EXPLANATORY STATEMENT
Issued by authority of the Assistant Minister for Defence, Parliamentary Secretary to the Minister for Defence
Defence Act 1903
Defence (Security authorised member of the Defence Force—training and qualification requirements) Determination 2023
The instrument is made under subsection 71C(4) of the Defence Act 1903 (the Act). The instrument commences on the day after the instrument is registered and is a legislative instrument for the purposes of the Legislation Act 2003 (the Legislation Act).
Purpose
The Act prescribes the control, administration, constitution and service of the Australian Defence Force. The purpose of Part VIA of the Act is to enhance the security of defence bases, facilities, assets, and personnel within Australia in response to the changing nature of security threats. To achieve this purpose, Division 3 of Part VIA of the Act sets out powers that are exercisable with consent by a ‘defence security official’ at ‘defence access control points’ and on ‘defence premises’. Under the Act, a ‘defence security official’ is defined to mean the following personnel:
- contracted defence security guard
- defence security screening employee
- security authorised members of the Defence Force
The powers exercisable by a ‘defence security official’ include, but are not limited to, things such as being able to request a person to provide identification (s.71H(1)) or requesting a person to permit a limited search of their vehicle, vessel or aircraft (s.71J(1)).
Division 4 of Part VIA of the Act also sets out further powers that are exercisable without consent by a ‘special defence security official’. Under the Act, a ‘special defence security official’ is defined to mean the following personnel:
- defence security screening employee
- security authorised members of the Defence Force
The powers exercisable by a ‘special defence security official’ include, but are not limited to, things such as being able to respond to an attack on defence premises (subsection 71X) and to stop and detain a person, vehicle, vessel or aircraft in order to exercise other powers (subsection 71Y).
In order to exercise the powers set out in Division 3 (or Division 4) of the Act, a person must be a ‘defence security official’ (or ‘special defence security official’). This means a person must be one of the types of personnel set out in the definition of ‘defence security official’ (or ‘special defence security official’). For a person to be a ‘security authorised member of the Defence Force’, the person must meet the requirements of subsection 71C(1) of the Act. Relevantly, these requirements include that a person:
- is a member of the Defence Force;
- is authorised or part of a class of persons authorised under subsection 71C(2) of the Act; and
- satisfies the training and qualification requirements determined under subsection 71C(4) of the Act.
Subsection 71C(4) of the Act sets out that the Minister must determine, by legislative instrument, the training and qualification requirements for a ‘security authorised member of the Defence Force’.
The purpose of the instrument is to determine the training and qualification requirements that a person must satisfy (among other requirements) in order to be a ‘security authorised member of the Defence Force’. Setting out training and qualification requirements that a person must satisfy prior to becoming a ‘security authorised member of the Defence Force’ ensures there are appropriate measures in place on the safe exercise of powers under the Act. It also ensures that a ‘security authorised member of the Defence Force’ is reasonably and appropriately qualified and trained to perform their security functions on Defence premises.
The instrument repealed the Defence (Security Authorised Members—Training and Qualification Requirements) Determination 2013.
Details of the instrument
Details of the instrument are set out in Attachment A.
Consultation
Consultation was previously undertaken with the Australian Federal Police throughout the development of the Base Security Improvement Program, including the development of the Armed Security Warden training package. Further consultation was not undertaken for the instrument, as the measures contained in the instrument do not diverge from those previously in force.
The Office of Impact Analysis was consulted in relation to the instrument and confirmed that a regulation impact analysis was not required for the instrument (OIA23-05233).
Parliamentary scrutiny
The instrument is subject to disallowance under section 42 of the Legislation Act.
A Statement of Compatibility with Human Rights has been prepared in accordance with subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement provides that the instrument is compatible with human rights because it promotes the protection of human rights, and to the extent that it may limit human rights, those limitations are necessary, reasonable and proportionate for the purposes of defence and national security. The Statement is included at Attachment B.
The instrument is made by the Assistant Minister for Defence, Parliamentary Secretary to the Minister for Defence, in accordance with the requirements of subsection 71C(4) of the Act.
Attachment A
Details of the Defence (Security authorised member of the Defence Force—training and qualification requirements) Determination 2023
Section 1 Name
Section 1 of the instrument provides that the name of the instrument is the Defence (Security authorised member of the Defence Force—training and qualification requirements) Determination 2023.
Section 2 Commencement
Section 2 of the instrument provides that the instrument commences on the day after the instrument is registered on the Federal Register of Legislation.
Section 3 Authority
Section 3 of the instrument provides that this instrument is made under subsection 71C(4) of the Act. This provision provides that the Minister must, by legislative instrument, determine the training and qualification requirements for a security authorised member of the Defence Force.
