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2000
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
DEFENCE LEGISLATION AMENDMENT (AID TO CIVILIAN
AUTHORITIES) BILL 2000
EXPLANATORY
MEMORANDUM
(Circulated by the authority of the Minister for
Defence,
the Hon. John Moore MP)
ISBN: 0642 438986
Defence Legislation Amendment
(Aid to
Civilian Authorities) Bill 2000
This Bill will add new provisions to the Defence Act 1903 to
enable the utilisation of the Defence Force in assisting the civilian
authorities to protect Commmonwealth interests and States and Territories
against domestic violence.
For Commonwealth initiated use of the Defence
Force, it is proposed that if the Prime Minister, Attorney-General and the
Minister for Defence are satisfied that a State or Territory is unable to
protect Commonwealth interests against domestic violence and the Defence Force
is needed to assist, then the Governor-General may make a written order
authorising the Chief of the Defence Force to use the Defence Force for that
purpose.
In relation to a State or Territory initiated use of the
Defence Force, if the Government of a State or Territory is unable to protect
the State or Territory against a domestic violence, it may apply to the
Commonwealth to protect the State or Territory. The authorising Ministers must
still be satisfied that the State or Territory is unable to protect itself
against the domestic violence before the Governor-General may make a written
order to utilise the Defence Force.
The Bill provides for the specific
powers that the Defence Force has under the new scheme. There are powers
relating to the recapture of premises and in connection therewith, freeing
hostages, detaining persons, evacuating persons, searching and seizing any
dangerous things. There are also the general security area powers and designated
area powers.
The Bill will also consequentially amend other Defence
legislation to accommodate the new scheme of utilising the Defence
Force.
The amendments will have no significant financial impact.
Defence Amendment
(Aid to Civilian Authorities)
Bill 2000
Clause 1 - Short title
1. This clause cites the Bill as the
Defence Legislation Amendment (Aid to Civilian Authorities) Bill
2000.
Clause 2 - Commencement
2. This clause provides for
the commencement of the Bill on Royal Assent.
Clause 3 -
Schedule(s)
3. This clause provides for Acts to be amended as
specified in the Schedules.
Schedule 1 – Defence Act
1903
4. Items 1 and 2 of this Schedule remove the references
to section 51 of the Defence Act 1903 in paragraph 45(2)(b) and paragraph
50(1)(b) and replaces them with a reference to the equivalent call out
provisions in new Part IIIAAA (new sections 51A, 51B and 51C) .
5. Item 3 of this Schedule inserts a new Part IIIAAA into the
Defence Act 1903 – “Utilisation of the Defence Force to
protect Commonwealth interests and States and self-governing Territories,
against domestic violence”.
6. This Schedule repeals
section 51 of the Defence Act except for the proviso in this section. This is
retained so that the prohibition against the use of the Emergency and Reserve
Forces at the initiative of a State in connection with industrial disputes
remains enshrined in the Act. It is intended to incorporate the proviso in new
subsection 51B(2) discussed below.
7. New section 51 defines
various terms including “authorising Ministers” and “domestic
violence”.
• “Authorising Ministers” is
defined as meaning the Prime Minister, the Minister administering the Defence
Act and the Attorney-General;
• “Domestic violence” is
given the same meaning as in section 119 of the
Constitution;
• “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;
• “self-governing Territory” means the Australian
Capital Territory, the Northern Territory or Norfolk Island.
8.
Subsection 51(2) relates to the provision by the Australian Federal Police of
police services to certain Territories for example, the Australian Capital
Territory and Christmas Island. If the Australian Federal Police provide police
services in relation to a Territory the expression “police force” of
the Territory means the Australian Federal Police, insofar as it provides police
services in relation to the Territory. 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.
9. New sections 51A, 51B and 51C outline the scheme
for the utilisation of the Defence Force in respect of a Commonwealth interest
(section 51A), a State against domestic violence (section 51B ) or a
self-governing territory against domestic violence (section 51C).
10.
New section 51A outlines the process involved in using the Defence Force to
protect Commonwealth interests. It provides the basis upon which the Defence
Force may be used in relation to self-governing Territories. For example, the
Commonwealth may wish to call out the Defence Force in a law enforcement
emergency in relation to Christmas Island. It further provides for the
conditions necessary for the making of an order by the Governor-General. If the
authorising Ministers are satisfied, the following conditions for the making of
an order apply:
• Domestic violence is occurring or is likely to
occur in Australia; and
• If the domestic violence is occurring or
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
domestic violence; and
• The Defence Force should be called out and the
Chief of the Defence Force (CDF) should be directed to utilise the Defence Force
to protect the Commonwealth interest against the domestic violence;
and
• Either Division 2 or 3 or both and Division 4 should apply in
relation to the order.
