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Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2000

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2000

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

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)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Defence Legislation Amendment

 (Aid to Civilian Authorities) Bill 2000

 

 

OUTLINE

 

 

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.

 

 

FINANCIAL IMPACT

 

 

The amendments will have no significant financial impact.

 



 

Defence Amendment

   (Aid to Civilian Authorities) Bill 2000

 

NOTES ON CLAUSES

 

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.

 

Schedule 2- Naval Defence Act 1910; Air Force Act 1923

 

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).