Commonwealth Consolidated Acts

DEFENCE ACT 1903 - SECT 51ST

Taking measures against aircraft

             (1)  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:

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

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

whether or not the aircraft is airborne.

             (2)  Paragraph (1)(a) 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)  Paragraph (1)(b) 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 take measures against an aircraft, or give an order of a kind mentioned in paragraph (1)(b) in connection with an aircraft, unless an authorising Minister has in writing authorised the taking of measures against the aircraft.

Exception

             (5)  Subsection (4) does not apply if:

                     (a)  the member believes on reasonable grounds that there is insufficient time to obtain the authorisation because a sudden and extraordinary emergency exists; or

                     (b)  the measures are taken in specified circumstances that an authorising Minister has authorised under subsection (6).

             (6)  An authorising Minister may in writing authorise the taking of measures against an aircraft in specified circumstances if this Division applies because an order states in accordance with paragraph 51AB(4)(c) that this Division and Division 4 apply in relation to the order.

Authorising Minister must be satisfied of reasonableness and necessity

             (7)  An authorising Minister must not authorise the taking of measures against an aircraft unless the Minister is satisfied that:

                     (a)  in the case of an authorisation under subsection (4)--taking action against the aircraft is reasonable and necessary; or

                     (b)  in the case of an authorisation under subsection (6)--taking action against the aircraft would be reasonable and necessary if the specified circumstances in question were to arise.

International obligations

             (8)  An authorising Minister must, in giving an authorisation under this section, have regard to Australia's international obligations.