Defence Legislation Amendment (Instrument Making) Act 2017

Administered by Department of Defence

Legislation au C2017A00125 In force Act

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Defence Legislation Amendment (Instrument Making) Act 2017

 

No. 125, 2017

 

 

 

 

 

An Act to amend the Defence Act 1903, and for related purposes

 

 

Contents

1 Short title

2 Commencement

3 Schedules

Schedule 1—Amendments

Part 1—Defence Force inquiries

Defence Act 1903

Part 2—Defence aviation areas

Defence Act 1903

Part 3—Infringement notices for by‑laws for public areas

Defence Act 1903

Part 4—Contingent amendments

Division 1—Inserting definition

Defence Act 1903

Division 2—Repealing definition

Defence Act 1903

 

 

 

Defence Legislation Amendment (Instrument Making) Act 2017

No. 125, 2017

 

 

 

An Act to amend the Defence Act 1903, and for related purposes

[Assented to 30 November 2017]

The Parliament of Australia enacts:

1  Short title

  This Act is the Defence Legislation Amendment (Instrument Making) Act 2017.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day after this Act receives the Royal Assent.

1 December 2017

2.  Schedule 1, Parts 1 to 3

A single day to be fixed by Proclamation.

However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

26 March 2018

(F2018N00018)

3.  Schedule 1, Part 4, Division 1

At the same time as the provisions covered by table item 2.

However, the provisions do not commence at all if item 1 of Schedule 5 to the Regulatory Powers (Standardisation Reform) Act 2017 commences before the commencement of the provisions covered by table item 2.

26 March 2018

4.  Schedule 1, Part 4, Division 2

Immediately after the commencement of item 1 of Schedule 5 to the Regulatory Powers (Standardisation Reform) Act 2017.

However, the provisions do not commence at all if that item commences before the commencement of the provisions covered by table item 2.

6 November 2018

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

  Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

Part 1—Defence Force inquiries

Defence Act 1903

1  Paragraph 110ZB(1)(d)

Omit “a court of inquiry, a board of inquiry or a Chief of the Defence Force commission of inquiry”, substitute “an inquiry”.

2  Paragraph 124(1)(gc)

Repeal the paragraph, substitute:

 (gc) inquiries concerning the Defence Force, other than inquiries conducted by:

 (i) the Defence Force Remuneration Tribunal under Part IIIA; or

 (ii) the Inspector‑General ADF under Part VIIIB; or

 (iii) the Defence Honours and Awards Appeals Tribunal under Part VIIIC; and

3  Subsection 124(2A)

Omit “a court of inquiry, a board of inquiry, a Chief of the Defence Force commission of inquiry, an inquiry officer or an inquiry assistant”, substitute “an inquiry”.

4  Subsection 124(2C)

Omit “a court of inquiry, a board of inquiry, a Chief of the Defence Force commission of inquiry, an inquiry officer or an inquiry assistant”, substitute “an inquiry, established (however described) under regulations made for the purposes of paragraph (1)(gc),”.

5  Subsection 124(2C)

Omit “the court of inquiry, the board of inquiry, the Chief of the Defence Force commission of inquiry, the inquiry officer or the inquiry assistant”, substitute “the inquiry”.

Part 2—Defence aviation areas

Defence Act 1903

6  Subsection 4(1)

Insert:

defence aviation area has the meaning given by subsection 117AC(1).

defence aviation area inspector has the meaning given by subsection 117AG(1).

7  After Part IXC

Insert:

Part IXD—Defence aviation areas

 

117AC  Defence aviation areas

 (1) The Minister may, by legislative instrument, declare an area of land, sea or airspace in or adjacent to Australia to be a defence aviation area.

 (2) The Minister must not declare an area unless the Minister is satisfied that:

 (a) it is necessary for the defence of Australia for any of the matters mentioned in paragraphs 117AD(a) to (c) to apply in relation to the area; and

 (b) in particular, the matters are necessary for the purpose of preventing or reducing hazards to the following as they relate to the defence of Australia:

 (i) aircraft;

 (ii) aviation‑related communications, navigation or surveillance.

