Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2006

Schedule 3 Aviation incidents

   

Defence Act 1903

1  Before section 51B

Insert:

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; 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

                     (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

                     (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.

2  Before Division 4 of Part IIIAAA

Insert:

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

                      (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 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.

3  Before subsection 51T(3)

Insert:

          (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.