This instrument is made under the Defence Act 1903.
5 Objects of this regulation
The objects of this instrument are as follows:
(a) to facilitate the good governance and the effective and efficient operation of the Defence Force;
(b) to provide the Chief of the Defence Force with the flexibility to deliver capability and preparedness outcomes (including developing force structure options);
(c) to achieve the Government’s objectives and to provide stewardship of the Defence Force;
(d) to provide personnel management that supports the appointment, enlistment, promotion and retention of appropriate persons for service in the Defence Force.
Note: Command in chief of the Defence Force is vested in the Governor‑General: see section 68 of the Constitution.
6 Definitions
(1) In this instrument:
Act means the Defence Act 1903.
air turbulence means a movement of air with an upward vertical velocity of 4.3 metres per second.
Australian court means a federal court or a court of a State or Territory.
Australian Government officer means:
(a) a person who holds an office or appointment under a law of the Commonwealth; or
(b) an APS employee; or
(c) a person employed by a body corporate incorporated for a public purpose under a law of the Commonwealth; or
(d) a contractor engaged by the Commonwealth or by a body corporate mentioned in paragraph (c).
Australian tribunal means a tribunal of the Commonwealth, a State or a Territory.
authorised application officer: see subsection 37B(2).
authorised complaint recipient: see subsection 39(2).
change a period of service: see subsection 18(3).
committee of management of an unincorporated association or body of persons means the body (however described) that governs, manages or conducts the affairs of the association or body.
Commonwealth land means land owned or occupied by the Commonwealth, but does not include land leased from the Commonwealth unless the lease is subject to a condition that the land may be used by the Defence Force for carrying out a defence operation or practice.
competent officer: see section 52.
covered service: see paragraph 25(1)(c).
death certificate means a death certificate or a corrected death certificate issued under Part 10.
decision has the same meaning as in the Administrative Review Tribunal Act 2024.
defence area: see subsection 58(1).
defence award: see section 36.
defence honour: see section 35.
defence materiel means goods for use for defence purposes, and includes the following:
(a) goods being developed for defence purposes;
(b) goods being tested for use for defence purposes;
(c) goods being tested for the use of similar goods for defence purposes.
enlisted member means a member other than an officer.
enlisted rank means:
(a) in relation to the Navy—a rank below the rank of Midshipman; or
(b) in relation to the Army and the Air Force—a rank below the rank of Officer Cadet.
harass on the ground of sex has the same meaning as in the Sex Discrimination Act 1984.
Note: Other parts of speech and grammatical forms of “harass on the ground of sex” (for example, “harassment on the ground of sex”) have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).
initial obligation amount: see subsection 25(3).
interest, in relation to land, has the same meaning as in the Lands Acquisition Act 1989.
interests of the Defence Force: see subsection (2).
intimate image has the same meaning as in the Online Safety Act 2021.
Ministerial declaration means a declaration by the Minister under section 117AC of the Act declaring an area to be a defence aviation area.
object includes a tree, any other natural obstacle, a building, vehicle, vessel or machine.
pay includes all remuneration, allowances and other benefits under Part IIIA of the Act.
police officer means:
(a) a member or special member of the Australian Federal Police; or
(b) a member of the police force of a State or Territory.
prohibited letters: see section 75.
prohibited words: see section 74.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
respondent, in relation to an alleged contravention of Division 2 of Part 3‑5A of the Fair Work Act 2009: see section 37C of this instrument.
service chief: see subsection 7(2).
service debt calculation method: see subsection 25(4).
service obligation debt: see subsection 25(1).
service offence has the same meaning as in the Defence Force Discipline Act 1982.
sexually harass has the meaning given by section 28A of the Sex Discrimination Act 1984.
Note: Other parts of speech and grammatical forms of “sexually harass” (for example, “sexual harassment”) have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).
sexual violence has the meaning given by section 24A.
stop sexual harassment direction means a direction under section 37F.