11. Where these conditions apply, the
Governor-General may, by written order, call out the Defence Force and direct
the CDF to utilise the Defence Force to protect the Commonwealth interest
against the domestic violence. “Commonwealth interests” is not
defined in the Bill but includes such matters as the enforcement of Commonwealth
laws, protection of Commonwealth property or facilities and persons connected
with the Commonwealth.
12. Where the domestic violence is
occurring in a State or self-governing Territory and they are unlikely to be
able to protect Commonwealth interests, the Governor-General may make the order
with or without a request from the Government of the State or Territory.
13. Section 51A also provides for the content of the order. It
must specify certain matters including the provision that it is made under, the
State or Territory in which the domestic violence is occurring or likely to
occur, the Commonwealth interest affected and the nature of the domestic
violence. In addition, the order must state whether Division 2 or 3 or both and
Division 4 apply in relation to the order, when the order comes into force and
when it ceases to be in force. The order may not be in force for more than 20
days. However, a new order may be made in relation to the same incident.
14. It also provides for the revocation of an order where the
authorising Ministers cease to be satisfied that the conditions required for the
making of the order are present. In this situation, the Governor-General must
revoke the order. Furthermore, if a Governor-General order ceases to be in force
through a revocation or expiration, the call out under the order ends and the
CDF must cease utilising the Defence Force. In making or revoking an order under
section 51A, the Governor-General is to act with the advice of Executive Council
or if there are reasons of urgency, he or she is to act with the advice of an
authorising Minister (subsection 51A(7)). This provision is mirrored in
subsections 51B(6) and 51C(6).
15. New section 51B outlines the
process involved for using the Defence Force to protect a State against domestic
violence. Section 51B provides if a State Government applies to the Commonwealth
Government to protect the State against domestic violence that is occurring, or
is likely to occur, and the authorising Ministers are satisfied that the State
is not, or is unlikely to be, able to protect itself against the domestic
violence, the Defence Force should be called out and the CDF be directed to
protect the State against the domestic violence.
16. Subsection
51B(2) provides that the Governor-General may by written order, call out the
Defence Force and direct the CDF to utilise the Defence Force to protect the
State against the domestic violence. The proviso contained in former section 51
is now contained in this subsection so that the prohibition against the use of
the Defence Force in connection with an industrial dispute remains in the
legislation.
17. Subsection 51B(3) also provides for the
content of the order. The order must state that Division 2 or 3 or both and
Division 4 apply in relation to the order, when the order comes into force and
when it ceases to be in force. It must also specify which State is involved and
the nature of the domestic violence. Subsection 51B(5) provides that if the
State Government withdraws its application and the authorising Ministers cease
to be satisfied, the Governor-General must revoke the order. Subsection 51B(7)
provides that orders can be made again in relation to the same
matter.
18. New section 51C provides for the utilisation of the
Defence Force where the Government of a self-governing Territory applies to the
Commonwealth Government to protect the Territory against domestic violence. This
section mirrors sections 51A and 51B in relation to the use of the Defence Force
in respect of a domestic violence happening in a State and the conditions
attached to an order of the Governor-General.
19. New section
51D provides for certain action by the Chief of the Defence Force. If the
Governor-General makes an order under sections 51A, 51B or 51C , the CDF must,
subject to sections 51E, 51F and 51G, utilise the Defence Force in a manner that
is reasonable and necessary for the purposes of protecting Commonwealth
interests in a State or Territory specified in the order or protect the State or
Territory against domestic violence that has been specified in the order.
20. New section 51E provides that in using the Defence Force in
accordance with the section, the CDF must comply with any direction that the
Minister for Defence gives from time to time as to the way the Defence Force is
utilised.
21. Furthermore, in accordance with new section 51F,
the CDF must also ensure that when utilising the Defence Force, it is used to
assist the State or Territory concerned. It must also (the Defence Force)
cooperate with the State or Territory police force. There is also a requirement
that the Defence force is not to be utilised for any particular task unless a
member of the police force requests in writing that the Defence Force be so
utilised. It may carry out such tasks as freeing hostages or establishing a
cordon.
22. Subsection 51F(2) makes it clear that the section
does not in any way permit the CDF to transfer to any extent the command of the
Defence Force to a State or Territory or to a police force of the State or
Territory. The command of the Defence Force remains with the CDF and ultimately
with the Governor-General under the Constitution. These provisions will ensure
that the Defence Force is there to assist the civilian authorities such as the
police force, and not a replace them.