Section 4 Training requirements
Section 4 of the instrument sets out the training requirements for a person who is a security authorised member of the Defence Force for the purposes of subsection 71C(1) of the Act. Subsection 4(2) of the instrument specifies that a security authorised member of the Defence Force must successfully complete training organised by Defence that gives them familiarity with:
- the powers and responsibilities of a security authorised member of the Defence Force under the Act and Commonwealth and State and Territory legislation (paragraph 4(2)(a));
- policing and security arrangements used for Defence premises (paragraph 4(2)(b));
- security policies and protocols of the Department (paragraph 4(2)(c));
- the security alert system of the Department (paragraph 4(2)(d)); and
- when the use of force is reasonable and necessary, including the use of force in a domestic environment and the limitations on using force under Part VIA of the Act (paragraph 4(2)(e)).
The training requirements for a security authorised member of the Defence Force were designed within the Army training framework as a National Registered Training Organisation. A Training Needs Analysis was previously conducted to determine the nature of competencies to be included in a training package to meet legislative and practical requirements of the role. All security authorised members of the Defence Force are required to undertake training in accordance with the training package.
The purpose of paragraph 4(2)(a) of the instrument is to set out the requirement for a security authorised member of the Defence Force to have familiarity with their powers under Part VIA of the Act, which concerns security of defence premises. The training includes the roles and interactions with other policing bodies under the relevant Commonwealth, State and Territory legislation.
The purpose of paragraph 4(2)(b) of the instrument is to ensure that a security authorised member of the Defence Force is familiar with the relevant sections of Part VIA of the Act in relation to the security arrangements for defence premises, as well as any powers they may be authorised exercise under the section and relevant limitations to those powers. Meeting the requirement of this provision also requires members to gain familiarity with the role and support provided by the Australian Federal Police—Protective Services, state police and other emergency response organisations under this provision. This ensures that Defence security officials are able to work in an integrated manner with supporting agencies to provide security, policing and the response effect for defence premises.
The purpose of paragraph 4(2)(c) of the instrument is to require a security authorised member of the Defence Force to be familiar and trained with the security policies and protocols utilised within the Defence Department. An example of a Departmental security policy that a security authorised member of the Defence Force would be expected to be familiar with is the Protective Security Policy Framework.
The purpose of paragraph 4(2)(d) of the instrument is to ensure a security authorised member of the Defence Force are trained to understand, acknowledge and appropriately response to the Defence security alert systems, particularly in the event of a security incident or emergency.
The purpose of paragraph 4(2)(e) of the instrument is to require a security authorised member of the Defence Force to undertake training that familiarises them with the principles that underpin the use of force, including the legal interpretation of circumstances that authorise its use. Defence’s intention is to reinforce the objective of “protecting the general base population” while outlining that the use of any force must be as low as is reasonably practicable and as a last resort based on the individual circumstances. The training for security authorised members provides a standardised response system using specified orders for use of force in a domestic environment that are aimed to achieve consensual cooperation. Additionally, security authorised members are trained to only use reasonable and necessary force as a last resort in response to a threat to people on defence premises, in adherence to the principle of proportionality.
Subsection 4(3) of the instrument requires that the training must include guidance from the Australian Federal Police and lawyers in the Defence Force about the principles underpinning the use of force in a domestic environment.
Subsection 4(4) of the instrument requires that each year after completing the training mentioned in subsections (2) and (3), the person must undertake and complete training designed to refresh or update their knowledge needed to perform their duties. This ensures that the knowledge and skills required for the person to perform their role as a security authorised member of the Defence Force remains relevant.
Section 5 Qualification requirements
Section 5 of the instrument sets out the qualification requirements that a person must satisfy, among other things, to be a security authorised member of the Defence Force.
Paragraph 5(2)(a) of the instrument provides that the person must hold a current qualification in first aid that provides basic emergency life support. The purpose of this qualification is to ensure that a security authorised member of the Defence Force can administer basic first aid as required in an emergency situation.
Paragraph 5(2)(b) of the instrument provides that the person must hold a current security clearance in accordance with the Department’s security policy. The purpose of this requirement is to ensure that Defence has a screening mechanism under the national security vetting processes and ensures members are suitable persons to be security authorised members of the Defence Force.
Paragraph 5(2)(c) of the instrument requires that the person must be assessed within the previous six months as competent in the use of assault weapons. The purpose of this qualification is to ensure that security authorised members maintain proficiency and competency with the safe handling and use of assault weapons. This is intended to ensure that a security authorised member is competent in the use of these weapons as part of discharging their functions and duties on Defence premises.
