EXPLANATORY STATEMENT
DEFENCE (SECURITY AUTHORISED MEMBERS–IDENTIFICATION AND SEARCH WARDENS: TRAINING AND QUALIFICATION REQUIREMENTS) DETERMINATION 2014
Defence Act 1903
GENERAL SUMMARY
Introduction
Part VIA of the Defence Act 1903 (the Act) allows for certain powers that may be exercised by three identified classes of persons who will perform a security role at Defence Premises, namely contracted Defence security guards, Defence security screening employees and security authorised Defence Force members. Collectively these categories of persons are referred to as Defence security officials. The Act also allows that different training and qualification requirements may apply to different kinds of security authorised Defence Force members. This instrument deals with Identification and Search Wardens, a kind of security authorised Defence Force member; who are authorised to exercise the consensual and non-consensual identification, search, seizure and related powers under the Act.
Legal authority for instrument
Subsection 71C (4) of the Act provides that the Minister must, by legislative instrument, determine the training and qualification requirements for security authorised members of the Defence Force.
Subsection 71F (2) of the Act provides that the Minister may, by writing, delegate the Minister’s power under subsection 71C (4) to:
(a) an officer of the Army who holds the rank of Brigadier or a higher rank; or
(b) an officer of the Navy who holds the rank of Commodore or a higher rank; or;
(c) an officer of the Air Force who holds the rank of Air Commodore or a higher rank.
The Minister delegated this power for the training and qualification requirements for Identification and Search Wardens to the Deputy Chief of Army, a Major-General ranked position, on 30 April 2012.
Reasons for making the instrument
This instrument determines the training and qualification requirements for security authorised members of the Defence Force. It will bring into effect another security layer and safeguard associated with the exercise of powers under the Act. It will ensure that Identification and Search Wardens exercise their powers appropriately and do not trespass unduly on personal rights and liberties when required to perform security functions on Defence premises.
Consultation
The Office of Best Practice Regulation (OBPR) was consulted on the proposed legislative amendments and agreed that the amendments would have no regulatory impact on business, community organisations or individuals and that no further regulatory impact analysis was required (OBPR 16799 refers).
Defence gave a commitment to Parliament that the Australian Federal Police (AFP) would be consulted to assist in identifying the appropriate training and qualification requirements for security authorised members of the Defence Force. Consultation with the AFP has been undertaken throughout the development of the Base Security Improvement Program and associated training packages.
The Office of Parliamentary Counsel were consulted and provided with instructions in their drafting of this instrument.
Defence consulted union representatives on a number of occasions during the development of the Act and intends to provide further briefings through Defence’s National Workplace Relations Committee as the statutory search regime is implemented.
Details of the instrument are outlined in Attachment 1.
The Act specifies no condition that must be met before the power to make the instrument may be exercised.
The instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The instrument commences on the day after registration.
Attachment 1
DEFENCE (SECURITY AUTHORISED MEMBERS –IDENTIFICATION AND SEARCH WARDENS: TRAINING AND QUALIFICATION REQUIREMENTS) DETERMINATION 2014
PRELIMINARY PROVISIONS
Section 1- Name
Names the Determination, Defence (Security Authorised Members- Identification and Search Wardens: Training and Qualification Requirements) Determination 2014.
Section 2- Commencement
This Determination commences on the day after it is registered.
Section 3-Authority
This item refers to subsection 71C(4) of the Defence Act 1903 and provides the legislative authority to determine the training and qualification requirements for an Identification and Search Warden, a kind of security authorised member of the Defence Force in a legislative instrument.
Section 4- Definitions
This section contains definitions relevant to this Determination.
TRAINING and QUALIFICATION PROVISIONS
Section 5 Training and qualification requirements
Section 5(1) - sets out the training and qualification requirements.
Section 5(2)-Security operation training and qualifications
This section provides that the person appointed as a security authorised member- Identification and Search Warden must have successfully completed the Service Police Officer Basic Course or Service Police Basic Course or other training approved by the Minister or delegate.
