice Chief of the

Defence Force, a service chief or any other member of the Defence

Force to assist with the direction and administration of the Cadets.

(4) The Chief of the Defence Force may use members of the Defence

Force and the resources of the Defence Force for the purposes of

administering, managing, supervising and training cadets.

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Section 62B

Note: The use and management of public resources must comply with the

requirements of the Public Governance, Performance and

Accountability Act 2013.

62B Chief of the Defence Force may make determinations

(1) The Chief of the Defence Force may, by legislative instrument,

make determinations providing for and in relation to the following:

(a) the payment of allowances or other pecuniary benefits to or

for cadets;

(b) the payment of allowances or other pecuniary benefits to or

in respect of members of the families of cadets;

(c) the provision of other benefits to or in respect of cadets, or to

or in respect of members of the families of cadets.

(2) A legislative instrument under subsection (1) may provide for an

amount paid under a determination made under that subsection to

be wholly or partly repaid to the Commonwealth if an event

specified in the determination occurs.

62C Relationship to the Defence Force

(1) A cadet is not a member of the Defence Force.

(2) A person with a role in administering, managing, supervising or

training cadets does not become a member of the Defence Force

because of that role.

62D Acceptance is not a civil contract

No civil contract of any kind is created with the Crown or the

Commonwealth in connection with the acceptance of a person as

an officer, instructor or cadet in the Cadets.

62E Annual report

(1) The Chief of the Defence Force must, as soon as practicable after

the end of each financial year, prepare a report on the

administration of the Cadets during that year.

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(2) The report must be included in the annual report prepared by the

Secretary and given to the Minister under section 46 of the Public

Governance, Performance and Accountability Act 2013 for the

financial year.

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Special powers in relation to defence Part VI

Section 63

Part VI—Special powers in relation to defence

63 General powers for defence purposes

(1) The Governor-General may:

(f) Subject to the provisions of this Act do all matters and things

deemed by him or her 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.

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Part VI Special powers in relation to defence

Section 67

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 or her charge;

(b) Any horse ridden or used by any member of the Defence

Force on march or duty or by any prisoner under his or her

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.

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Security of defence premises Part VIA

Preliminary Division 1

Section 71

Part VIA—Security of defence premises

Division 1—Preliminary

71 Simplified outline

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

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

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

officials.

(4) Division 3 sets out the powers exercisable by defence security

officials with consent at defence access control points and on

defence premises. Subdivision B of Division 3 contains special

provisions relating to declared explosive ordnance depots.

(5) Division 4 sets out the powers exercisable by special defence

security officials without consent at defence access control points

and on defence premises, and provides for related matters,

including offences relating to non-compliance with requirements,

hindering and obstructing.

(6) Division 5 relates to seizure of things.

(7) Division 6 sets out provisions that apply generally in relation to the

exercise of powers under this Part, including the following:

(a) the production of identity cards;

(b) informing persons of offences;

(c) the use of force;

(d) limits on the exercise of certain powers.

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

(a) an offence of unauthorised entry on, or being on, defence

premises or defence accommodation; and

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Section 71A

(b) the provision of information obtained by certain surveillance

devices to law enforcement and other agencies.

71A Definitions

(1) In this Part:

contracted defence security guard has the meaning given by

section 71B.

criminal offence means an offence against a law of the

Commonwealth, a State or a Territory.

declared explosive ordnance depot has the meaning given by

section 71L.

defence access control point means a point of entry to, or exit

from, defence premises or a part of defence premises, where entry

or exit is controlled or limited by any means, including but not

limited to control by means of:

(a) guarding by defence security officials; or

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

gates.

defence accommodation means any building or other structure, or

any place, that:

(a) is in Australia; and

(b) is used for, or in connection with, the accommodation of a

group of members of any part of the Defence Force.

defence premises means:

(a) any of the following that is in Australia, and is owned or

occupied by the Commonwealth for use by the Defence

Force or the Department:

(i) an area of land or any other place (whether or not it is

enclosed or built on);

(ii) a building or other structure;

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(iii) a vehicle, vessel or aircraft, including any fixed or

moveable ramp, stairs or other means of access to, or

exit from, the vehicle, vessel or aircraft;

(iv) a prohibited area, within the meaning of the Defence

(Special Undertakings) Act 1952; or

(b) the Woomera Prohibited Area.

defence security official means:

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

(b) a security authorised member of the Defence Force (see

section 71C); or

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

defence security screening employee has the meaning given by

section 71D.

intelligence or security agency means any of the following:

(a) the Australian Secret Intelligence Service;

(b) the Australian Security Intelligence Organisation;

(ba) the Australian Signals Directorate;

(c) the Office of National Intelligence.

limited search of a person means:

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

include:

(i) requesting the person to remove his or her overcoat,

coat or jacket and any gloves, shoes and hat; and

(ii) an examination of any of those items that the person

consents to remove; or

(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 requesting the person to remove all of his or

her garments.

