Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
DEFENCE LEGISLATION AMENDMENT (SECURITY OF DEFENCE PREMISES) BILL 2010
REPLACEMENT EXPLANATORY MEMORANDUM
(Circulated by the authority of
Minister for Defence the Hon Stephen Smith MP)
THIS MEMORANDUM REPLACES THE EXPLANATORY MEMORANDUM
PRESENTED TO THE HOUSE OF REPRESENTATIVES
ON 29 SEPTEMBER 2010
DEFENCE LEGISLATION AMENDMENT (SECURITY OF DEFENCE PREMISES) BILL 2010
GENERAL OUTLINE
This Bill will insert a new Part VIA into the Defence Act 1903 and make
associated amendments to the Australian Federal Police Act 1979.
The Bill gives effect to Australian Government initiatives to enhance the
security of Defence bases, facilities, assets, and personnel within
Australia in response to the changing nature of security threats.
In broad terms, the amendments:
. clarify that appropriately authorised members of the Defence Force may
use reasonable and necessary force, including lethal force, to prevent
the death of, or serious injury to a person in connection with an
attack on defence premises;
. establish a statutory regime of search and seizure powers that will
operate at defence premises to reduce the risk of dangerous items
entering defence facilities, or material and classified information
being unlawfully removed;
. update and relocate the trespass offence and related arrest power in
section 82 of the Defence Act 1903;
. support the enforcement of the trespass offence by authorising Defence
to use overt optical surveillance devices to monitor the security of
defence premises and to disclose the information captured by these
devices to law enforcement agencies and Commonwealth, State and
Territory public prosecution authorities;
. clarify that this Part does not limit the exercise of powers of a
defence security official, a member of the Defence Force or any other
person, under this Act or any other law.
Financial Impact statement
The costs associated with the amendments in the Bill will be met from
internal Defence resources that have been allocated to the Base Security
Improvement Program. Funding of $686.8m has been allocated over the ten
year period for this program, with expenditure of $328.2m proposed during
the forward estimates period.
NOTES ON CLAUSES
Clause 1: Short title
Clause 1 is a formal provision specifying the short title of the Bill as
the Defence Legislation Amendment (Security of Defence Premises) Act 2010.
Clause 2: Commencement
Clause 2 provides for the commencement of the Bill. Commencement will
occur on proclamation or six months after receiving Royal Assent if it has
not been proclaimed to commence by that time.
Clause 3: Schedule(s)
Clause 3 is a formal provision specifying that amendments or repeals are
made to the provisions set out in the Section s in the schedule.
Schedule 1 - Amendments relating to the security of defence premises
Part 1-Main amendments
Defence Act 1903
Schedule 1 inserts a new Part VIA in the Defence Act 1903 to provide for
provisions of common application across Defence to effectively deal with
the security of defence bases, facilities, assets and personnel within
Australia.
PART VIA - Security of defence premises
Division 1-Preliminary
Section 71 Simplified outline
This section provides an overview of the Divisions contained in the new
Part VIA as follows:
. Division 1 provides this simplified outline and definitions for the
expressions used in this Part.
. Division 2 provides for matters relating to defence security
officials.
. Division 3 sets out the powers exercisable by defence security
officials with consent at defence access control points and on defence
premises. Subdivision B contains special provisions relating to
declared explosive ordnance depots.
. Division 4 sets out the powers exercisable by special defence security
officials without consent at defence access control points and on
defence premises. It also provides offences for non-compliance or
hindering.
. Division 5 relates to seizure of sections, vehicles, vessels and
aircraft.
. Division 6 sets out provisions that apply generally to the exercise of
powers under this Part.
. Division 7 provides for other matters including an offence of trespass
on defence premises or defence accommodation, and the provision of
information obtained from certain surveillance devices to law
enforcement and other agencies.
Section 71A Definitions
This section provides definitions for the terms and expressions used in the
new Part VIA relating to the security of defence premises.
contracted defence security guard has the meaning given by section 71B.
Contracted defence security guards will only be authorised under the Act to
request evidence of a person's identification, conduct consensual searches
and, in defined circumstances, restrain and detain a person for the
purposes of placing them in the custody of a law enforcement officer.
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 thereof, where entry or exit is controlled or limited
by any means.
The concept of defence access control points is introduced to create
identified points on defence premises where defence security officials are
expressly authorised to exercise the identification, search and related
enforcement powers proposed in the new Part.
The mere presence, on defence premises, of a sign or boundary marker, for
example a fence or a painted line on a road or airport tarmac, does not of
itself constitute a defence access control point for the purposes of this
Part. A defence access control point will use one or more measures to
limit or control access to defence premises, or a part thereof, either by
identifying the person or confirming their authority to access the
premises, or a part thereof. These measures may include, but are not
limited to, the use of one or more of the following: the presence of
defence security officials, the requirement to present access cards or
other identification for inspection, electronic security barriers fitted
with access card readers, electronic handheld access card readers, retinal
scanners, hand scanners and comparable devices. These measures may be used
in conjunction with, but not limited to, any of the following physical
security controls: gates, boom gates, security bollards, locked or
electronically controlled doors, and entry points to vehicles, vessels or
aircrafts including gangways and stairs. In relation to the latter, a
defence access control point may be established at the base of the gangway
to a vessel, the stairs leading up to an aircraft or a ramp providing
access to a vehicle.
