Commonwealth Consolidated Acts

DEFENCE ACT 1903 - SECT 51SE

Special powers

             (1)  Subject to this section, a member of the Defence Force who is being utilised in accordance with section 51D may, under the command of the Chief of the Defence Force, do any one or more of the following:

                     (a)  take any one or more of the following actions:

                              (i)  take measures (including the use of force) against a vessel or an aircraft, up to and including destroying the vessel or aircraft;

                             (ii)  give an order relating to the taking of such measures;

                            (iii)  capture a vessel or aircraft;

                            (iv)  board a facility, vessel or aircraft;

                             (v)  recapture a facility, vessel or aircraft;

                            (vi)  prevent, or put an end to, acts of violence;

                           (vii)  protect persons from acts of violence;

                     (b)  in connection with taking any such action, do any one or more of the following:

                              (i)  free any hostage from a facility, vessel or aircraft;

                             (ii)  if the member finds a person whom the member believes on reasonable grounds to have committed an offence against a law of the Commonwealth, a State or Territory--detain the person for the purpose of placing the person in the custody of a member of a police force at the earliest practicable time;

                            (iii)  control the movement of persons, vessels or aircraft;

                            (iv)  evacuate persons to a place of safety;

                             (v)  search persons, facilities, vessels or aircraft for dangerous things or other things related to the threat concerned;

                            (vi)  seize any dangerous thing or other thing related to the threat concerned found in such a search;

                     (c)  do anything incidental to anything in paragraph (a) or (b).

Note:          Subdivision B of Division 4 sets out what is to happen if a thing is seized under this subsection.

             (2)  Subparagraph (1)(a)(i) does not apply to the taking of measures unless:

                     (a)  the member of the Defence Force takes the measures under, or under the authority of, an order of a superior; and

                     (b)  the member was under a legal obligation to obey the order; and

                     (c)  the order was not manifestly unlawful; and

                     (d)  the member has no reason to believe that circumstances have changed in a material way since the order was given; and

                     (e)  the member has no reason to believe that the order was based on a mistake as to a material fact; and

                      (f)  taking the measures was reasonable and necessary to give effect to the order.

             (3)  Subparagraph (1)(a)(ii) does not apply to giving an order unless:

                     (a)  the member of the Defence Force gives the order under, or under the authority of, an order (a superior order ) of a superior; and

                     (b)  the member was under a legal obligation to obey the superior order; and

                     (c)  the superior order was not manifestly unlawful; and

                     (d)  the member has no reason to believe that circumstances have changed in a material way since the superior order was given; and

                     (e)  the member has no reason to believe that the superior order was based on a mistake as to a material fact; and

                      (f)  giving the order was reasonable and necessary to give effect to the superior order.

Ministerial authorisation

             (4)  However, the member must not:

                     (a)  take any action mentioned in paragraph (1)(a); or

                     (b)  do any of the things mentioned in paragraph (1)(b) or (c) in connection with taking that action;

unless an authorising Minister has in writing authorised taking that action.

Exception

             (5)  Subsection (4) does not apply if the member believes on reasonable grounds that there is insufficient time to obtain the authorisation because a sudden and extraordinary emergency exists.