BILLS DIGEST NO. 38, 2017–18              4 October 2017

Defence Legislation Amendment (Instrument Making) Bill 2017

Paula Pyburne
Law and Bills Digest Section

Date introduced:  14 September 2017

House:  House of Representatives

Portfolio:  Defence

Commencement: Sections 1–3 commence on the day after Royal Assent. Parts 1–3 commence on the earlier of a single day to be fixed by Proclamation or six months after Royal Assent. The amendments in Part 4 are contingent on the enactment of the Regulatory Powers (Standardisation Reform) Act 2017.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at October 2017.

Purpose of the Bill

The Defence Legislation Amendment (Instrument Making) Bill 2017 (the Bill) has two purposes:

•       first, to amend instrument-making powers in Defence Act 1903 in relation to Defence inquiries and Defence aviation areas and

•       second, to provide that certain elements of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act) apply to Defence aviation areas and Defence public areas.

Structure of the Bill

The Bill comprises four Parts:

•       Part 1: amends the existing regulation making power in the Defence Act in relation to Defence inquiries

•       Part 2: remakes the existing regulation making power in the Defence Act in relation to Defence aviation areas and provides for the exercise of monitoring powers under the Regulatory Powers Act in those areas

•       Part 3: provides that strict liability offences under the Defence (Public Areas) By-Laws 1987 will be subject to the infringement notice regime in the Regulatory Powers Act and

•       Part 4: contains contingent amendments.

Background

About legislative instruments

The Legislative Instruments Act 2003 was enacted to establish a regime to reform and manage procedures for the making, scrutiny and publication of Commonwealth legislative instruments. The regime included, amongst other things:

•       a Federal Register of Legislative Instruments which provided public access to legislative instruments

•       improved mechanisms for Parliamentary scrutiny of legislative instruments and

•       ‘sunsetting’ mechanisms to ensure periodic review of legislative instruments and if they no longer have a continuing purpose, to repeal them.[1]

The Legislative Instruments Act has since been updated and renamed the Legislation Act 2003. Section 48F of the Legislation Act provides that legislative instruments are automatically repealed after a fixed period of time (subject to some exceptions). The automatic repeal is called sunsetting.

Generally, legislative instruments sunset on the first 1 April or 1 October on or after the tenth anniversary of their registration. This ensures that legislative instruments are kept up to date and only remain in force for so long as they are needed.[2]

Rationale for the Bill

The following legislative instruments (made under the Defence Act) are scheduled to sunset on 1 April 2018:

•       the Defence (Inquiry) Regulations 1985

•       the Defence (Areas Control) Regulations 1989 and

•       the Defence (Public Areas) By-Laws 1987.

According to the Explanatory Memorandum to the Bill, it is ‘necessary to re-make them’ and ‘where possible, the intention is to improve the instruments by consolidating like provisions, improving consistency, and making some amendments to enhance their operation’.[3]

This Bill does not remake those legislative instruments. Rather, in the case of the Defence (Inquiry) Regulations and the Defence (Areas Control) Regulations, it amends those provisions in the Defence Act which contain the regulation making powers upon which they are based.

Committee consideration

Selection of Bills Committee

At its meeting of 14 September 2017, the Senate Standing Committee for the Selection of Bills deferred consideration of the Bill.[4]

Senate Standing Committee for the Scrutiny of Bills

At the time of writing this Bills Digest the Senate Standing Committee for the Scrutiny of Bills had not commented on the Bill.

Policy position of non-government parties/independents

At the time of writing this Bills Digest there were no comments in relation to the measures in the Bill by non-government parties or independents in the public domain.

Position of major interest groups

At the time of writing this Bills Digest no stakeholder groups had comments on the Bill.

Financial implications

According to the Explanatory Memorandum to the Bill, it will have no additional financial impact on Commonwealth expenditure or revenue.[5]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[6]

Parliamentary Joint Committee on Human Rights

At the time of writing this Bills Digest the Parliamentary Joint Committee on Human Rights had not commented on the Bill.