Defence accommodation means any building, structure, or place, within
Australia, that is used for, or in connection with, the accommodation of a
group of members of any part of the Defence Force. This would include
accommodation blocks and complexes accommodating members of the Defence
Force and their families.
The concept of defence accommodation has been introduced to cover
facilities, within Australia, that are used to accommodate a number of
Defence Force members or members of their household, regardless of whether
these facilities are located on or off defence bases. The definition
captures accommodation blocks, such as apartment buildings or townhouse
complexes, which provide residential accommodation for numerous Defence
Force members and/or their families. It includes areas connected with the
accommodation buildings such as private car parks, gardens and recreational
facilities which form part of the accommodation buildings.
The definition does not cover single, stand-alone residences, which are
located off base, and are either privately owned or rented by Defence Force
members.
Noting that accommodation buildings which are used by numerous Defence
Force members represent a potentially attractive terrorist target, the
policy intent is to ensure that defence accommodation has explicit coverage
for the purposes of the trespass offence and related arrest power in the
new Part. It is not intended, however, that the proposed search and
related enforcement powers provided in the new Part will be exercised on
defence accommodation.
Defence premises means any area of land or any other place, a building or
other structure, a vehicle, vessel or aircraft, or a prohibited area within
the meaning of the Defence (Special Undertakings) Act 1952, which is
located in Australia and is owned or occupied by the Commonwealth for use
by the Defence Force or the Department.
Land or buildings that may have a defence purpose, but which are not
currently used by the Defence Force or the Department of Defence do not
meet the definition of defence premises included in the Bill. So, for
example, the provisions in the Bill do not apply to an immigration facility
that is located on a former Defence base that is not currently used by the
Defence Force or the Department. Similarly, if a portion of an operational
base is set aside for a use that is unrelated to the Defence Force or the
Department, the provisions of the Bill do not apply to that portion of the
base.
The concept of defence premises is introduced to circumscribe the locations
at which the proposed measures in the new Part will operate.
The concept of defence premises and its use in this Part is confined to
locations within Australia and does not have extra-territorial application.
Defence security official means a contracted defence security guard, a
security authorised member of the Defence Force or a defence security
screening employee. Detailed definitions of these officials are found at
section 71B, 71C and 71D. Defence security official is a generic term
encompassing all three classes of persons empowered under this Part and was
introduced to assist drafting.
Defence security screening employee has the meaning given at section 71D. A
defence security screening employee may only exercise the non-consensual
identification, search and seizure powers if it is not reasonably
practicable, in all the circumstances, for a security authorised member of
the Defence Force to do so. In addition, defence security screening
employees will not be authorised under this Part to take action to make a
seized item safe or prevent its use, or use force that is likely to cause
death or grievous bodily harm to a person.
intelligence or security agency means the Australian Secret Intelligence
Service, the Australian Security Intelligence Organisation or the Office of
National Assessments.
limited search of a person means:
. a search of things in the possession of a person that may
include requesting the person to remove his or her overcoat,
coat or jacket and any gloves, shoes and hat and an examination
of any of those items that the person consents to remove; or
. 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.
It does not include requesting the person to remove all of his or her
garments.
For the purposes of the consensual search regime contained in Division 3 of
this new Part, the concept of a limited search of a person has been
introduced to allow both the search of things in a person's possession and
a 'pat down' of the person over their outer garments. Contracted defence
security guards will only be empowered to request a consensual, limited
search of a person.
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 similar devices used by a person to overcome impaired
sight.
personal information has the same meaning as in the Privacy Act 1988.
person assisting a defence security official has the meaning given by
section 72M.
protective service officer has the same meaning as in the Australian
Federal Police Act 1979.
search of a person, for the purposes of the non-consensual search regime
contained in Division 4 of the new Part, has the same meaning as in
section 51 of the Defence Act 1903, which deals with Defence Force
assistance to the civil authority under Part IIIAAA. That definition is
based on the definitions of frisk search and ordinary search that are
contained in Part 1AA of the Crimes Act (in particular, section 3C).
Search of a vehicle, vessel or aircraft, for the purposes of both the
consensual and non-consensual search regimes contained in Divisions 3 and 4
of the new Part, 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. This class of persons will be authorised to use the full range
of powers proposed under this Part.
special Defence security official is a security authorised member of the
Defence Force or a defence security screening employee. It is a generic
term that references these two classes of person and was introduced to
assist drafting.
vessel has the same meaning as in section 51SD of the Defence Act 1903,
which provides that a vessel includes:
. a ship, boat, raft, pontoon or submersible craft; or
. any other thing capable of carrying persons or goods through or on
water; and
. includes a hovercraft (or other non-displacement craft) and a floating
structure or installation.
To avoid doubt, a thing includes a substance, a vehicle, vessel or aircraft
and a
thing in electronic or magnetic form.
Division 2 - Defence security officials
Three classes of persons will be empowered to exercise some or all of the
powers in this new Part.
Section 71B Contracted defence security guards
This section defines a contracted defence security guard as a contractor,
subcontractor or their employees, who provide security services at defence
premises under a contract with the Commonwealth, and have been authorised
by the Minister, by written instrument, to be contracted defence security
guards. The Minister will only authorise as contracted defence security
guards, persons who have met a standard of security training and
qualification requirements as determined by the Minister by legislative
instrument.