(2) Reasons for something being or not being in the interests of the Defence Force include reasons relating to one or more of the following:
(a) a member’s performance;
(b) a member’s behaviour (including any convictions for criminal or service offences);
(c) a member’s suitability to serve:
(i) in the Defence Force; or
(ii) in a particular role or rank;
(ca) a member’s failure to meet one or more conditions of the member’s enlistment, appointment or promotion;
(d) workforce planning in the Defence Force;
(e) the effectiveness and efficiency of the Defence Force;
(f) the morale, welfare and discipline of the Defence Force;
(g) the reputation and community standing of the Defence Force.
Part 2—Service chiefs
7 Appointment as service chief
(1) The Governor‑General may, by written instrument, appoint the following:
(a) an officer of the Navy to be Chief of Navy;
(b) an officer of the Army to be Chief of Army;
(c) an officer of the Air Force to be Chief of Air Force.
(2) A person appointed under subsection (1) is a service chief.
(3) Before the Governor‑General appoints a service chief, the Minister must take into account the recommendations of the Chief of the Defence Force.
(4) A service chief holds office for the period, and on the conditions, specified in his or her instrument of appointment.
(5) A service chief ceases to hold office if he or she ceases to be an officer of the arm of the Defence Force for which he or she was appointed.
8 Acting appointments
The Chief of the Defence Force may, by written instrument, appoint an officer who is eligible for appointment to an office of service chief to act in the office:
(a) during a vacancy in the office; or
(b) during any period, or during all periods, when the service chief who holds the office:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
9 Resignation
(1) A service chief may resign his or her appointment as a service chief by giving the Governor‑General a written resignation.
(2) However, the resignation does not have effect unless and until it is accepted by the Governor‑General.
10 Termination of appointment as service chief
(1) The Governor‑General may, by notice in writing, terminate the appointment of a service chief.
(2) Before the Governor‑General terminates the appointment of a service chief, the Minister must have received a report about the proposed termination from the Chief of the Defence Force.
11 Remuneration and allowances
(1) A service chief is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the service chief is to be paid the remuneration that is prescribed by the regulations.
(2) A service chief is to be paid the allowances determined under Part IIIA of the Act.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
Part 3—Service in the Defence Force
Division 1—Appointment and enlistment
12 Appointment and enlistment
(1) The Chief of the Defence Force may:
(a) appoint a person as an officer of the Navy, the Army or the Air Force; or
(b) enlist a person in the Navy, Army or Air Force.
(2) The Governor‑General may issue a commission to an officer.
(3) Before a person is appointed or enlisted, consideration must be given to whether the person is a fit and proper person to perform duties as such an officer or enlisted member.
Conditions of appointment or enlistment
(4) An appointment or enlistment is subject to any conditions specified by the Chief of the Defence Force at the time of the appointment or enlistment.
Note: For example, an appointment or enlistment could be subject to a probationary period.
Period of appointment or enlistment
(5) An appointment or enlistment is for:
(a) the period of service specified at the time of the appointment or enlistment; or
(b) if no period is so specified—an indefinite period.
Note: A period of service may be changed under Division 4.
Oath or affirmation
(6) A person must, before being appointed or enlisted or as soon as practicable after being appointed or enlisted:
(a) take the oath set out in clause 1 of Schedule 1; or
(b) make the affirmation set out in clause 2 of Schedule 1.
(7) The oath or affirmation must be taken or made before a person mentioned in clause 3 of Schedule 1.
Division 2—Promotion and reduction in rank
13 Promotion
(1) The Chief of the Defence Force may:
(a) promote a member to a higher rank; or
(b) direct a member to act in a higher rank.
(2) A promotion or direction to act in a higher rank is subject to any conditions specified at the time of the promotion or direction.
Note: For example, a promotion or direction to act in a higher rank could be subject to a probationary period.
(3) Before a member is promoted to, or directed to act in, a higher rank, consideration must be given to whether the member is a fit and proper person to perform duties at the higher rank.
14 Reduction in rank
(1) The Chief of the Defence Force may reduce the rank of a member for one or more of the following reasons:
(a) retention of the member at his or her current rank is not in the interests of the Defence Force;
(b) the member cannot usefully serve at his or her current rank because of redundancy in the Defence Force;
(c) the member has failed to meet a condition of appointment or promotion to his or her current rank;
(d) the member applies for, or agrees to, the reduction.