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optical surveillance device means any device capable of being

used to record visually or observe an activity, but does not include

spectacles, contact lenses or a similar device used by a person with

impaired sight to overcome that impairment.

personal information has the same meaning as in the Privacy Act

1988.

person assisting a defence security official has the meaning given

by section 72N.

protective service officer has the same meaning as in the

Australian Federal Police Act 1979.

search:

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

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

in the vehicle, vessel or aircraft.

security authorised member of the Defence Force has the

meaning given by section 71C.

special defence security official means:

(a) a security authorised member of the Defence Force (see

section 71C); or

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

vessel has the same meaning as in section 51SD.

Woomera Prohibited Area means the area prescribed under

subsection 72TA(1).

(2) To avoid doubt, a thing includes a substance, a vehicle, vessel or

aircraft and a thing in electronic or magnetic form.

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Section 71B

Division 2—Defence security officials

71B Contracted defence security guards

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

(a) the person is one of the following:

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

Commonwealth entity;

(ii) a subcontractor for a contract with the Commonwealth

or a Commonwealth entity;

(iii) an employee of a person referred to in subparagraph (i)

or (ii); and

(b) the contract is for, or includes, the provision of security

services at one or more defence premises; and

(c) either of the following applies:

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

(ii) the person is included in a class of persons authorised

under subsection (2) (including a person who becomes a

member of the class after the authorisation is given);

and

(d) the person satisfies the training and qualification

requirements determined under subsection (4).

(2) The Minister may, in writing, authorise a person, or a class of

persons, for the purposes of paragraph (1)(c).

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

instrument.

(4) The Minister must, by legislative instrument, determine the

training and qualification requirements for contracted defence

security guards.

(5) Without limiting the training and qualification requirements that

may be determined in a legislative instrument under subsection (4),

different training and qualification requirements may apply to

different kinds of contracted defence security guards.

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Section 71C

71C Security authorised members of the Defence Force

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

the person:

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

(b) either of the following applies:

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

(ii) the person is included in a class of persons authorised

under subsection (2) (including a person who becomes a

member of the class after the authorisation is given);

and

(c) the person satisfies the training and qualification

requirements determined under subsection (4).

(2) The Minister may, in writing, authorise a person, or a class of

persons, for the purposes of paragraph (1)(b).

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

instrument.

(4) The Minister must, by legislative instrument, determine the

training and qualification requirements for security authorised

members of the Defence Force.

(5) Without limiting the training and qualification requirements that

may be determined in a legislative instrument under subsection (4):

(a) different training and qualification requirements may apply

to different kinds of security authorised members of the

Defence Force; and

(b) the Minister must determine training and qualification

requirements that apply to security authorised members of

the Defence Force in relation to the use of dogs as referred to

in section 72M.

71D Defence security screening employees

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

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

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Section 71E

(b) either of the following applies:

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

(ii) the person is included in a class of persons authorised

under subsection (2) (including a person who becomes a

member of the class after the authorisation is given);

and

(c) the person satisfies the training and qualification

requirements determined under subsection (4).

(2) The Minister may, in writing, authorise a person, or a class of

persons, for the purposes of paragraph (1)(b).

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

instrument.

(4) The Minister must, by legislative instrument, determine the

training and qualification requirements for defence security

screening employees.

(5) Without limiting the training and qualification requirements that

may be determined in a legislative instrument under subsection (4),

different training and qualification requirements may apply to

different kinds of defence security screening employees.

71E Identity cards

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

official.

Form of identity card

(2) The identity card must:

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

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

Offence

(3) A person commits an offence if:

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

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Section 71F

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

(c) the person does not, within 7 days of so ceasing, return the

person’s identity card to the Secretary.

Penalty: 5 penalty units.