Defence has determined that it is appropriate that the training and
qualification requirements for Defence security officials under this Bill,
including training requirements for the restrain and detain powers, be
specified in a legislative instrument. A legislative instrument is subject
to tabling and potential disallowance in both Houses of Parliament,
therefore the use of this mechanism affords significant protection. It
ensures that the Parliament, at all times, has control over the nature and
level of training and qualification requirements that will be imposed on
people who will be authorised to exercise powers under this Bill. A
legislative instrument provides a far greater level of protection and
flexibility than having training and qualification requirements set out in
departmental administrative guidance.
The use of a legislative instrument also enables training and qualification
requirements to be updated rapidly, for example in response to the
availability of new technologies and equipment, without incurring the
delays that would arise if these requirements were stipulated within the
Bill itself.
An authorisation of a person as a contracted defence security guard is not
a legislative instrument within the meaning of section 5 of the Legislative
Instruments Act 2003.
Contracted defence security guards will only be authorised under this Part
to request evidence of a person's identification, conduct consensual
searches and, in defined circumstances, restrain and detain a person for
the purposes of placing them in the custody of a law enforcement officer.
Section 71C Security authorised members of the Defence Force
This section defines a security authorised member of the Defence Force as
being a member of the Defence Force, who is authorised by the Minister, by
written instrument to be a security authorised member of the Defence Force.
The Minister will only authorise ADF members to be security authorised
members of the Defence Force where they have met a standard of security
training and qualification requirements as determined by the Minister in a
legislative instrument.
An authorisation of a person as a security authorised member of the Defence
Force is not a legislative instrument within the meaning of section 5 of
the Legislative Instruments Act 2003.
This class of persons will be authorised to use the full range of powers
proposed under this Part.
Further information on the determination of a legislative instrument for
training and qualifications aspects of the Bill can be found under Section
71B.
Section 71D Defence security screening employees
This section defines a defence security screening employee as an APS
employee of the Department of Defence who has been authorised by the
Minister, by written instrument, to be a defence security screening
employee. The Minister will only authorise as defence security screening
employees, APS employees who have met a standard of security training and
qualification requirements determined by the Minister in a legislative
instrument.
An authorisation of a person as a defence security screening employee is
not a legislative instrument within the meaning of section 5 of the
Legislative Instruments Act 2003.
Defence security screening employees must have volunteered to undertake the
additional responsibilities or risks associated with this role, or have
applied for a Department of Defence position where these additional
responsibilities were included in the duty statement.
A defence security screening employee may only exercise the non-consensual
identification, search and seizure powers if it is not reasonably
practicable, in all the circumstances, for a security authorised member of
the Defence Force to do so. In addition, defence security screening
employees will not be authorised under this Part to take action to make a
seized item safe or prevent its use, or use force likely to cause death or
grievous bodily harm.
Further information on the determination of a legislative instrument for
training and qualifications aspects of the Bill can be found under Section
71B.
Section 71E Identity cards
This section requires the Secretary to issue an identity card to each
defence security official. The identity card must be in a form approved by
the Secretary and contain a recent photograph of the official. A defence
security official is required to carry the identity card at all times when
performing functions or exercising powers as a defence security official.
Given the serious consequences that could arise if an identity card is
misused to gain access to a defence facility or to exercise powers under
this new Part, a person commits a strict liability offence, carrying a
maximum penalty of 5 penalty units, if he or she fails to return the
identity card to the Secretary within 7 days of ceasing to be a defence
security official. However, the offence does not apply if the identity
card was lost or destroyed. In line with Commonwealth criminal law policy
this is a strict liability provision given the low level of penalty but
need to ensure that the officials are aware of the significance of the
identity cards.
A requirement for any member of the ADF who ceases to be a security
authorised member of the Defence Force to return an identity card within 7
days will also be imposed by way of a "general order" as defined in the
Defence Force Discipline Act 1982. This will enable Defence to take
disciplinary action against any member who fails to return an identity card
as required.
Section 71F Delegations relating to training and qualification requirements
Section 71F(1) provides that the Minister may, by writing, delegate the
power to determine the security training and qualification requirements for
contracted defence security guards and defence security screening employees
to the Secretary, or an APS employee who holds or performs the duties of an
SES Band 3 position or an equivalent or higher position.
Section 71F(2) provides that the Minister may, by writing, delegate the
power to determine the security training and qualification requirements for
security authorised members of the Defence Force to an Army officer holding
the rank of Brigadier or higher, a Navy officer holding the rank of
Commodore or higher, or an Air Force Officer holding the rank of Air
Commodore or higher. This will allow developments in training associated
with the use of force, to be more readily incorporated into the training
requirements for security authorised members of the Defence Force.
Section 71G Delegations relating to identity cards
Section 71G(1) provides that the Secretary may, by writing, delegate the
power to issue identity cards to defence security officials to an APS
employee who holds or performs the duties of an Executive Level 2 position
or higher, or a military officer holding the Army rank of Colonel (or the
Navy and Air Force equivalents) or higher.
Section 71G(2) provides that the Secretary may, by writing, delegate the
function to receive returned identity cards from defence security officials
to an APS employee who holds or performs the duties of an APS 5 position or
higher, or an Army officer of the rank of Captain (or the Navy and Air
Force equivalents) or higher.
These delegation arrangements acknowledge the need to implement practical
arrangements for the issue and recovery of identity cards that recognise
the constraints posed by the geographically dispersed nature of the Defence
estate.