 (3) Without limiting section 117AD, a declaration of an area may also specify height restrictions that apply in relation to buildings, structures and objects (including trees and other natural obstacles) within the area.

 (4) A declaration of an area may apply, adopt or incorporate, with or without modification:

 (a) a map, or a matter contained in a map, as in force or existing from time to time; or

 (b) a matter contained in an instrument or other writing as in force or existing from time to time, to the extent that the matter relates to a map.

117AD  Regulations in relation to defence aviation areas

  Without limiting section 124, the regulations may prescribe matters providing for and in relation to the following:

 (a) the regulation or prohibition of the construction or use of buildings, structures or objects within defence aviation areas;

 (b) the regulation or prohibition of the bringing of objects into, or having objects within, defence aviation areas;

 (c) the removal (in whole or in part), marking, lighting, screening, modification or relocation of buildings, structures or objects (including trees or other natural obstacles) within defence aviation areas.

Note: The regulations may also provide for and in relation to the payment by the Commonwealth of compensation, and may provide for penalties for offences against the regulations (see paragraphs 124(1)(r) and (w)).

117AE  Monitoring powers

Provisions subject to monitoring

 (1) A provision of the regulations made for the purposes of section 117AD is subject to monitoring under Part 2 of the Regulatory Powers Act if the regulations prescribe the provision for the purposes of this subsection.

Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether provisions of the regulations have been complied with. It includes powers of entry and inspection.

Information subject to monitoring

 (2) Information given in compliance or purported compliance with a provision of the regulations made for the purposes of section 117AD is subject to monitoring under Part 2 of the Regulatory Powers Act if the regulations prescribe the provision for the purposes of this subsection.

Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.

Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court

 (3) For the purposes of Part 2 of the Regulatory Powers Act, as it applies in relation to a provision prescribed for the purposes of subsection (1) and the information mentioned in subsection (2):

 (a) a defence aviation area inspector is an authorised applicant; and

 (b) a defence aviation area inspector is an authorised person; and

 (c) a magistrate is an issuing officer; and

 (d) each of the following is a relevant chief executive:

 (i) the Secretary;

 (ii) the Chief of the Defence Force; and

 (e) each of the following is a relevant court:

 (i) the Federal Court of Australia;

 (ii) the Federal Circuit Court of Australia;

 (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

Person assisting

 (4) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to a provision prescribed for the purposes of subsection (1) and the information mentioned in subsection (2).

117AF  Modifications of Part 2 of the Regulatory Powers Act

Additional purpose and monitoring powers

 (1) Part 2 of the Regulatory Powers Act, subsections 117AE(3) and (4) of this Act, and section 117AH of this Act (as that section relates to that Part), also apply in relation to a provision prescribed for the purposes of subsection 117AE(1) (the monitored provision) as if:

 (a) the powers under that Part may be exercised for the purpose of ensuring compliance with the monitored provision; and

 (b) the monitoring powers in that Part included the taking of any action that is reasonably necessary to ensure compliance with the monitored provision.

Note 1: A warrant may be issued under subsection 32(2) of the Regulatory Powers Act if the issuing officer is satisfied, by information on oath or affirmation, that it is reasonably necessary that one or more authorised persons should have access to a premises for that purpose.

Note 2: The regulations may provide for and in relation to the payment by the Commonwealth of compensation (see paragraph 124(1)(r)).

 (2) Without limiting paragraph (1)(b), the taking of action may include the removal (in whole or in part), destruction or modification of a building, structure or object.

Use of force in executing a warrant

 (3) In executing a monitoring warrant for the purpose mentioned in paragraph (1)(a):

 (a) an authorised person may use such force against persons and things as is necessary and reasonable in the circumstances; and

 (b) a person assisting the authorised person may use such force against things as is necessary and reasonable in the circumstances.

117AG  Appointment of inspectors for defence aviation areas

 (1) The Secretary, or the Chief of the Defence Force, (the appointer) may, in writing, appoint any of the following as an inspector (a defence aviation area inspector) for the purposes of this Part:

 (a) an APS employee in the Department;

 (b) a member of the Defence Force.

 (2) The appointer must not appoint a person as a defence aviation area inspector unless the appointer is satisfied that the person has the knowledge, training or experience necessary to properly exercise the powers of a defence aviation area inspector.