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

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

Defence—card lost or destroyed

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

destroyed.

Note: A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the Criminal Code).

Defence security official must carry card

(6) A defence security official must carry the identity card at all times

when performing functions or exercising powers as a defence

security official.

71F Delegations relating to training and qualification requirements

Contracted defence security guards and defence security screening

employees

(1) The Minister may, by writing, delegate the Minister’s power under

subsection 71B(4) or 71D(4) (training and qualification

requirements for contracted defence security guards and defence

security screening employees) to:

(a) the Secretary; or

(b) an APS employee who holds or performs the duties of an

SES Band 3 position, or an equivalent or higher position, in

the Department.

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Section 71G

Security authorised members of the Defence Force

(2) The Minister may, by writing, delegate the Minister’s power under

subsection 71C(4) (training and qualification requirements for

security authorised members of the Defence Force) to:

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

higher rank; or

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

a higher rank; or

(c) an officer of the Air Force who holds the rank of Air

Commodore or a higher rank.

71G Delegations relating to identity cards

Issue of identity cards

(1) The Secretary may, by writing, delegate the Secretary’s power

under subsection 71E(1) (issue of identity cards) to:

(a) an APS employee who holds or performs the duties of an

Executive Level 2 position, or an equivalent or higher

position, in the Department; or

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

higher rank; or

(c) an officer of the Navy who holds the rank of Captain or a

higher rank; or

(d) an officer of the Air Force who holds the rank of Group

Captain or a higher rank.

Return of identity cards

(2) The Secretary may, by writing, delegate the Secretary’s function

under paragraph 71E(3)(c) (return of identity cards) to:

(a) an APS employee who holds or performs the duties of an

APS 5 position, or an equivalent or higher position, in the

Department; or

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

higher rank; or

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Section 71G

(c) an officer of the Navy who holds the rank of Lieutenant or a

higher rank; or

(d) an officer of the Air Force who holds the rank of Flight

Lieutenant or a higher rank.

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Powers exercisable with consent at defence access control points and on defence

premises Division 3

Section 71H

Division 3—Powers exercisable with consent at defence

access control points and on defence premises

Subdivision A—General provisions

71H Consensual identification and limited search—person about to

pass a defence access control point

Power to request identification etc.

(1) A defence security official may request a person who is about to

pass a defence access control point to provide evidence of the

following:

(a) the person’s name;

(b) the person’s residential address;

(c) the person’s authority to pass the defence access control

point.

Power to request limited search

(2) A defence security official may request a person who is about to

pass a defence access control point to undergo a limited search.

Power to refuse access etc.

(3) A defence security official may refuse to allow a person to pass a

defence access control point if:

(a) the person refuses a request by a defence security official

under subsection (1) or (2); or

(b) as a result of the person complying with such a request, a

defence security official reasonably believes that the person:

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

point; or

(ii) constitutes a threat to the safety of persons on the

defence premises; or

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

defence premises

Section 71J

(iii) has committed, or may commit, a criminal offence on,

or in relation to, the defence premises.

Additional powers if person is on defence premises

(4) If a defence security official refuses to allow a person to pass a

defence access control point under subsection (3), a defence

security official may, if the person is on defence premises, restrain

and detain the person.

71J Consensual search—vehicle, vessel or aircraft about to pass a

defence access control point

(1) A defence security official may request a person apparently in

control of a vehicle, vessel or aircraft that is about to pass a

defence access control point to permit a search of the vehicle,

vessel or aircraft.

(2) A defence security official may refuse to allow a vehicle, vessel or

aircraft to pass a defence access control point if:

(a) a person refuses to permit a search of a vehicle, vessel or

aircraft requested by a defence security official under

subsection (1); or

(b) as a result of the person complying with such a request, a

defence security official reasonably believes that the vehicle,

vessel or aircraft, or a thing in it:

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

point; or

(ii) constitutes a threat to the safety of persons on the

defence premises; or

(iii) relates to a criminal offence committed, or that may be

committed, on or in relation to the defence premises.

Additional powers if vehicle, vessel or aircraft is on defence

premises

(3) If a defence security official refuses to allow a vehicle, vessel or

aircraft to pass a defence access control point under subsection (2),

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premises Division 3

Section 71K

a defence security official may, if the vehicle, vessel or aircraft is

on defence premises, restrain or detain any person in the vehicle,

vessel or aircraft.