Division 3-Powers exercisable with consent at Defence access control points
and on Defence premises
This Division provides measures to prevent or reduce the risk of
unauthorised entry to defence premises (or parts thereof), to detect and
deal with trespassers, and to prevent or reduce the risk of dangerous items
entering defence premises or material being unlawfully removed.
Subdivision A - General Provisions
Section 71H Consensual identification and limited search - person about to
pass a defence access control point
This section provides that a defence security official may request a
person, who is about to pass a defence access control point, to provide
evidence of their identity and authority to pass the access control point,
or to undergo a limited search.
A defence security official may refuse to allow the person to pass a
defence access control point and, if on defence premises restrain and
detain the person, if the person:
. refuses an identification or search request; or
. as a result of complying, the defence security official reasonably
believes that the person is not authorised to pass the defence access
control point, constitutes a threat to the safety of persons on the
premises, or has or may commit a criminal offence in relation to the
defence premises.
Section 71J Consensual search - vehicle, vessel or aircraft about to pass a
defence access control point
This section provides that a defence security official may request a
person, who is 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.
A defence security official may refuse to allow the vehicle, vessel or
aircraft to pass a defence access control point and, if on defence
premises, restrain and detain any person in the vehicle, vessel or
aircraft, if the person:
. refuses to permit the requested search; or
. as a result of complying, the defence security official reasonably
believes that the vehicle, vessel or aircraft (or a thing in it) is
not authorised to pass the defence access control point, constitutes a
threat to the safety of persons on the premises, or relates to a
criminal offence that has or may be committed on the defence premises.
Section 71K Consensual identification - person on defence premises
As a further measure to detect and deal with trespassers while undertaking
patrols, this section provides that if a defence security official
reasonably believes that a person is on defence premises without authority,
they may request that the person provide evidence of their identity and
their authority to be on the premises.
A defence security official may restrain and detain a person if the person:
. refuses the identification request; or
. as a result of complying, the defence security official reasonably
believes that the person is not authorised to be on the defence
premises, constitutes a threat to the safety of persons on the
premises, or has or may commit a criminal offence in relation to the
defence premises.
Subdivision B-Special provisions for declared explosive ordnance depots
Given the inherent risk to public safety posed by the unlawful removal of
weapons, munitions and explosive ordnance from defence premises, this
subdivision introduces special provisions for declared explosive ordnance
depots. The provisions provide additional consensual search powers for
defence contracted security guards at a small number of depots, where
security authorised members of the Defence Force are not usually present to
exercise the non-consensual search powers provided under this Part.
Although small in number, these facilities contain the majority of
Defence's explosive ordnance.
Section 71L Declared explosive ordnance depots
This section provides that the Minister may specify, by legislative
instrument, an area of land, place, building or structure, which is a
defence premise used wholly or in part for the storage of explosive
ordnance and where members of the Defence Force are not normally present,
to be a declared explosive ordnance depot. Signs stating that it is a
condition of entry that persons consent to searches as provided by this
subdivision are to be prominently displayed at the entrance to the declared
explosive ordnance depot and at regular intervals around the perimeter.
Each depot specified in the legislative instrument must be identified
either by reference to its geographical location or a unique code or number
that is held in the Department's records and is applicable to that
explosive ordnance depot. The intent of permitting the use of a unique
code or number is to avoid potential security concerns arising from
publishing the location of these explosive ordnance depots.
Section 71M Consensual search - person on a declared explosive ordnance
depot
This section provides that a contracted security guard may request a person
who is on a declared explosive ordnance depot to undergo a limited search,
including a search of things in the possession of the person.
A contracted defence security guard may restrain and detain a person if the
person:
. refuses the search request; or
. as a result of complying, the contracted defence security guard
reasonably believes that the person is not authorised to be on the
declared explosive ordnance depot, constitutes a threat to the safety
of persons on the depot, or has or may commit a criminal offence on,
or in relation to the depot.
Section 71N Consensual search - vehicle, vessel or aircraft on a declared
explosive ordnance depot
This section provides that a contracted security guard may request a person
who is apparently in control of a vehicle, vessel or aircraft that is on a
declared explosive ordnance depot to permit a search of the vehicle, vessel
or aircraft (including things in the vehicle, vessel or aircraft).
A contracted defence security guard may restrain and detain any person in
the vehicle, vessel or aircraft, if the person:
. refuses to permit the requested search; or
. as a result of complying, the contracted defence security guard
reasonably believes that vehicle, vessel or aircraft (or a thing in
it) is not authorised to be on the declared explosive ordnance depot,
constitutes a threat to the safety of persons on the depot, or may
relate to a criminal offence that has or may be committed on the
depot.
Section 71P Powers additional to other powers
This section identifies that this Subdivision does not limit any other
power of a contracted defence security guard under this Part.
Subdivision C-Offences
Section 71Q Offences - search powers exercised without consent
Section 71Q(1) provides that a defence security official commits a strict
liability offence, carrying a maximum penalty of 50 penalty units, if the
official conducts a limited search of a person purportedly under Division 3
(powers exercisable with consent) without the person's consent.
Section 71Q(2) provides that a defence security official commits a strict
liability offence, carrying a maximum penalty of 30 penalty units, if the
official conducts a search of a vehicle, vessel or aircraft, purportedly
under Division 3 (powers exercisable with consent), without the consent of
the person apparently in control of the vehicle, vessel or aircraft.