 (3) A defence aviation area inspector must, in exercising powers as such, comply with any directions of the appointer.

 (4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.

117AH  Delegation of powers of Secretary or Chief of Defence Force

 (1) The Secretary, or the Chief of the Defence Force, (the delegator) may, in writing, delegate the powers and functions mentioned in subsection (2) to any of the following:

 (a) an SES employee, or an acting SES employee, in the Department;

 (b) an officer of the Navy who holds the rank of Commodore or a higher rank;

 (c) an officer of the Army who holds the rank of Brigadier or a higher rank;

 (d) an officer of the Air Force who holds the rank of Air Commodore or a higher rank.

 (2) The powers and functions that may be delegated are the following:

 (a) the powers and functions of the relevant chief executive under Part 2 of the Regulatory Powers Act in relation to a provision prescribed for the purposes of subsection 117AE(1) and the information mentioned in subsection 117AE(2);

 (b) the powers and functions of the appointer under section 117AG.

 (3) A person exercising powers or performing functions under a delegation under subsection (1) must comply with any directions of the delegator.

8  Paragraph 124(1)(na)

Repeal the paragraph.

Part 3—Infringement notices for by‑laws for public areas

Defence Act 1903

9  After section 116ZC

Insert:

116ZCA  Infringement notices

Provisions subject to an infringement notice

 (1) A strict liability offence against the by‑laws is subject to an infringement notice under Part 5 of the Regulatory Powers Act if the by‑laws specify the offence for the purposes of this subsection.

Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.

Infringement officer

 (2) For the purposes of Part 5 of the Regulatory Powers Act, a ranger is an infringement officer in relation to an offence specified for the purposes of subsection (1).

Relevant chief executive

 (3) For the purposes of Part 5 of the Regulatory Powers Act, each of the following is a relevant chief executive in relation to an offence specified for the purposes of subsection (1):

 (a) the Secretary;

 (b) the Chief of the Defence Force.

 (4) A relevant chief executive may, in writing, delegate the powers and functions of the relevant chief executive under that Part to any of the following:

 (a) an SES employee, or an acting SES employee, in the Department;

 (b) an officer of the Navy who holds the rank of Commodore or a higher rank;

 (c) an officer of the Army who holds the rank of Brigadier or a higher rank;

 (d) an officer of the Air Force who holds the rank of Air Commodore or a higher rank.

 (5) A person exercising powers or performing functions under a delegation under subsection (4) must comply with any directions of the relevant chief executive.

Additional matters to be included in infringement notices

 (6) In addition to the matters included in subsection 104(1) of the Regulatory Powers Act, an infringement notice given in relation to an alleged contravention of an offence specified for the purposes of subsection (1) of this section must also state who is the relevant chief executive in relation to the offence.

Note: The relevant chief executive may be the Secretary or the Chief of the Defence Force (see subsection (3)).

10  Paragraph 116ZD(2)(r)

Repeal the paragraph, substitute:

 (r) specifying strict liability offences against the by‑laws for the purposes of subsection 116ZCA(1);

11  Paragraph 116ZD(2)(za)

Omit “5 penalty units”, substitute “10 penalty units”.

Part 4—Contingent amendments

Division 1—Inserting definition

Defence Act 1903

12  Subsection 4(1)

Insert:

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.

Division 2—Repealing definition

Defence Act 1903

13  Subsection 4(1) (the definition of Regulatory Powers Act inserted by item 1 of Schedule 5 to the Regulatory Powers (Standardisation Reform) Act 2017)

Repeal the definition.