Part 1—Defence Force inquiries

About Defence Force inquiries

According to the Department of Defence website:

The Australian Defence Force (ADF) conducts inquiries principally to inform internal decision-making. The ability of ADF commanders to appoint internal administrative inquiries and obtain timely information on incidents that affect personnel, assets, training and policy, is vital for the safety and reputation of our people and the maintenance of our capability.

Without a capacity to conduct effective inquiries, the ADF’s ability to examine incidents and learn lessons from its experiences would be diminished. The outcomes of these inquiries assist in the development of procedures and policy concerning the safety of our personnel and the ADF's ability to achieve tasks assigned by government.

However, ADF inquiries are not courts of law and their reports are not judicial findings. They do not preclude, and are not in any way intended to inhibit Federal, State or Territory agencies from holding their own investigations or inquiries.

The most common types of inquiry appointed to inquire into deaths or other serious matters concerning the ADF are Commissions of Inquiry, Boards of Inquiry and Inquiry Officer Inquiries.[7]

Currently, the Defence (Inquiry) Regulations 1985 are made in accordance with the regulation making power in section 124 of the Defence Act. Specifically paragraph 124(1)(gc) currently provides that the Governor-General may make regulations in relation to the ‘appointment, procedures and powers of courts of inquiry, Chief of Defence Force commissions of inquiry, inquiry officers and inquiry assistants’.

Key provisions

Item 2 of Part 1 of the Bill repeals and replaces paragraph 124(1)(gc) of the Defence Act so that the Governor-General may make regulations prescribing matters, providing for and in relation to inquiries concerning the Defence Force, other than inquiries conducted by:

•       the Defence Force Remuneration Tribunal under Part IIIA of the Defence Act

•       the Inspector-General of the Australian Defence Force under Part VIIIB of the Defence Act or

•       the Defence Honours and Awards Appeals Tribunal under Part VIIIC of the Defence Act.

Items 3–5 of Part 1 of the Bill make consequential amendments to subsections 124(2A) and 124(2C) by omitting references to ‘a court of inquiry, a board of inquiry, a Chief of the Defence Force commission of inquiry, an inquiry officer or an inquiry assistant’ and substituting references to an ‘inquiry’. Together, the amendments in Part 1 of the Bill will allow the making of regulations relating to ‘inquiries’.

According to the Explanatory Memorandum to the Bill when re-making the Defence (Inquiry) Regulations, ‘the intention is to consolidate the different types of inquiries, instead articulating one form of inquiry that would be flexible and scalable to suit the relevant circumstances’.[8]

Part 2—Defence aviation areas

Currently paragraph 124(1)(na) of the Defence Act provides that the Governor-General may make regulations in relation to:

The regulation, control or prohibition of the construction or use of buildings, erections or installations, the use of apparatus, machines or vehicles, and the removal in whole or in part of buildings, erections, installations, apparatus, trees or other natural obstacles, within prescribed areas, being areas in which the regulation, control, prohibition or removal is necessary for the defence of Australia.

The Defence (Areas Control) Regulations 1989 are made in accordance with that provision. They are directed towards certain prescribed areas surrounding 12 defence airfields.[9] Item 8 of Part 2 of the Bill repeals paragraph 124(1)(na) of the Defence Act.

Regulating Defence aviation areas

Item 7 of Part 2 of the Bill inserts proposed Part IXD—Defence aviation areas into the Defence Act. Within new Part IXD, proposed section 117AD provides an additional regulation making power (to that in section 124 of the Defence Act) for and in relation to:

•       the regulation or prohibition of the construction or use of buildings, structures or objects within defence aviation areas

•       the regulation or prohibition of the bringing of objects into, or having objects within, defence aviation areas and

•       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.

Proposed subsection 117AC(1) of the Defence Act provides that 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. Such a declaration is not to be made unless the Minister is satisfied:

•       it is necessary for the defence of Australia for any of the matters set out in section 117AD to apply in those areas and

•       the matters are necessary for the purpose of preventing or reducing hazards to the following as they relate to the defence of Australia: aircraft, aviation-related communications, navigation or surveillance.[10]

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.[11] This is consistent with the current form of the Defence (Areas Control) Regulations.