Division 4-Powers exercisable without consent at defence access control
points and on defence premises
The lack of explicit non-consensual search powers poses a significant
obstacle for Defence in undertaking protective security functions at all
defence premises, particularly during heightened threat levels. This is
also a particular problem for sensitive facilities (e.g. storing weaponry,
munitions and explosive ordnance or highly classified material) even at a
time of no heightened security threat, given the inherent risk to public
safety and national security arising from security breaches at these
premises.
This division provides for non-consensual identification and search powers
which will be exercised, as a matter of Defence policy, by special defence
security officials during higher threat levels on any defence premises and
at all times on sensitive sites. Threat levels are determined on the basis
of intelligence.
Section 71R Non-consensual identification and search - person about to pass
a defence access control point
This section provides that a special defence security official may require
a person who is about to pass through a defence access control point, to
provide evidence of their identity and authority to pass the access control
point and, if on defence premises, may search the person.
A special defence security official may refuse to allow a person to pass a
defence access control point if the person:
. refuses to comply with the identification requirement;
. hinders or obstructs a search on defence premises; or
. as a result of complying with the identification requirement or
search, the special defence security official reasonably believes that
the person is not authorised to pass the access control point,
constitutes a threat to the safety of persons on the premises, or has
or may commit a criminal offence on, or in relation to the defence
premises.
If a special defence security official refuses to allow a person to pass a
defence access control point and the person is on defence premises, the
special defence security official may:
. restrain and detain the person; or
. request the person to leave the premises and, if he or she refuses,
remove the person from the premises.
Section 71S Non-consensual search - vehicle, vessel or aircraft about to
pass a defence access control point
This section provides that a special defence security official may search a
vehicle, vessel or aircraft (or a thing within it) that is about to pass a
defence access control point and is on defence premises.
A special defence security official may refuse to allow a vehicle, vessel
or aircraft to pass a defence access control point if the person:
. hinders or obstructs a search of a vehicle, vessel or aircraft that is
on defence premises; or
. as a result of complying with the search, the special defence security
official reasonably believes that the vehicle, vessel of aircraft (or
a thing in it) is not authorised to pass the access control point,
constitutes a threat to the safety of persons on the premises, or
relates to a criminal offence that has or may be committed on the
defence premises.
If a special defence security official refuses to allow a vehicle, vessel
or aircraft to pass a defence access control point and the vehicle, vessel
or aircraft is on defence premises, the special defence security official
may restrain and detain any person in the vehicle, vessel or aircraft.
Section 71T Non-consensual identification and search - person on defence
premises
This section provides that if a special defence security official
reasonably believes that a person on defence premises is not authorised to
be on the premises, constitutes a threat to safety or persons on the
premises, or has or may commit a criminal offence on the premises, the
official may require the person to provide evidence of their identity and
authority to be on the premises, or search the person.
The special defence security official may restrain and detain the person or
remove the person from the premises.
Section 71U Non-consensual search - vehicle, vessel or aircraft on defence
premises
This section provides that if a special defence security official
reasonably believes that a vehicle, vessel or aircraft that is on defence
premises is not authorised to be there, constitutes a threat to safety or
persons on the premises, or relates to a criminal offence that has or may
be committed on the premises, the official may search the vehicle, vessel
or aircraft (or a thing in it). Further, the special defence security
official may restrain and detain any person in the vehicle, vessel or
aircraft.
Section 71V Offence - refusing to provide evidence etc. required under this
Division
To assist with the enforcement of the non-consensual identification
requirements under Division 4 of this Part, this section establishes an
offence, carrying a maximum penalty of 20 penalty units, if a person who is
on defence premises refuses or fails to provide evidence of their identity
or authority to be on the premises, or provides information that is false
in a material particular.
However, the offence will not apply if the special defence security
official did not comply with the requirement to produce their identity card
and explain the effect of refusing to comply with the requirement, as
stipulated at section 72B, before exercising a power under this Part.
Section 71W Offence - hindering or obstructing a search under this Division
To assist with the enforcement of the non-consensual search regime under
Division 4 of this Part, this section establishes an offence, carrying a
maximum penalty of 50 penalty units, if a person hinders or obstructs a
search by a special defence security official where that official has
complied with relevant identity and other requirements as stipulated in
section 72B.
Section 71X Security authorised members of the Defence Force may respond to
an attack
This section provides that if an attack on defence premise is occurring or
imminent and is intended to, or could result in the death or serious injury
of persons on the premises, then a security authorised member of the
Defence Force may take action to protect persons on the premises. For this
purpose, attack covers an armed attack, attack by detonation of an
explosive device or any other conduct, whether or not involving firearms or
explosives, that is designed to, or could result in the death or serious
injury of persons on defence premises.
The section provides explicit authority for security authorised members of
the Defence Force to use force in responding to an attack on defence
premises that could result in the death or serious injury of persons on the
premises. The note makes it clear that this section is to be read in
conjunction with sections72G and 72H which set out the rules on the use of
force by security authorised members of the Defence Force.
Section 71Y Power to stop and detain
This section provides that a special defence security official, when
exercising his or her powers under Division 4 (powers exercisable without
consent), may stop and detain a person, vehicle, vessel or aircraft for the
purposes of conducting a search, or to require the person to produce
evidence of their identification or authority to pass a defence access
control point or be on defence premises.
Section 71Z Powers are in addition to powers under this Part
This section identifies that powers conferred on a special defence security
official under Division 4 (powers exercisable without consent) are in
addition to those powers conferred on the official under any other Division
in this Part.