23. There are certain
restrictions on the use of the Defence Force in assisting the civilian
authorities. New section 51G provides that the CDF must not stop or restrict any
lawful protest or dissent. Furthermore, the use of the Emergency or Reserve
Forces is also restricted unless the Minister is satisfied that sufficient
numbers of the Permanent Forces are not available. This limited use of the
Emergency and Reserve Forces applies to the use of the Defence Force at the
initiation of both the Commonwealth and the State or the Territory.
24.
New Division 2 outlines the powers of members of the Defence Force to recapture
buildings, free hostages and matters incidental to these.
25. The
Division, beginning with new sections 51H and 51I, will authorise members of the
Defence Force, under the command of the CDF, to recapture premises, a place, a
means of transport or other thing (to be referred to as the “subject
premises”) and in connection with such recapture, free hostages. The
Defence Force, in connection with such a recapture, may do such things
as:
• free any hostages from the subject premises;
• detain
persons who the member believes on reasonable grounds has committed an offence
against the law of the Commonwealth, State or Territory, until they are handed
over to a police officer;
• evacuate persons found in the premises;
• search the premises for dangerous things;
• seize any
dangerous thing;
• and doing anything incidental to the
above.
26. Section 51I also requires that a member must not do
anything mentioned under this section unless the authorising Ministers (as
defined) or a Minister authorised, have authorised in writing the recapture. The
authorised Minister may be one of the authorising Ministers or another Minister,
for example, the Deputy Prime Minister. However, if a member believes on
reasonable grounds that there is insufficient time to obtain an authorisation
because a sudden and extraordinary emergency exists, then an authorisation is
not required (subsection 51I(3)).
27. The term “sudden and
extraordinary emergency” is used in the context of something which comes
unexpectedly or that there is a sense of immediate danger or extreme gravity
that will almost occur instantaneously. It would be impracticable in these
circumstances to expect a Defence Force member to obtain an authorisation in a
situation, for example, such as terrorists taking hostages or systematically
killing hostages.
28. Division 3 relates to “general
security area powers” and powers that may only be exercised in a
designated area in the general security area. New section 51J provides for the
application of Division 3 and 4 in relation to an order under sections 51A, 51B
or 51C. However, it is the intention of the Bill that the powers under Division
2 prevail where both Division 2 and 3 apply. Furthermore, any restriction on the
use of powers in Division 3 do not apply when a member of the Defence Force is
exercising powers to, for example, recapture premises and free hostages. New
section 51K provides that the authorising Ministers may declare a specified area
to be a “general security area” within a State or Territory in
relation to members of the Defence Force who are being utilised under section
51D. The area declared may only be an area within a State or Territory. It does
not extend to include the whole of a State or Territory.
29.
Where such an area is declared, then there is a requirement to arrange for a
statement to be produced which summarises the content of the order. The
statement must not include references to Division 2 powers in relation to the
“assault role” of the Defence Force. It must state that a
declaration has been made under the section, describe the general security area
and its boundaries. The statement must be broadcast by television or radio so
that it can be received within the general security area and must be published
in the Gazette.
30. These requirements unequivocally state the
role and responsibilities of the authorising Ministers to the public, informing
them of the area declared to be a general security area. A failure to comply
with these requirements does not however render the declaration
invalid.
31. New section 51L provides for the authorisation to
search premises in the general security area for dangerous things. If the CDF or
an authorised officer believes on reasonable grounds that there is a
“dangerous thing” (as defined) on any premises within the general
secutiry area and it is necessary as a matter of urgency to make the dangerous
thing safe or prevent it from being used, the CDF or authorised officer may give
an authorisation under the section.
32. The authorisation
document must authorise the entry and search of the premises, describe the
premises, state the name, rank and service number of the member of the Defence
Force who is to be in charge of the search (the “member in charge”),
authorise the member in charge and any other member of the Defence Force
assisting the member to carry out the search. These latter members are to be
known as “search members”.
33. The document must also
specify that each search member is to be authorised to seize anything found on
the premises in the course of the search that he or she believes on reasonable
grounds to be a dangerous thing and that if any search member believes on
reasonable grounds that a person who is at or near the general security area has
a dangerous thing in his or her possession, the member is authorised to search
that person and seize any dangerous thing found in the search.
34.
The authorisation must also state the time during which it remains in force
which is to be no more than 24 hours, however, this time limit does not prevent
the issue of further authorisations in relation to the same premises.
35.
New section 51M requires the member in charge to identify himself or herself and
give a copy of the search authorisation to an occupier of premises specified in
the search authorisation (where the occupier is present when the search is being
conducted). Where it is intended to search a person, in accordance with a search
authorisation, a copy of the authoriation must be shown to the person before the
search is proceeded with. This ensures a level of protection to a person
intending to be searched.