In addition, a declaration of an area may apply, adopt or incorporate, with or without modification a map or a matter contained in an instrument to the extent that the matter relates to a map.[12] According to the Explanatory Memorandum to the Bill:

The purpose of the provision is to allow some flexibility so that relevant map-related material can be incorporated into the declaration if required. In the event that this provision is relied on, there will be clear mechanisms for making the material publicly accessible and available at no or at a minimum cost, so that those affected by the provision can easily understand their rights and obligations at law.[13]

Triggering the Regulatory Powers Act

Monitoring powers

Proposed section 117AE of the Defence Act operates so that a provision of the regulations made for the purposes of section 117AD is subject to monitoring under Part 2 of the Regulatory Powers Act.[14]

Part 2 of the Regulatory Powers Act creates a framework for monitoring whether provisions of the regulations made under proposed section 117AD have been complied with. It includes powers of entry and inspection. The monitoring powers (set out at section 19 of the Regulatory Powers Act) which may be exercised on premises that an authorised person[15] has entered under warrant or consent, include the power to:

•       search the premises and any thing on the premises

•       examine or observe any activity conducted on the premises

•       inspect, examine, take measurements of or conduct tests on any thing on the premises

•       make any still or moving image or any recording of the premises or any thing on the premises

•       inspect any document on the premises

•       take extracts from, or make copies of, any such document

•       take onto the premises such equipment and materials as the authorised person requires in order to exercise powers in relation to the premises

•       operate electronic equipment on the premises, to put relevant data in documentary form or copy the data onto a device and remove the documents or device from the premises[16]

•       secure electronic equipment where an authorised person enters premises under a monitoring warrant[17]

•       secure a thing for a period of 24 hours in circumstances where the thing is found during the exercise of monitoring powers on the premises and an authorised person believes on reasonable grounds that it relates to the contravention of a related provision.[18]

These powers may only be exercised to:

•       determine whether the regulations made under section 117AD of the Defence Act are being complied with and/or

•       determine whether information supplied under those regulations is correct.[19]

A monitoring warrant may be issued if the issuing officer[20] is satisfied that it is reasonably necessary for one or more authorised persons to have access to premises for the purpose of determining whether a provision that is subject to monitoring has been, or is being, complied with or that information subject to monitoring is correct.[21] In that case the relevant warrant must do all of the following:

•       describe the premises to which the warrant relates

•       state that the warrant is issued under section 32 of the Regulatory Powers Act

•       state the purpose for which the warrant is issued

•       authorise one or more authorised persons (whether or not named in the warrant) from time to time while the warrant remains in force to enter the premises and to exercise the monitoring powers

•       state whether entry is authorised to be made at any time of the day or during specified hours of the day and

•       specify the day (not more than three months after the issue of the warrant) on which the warrant ceases to be in force.[22]

An authorised officer may enter premises and exercise the monitoring powers only if the occupier of the premises has consented to the entry, or the entry is made under a monitoring warrant.[23] A defence aviation area inspector may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act.[24]

Additional purpose and monitoring powers

According to the Explanatory Memorandum to the Bill:

The Defence (Areas Control) Regulations provides for authorised persons to enter land and premises for a range of purposes, including removing or marking hazardous objects. These powers will need to be re-made, as they are an important aspect of the scheme ensuring that there is a mechanism to deal with hazardous objects if people are unwilling to comply with requirements … However, noting that the powers go beyond simply monitoring compliance with legislation, for example by including the important powers to remove or mark hazardous objects, it was considered necessary to apply some limited modification to Part 2 of the Regulatory Powers Act. [25]

Proposed section 117AF contains that modification. It extends the monitoring powers to include the taking of action that may include the removal (in whole or in part), destruction or modification of a building, structure or object.[26] In addition, it permits a defence aviation inspector (that is—an authorised person) and a person assisting a defence aviation inspector to use such force against persons and things as is necessary and reasonable in the circumstances.[27]