Division 5 - Seizure
Section 72 Power to seize things on defence premises
This section provides that a special defence security official may seize an
item (including a vehicle, vessel, aircraft or unattended thing) that is on
defence premises, or found as a result of a search, if the official
reasonably believes that the item constitutes a threat to safety of persons
on the premises, or relates to a criminal offence that has or may be
committed on the premises.
Where the seizure relates to a possible security threat, a security
authorised member of the Defence Force will be able to take any action that
is reasonable and necessary to make the item safe or prevent it being used.
In respect of a suspicious item that is left unattended on defence
premises, such action could include a search of the item to establish
whether it constitutes a threat to the safety of persons on the premises.
If the official reasonably believes that the seized thing was used (or may
be used) in the commission of a crime, the official must give the thing to
a member of a police force as soon as possible, unless action is necessary
to make the item safe or prevent its use and this, in turn, prevents the
item from being provided to the police.
Further, where an item (including a vehicle, vessel or aircraft) is seized
from a person, the amendments will require a special defence security
official to give the person a receipt for the item, if it is practicable to
do so.
In the event that the seized item has not been used or otherwise involved
in the commission of a criminal offence and, as a result, there is no
requirement to provide the item to the civil police, the special defence
security official must return the item to the person if practicable to do
so or, if not, provide it to the civil police at the earliest practicable
time.
Division 6-Matters relating to exercise of powers under Part
This Division specifies limitations and safeguards on the exercise of the
powers by defence security officials conferred by this Part.
Section 72A Certain powers to be exercised only by security authorised
members of the Defence Force unless not reasonably practicable
This section provides that the non-consensual identification, search and
seizure powers conferred on a special defence security official under
Divisions 4 and 5 may only be exercised by a defence security screening
employee if it is not reasonably practicable for a security authorised
member of the Defence Force to do so. This reflects the intention to limit
the proposed use of defence security screening employees to those few
defence sites where security authorised members of the Defence Force are
not available to exercise the non-consensual identification, search and
seizure powers.
Section 72B Defence security officials must produce identity cards, etc.
This section provides that before making a request or requirement of a
person under this Part or undertaking a search, a defence security official
must produce his or her identity card for inspection by the person and
inform the person of the consequences of refusing to comply with the
request, requirement or search.
However, the section creates a limited exception to this broad obligation
in respect of non-consensual searches, if the official reasonably believes
that a person constitutes a threat to their safety or other persons on the
premises, such that complying with a requirement to produce their identity
card before exercising a power under this Part could place the safety of
the official and others at risk.
Section 72C Persons to be informed of offence
This section provides that if a special defence security official exercises
powers under this Part on the basis of a reasonable belief that a person
has or may commit a criminal offence, then the official must inform the
person of the substance of the offence. In doing so, it is not necessary
for the official to use language that is precise or technical in nature.
This requirement does not apply, however, if the person should, in the
circumstances, know the substance of the offence or, through their actions,
makes it impracticable for the official to inform the person of the
offence.
Section 72D Conduct of searches and limited searches
This section makes it clear that any search or limited search of a person
must, if practicable, be conducted by a person of the same sex as the
person being searched. Searches will also need to be conducted in a manner
that is culturally sensitive.
Section 72E Use of equipment to examine things etc.
To detect and deter security threats posed by dangerous items (including
weapons, explosives or detonation devices) being brought onto or unlawfully
removed from defence premises, Defence intends to use search technologies.
This may include metal detectors, x-ray detection equipment, arthroscope
camera devices (to examine spaces that are confined or difficult to access
such as areas of a vehicle's engine bay), explosive residue equipment,
chemical sniffers and other search devices.
This section provides for the use of electronic and other devices, together
with technical assistance, for the purposes of conducting searches of a
person or thing under this Part, or determining whether a thing may be
seized. It provides that equipment may be used to search an item and data
stored on items, for example data on laptops, mobile phones and thumb-
drives. It also allows for an item to be moved to another part of the
defence premises in order to access the equipment necessary to effect the
examination or search.
Section 72F Powers to move certain unattended things on defence premises
This section provides that if a thing is left unattended on defence
premises as a result of, or in connection with the exercise of powers under
this Part, a defence security official may move the thing to another place
if the official believes this is necessary or desirable. This might be
required if a vehicle has been left unattended and is impeding the normal
operations of the defence base or poses a traffic hazard.
Section 72G Use of reasonable and necessary force etc. by defence security
officials
Section 72G(1) provides that, in exercising powers under this Part, a
defence security official may use such force against persons and things
that is considered reasonable and necessary.
Section 72G(2) provides that a limit to the use of force by a contracted
defence security guard or a defence security screening employee is that
they must not, in using force against a person in exercising powers under
this Part, do anything that is likely to cause the death of, or grievous
bodily harm to, the person.
Section 72G(3) provides that a defence security official must not subject a
person to greater indignity than is reasonable and necessary in the
circumstances. That is the obligation to use only such force as is
reasonable and necessary in the circumstances applies to all three classes
of persons authorised to exercise powers under the security regime
contained in this Part, namely contracted defence security guards, defence
security screening employees and security authorised members of the Defence
Force.
In conducting non-consensual searches under this Part, this item would
permit a special defence security official to use reasonable and necessary
force against a thing. This may include breaking the thing open (including
a vehicle or vessel), in order to determine whether the thing should be
seized.