Note: For interests of the Defence Force, see subsection 6(2).
(2) For a reduction under paragraph (1)(a) or (b), the member must be given notice and at least 21 days after the date of the notice to provide a written response.
Note: For notice to members, see section 30.
(3) However, if the member has been promoted subject to a probationary period, notice is not required during that period to return the member to the rank held immediately before the promotion.
Division 3—Transfers
15 Transfer between arms of the Defence Force
(1) The Chief of the Defence Force may transfer a member from one arm of the Defence Force to another arm of the Defence Force.
(2) The transfer is subject to any conditions specified by the Chief of the Defence Force.
16 Transfer from Permanent Forces to Reserves
(1) The Chief of the Defence Force may transfer a member from the Permanent Forces to the Reserves if the transfer is in the interests of the Defence Force.
Note: For interests of the Defence Force, see subsection 6(2).
(2) The member must be given notice of the transfer and at least 21 days after the date of the notice to provide a written response.
Note: For notice to members, see section 30.
17 Voluntary transfer from Reserves to Permanent Forces
(1) The Chief of the Defence Force may transfer a member from the Reserves to the Permanent Forces if the member applies for, or agrees to, the transfer.
(2) The transfer is subject to any conditions specified by the Chief of the Defence Force.
Division 4—Changing periods of service
18 Voluntary change
(1) The Chief of the Defence Force may change a period of service for a member if the member applies for, or agrees to, the change.
(2) The change is subject to any conditions specified by the Chief of the Defence Force.
(3) Change a period of service includes the following:
(a) extend a period of service;
(b) reduce a period of service;
(c) convert a fixed period of service to an indefinite period of service;
(d) convert an indefinite period of service to a fixed period of service.
19 Time of war or defence emergency
(1) If a member’s period of service would end during a time of war or during a defence emergency, the period of service is extended until the Chief of the Defence Force releases the member from service.
(2) The Chief of the Defence Force must release the member from service as soon as practicable after the end of the time of war or the defence emergency.
(3) This section does not prevent a period of service being changed during a time of war or during a defence emergency under another provision of this regulation.
20 Defence Force discipline
The Chief of the Defence Force may extend a member’s period of service for the purpose of ensuring that a process under the Defence Force Discipline Act 1982 relating to the member is completed before the member’s period of service ends.
Division 5—End of service or period of service
21 Becoming member of Reserves after service in Permanent Forces
(1) If the period of service of a member of the Permanent Forces ends, the member becomes a member of the Reserves.
Period of Reserve service
(2) The member’s period of service in the Reserves is:
(a) if, before the member’s service in the Permanent Forces ends, the Chief of the Defence Force specifies a period of service in the Reserves for the member—that period; or
(b) otherwise—an indefinite period.
When member does not become a member of the Reserves
(3) However, the member does not become a member of the Reserves if:
(a) the Chief of the Defence Force directs that the member is not to become a member of the Reserves; or
(b) the member’s service is ended under section 24 (early end of service) other than because of redundancy in the Defence Force; or
(c) the member’s service is ended (however that ending is described) under the Act or the Defence Force Discipline Act 1982.
22 End of service in the Reserves—5 year rule
(1) An indefinite period of service in the Reserves ends if, during a continuous period of 5 years, the member has not been required to render service as a member of the Reserves.
(2) However, before service ends under subsection (1), the Chief of the Defence Force may direct that the service:
(a) continues indefinitely; or
(b) ends at another time.
23 Retirement age
(1) A member’s service (whether in the Permanent Forces or the Reserves) ends when the member reaches his or her retirement age.
(2) Subsection (1) has effect subject to:
(a) section 19 (time of war or defence emergency); and
(b) any written direction by the Chief of the Defence Force allowing the member to serve beyond the member’s retirement age.
(3) There is no retirement age for an Admiral of the Fleet, a Field Marshal or a Marshal of the Royal Australian Air Force.
(4) Retirement ages for other members are as follows:
(a) for a member of the Permanent Forces who holds the rank of Admiral, General or Air Chief Marshal—63 years of age;
(b) for any other member of the Permanent Forces—60 years of age;
(c) for a member of the Reserves—65 years of age.