36. In accordance with new
section 51N the occupier, or a person representing the occupier, is entitled to
observe the search being conducted. However, if the occupier in any way impedes
the search, then the entitlement to remain ceases. Furthermore, the section does
not prevent 2 or more areas of the premises being searched at the same
time.
37. New section 51O provides that if a member of the
Defence Force is being utilised pursuant to an order of the Governor-General
under section 51D and he or she believes on reasonable grounds that a dangerous
thing is in or on a means of transport in the general security area, the member
may erect barriers or other structures in that area to stop the means of
transport and detain the means of transport. He or she may search that means of
transport for any thing found in or on it or for a dangerous thing and the
member may seize any dangerous thing that the member finds in the course of the
search.
38. Where the member stops the means of transport, the
member must not detain it for longer than is reasonable and necessary to search
it and find any thing in or on it.
39. New section 51P provides
for the search of persons in the general security area for dangerous things. If
a member of the Defence Force is being utilised pursuant to an order of the
Governor-General under section 51D, believes on reasonable grounds that a person
in the general security area has a dangerous thing in that person’s
possession, the member may search the person for that thing and seize the thing
found in the search.
40. New section 51Q provides for the
declaration of a designated area. “Designated area” is defined in
section 51 to mean an area that is declared as such under section 51Q. The
authorising Ministers may declare in writing an area (either the whole or part)
within the general security area to be a designated area for the purposes of
Division 3 and 4 in relation to members of the Defence Force who are being
utilised pursuant to an order of the Governor-General under section 51D. Where
such an area ceases to be within a general security area it will cease to be a
designated area. Subsection 51Q(3) requires the authorising Ministers to make
reasonable steps to make the public aware of the declaration of the designated
area and of its boundaries.
41. New section 51R relates to the
control of movement in relation to a designated area within a general security
area. A member of the Defence Force who is being utilised pursuant to an order
by the Governor-General under section 51D may do the following in relation to a
person in control of a means of transport:
• direct a person not to
bring the means of transport into the designated area;
• direct the
person to take the means of transport out of the designated
area;
• direct the person to take the means of transport from a place
in a designated area to another place in the designated area;
• direct
the person not to take the the means of transport from a place in the designated
area to any other place or to a specified place in the designated
area;
• compel the person to comply with a direction under any of the
above.
42. Subsection 51R(2) provides that a member of the
Defence Force may erect barriers or other structures at a boundary of or in the
designated area to stop persons from bringing means of transport into the
designated or to a place in the designated area.
43. Subsection
51R(3) provides that where there is no one in charge of a vehicle in the
designated area, then a member of the Defence Force may do such things that are
reasonable and necessary to take the means of transport to a place in the
general security that is outside the designated area or to take the means of
transport to another place in the designated area.
44. A member
of the Defence Force is empowered to do the following things in relation to a
person, whether or not that person is in charge of a means of transport or
not:
• direct a person not to enter a designated
area;
• direct the person to leave the designated
area;
• direct the person to move from one place in the designated area
to another;
• compel the person to comply with a direction under any of
the above.
45. Subsection 51R(5) relates to the powers of a
member of the Defence Force to carry out consent searches. The power of a member
to direct a person not to bring a means of transport into a designated area or
not to enter a designated area include the power to direct a person not to do
either of these things unless the person consents to that member searching the
person and the means of transport and anything in or on the means of transport
for dangerous things. This power also includes the power to conduct a search and
to seize any dangerous thing that the member finds.
46.
Subsection 51R(6) allows the member to enter premises or a means of transport
for the purpose of giving a direction under the section.
47. New
section 51S specifies the requirements necessary for identification. When a
member is exercising powers under Division 3, he or she must at all times wear
his or her uniform (a mandatory requirement) and numbers or an alphanumerical
combination attached to the front of his/her uniform. A penalty of 30 units is
prescribed for this offence (at present, 1 penalty unit equals $110) The
identification is not required in relation to the exercise of powers under
Division 2; it may jeopardise an operation if a member were
identified.
48. It is a defence to a prosecution under this
section if the member can prove that the act of another person (other than
another member) caused the contravention. The member bears only an evidential
burden in relation to this defence pursuant to subsection 13.3(3) of the
Commonwealth Criminal Code.
49. Section 51S also applies Chapter
2 of the Commonwealth Criminal Code to an offence under this section. Those
provisions set out the general principles of criminal responsibility in relation
to offences.