Delegation

Proposed section 117AH of the Defence Act empowers the Secretary, or the Chief of the Defence Force, to delegate the powers and functions of the chief executive under Part 2 of the Regulatory Powers Act and the power to appoint a defence aviation inspector, in writing, to any of the following:

•       an SES employee, or an acting SES employee, in the Department

•       an officer of the Navy who holds the rank of Commodore or a higher rank

•       an officer of the Army who holds the rank of Brigadier or a higher rank

•       an officer of the Air Force who holds the rank of Air Commodore or a higher rank.

Part 3—By-laws for public areas

Currently Part IXB of the Defence Act relates to public areas of Defence land. Under existing subsection 116Q(1) the Minister may, by notice published in the Gazette, declare an area specified in the notice to be a public area and assign a name to that area. For the purposes of subsection 116Q(1) of the Defence Act, area means ‘an area of land that is owned or held under lease by the Commonwealth and used, or intended for use, for the purposes of defence’. The Explanatory Memorandum notes:

There are currently two existing public areas: the Beecroft public area in New South Wales, and the Garden Island public area in Western Australia. Each public area is a significant tract of Defence land, where there is a strong interest in enabling public entry for recreational purposes where this can be achieved consistently with defence requirements.[28]

Section 116ZD of the Defence Act empowers the Minister to make by-laws, for and in relation to the control and management of public areas. The Defence (Public Areas) By-Laws are made under this section.

Triggering the Regulatory Powers Act

Item 9 of Part 3 of the Bill inserts proposed section 116ZCA into the Defence Act which provides that each of the strict liability offences against the by-laws is subject to an infringement notice under Part 5 of the Regulatory Powers Act—provided that the by-laws specify the offence for the purposes of proposed subsection 116ZCA(1).

Existing strict liability offences

The Defence (Public Areas) By-laws currently give rise to a number of strict liability offences which are set out below:[29]

•       vehicle offences: a person is guilty of an offence if the person brings a vehicle into, or uses a vehicle in, the public area that is, or forms part of, an island. In any other public area a person is guilty of an offence if the person uses a vehicle in the public area, and not on a road or in a parking area or camping area[30]

•       offences about lighting fires: a person is guilty of an offence if, in a public area the person lights, maintains or uses a fire which is not in a portable barbecue or portable stove that uses liquefied petroleum gas or in a fireplace made available by the Commonwealth for use by persons in the public area[31]

•       offences about firearms: a person is guilty of an offence if the person uses or has in his or her possession a firearm in a public area[32]

•       offences about signs: a person is guilty of an offence if the person contravenes a direction, warning or requirement on a sign erected or placed with the approval of a commanding officer or removes or interferes with a such sign[33]

•       other offences: a person is guilty of an offence if, in a public area, the person does any of the following:

–      erects or places an unapproved sign or erects a building, booth, stall, post or other structure

–      supplies goods or services

–      engages in conduct that damages, destroys or removes a natural or artificial structure or feature

–      takes, or engages in conduct that damages, injures or destroys an animal or plant or the nest or dwelling of an animal.[34]

It is not known whether these offences will remain, or whether new offences will be created, when the Defence (Public Areas) By-laws are remade.

Infringement notices

The provisions about infringement notices are governed by Part 5 of the Regulatory Powers Act. They apply to strict liability offences of the Defence (Public Areas) By-laws. If an infringement officer (in this case a ranger[35]) believes on reasonable grounds that a person has contravened a provision subject to an infringement notice he, or she, may give to the person an infringement notice for the alleged contravention. That notice must be given within 12 months after the day on which the contravention is alleged to have taken place.[36]

Item 11 of Part 3 of the Bill amends existing paragraph 116ZD(2)(za) of the Defence Act to increase the maximum amount of a fine from 5 penalty units to 10 units. Currently a penalty unit is equivalent to $210. This means that the maximum fine will be $2,100.