The provision and its accompanying notes make it clear that contracted
defence security guards and defence security screening employees cannot use
lethal force, but would be able, where appropriate, to rely upon
Commonwealth, State and Territory statutory defences and the common law on
self defence. Further rules on the use of force by security authorized
members of the Defence Force are set out at 72H.
Section 72H Use of force involving death or grievous bodily harm by
security authorised members of the Defence Force
Section 72H deals with the use of force involving death or grievous bodily
harm by security authorised members of the Defence Force and must be read
in conjunction with section 72G. This section is also linked to the power,
in section 71X, of security authorised members of the Defence Force to take
action on defence premises to protect persons from an attack.
Section 72H(1) provides that a security authorised member of the Defence
Force must not, in using force against a person in exercising powers under
this Part, do anything that is likely to cause the death of, or grievous
bodily harm to, the person, unless the member believes on reasonable
grounds that doing that thing is necessary to prevent the death of, or
serious injury to, another person (including the official), and the threat
of death or injury is caused by an attack on defence premises, or on people
on defence premises, that is occurring or is imminent. The effect of this
section, when read together with section 71X, is a security authorised
member of the Defence Force may use up to lethal force, if the member
believes that this is necessary to prevent death or serious injury to
themselves or others in taking action to protect persons from an actual or
imminent attack on defence premises. For this purpose, attack covers an
armed attack, attack by the detonation of an explosive device or any other
conduct, whether or not involving firearms or explosives, which is designed
to kill or could result in the death or serious injury of persons on
defence premises. No other defence security official is authorized to
exercise force likely to cause death or grievous bodily harm under this
Part.
Section 72H(2) provides that a security authorised member of the Defence
Force may use up to lethal force on person who is attempting to escape
being detained by fleeing, if the person has first been called on to
surrender and the official believes on reasonable grounds the person cannot
be apprehended in any other manner. This section must be read subject to
section 72H(1). Consequently, the use of up to lethal force on a person
who is attempting to escape being detained by fleeing is only authorised if
this is necessary to prevent death or serious injury to persons on defence
premises in the event of an attack that is imminent or occurring.
The provision is modelled on the existing Section 51T of the Defence Act
1903 which applies to the use of reasonable and necessary force by members
of the Defence Force in assisting civilian authorities under Part IIIAAA.
This consistency will ensure the same rules apply to the use of force under
Part IIIAAA and this new Part. From operational perspective, this would
provide certainty in situations where both regimes could potentially apply
at different points in time.
Notwithstanding the inclusion of this provision, the common law right of
all defence security officials to defend themselves continue to apply; as
do the various Commonwealth, State and Territory legislative provisions
that provide a defence of self-defence.
Section 72J Limit on powers to restrain and detain
This section provides that a defence security official can only restrain
and detain a person for the purpose of placing them into the custody of a
civil police officer, including a protective service officer of the
Australian Federal Police, at the earliest practicable time.
The Part confers a power, rather than imposing a duty, to restrain and
detain a person. Consequently, if a defence security official subsequently
determines that there is no longer a basis for detaining a person, the
defence security official can simply release the person.
Section 72K Limit on power to arrest
This section provides that, in exercising any power to arrest conferred by
this new Part, a member of the Defence Force must bring the person before a
member or special member of the Australian Federal Police, or a member of
the State and Territory Police, as soon as practicable.
Section 72L Powers not to be used to stop protests, etc.
This section provides that a defence security official 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 the commission of a criminal offence.
Section 72M Security authorised members of the Defence Force may use dogs
To provide an improved capability to detect explosives and other hazardous
materials and to deter, detect and detain trespassers, this section
provides that security authorised members of the Defence Force may use a
dog to assist with the conduct of searches and other functions and powers
under this Part. This includes the power to restrain and detain a person,
remove a person from defence premises or arrest a person under 72P (which
deals with trespass).
The use of dogs to assist with the conduct of searches or other
functions or powers under this Bill is limited to security authorised
Defence Force members who are also fully qualified dog handlers.
Defence maintains stringent policies and procedures around the training
and use of military working dogs and the training of dog handlers. At
all times, military working dog handlers are required to only use such
force as is reasonable and necessary and direct their dogs in such a
manner as to prevent unreasonable injury to persons or damage to
property.
Section 72N Persons assisting defence security officials
This section provides that a defence security official may be assisted by
others in certain circumstances, while exercising their powers, if it is
reasonable and necessary to do so. These situations relate to conducting a
search of a vehicle, vessel or aircraft either with or without consent,
using equipment to conduct searches of persons or things, and moving things
on defence premises.
For example, such assistance might be required to operate a forklift to
unload a vehicle, vessel or aircraft, so that a thorough search may be
properly conducted by defence security officials. Additionally, assistance
might be required to use equipment to examine an item or data stored on the
item, or to move an item that has been left unattended on defence premises.
The section provides that a person assisting may, subject to the direction
of the defence security official, exercise the powers of the official.
Further, powers that are exercised by a person assisting, under the
direction of a defence security official, are taken to have been exercised
by the official.
If a written direction is given by the defence security official to a
person assisting, this direction is not a legislative instrument within the
meaning of Section 5 of the Legislative Instruments Act 2003.
Division 7-Other matters
Section 72P Unauthorised entry etc. on defence premises or defence
accommodation
This section provides that a person commits an offence, carrying a maximum
penalty of 50 penalty units, if they enter or are on defence premises or
defence accommodation without authorisation. It also provides that a
member of the Defence Force, a civil police officer or an Australian
Federal Police protective service officer may, without warrant, arrest a
person for unauthorised entry on defence premises or accommodation.