24 Early end of service
(1) The Chief of the Defence Force may end the service of a member for one or more of the following reasons:
(a) the member is medically unfit for service in the Defence Force;
(b) the member cannot usefully serve because of redundancy in the Defence Force;
(c) retention of the member’s service is not in the interests of the Defence Force;
(d) the member has engaged in sexual violence.
Note: For interests of the Defence Force, see subsection 6(2). For sexual violence, see section 24A.
Notice requirements
(2) The Chief of the Defence Force must not end the service of a member under subsection (1) unless the member is given:
(a) notice of the ending of the member’s service; and
(b) at least 21 days after the date of the notice to provide a written response.
(2A) Without limiting subsection (2), if the Chief of the Defence Force is satisfied that a member has engaged in sexual violence, the Chief of the Defence Force must:
(a) give the member:
(i) notice of the ending of the member’s service; and
(ii) at least 21 days after the date of the notice to provide a written response; and
(b) ensure that the notice sets out the reason mentioned in paragraph 24(1)(d) as a reason for the proposed ending of the member’s service (whether or not the notice sets out any other reason).
Note 1: For circumstances in which the Chief of the Defence Force may be satisfied that a member has engaged in sexual violence, see subsection 24A(5).
Note 2: For notice to members, see section 30.
(3) However, subsections (2) and (2A) do not apply if:
(a) the member’s appointment or enlistment is subject to a probationary period and that period has not ended; or
(b) the member:
(i) has failed to meet a condition of the member’s appointment or enlistment; or
(ii) has been sentenced to imprisonment for an offence (whether or not the sentence has been suspended); or
(iii) has been absent without leave for a continuous period of 3 months or more; or
(c) the member has pleaded guilty to, or been convicted of, an offence and the Chief of the Defence Force is satisfied that it is not in the interests of the Defence Force for notice to be given to the member under subsection (2) or (2A).
Note: This subsection does not exclude or limit the operation of the common law relating to procedural fairness.
(3A) To avoid doubt, even if notice is given to a member in accordance with subsection (2) or (2A), the Chief of the Defence Force retains a discretion about whether to end the service of the member under subsection (1).
When service can be ended because of redundancy
(4) If subsection (2) applies, the Chief of the Defence Force must not end the service of the member on the grounds of redundancy (other than during a probationary period) earlier than 5 weeks after the date of the notice, unless the member agrees to an earlier ending of the member’s service.
24A Sexual violence
What is sexual violence?
(1) A person engages in sexual violence if:
(a) the person engages in sexual activity that involves one or more other persons; and
(b) any of the following apply:
(i) the consent of one or more of those other persons is not freely given or obtained;
(ii) the consent of one or more of those other persons is withdrawn during the sexual activity;
(iii) one or more of those other persons is unable to give consent, whether because of the other person’s age or for any other reason.
(2) A person also engages in sexual violence if the person engages, attempts to engage, or threatens to engage, in any of the following conduct:
(a) sexual assault;
(b) sexual abuse;
(c) abuse that involves making or sharing an intimate image;
(d) sexual harassment or harassment on the ground of sex.
Note: For intimate image, sexually harass and harass on the ground of sex, see subsection 6(1).
(3) A person also engages in sexual violence if the person engages in conduct (the relevant conduct) that is the same as, or substantially similar to, conduct that constitutes an offence against Part 3, 3A, 4 or 5 of the Crimes Act 1900 (ACT) (as in force immediately before the commencement of this section), whether or not the person has been found guilty of, or been convicted of, an offence in relation to the relevant conduct by an Australian court.
(4) Subsections (1), (2) and (3) do not limit each other.
Being satisfied that a member has engaged in sexual violence
(5) Without limiting when the Chief of the Defence Force may be satisfied that a member has engaged in sexual violence for the purposes of section 24, the Chief of the Defence Force may be satisfied of that matter for those purposes if:
(a) both of the following apply:
(i) the Chief of the Defence Force is satisfied that an Australian court or an Australian tribunal has made a finding that the member engaged in certain conduct;
(ii) the Chief of the Defence Force is satisfied that engaging in the conduct constitutes engaging in sexual violence; or
(b) all of the following apply:
(i) the Chief of the Defence Force is satisfied that a person or body (other than an Australian court or an Australian tribunal), following the conclusion of a process that accorded procedural fairness to the member, has made a finding that the member engaged in certain conduct;
(ii) the Chief of the Defence Force is, on the basis of that finding and any other relevant information available to the Chief of the Defence Force, satisfied that the member engaged in the conduct;
(iii) the Chief of the Defence Force is satisfied that engaging in the conduct constitutes engaging in sexual violence.
