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Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2006

Schedule 4 Expedited call out

   

Defence Act 1903

1  After section 51C

Insert:

51CA   Expedited call out

Expedited call out by the Prime Minister

             (1)  The Prime Minister may make an order of a kind that the Governor-General is empowered to make under section 51A, 51AA, 51AB, 51B or 51C if the Prime Minister is satisfied that:

                     (a)  because a sudden and extraordinary emergency exists, it is not practicable for an order to be made under that section; and

                     (b)  the circumstances referred to in subsection 51A(1), 51AA(1), 51AB(1), 51B(1) or 51C(1) (as the case requires) exist.

Expedited call out by the other 2 authorising Ministers

             (2)  The other 2 authorising Ministers may jointly make an order of a kind that the Governor-General is empowered to make under section 51A, 51AA, 51AB, 51B or 51C if those authorising Ministers are satisfied that:

                     (a)  because a sudden and extraordinary emergency exists, it is not practicable for an order to be made under that section; and

                     (b)  the Prime Minister is unable to be contacted for the purposes of considering whether to make, and making, an order under subsection (1) of this section; and

                     (c)  the circumstances referred to in subsection 51A(1), 51AA(1), 51AB(1), 51B(1) or 51C(1) (as the case requires) exist.

Expedited call out by an authorising Minister and another Minister

          (2A)  An authorising Minister, together with the Deputy Prime Minister, the Minister for Foreign Affairs or the Treasurer, may make an order of a kind that the Governor-General is empowered to make under section 51A, 51AA, 51AB, 51B or 51C if the Ministers are satisfied that:

                     (a)  because a sudden and extraordinary emergency exists, it is not practicable for an order to be made under that section; and

                     (b)  the Prime Minister is unable to be contacted for the purposes of considering whether to make, and making, an order under subsection (1) of this section; and

                     (c)  the remaining authorising Minister is unable to be contacted for the purposes of considering whether to make, and making, an order under subsection (2) of this section; and

                     (d)  the circumstances referred to in subsection 51A(1), 51AA(1), 51AB(1), 51B(1) or 51C(1) (as the case requires) exist.

Orders applying in internal waters

             (3)  If the order is an order of a kind that Governor-General is empowered to make under section 51AA, the order must not direct the Chief of the Defence Force to utilise the Defence Force in the internal waters of the State or self-governing Territory unless:

                     (a)  if the order is made under subsection (1) of this section—the Prime Minister is satisfied that the circumstances referred to in subsection 51AA(4) exist in relation to that State or Territory; or

                     (b)  if the order is made under subsection (2) or (2A) of this section—the other 2 Ministers are satisfied that the circumstances referred to in subsection 51AA(4) exist in relation to that State or Territory.

Order not in writing

             (4)  An order under this section need not be in writing. If it is not in writing, the Prime Minister or the other 2 Ministers (as the case requires), and the Chief of the Defence Force, must each:

                     (a)  make a written record of the order; and

                     (b)  sign the record; and

                     (c)  cause the signing of the record to be witnessed; and

                     (d)  in the case of the Prime Minister or another Minister—as soon as practicable:

                              (i)  cause the record to be given to the Chief of the Defence Force; and

                             (ii)  cause a copy of the record to be given to the Governor-General; and

                     (e)  in the case of the Chief of the Defence Force—as soon as practicable:

                              (i)  cause the record to be given to the Prime Minister; or

                             (ii)  cause the record to be given to one of the other 2 Ministers, and cause a copy of the record to be given to the other Minister;

                            as the case requires.

However, a failure to comply with paragraph (d) or (e) does not affect the validity of the order.

The effect of the order

             (5)  Subject to subsections (7) and (8) of this section, an order made under this section has effect, for all purposes (other than this section), as if it were an order made by the Governor-General under section 51A, 51AA, 51AB, 51B or 51C (as the case requires). In particular:

                     (a)  subsection 51A(4), 51AA(8), 51AB(4), 51B(3) or 51C(3) (as the case requires) applies to the order; and

                     (b)  the Governor-General may revoke the order in the same way, and in the same circumstances, as he or she may revoke an order under section 51A, 51AA, 51AB, 51B or 51C (as the case requires).

             (6)  For the purposes of paragraph (5)(b), the reference in subsection 51A(6), 51AA(10) or 51AB(6) or paragraph 51B(5)(b) or 51C(5)(b) (as the case requires) to the authorising Ministers ceasing to be satisfied is taken to be a reference to them not being satisfied.

Content of the order

             (7)  An order made under this section:

                     (a)  must state that it is made under this section, and that it has effect as if it were an order made by the Governor-General under section 51A, 51AA, 51AB, 51B or 51C (as the case requires); and

                     (b)  despite paragraph 51A(4)(d), 51AA(8)(d), 51AB(4)(d), 51B(3)(d) or 51C(3)(d) (as the case requires), must state that, unless it is revoked earlier, it ceases to be in force after a specified period (which must not be more than 5 days).

When order is in force

             (8)  The order:

                     (a)  comes into force when it is made, or (if it is not in writing) when:

                              (i)  the Prime Minister, or the other 2 Ministers; and

                             (ii)  the Chief of the Defence Force;

                            have complied with paragraph (4)(c); and

                     (b)  ceases to be in force as stated in accordance with paragraph (7)(b).

Authorisations and declarations during an expedited call out

             (9)  If:

                     (a)  one or more authorising Ministers have the power to give an authorisation or make a declaration under a provision of Division 2, 3, 3A or 3B; and

                     (b)  that Division applies because of an order made under this section;

the authorisation or declaration need not be in writing, despite any requirement of the provision to the contrary.

           (10)  If the authorisation or declaration is not in writing, the authorising Minister or authorising Ministers, and the Chief of the Defence Force, must each:

                     (a)  make a written record of the authorisation or declaration; and

                     (b)  sign the record; and

                     (c)  cause the signing of the record to be witnessed; and

                     (d)  in the case of an authorising Minister—as soon as practicable cause the record to be given to the Chief of the Defence Force; and

                     (e)  in the case of the Chief of the Defence Force—as soon as practicable:

                              (i)  cause the record to be given to the authorising Minister; or

                             (ii)  cause the record to be given to one of the authorising Ministers, and cause a copy of the record to be given to the other authorising Minister;

                            as the case requires.

However, a failure to comply with paragraph (d) or (e) does not affect the validity of the authorisation or declaration.

           (11)  If the authorisation or declaration is not in writing, it comes into force when the authorising Minister or authorising Ministers, and the Chief of the Defence Force, have complied with paragraph (10)(c).

References to certain circumstances

           (12)  To avoid doubt, a reference in this section to the circumstances referred to in subsection 51A(1), 51AA(1), 51AB(1), 51B(1) or 51C(1):

                     (a)  does not include a reference to the authorising Ministers being satisfied as to particular matters; and

                     (b)  in relation to section 51B, includes a reference to a State Government having made an application of a kind referred to in subsection 51B(1); and

                     (c)  in relation to section 51C, includes a reference to a State Government having made an application of a kind referred to in subsection 51C(1).

Involvement of State or Territory under subsection 51A(3) not required

           (13)  To avoid doubt, paragraph 51A(3)(b) does not apply to an order under this section that would have effect as if it were an order made by the Governor-General under section 51A.