This section preserves the areas that were previously covered in the
trespass offence in section 82 of the Defence Act 1903, including defence
aircraft and buildings used for the accommodation of any part of the
Defence Force. In addition, it clarifies that Defence has the power to
deal with trespassers on naval vessels.
This section extends the associated arrest power to include State and
Territory police and Australian Federal Police protective service
officers. It also establishes an adequate maximum penalty for trespass,
in line with current Commonwealth criminal law policy, to act as an
effective deterrent and to provide a clear indication of the seriousness
of the offence in the context of base security.
If this power is exercised, section 72K requires the member of the Defence
Force to bring the person before a member or special member of the
Australian Federal Police, or a member of the State and Territory Police,
as soon as practicable.
Section 72Q Certain information may be collected and provided to law
enforcement agencies etc.
To detect, deter and respond to potential security threats, Defence intends
to increase the use of overt optical surveillance on defence premises,
including vessels and aircraft, to provide perimeter breach and intruder
detection capabilities. This may include optical surveillance, such as
Closed Circuit Television (CCTV), CCTV smart recognition systems and
Automatic Number Plate Recognition, and other comparable surveillance
devices. The surveillance might be accompanied by appropriate signage.
In light of the foregoing, this section provides that the Department, the
Defence Force, or a contracted security guard may, on defence premises,
collect information including personal information by means of an optical
surveillance device.
As the purpose of any surveillance activity undertaken by Defence would be
to identify and deal with potential security threats, the Commonwealth
needs to be able to rely on any images and information captured through
surveillance to assist intelligence agencies, and as evidence to support
any action by law enforcement agencies and the Commonwealth, State and
Territory public prosecution authorities.
Consequently, this section also provides that the Department or the Defence
Force may disclose information collected through the use of optical
surveillance devices to intelligence or security agencies, Federal, State
or Territory law enforcement agencies, and Commonwealth, State or Territory
public prosecution authorities. Moreover, the section provides that a
disclosure of personal information is taken to be authorised by law for the
purposes of Information Privacy Principle 11 in section 14 of the Privacy
Act 1988.
Section 72R Compensation for acquisition of property
This section makes provision for reasonable compensation if the operation
of this Part results in the acquisition of property other than on just
terms. This is intended to cover circumstances such as where an item is
damaged as a result of a search and no criminal proceedings are instituted
in relation to the item, or it is found not to have been involved in the
commission of a criminal offence.
Section 72S Other powers not affected
This section provides that this Part does not, by implication, limit the
exercise of powers of a defence security official, a member of the Defence
Force or any other person under this Act, any other law (including the
common law), or otherwise in the performance of his or her duties.
The intent of this section is to make clear that the new Part does not
expressly, or by implication, restrict the ability of Defence Force
personnel to exercise powers under any other law including, but not limited
to, the Customs Act 1901, Fisheries Management Act 1991, Crimes (Aviation)
Act 1991 and the Crimes Act 1914, or the executive power. For example, it
will ensure that:
. security authorised members of the Defence Force, who are also
authorised Commonwealth officers under section 89 of the Crimes Act
1914, would be able to exercise any relevant powers considered
appropriate in the circumstances; and
. Defence Force members, who are not security authorised members of the
Defence Force but are empowered under the Crimes (Aviation) Act 1991,
will be able to exercise powers under that Act if these are relevant
to the circumstances.
Similarly, it is not intended that the powers conferred by this Part,
should limit or otherwise restrict a landowner's common law rights to
refuse access to his or her property. The section also explicitly provides
that the Part does not affect any right of a person to defend himself or
herself or another person.
Subsection 82(3)
This section repeals subsection 82(3) which relates to the offence of
trespass on a Defence installation, a building or land reserved or set
apart for or used in connection with the administration, accommodation, or
training of any part of the Defence Force, or an aircraft.
Subsection 82(4)
This section inserts the words 'or Territory' to include arrest powers for
Territory police in relation to the offences committed against section 82
of the Act which relates to painting, sketching or photographing a defence
installation. The new part would read, "Any member of the Defence Force,
member or special member of the Australian Federal Police or member of the
Police Force of a State or Territory, may, without warrant, arrest any
person who he has reasonable ground to believe has committed an offence
against this section, and take him before a Court of summary jurisdiction
to be dealt with according to law".
Part 2-Associated amendment
Australian Federal Police Act 1979
Subsection 4(1)(after subparagraph (a)(iii) of the definition of protective
service offence)
This section amends the Australian Federal Police Act 1979 to include the
proposed offences of trespass, hindering and obstructing a search and
refusing to provide evidence as protective service offences under that Act.
This amendment will allow protective service officers to exercise their
powers of arrest under Division 3, Part II of that Act in relation to those
offences.
Defence Act 1903
Subsection 51T(3)
This section amends subsection 51T(3) of the Defence Act 1903 to clarify
that in the circumstances contemplated by Part IIIAAA, a member of the
Defence Force is bound by the limitations on the use of force that is
likely to cause death or grievous bodily harm, that are set out in
paragraphs (2)(a), (2A)(a) and (2B)(a), (b) and (c) of section 51T, against
a person who is attempting to escape being detained by fleeing.
Index]
[Search]
[Download]
[Bill]
[Help]