The Secretary and the Chief of Defence Force are relevant chief executive officers under Part 5 of the Regulatory Powers Act, which allows them to exercise powers such as allowing a person more time to pay an infringement notice amount or withdraw an infringement notice.[37]

The Secretary and the Chief of Defence Force may, in writing, delegate their powers under Part 5 of the Regulatory Powers Act to:

•       an SES employee, or an acting SES employee, in the Department

•       an officer of the Navy who holds the rank of Commodore or a higher rank

•       an officer of the Army who holds the rank of Brigadier or a higher rank and

•       an officer of the Air Force who holds the rank of Air Commodore or a higher rank.[38]

Concluding comments

The impetus for the Bill is the need to remake three separate legislative instruments which are due to sunset on 1 April 2018. The Bill does not remake those instruments. Instead, it amends the relevant regulation making powers in the Defence Act and also provides for triggers to certain standard enforcement powers in the Regulatory Powers Act.

Defence inquiries, as a component of the military justice system, have been the subject of considerable scrutiny and commentary in the recent past.[39] Defence inquiries have also been one of the policy areas which the Department of Defence has researched and assessed for long term reform through the Re-Thinking Systems Review.[40] As noted above, the Explanatory Memorandum indicates that the proposed amendments to the power to regulate Defence inquiries could facilitate ‘re-making’ the Defence (Inquiries) Regulations 1985 with the intention ‘to consolidate the different types of inquiries, instead articulating one form of inquiry that would be flexible and scalable to suit the relevant circumstances’.[41] However, it is not clear if ‘re-making’ the regulations concerning Defence inquiries is linked to outcomes of the Re-Thinking Systems Review.

In relation to the power to make regulations for the control of areas, the amendments contained in the Bill repeal a broad power to make regulations in existing paragraph 124(1)(na) of the Defence Act and insert new Part IXD which is directed to ‘defence aviation areas’. On its face, this change could limit the scope of regulations which can be made. Under the proposed amendments, the Minister would be unable to make regulations unless satisfied it is both necessary for the defence of Australia and necessary for the purpose of preventing and reducing hazards to aircraft or aviation-related communication, navigation or surveillance. The rationale for repealing the broader power in existing paragraph 124(1)(na) to make regulations to control any area where the ‘regulation, control, prohibition or removal is necessary for the defence of Australia’ does not appear to be addressed in the Explanatory Memorandum.

Part 3 of the Bill amends Part IXB of the Defence Act to establish an infringement notice scheme for strict liability offences contained the by-laws created to regulate public areas of defence land. The Minister’s second reading speech notes that existing ‘paragraph 116ZD(2)(r) enables the by-laws to include this type of scheme for some offences’ but that the current ‘by-laws do not currently include an infringement notice scheme’.[42] No detailed explanation is provided for the reasons to introduce an infringement notice scheme. Potentially, an infringement notice scheme may provide better compliance with the by-laws by allowing rangers broader discretion concerning penalties. The Explanatory Memorandum notes that the ‘highest possible penalty in an infringement notice would be $420’ and that ‘[g]iven the nature of the offences that could be appropriate in a public area, this level of penalty may be necessary in some cases to adequately deter people from breaching the by-laws’.[43]

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[1].              M Coombs, Legislative Instruments Bill 2003, Bills digest, 26, 2003–04, Department of the Parliamentary Library, Canberra, 2003, p. 1.

[2].              Legislation Act 2003, section 49.

[3].              Explanatory Memorandum, Defence Legislation Amendment (Instrument Making) Bill 2017, p. 2.

[4].              Senate Selection of Bills Committee, Report, 11, 2017, The Senate, 14 September 2017.

[5].              Explanatory Memorandum, Defence Legislation Amendment (Instrument Making) Bill 2017, p. 4.

[6].              The Statement of Compatibility with Human Rights can be found at pages 5–6 of the Explanatory Memorandum to the Bill.

[7].              Department of Defence (DoD), ‘Inquiry home’, DoD website.