50. Furthermore, the Chief of the Defence Force must
take steps that are reasonable and necessary to enable members to comply with
the requirements under this section.
51. New Division 4 contains
provisions that apply both to Divisions 2 and 3.
New section 51V provides
that if a member of the Defence Force seizes a dangerous thing under Division 2
or 3, the member:
• may take such action as is reasonable and necessary
to make the thing safe or prevent it form being used;
• if a member has
seized something from a person the member must give the person a receipt for the
thing if it is reasonably practicable to do so;
• if the member
believes on reasonable grounds that a thing has or is being used in the
commission of an offence against the law of the Commonwealth, State or
Territory, the member must give the thing to a member of the police force at
the earliest practicable time. If a thing has been seized from a person, and it
is possible to do so, the member must return the thing to the person or give it
to a member police force. If a thing has been seized from a person and the
member believes on reasonable grounds that the person used the thing in the
commission of an offence against the law of the Commonwealth, a State or
Territory the member may detain the person for the purpose of placing him or her
in the custody of a member of the police force at the earliest practicable
time.
52. New section 51T allows a member of the Defence Force in
exercising a power under Division 2 or 3 to use such force against persons and
things that is reasonable and necessary in the circumstances. However, a member
must not in using force against a person do anything that is likely to cause the
death or grievous bodily harm to a person unless the member believes on
reasonable grounds that it is necessary to protect the life of or prevent
serious injury to another person (including the member him or herself).
Furthermore, the member must not subject the person to a greater indignity than
is reasonable and necessary in the circumstances.
53. If the
person is attempting to escape being detained by fleeing, the member may not do
anything that is likely to cause the death or grievous bodily harm to a person
unless he or she believes on reasonable grounds that the doing of the thing is
necessary to protect life or prevent serious injury to anoither person and the
person has been called upon to surrender. The member must also believe on
reasonable grounds that the person cannot be apprehended in any other
manner.
54. New section 51U requires a member of the Defence
Force who detains a person under paragraph 51I(1)(b)(iii) or section 51V to
inform that person (at the time of detention) of the offence being committed. It
need not be communicated in a precise or technical way, rather it is sufficient
if the person is informed of the substance of the offence. These requirements do
not apply in relation to the detention of a person if the person should know the
substance of the offence or the person’s actions make it impracticable for
the member to inform the person of the offence.
55. New section
51W provides that a member is not entitled to exercise powers pursuant to
Divisions 2, 3 or 4 if he or she fails to comply with any obligation imposed in
these Divisions. The effect of this section is that the member is not, nor taken
to have been entitled to, exercise the power.
56. New Division 5
provides for miscellaneous matters. New section 51X provides for the publication
and reporting of an order. If an order ceases to be in force and it it is not
one of the orders referred to in new subsection 51X(2), the Minister must
arrange for publication of a copy of the order and any declarations of general
security areas or designated areas under the order. A report on the utilisation
of the Defence Force that occurred under the order must also be
arranged.
57. If 2 or more orders about the same or related
circumstances come into force without a period where no order is in force, the
Minister must arrange for publication of all the orders and any declarations of
general security areas or designated areas under the order. A report on the
utilisation of the Defence Force that occurred under the orders is also
required.
58. A copy of the order and the report will be taken to
be published if, within 7 days after the order(s) cease to be in force, the copy
and the report are tabled in Parliament or published on the Department’s
web site or otherwise publicly released. This ensures that most conventional
forms of publication are catered for. If publication of the copy of the order or
the report takes place (other than by tabling in Parliament), the Minister must
arrange for them to be tabled within 3 sitting days of Parliament after the end
of the 7 days (of the order ceasing to be in force). A reference to
“ceasing to be in force” in relation to an order includes a
reference to the order being revoked.
59. New section 51Y makes
it clear that the new process for calling out members of the Defence Force does
not in any way detract from the use of the Defence Force that would be permitted
or required under any powers that the Defence Force would have if the new Part
were not in place. Not only does this provision attempt to preserve Executive
powers in relation to the Defence Force, it ensures that the process for using
the Defence Force in this way does not detract from any other use of the Defence
Force that would be permitted or required or any powers that the Defence Force
would have if the new Part were disregarded.
60. Schedule 2 of the Bill amends the Air Force Act 1923 and the
Naval Defence Act 1910. In both these Acts, references to “section
51” of the Defence Act 1903 have been replaced with “sections 51A,
section 51B or section 51C”. This will put into place the scheme in the
Defence Act relating to the call out of the Defence Force in relation to
protecting a Commonwealth interest (section 51A), protecting a State against
domestic violence (section 51B) or protecting a self-governing Territory against
domestic violence (section 51C).