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Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2006

Schedule 6 Other amendments

   

Defence Act 1903

1  Subsection 51(1)

Insert:

criminal act means an act or omission that would, if done or omitted to be done in the Jervis Bay Territory, contravene the substantive criminal law of the Jervis Bay Territory.

2  Subsection 51(1)

Insert:

substantive criminal law means law (including unwritten law):

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

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

                     (c)  providing a defence or providing for the reduction of the degree of criminal liability; or

                     (d)  providing for the confiscation of property used in, or derived from, the commission of an offence; or

                     (e)  dealing with other subjects declared by regulation to be within the ambit of the substantive criminal law of the Jervis Bay Territory; or

                      (f)  providing for the interpretation of laws of the kinds mentioned above.

3  After paragraph 51A(1)(a)

Insert:

                    (aa)  the domestic violence would, or would be likely to, affect Commonwealth interests; and

4  Subsection 51A(3A)

Omit “Governor-General is”, substitute “authorising Ministers are”.

5  Subsection 51A(7)

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

6  Section 51G

Repeal the section, substitute:

51G   Restriction on certain utilisation of Defence Force

                   In utilising the Defence Force in accordance with section 51D, the Chief of the Defence Force must not stop or restrict any protest, dissent, assembly or industrial action, except where there is a reasonable likelihood of the death of, or serious injury to, persons or serious damage to property.

7  Division 2 of Part IIIAAA (heading)

Repeal the heading, substitute:

Division 2 Powers to recapture locations or things, prevent or end acts of violence and protect persons from acts of violence

8  Subsections 51I(1) and (2)

Repeal the subsections, substitute:

Special powers

             (1)  Subject to this section, a member of the Defence Force who is being utilised in accordance with section 51D may, under the command of the Chief of the Defence Force do any one or more of the following:

                     (a)  take any one or more of the following actions:

                              (i)  recapture a location or thing;

                             (ii)  prevent, or put an end to, acts of violence;

                            (iii)  protect persons from acts of violence;

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

                              (i)  free any hostage from a location or thing;

                             (ii)  if the member finds a person whom the member believes on reasonable grounds to have committed an offence against a law of the Commonwealth, a State or Territory—detain the person for the purpose of placing the person in the custody of a member of a police force at the earliest practicable time;

                            (iii)  control the movement of persons or of means of transport;

                            (iv)  evacuate persons to a place of safety;

                             (v)  search persons or locations or things for dangerous things or other things related to the domestic violence that is occurring or is likely to occur;

                            (vi)  seize any dangerous thing, or other thing related to the domestic violence that is occurring or is likely to occur, found in such a search; and

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

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

Ministerial authorisation

             (2)  However, the member must not:

                     (a)  take any action mentioned in paragraph (1)(a); or

                     (b)  do any of the things mentioned in paragraph (1)(b) or (c) in connection with taking that action;

unless an authorising Minister has in writing authorised taking that action.

9  At the end of section 51I

Add:

Definitions

             (4)  In this section:

location includes any premises or place.

thing includes any means of transport, but does not include an aircraft that is airborne.

10  After subsection 51K(2)

Insert:

       (2AA)  However, subsection (2) does not apply if:

                     (a)  the order mentioned in section 51J also states, in accordance with paragraph 51A(4)(c), 51B(3)(c) or 51C(3)(c), that Division 2 applies in relation to the order; and

                     (b)  the authorising Ministers declare, in writing, that they are satisfied that the application of subsection (2) would prejudice the exercise of powers under Division 2 by members of the Defence Force who are being utilised in accordance with section 51D.

11  At the end of section 51Q

Add:

             (4)  However, subsection (3) does not apply if the authorising Ministers declare, in writing, that they are satisfied that the application of subsection (3) would prejudice the exercise of powers under Division 2 by members of the Defence Force who are being utilised in accordance with section 51D.

12  Paragraph 51S(1)(b)

Repeal the paragraph, substitute:

                     (b)  for the purposes of identification, have:

                              (i)  his or her surname; or

                             (ii)  his or her numbers or a combination of numbers and letters of the alphabet;

                            on or attached to the front of his or her uniform.

13  After Division 4 of Part IIIAAA

Insert:

Division 4A Applicable criminal law

51WA   Applicable criminal law

             (1)  The substantive criminal law of the Jervis Bay Territory, as in force from time to time, applies in relation to a criminal act of a member of the Defence Force that is done, or purported to be done, under this Part.

             (2)  The substantive criminal law of the States and the other Territories, as in force from time to time, does not apply in relation to a criminal act of a member of the Defence Force that is done, or purported to be done, under this Part.

             (3)  To avoid doubt, Chapter 2 of the Criminal Code does not apply to an act done, or purported to be done, under this Part that is a criminal act (except to the extent that it constitutes an offence against the law of the Commonwealth).

             (4)  To avoid doubt, the functions of the Director of Public Prosecutions under section 6 of the Director of Public Prosecutions Act 1983 in relation to the law of the Jervis Bay Territory as applied by subsection (1) are exclusive of the corresponding functions of any officer of a State or Territory, in relation to the law of the Jervis Bay Territory as so applied, under a law corresponding to that Act.

51WB   Defence of superior orders in certain circumstances

             (1)  Subject to subsection (2), the fact that a criminal act was done, or purported to be done, by a member of the Defence Force under this Part under an order of a superior does not relieve the member of criminal responsibility.

             (2)  It is a defence to a criminal act done, or purported to be done, by a member of the Defence Force under this Part that:

                     (a)  the criminal act was done by the member under an order of a superior; and

                     (b)  the member was under a legal obligation to obey the order; and

                     (c)  the order was not manifestly unlawful; and

                     (d)  the member had no reason to believe that circumstances had changed in a material respect since the order was given; and

                     (e)  the member had no reason to believe that the order was based on a mistake as to a material fact; and

                      (f)  the action taken was reasonable and necessary to give effect to the order.

             (3)  Subsection (2) does not limit the defences that may be available to the person.

14  After section 51XA

Insert:

51XB   Instruments that are not legislative instruments

                   An order, authorisation or declaration made under this Part is not a legislative instrument.