[8].              Explanatory Memorandum, Defence Legislation Amendment (Instrument Making) Bill 2017, p. 2.

[9].              Currently, Schedule 1 to the Defence (Areas Control) Regulations describes each of those areas.

[10].              Defence Act, proposed subsection 117AC(2).

[11].              Ibid., proposed subsection 117AC(3).

[12].              Ibid., proposed subsection 117AC(4).

[13].              Explanatory Memorandum, Defence Legislation Amendment (Instrument Making) Bill 2017, p. 10.

[14].              Item 12 in Part 4 of the Bill inserts the definition of Regulatory Powers Act into subsection 4(1) of the Defence Act being the Regulatory Powers (Standard Provisions) Act 2014.

[15].              Proposed section 117AG of the Defence Act empowers the Secretary or Chief of Defence Force to appoint an APS employee of the Department or a member of the Defence Force to be a defence aviation inspector. Proposed subsection 117AE(5) provides that for the purposes of Part 2 of the Regulatory Powers Act a defence aviation inspector is both an authorised applicant and an authorised person.

[16].              Regulatory Powers Act, subsections 20(1) and (4).

[17].              Ibid., subsection 21(2).

[18].              Ibid., subsection 22(1).

[19].              Ibid., subsection 18(1) and proposed subsections 117AE(1) and (2) of the Defence Act.

[20].              Defence Act, proposed paragraph 117AE(3)(c) provides that an issuing officer means a magistrate.

[21].              Regulatory Powers Act, section 32.

[22].              Ibid., subsection 32(4).

[23].              Ibid., section 18.

[24].              Defence Act, proposed subsection 117AE(4).

[25].              Explanatory Memorandum, Defence Legislation Amendment (Instrument Making) Bill 2017, p. 12.

[26].              Defence Act, proposed subsection 117AF(2).

[27].              Ibid., proposed subsection 117AF(3).

[28].              Explanatory Memorandum, Defence Legislation Amendment (Instrument Making) Bill 2017, p. 3.

[29].              The imposition of strict liability means that a fault element does not need to be satisfied. However, the offence will not criminalise honest errors and a person cannot be held liable if he, or she, had an honest and reasonable belief that they were complying with relevant obligations.

[30].              Defence (Public Areas) By-Laws, section 6.

[31].              Ibid., section 7.

[32].              Ibid., section 9.

[33].              Ibid., section 11.

[34].              Defence (Public Areas) By-Laws, section 12.

[35].              Proposed subsection 116ZCA(2) provides that a ranger is an infringement officer. Under section 116S of the Defence Act, the Minister may appoint a person as a ranger. In addition, section 116T of the Defence Act provides that any member of the Australian Federal Police or member of the police force of a Territory is a ranger.

[36].              Regulatory Powers Act, subsections 103(1) and (2).

[37].              Ibid., sections 105 and 106.

[38].              Defence Act, proposed subsection 116ZCA(4).

[39].              See, for example, DoD, Re-thinking systems of inquiry, investigation, review and audit in Defence: report on Stage A (Research and Analysis stage) for the Secretary and Chief of the Defence Force, DoD, Canberra, 1 August 2012, Annex C; R Creyke, ‘Defence watchdogs seminar: administrative oversight of military justice: military administrative inquiries’, December 2008, Commonwealth Ombudsman website.

[40].              DoD, Re-thinking systems of inquiry, investigation, review and audit in Defence: report on Stage B: models: for the Secretary and Chief of the Defence Force, DoD, Canberra, October 2013, p. xiv.

[41].              Explanatory Memorandum, Defence Legislation Amendment (Instrument Making) Bill 2017, p. 2.

[42].              K O’Dwyer, ‘Second reading speech: Defence Legislation Amendment (Instrument Making) Bill 2017’, House of Representatives, Debates, (proof), 14 September 2017, p. 10.

[43].              Explanatory Memorandum, Defence Legislation Amendment (Instrument Making) Bill 2017, p. 16.