Paragraph 5(2)(d) of the instrument requires that the person must hold a current qualification showing proficiency as a junior leader for sailors, soldiers or airmen, or in basic leadership for officers. The purpose of this provision is to ensure that a security authorised member possesses relevant leadership skills necessary to discharge their role effectively. This would be necessary to ensure that a security authorised member of the Defence Force may be required to provide effective leadership to other people on Defence premises in a variety of circumstances.
Paragraph 5(2)(e) of the instrument requires that the person must hold current identification as a special defence security official. This means that any Defence security official, including a security authorised member of the Defence Force must carry a form of identity card that is in a form approved in writing by the Secretary of Defence and contains a recent photograph of the Defence security official.
Subsection 5(3) of the instrument refers to the various names applied to junior and basic leadership qualification across the three arms of the Defence Force: Navy, Army and Air Force.
Schedule 1 Repeals
Schedule 1 to the instrument repeals the Defence (Security Authorised Members—Training and Qualification Requirements) Determination 2013.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by‑laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Attachment B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Defence (Security authorised member of the Defence Force—training and qualification requirements) Determination 2023
This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Disallowable Legislative Instrument
The Disallowable Legislative Instrument sets out the training and qualification requirements a person must satisfy, among other things, in order to be a ‘security authorised member of the Defence Force’.
The Defence Act 1903 (the Act) prescribes the control, administration, constitution and service of the Australian Defence Force. Specifically, Part VIA of the Act enhances the security of Defence bases, facilities, assets, and personnel within Australia in response to the changing nature of security threats. To achieve this purpose, Part VIA sets out powers in the Act that are exercisable by either a ‘defence security official’ or a ‘special defence security official’ at ‘defence access control points’ and on ‘defence premises’.
Under the Act, a ‘defence security official’ is defined to mean the following personnel:
- contracted defence security guard
- defence security screening employee
- security authorised members of the Defence Force
A ‘special defence security official’ is defined to mean the same types of personnel as a ‘defence security official’, excluding the ‘contracted defence security guard’ cohort. In order to exercise the powers set out in Part VIA of the Act, a person must be one of the types of personnel set out in the definition of ‘defence security official’ (or ‘special defence security official’).
For a person to be a ‘security authorised member of the Defence Force’, the person must meet the requirements of subsection 71C(1) of the Act. Relevantly, these requirements include, among other things, that a person, satisfies the training and qualification requirements determined under subsection 71C(4) of the Act. Under subsection 71C(4) of the Act, the Minister is required to determine, by legislative instrument, the training and qualification requirements for a ‘security authorised member of the Defence Force’.
The Disallowable Legislative Instrument repeals the existing legislative instrument made for subsection 71C(4) of the Act; the Defence (Security Authorised Members—Training and Qualification Requirements) Determination 2013 (F2013L01759).
Human rights implications
This Disallowable Legislative Instrument engages the following rights:
- The right to work, including technical and vocational guidance and training programs, policies and techniques to achieve development and employment under conditions safeguarding individual freedom, per Article 6(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
- The right to just and favourable conditions of work, including safe and healthy working conditions, per Article 7(b) of the ICESCR
The right to work—including technical and vocational guidance and training programs etc.
This instrument will engage and promote the vocational guidance and training as it sets out formal training and qualification requirements for a security authorised member of the Defence Force.
The training for a security authorised member of the Defence Force was designed within the Army training framework as a National Registered Training Organisation. A Training Needs Analysis was previously conducted to determine the nature of competencies to be included in Defence’s training to meet the practical and operational requirements contemplated by the role. All security authorised members of the Defence Force are required to have undertaken training in accordance with the training requirements set out within the instrument prior to commencement of duties.
The right to just and favourable conditions of work, including safe and healthy working conditions
This instrument will engage and promote safe and healthy work conditions and environment as it gives effect to Government initiatives to enhance the security of defence premises and Defence personnel.
The training and qualifications requirements set out in the instrument will positively contribute to safe and healthy working conditions for Defence personnel by ensuring that security authorised members of the Defence Force can provide effective security to defence premises and personnel. The training and qualification requirements set out in the instrument are aimed at ensuring security authorised members of the Defence Force are professionally skilled, knowledgeable and capable of responding with all reasonableness to security incidents on defence premises. This is provided for by the requirement for security authorised members to be satisfactorily trained in relevant matters, including but not limited to, when the use of force is reasonable and necessary and the limitations on the use of force.
Additionally, the instrument promotes safe and healthy working conditions by requiring security authorised personnel to hold certain qualifications as part of their role, which notably includes requiring them to hold a current qualification in first aid that provides basic emergency life support. Accordingly, a security authorised member of the Defence Force who meets the training and qualification framework set out under the instrument will positively contribute to the safe and healthy working conditions of Defence premises and personnel.
Conclusion
The Disallowable Legislative Instrument is compatible with human rights because, to the extent it engages human rights, it promotes the protection of human rights.