51XSimplified outline of this Division

51X  Simplified outline of this Division The criminal law of the Jervis Bay Territory applies in relation to criminal acts of members of the Defence Force done, or purported to be done, under this Part. It may be a defence to a criminal act done by a member of the Defence Force that the member was under a legal obligation to obey an order of a superior. Call out orders that have ceased to be in force are tabled in each House of the Parliament, as are specified area declarations and any report on the utilisation of the Defence Force that occurred under the order. An independent review of this Part is to be commenced at least every 5 years. The operation, effectiveness and implications of this Part can also be reviewed on the initiative of the Independent National Security Legislation Monitor under the Independent National Security Legislation Monitor Act 2010. This Part does not affect any utilisation of the Defence Force that would be permitted if this Part were disregarded. Subdivision B—Applicable criminal law 51Y  Applicable criminal law Application of criminal law of the Jervis Bay Territory  (1) In relation to a criminal act of a member of the Defence Force that is done, or purported to be done, under this Part:  (a) the substantive criminal law of the Jervis Bay Territory, as in force from time to time, applies; and  (b) the substantive criminal law of the States and the other Territories, as in force from time to time, does not apply.  (2) To avoid doubt, Chapter 2 of the Criminal Code does not apply to an act done, or purported to be done, under this Part that is a criminal act (except to the extent that it constitutes an offence against the law of the Commonwealth). Functions of the Director of Public Prosecutions  (3) To avoid doubt, the functions of the Director of Public Prosecutions under section 6 of the Director of Public Prosecutions Act 1983 in relation to the law of the Jervis Bay Territory as applied by subsection (1) of this section are exclusive of the corresponding functions of any officer of a State or Territory, in relation to the law of the Jervis Bay Territory as so applied, under a law corresponding to that Act. Note: It is not intended that this section or Act restrict or limit the power of State or Territory police force to investigate any criminal acts done, or purported to be done, by Defence Force members when operating under this Part. 51Z  Defence of superior orders in certain circumstances  (1) The fact that a criminal act was done, or purported to be done, by a member of the Defence Force under this Part under an order of a superior does not (subject to subsection (2)) relieve the member of criminal responsibility.  (2) It is a defence to a criminal act done, or purported to be done, by a member of the Defence Force under this Part that:  (a) the criminal act was done by the member under 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 had no reason to believe that circumstances had changed in a material respect since the order was given; and  (e) the member had no reason to believe that the order was based on a mistake as to a material fact; and  (f) the action taken was reasonable and necessary to give effect to the order.  (3) Subsection (2) does not limit the defences that may be available to the person. Subdivision C—Other provisions 51ZA  Publication of order and report  (1) The Minister must arrange for presentation to each House of the Parliament in accordance with subsection (2) of a copy of:  (a) any call out order that has ceased to be in force; and  (b) any specified area declarations that relate to the order; and  (c) a report on any utilisation of the Defence Force that occurred under the order, including the number of premises searched under Subdivision C of Division 4 (powers to search premises in specified area). Reporting to Parliament  (2) The copy of the call out order and report must be forwarded to the Presiding Officer of each House of the Parliament, before the end of 7 days after the order ceases to be in force:  (a) if that House sits before those 7 days—for tabling in that House before the end of those 7 days; or  (b) otherwise—for distribution to all Senators or Members of the House of Representatives before the end of those 7 days. Multiple call out orders  (3) For the purposes of this section, if more than one call out order is made in relation to the same or related circumstances, without any intervening period when a call out order relating to those circumstances is not in force:  (a) each of the orders is taken to be a single call out order; and  (b) the order is taken to cease to be in force when the last of the orders ceases to be in force. Effect of revocation  (4) To avoid doubt, a reference to an order ceasing to be in force includes a reference to an order ceasing to be in force because it is revoked. 51ZB  Independent review of this Part  (1) The Minister may, at any time, cause an independent review of this Part to be conducted by one or more persons who, in the Minister’s opinion, possess appropriate qualifications to carry out the review.  (2) The Minister must ensure that, at least every 5 years, an independent review of this Part is commenced by one or more persons who, in the Minister’s opinion, possess appropriate qualifications to carry out the review. Note: The independent review may be a review that was conducted under subsection (1).  (3) The review may be completed after the end of the 5‑year period.  (4) The persons who undertake a review under this section must give the Minister a written report of the review.  (5) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of receiving it. 51ZC  Instruments that are not legislative instruments   An order, authorisation or declaration made under this Part is not a legislative instrument. 51ZD  Effect on other Defence Force utilisation and powers   This Part does not affect any utilisation of the Defence Force that would be permitted or required, or any powers that the Defence Force would have, if this Part were disregarded. Part IIIAA—Superannuation