25 Service obligation debts
(1) A member owes a debt (the service obligation debt) to the Commonwealth if:
(a) the Chief of the Defence Force changes a period of service for the member; and
(b) the member applied for the change; and
(c) the change means that the member will not complete a period of service (the covered service) that is:
(i) an initial minimum period of service; or
(ii) a period of service required under a return of service obligation.
(2) The amount of the service obligation debt is the amount worked out using:
(a) the initial obligation amount for the covered service; and
(b) the service debt calculation method for the covered service.
(3) The initial obligation amount for the covered service is the amount:
(a) determined by the Chief of the Defence Force for the covered service; and
(b) notified to the member:
(i) before the member began the initial minimum period of service; or
(ii) before the training or other activities or events that gave rise to the return of service obligation.
(4) The service debt calculation method for the covered service is the method for reducing the initial obligation amount for the covered service according to the portion of the covered service that has been completed that was:
(a) determined by the Chief of the Defence Force for the covered service; and
(b) notified to the member:
(i) before the member began the initial minimum period of service; or
(ii) before the training or other activities or events that gave rise to the return of service obligation.
Covered service begun before commencement
(5) However, if the period of covered service began before the commencement of this section, the amount of the service obligation debt is the amount determined by the Chief of the Defence Force as if:
(a) the Defence (Personnel) Regulations 2002, as in force immediately before the commencement of this section, continued in effect; and
(b) references in regulations 88 to 98 of those Regulations to the Chief of the member’s service were references to the Chief of the Defence Force; and
(c) the service obligation debt were an amount covered by a condition that the member pay a specified amount of money.
Waiver of service obligation debts
(6) The Chief of the Defence Force may waive all or part of a service obligation debt.
26 Treating service as having ended for a different reason
(1) This section applies if:
(a) the service of a member of the Defence Force has ended, or been ended, for a particular reason; and
(b) the Chief of the Defence Force is satisfied that the member’s service could properly have ended, or been ended, for another reason.
(2) The Chief of the Defence Force may ensure that the member’s service is treated as having ended, or been ended, for the other reason:
(a) at the request or with the agreement of the member; or
(b) at the request or with the agreement of the member’s family.
Division 6—Service in the Reserves
27 Service in the Reserves
A member of the Reserves is bound to render service (including periods of training) as required by the Chief of the Defence Force.
Division 7—Suspension from duty
28 Suspension from duty
(1) The Chief of the Defence Force may suspend a member from duty if:
(a) the member:
(i) has been given notice, in accordance with subsection 24(2) or (2A), of a proposed ending of the member’s service; and
(ii) has not been informed that the proposed ending of the member’s service will not proceed; or
(b) the member:
(i) has been given notice under section 100 of the Act of the return of a positive test result for a prohibited substance test; and
(ii) has not been informed that the member’s service will not be ended because of the result; or
(c) the Chief of the Defence Force has decided to end the member’s service under subsection 24(1), but the decision has not yet taken effect.
(2) The suspension may be:
(a) with pay, without pay or on part pay; and
(b) ended or varied at any time by the Chief of the Defence Force.
(3) The suspension ends if the member is informed:
(a) for a suspension under paragraph (1)(a) or (c)—that the proposed ending of the member’s service, or the decision to end the member’s service, will not proceed or take effect; or
(b) for a suspension under paragraph (1)(b)—that the member’s service will not be ended because of the positive test result.
(4) For suspension without pay or on part pay, the member must be given notice and at least 7 days after the date of the notice to provide a written response.
Note: For notice to members, see section 30.
(5) The Chief of the Defence Force may retrospectively vary a suspension:
(a) if the suspension was without pay—by changing it to suspension with pay or on part pay; or
(b) if the suspension was on part pay—by increasing the amount of part pay or changing it to suspension with pay.