 

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 14 September 2017

Senate on 18 October 2017]

 

(198/17)

 

Overview

The Defence Legislation Amendment (Instrument Making) Act 2017, enacted by the Parliament of Australia, was introduced to address various deficiencies and gaps in the Defence Act 1903. The Act aims to streamline and modernise the legislative framework governing the Australian Defence Force, particularly in relation to inquiries, defence aviation areas, and by-laws for public areas. The overarching policy objective of the Act is to ensure that the Defence Force operates within a well-regulated and efficient legal environment that can adapt to contemporary needs and challenges. The Act achieves this by allowing for more flexible and efficient legislative instruments to be used in place of traditional Acts, thereby facilitating timely and responsive governance. The Defence Legislation Amendment (Instrument Making) Act 2017 introduces significant amendments to the Defence Act 1903, encompassing changes to the definitions and scope of inquiries, the establishment and regulation of defence aviation areas, and the enforcement mechanisms for by-laws in public areas. These amendments are designed to enhance the operational efficiency and regulatory oversight of the Defence Force, ensuring that it can effectively address both current and future defence-related issues. By providing the necessary legislative flexibility and clarity, the Act aims to support the Defence Force in fulfilling its critical role in safeguarding Australia’s national security.

Scope and Application

The Defence Legislation Amendment (Instrument Making) Act 2017 amends the Defence Act 1903 and is applicable to the Commonwealth of Australia, impacting the Defence Force and Defence aviation areas within and adjacent to Australia. The Act pertains to the establishment of defence aviation areas, the regulation of activities within these areas, and the issuance of infringement notices for by-laws applicable to public areas. The Act applies to various entities, including the Secretary and the Chief of the Defence Force, as well as to Defence Force employees and officers of specified ranks. The Minister has the authority to declare areas as defence aviation areas, subject to specific conditions, and can regulate activities within these areas through legislative instruments. The Act also enables the use of infringement notices for certain by-law offences, with specific penalties outlined. The provisions of the Act commence on various dates, either immediately after Royal Assent or on dates to be fixed by Proclamation, with certain provisions contingent on the commencement of other Acts. Subordinate instruments may extend or restrict the application of the Act, providing flexibility in its implementation.

Key Provisions

The Defence Legislation Amendment (Instrument Making) Act 2017 amends the Defence Act 1903 to enhance the regulation of Defence Force inquiries, Defence aviation areas, and the issuance of infringement notices for by-laws in public areas. Section 1 of the Act provides the short title, while section 2 specifies the commencement of various provisions. The primary changes are detailed in Schedule 1, which is divided into four parts. Part 1 modifies the Defence Force inquiries to streamline the terminology and focus on inquiries rather than specific types of inquiries such as courts of inquiry or boards of inquiry. For instance, section 110ZB(1)(d) and subsection 124(2A) now refer to "an inquiry" instead of a court of inquiry, a board of inquiry, or a Chief of the Defence Force commission of inquiry. Similarly, subsection 124(2C) now refers to "an inquiry, established (however described) under regulations" rather than specific inquiry officers or assistants. Part 2 introduces provisions for Defence aviation areas, allowing the Minister to declare areas of land, sea, or airspace as Defence aviation areas (section 117AC). The regulations for these areas can include provisions for the construction, use, and removal of buildings, structures, and objects within these zones (section 117AD). Furthermore, the Act allows for the monitoring of compliance with these regulations, as well as the appointment of inspectors and delegation of relevant powers (sections 117AE to 117AH). Part 3 pertains to the use of infringement notices for by-laws in public areas. It specifies that strict liability offences against the by-laws are subject to an infringement notice (section 116ZCA). It also details the roles of infringement officers, relevant chief executives, and the delegation of powers, as well as the additional information that must be included in infringement notices (subsections 116ZCA(2) to (6)). The obligations imposed by the Act on the relevant parties include ensuring compliance with the regulations for Defence aviation areas, correctly applying and enforcing by-laws in public areas, and properly executing the powers and duties of inspectors and delegated officers. Failure to comply with these obligations can result in legal consequences. The Act also outlines offences, penalties, and consequences for breaches. Offences against the regulations for Defence aviation areas can incur penalties as specified in the regulations (paragraph 124(1)(r)). Furthermore, the use of force in executing a monitoring warrant is permitted if it is necessary and reasonable (section 117AF(3)). The infringement notices carry penalties as specified by the Regulatory Powers Act, and additional penalties may be imposed for non-compliance with the by-laws (subsection 116ZCA(1) and section 116ZCA(5)).

Legal classification tags

Area of Law
Defence & Military Law
Instrument
Act
Concepts
Commencement Provisions
Defence Aviation Areas
Infringement Notices
Prohibited Conduct
Regulatory Standards

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.