The role of Identification and Search Warden is a secondary appointment, similar to a Fire Warden or a First Aid Attendant
To ensure that Identification and Search Wardens undertake training in the areas most relevant to the exercise of their powers under the Defence Act 1903, they must complete training, approved by the Minister or their delegate designed to ensure competency in these key areas:
- Managing security risk situations. The outcomes of this training will prepare Identification and Search Wardens to identify risks, undertake an appropriate security response and participate in an evaluation of response activities.
- Searching people, vehicles and other things. This training will prepare Identification and Search Wardens to search people, vehicles and items for dangerous or prohibited items. It may involve training on the preparation and use of screening equipment, monitoring of people and alarms and carrying out searches of persons and their personal effects. It will also involve development of the knowledge of legal issues relevant to the rights and responsibilities of persons involved in search actions.
- Controlling access to and exit from premises. The outcomes of this training will prepare Identification and Search Wardens to monitor and manage the entry and exit of persons and vehicles from Defence premises. It includes the ability to manage people, inspect items and vehicles and manage vehicular traffic.
- Conduct search and seizure. This training will prepare Identification and Search Wardens to plan for a search and seizure action, including implementing the search, conducting the seizure, completing post-search activities and debriefing
- Operational safety skills and tactics. The outcomes of this training will prepare Identification and Search Wardens to use basic lawful defensive techniques to protect themselves or others in a security risk situation. The training includes the use of basic negotiation techniques to defuse conflict as well as the identification of potential risk factors that might impact on the safety and security of themselves and others and the implementation of appropriate.
Section 5(3) - Additional training
This item provides that Identification and Search Wardens undertake additional Defence specific training to develop their knowledge of the Defence Act 1903 as well as other Commonwealth, State and Territory law relevant to the exercise of their powers. Additional training will also cover Departmental policies, guidelines and procedures relating to the duties of Identification and Search Wardens, the operation of protective security measures in Defence such as the security alert system and policing arrangements as well as generalised information relating to security issues relevant to the Department.
Section 5(4) - Refresher training
This item provides that Identification and Search Wardens undertake training approved by the Minister or their delegate designed to maintain and update their skills and knowledge regarding the organisational policies, guidelines and procedures relating to the statutory search regime. This training is to be undertaken every twelve months from the completion of their last training.
Section 5(5) - Security clearance
Defence security policy mandates the security clearance requirements for Defence members. This provides Defence with a screening mechanism under the national security vetting processes and ensures Defence members are fit and proper persons.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
DEFENCE (SECURITY AUTHORISED MEMBERS-IDENTIFICATION AND SEARCH WARDENS: TRAINING AND QUALIFICATION REQUIREMENTS) DETERMINATION 2014
This 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 Instrument
The instrument identifies the training and qualification requirements for Identification and Search Wardens, a kind of security authorised Defence Force member authorised to exercise the consensual and non-consensual identification, search, seizure and related powers under the Defence Act 1903, Part VIA.
Human rights implications
This instrument engages the following human rights:
The right to work- includes technical and vocational guidance and training programs, policies and techniques to achieve development and employment under conditions safeguarding individual freedom. Article 6(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
This instrument will engage and promote vocational guidance and training as it sets out formal training and qualification requirements for Identification and Search Wardens of the Defence Force.
The training for Identification and Search Wardens has been based on a training needs analysis that confirmed that the competencies in the relevant courses and meet Defences' requirements. Where it is not practical for an Identification and Search Warden to complete this specific Basic Course an in house course which includes relevant competencies from the Basic Course will be available as an alternative.
Defence undertakes that all security authorised members of the Defence Force will have undertaken training in accordance with this instrument.
The right to just and favourable conditions of work, including safe and healthy working conditions- Article 7(b) of the ICESCR.
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 its personnel. The training and qualification requirements will contribute to this security layer by ensuring that Identification and Security Wardens will have successfully completed a structured program of training and qualifications. This is aimed at having these security officials professionally skilled and capable in their security responsibilities.
Identification and Search Warden who has the met the training and qualification framework will be appropriately skilled in providing a layer of protective capability to Defence premises and its personnel.
Conclusion
This instrument is compatible with human rights because it promotes the protection of human rights.
Peter Gilmore, AO, DSC
Major-General
Deputy Chief of Army