Division 8—Forfeiture of pay—absent without leave
29 Forfeiture of pay—absent without leave
(1) If a member is absent from duty without leave, the member’s pay is forfeited to the Commonwealth.
(2) To avoid doubt, subsection (1):
(a) applies whether or not the member has been charged with or convicted of a service offence in relation to the absence; and
(b) may apply to a member who is in civil custody.
(3) The Chief of the Defence Force may determine that some or all pay otherwise forfeited under this section is not forfeited.
Division 9—Notice to members
30 Notice to members
Scope of this section
(1A) This section applies if this Part:
(a) requires notice of an action to be given to a member; or
(b) prohibits an action being taken unless notice is given to a member.
Content of notice
(1) The notice must:
(a) state that the action is proposed; and
(b) set out the reason for the proposal; and
(c) invite the member to provide a written response as to why the proposed action should not be taken; and
(ca) invite the member to provide, as part of the written response, evidence of any current or past mental health condition of the member that may be relevant to a decision about whether to take the action; and
(d) set out the facts and circumstances necessary for the member to prepare the written response; and
(e) specify the period for providing the written response.
Note: For the purposes of paragraph (ca): a current or past mental health condition of the member may be relevant to a decision about whether to take the action because, for example, the condition has affected the member’s past behaviour, or because the condition is relevant to how taking the action would affect the member.
When action can occur
(2) The action must not take place before one of the following occurs:
(a) the member provides the written response;
(b) the member states in writing that he or she does not intend to provide the written response;
(c) the period for providing the written response ends.
Part 4—Honorary ranks
31 Honorary officer ranks
(1) The Governor‑General or the Chief of the Defence Force may appoint an officer or another person to an officers’ rank that is to be held as an honorary rank.
(2) An honorary rank does not confer or imply a right to command, other than any right to command which the Chief of the Defence Force confers on the officer or person.
(3) The Governor‑General or the Chief of the Defence Force may at any time revoke an appointment to an officers’ rank made under this section.
32 Honorary enlisted ranks
(1) The Chief of the Defence Force may appoint an enlisted member or another person to an enlisted rank that is to be held as an honorary rank.
(2) An honorary rank does not confer or imply a right to command, other than any right to command which the Chief of the Defence Force confers on the enlisted member or person.
(3) The Chief of the Defence Force may at any time revoke an appointment to an enlisted rank made under this section.
Part 5—Privileges after end of service
33 Title after end of service
(1) If a member’s service in the Defence Force has ended, the Chief of the Defence Force may grant to the former member an honorary title relating to the member’s former appointment.
(2) An honorary title does not confer or imply:
(a) a right to command; or
(b) a position in, or membership of, the Defence Force.
(3) The Chief of the Defence Force may at any time revoke the grant of an honorary title to a former member.
34 Wearing of uniform after end of service
(1) If a member’s service in the Defence Force has ended, the Chief of the Defence Force may:
(a) permit the former member to wear a uniform relating to the former member’s service; and
(b) specify conditions to which the permission is subject.
(2) The Chief of the Defence Force may at any time revoke permission for a former member to wear a particular uniform.
Part 6—Defence honours and awards
35 Defence honours
For section 110T of the Act, each item in the following table specifies a defence honour.
37 Disclosure of information about honours and awards
(1) A person commits an offence if:
(a) the person discloses information; and
(b) the information is obtained by the person as a member of the Defence Honours and Awards Appeals Tribunal, or as a person assisting the Tribunal; and
(c) the information is part of or relates to an application for review of a reviewable decision (within the meaning of section 110V of the Act).
Penalty: 10 penalty units.
(2) Subsection (1) does not apply if:
(a) the disclosure is in the performance of the person’s duties as a member of the Tribunal, or as a person assisting the Tribunal; or
(b) the disclosure of the information is permitted or required by the Act or by procedural rules made under section 110XH of the Act; or
(c) the disclosure of the information is the subject of an order under section 110XD of the Act; or
(d) the disclosure of the information is only by or to the person to whom the information relates; or
(e) the disclosure of the information is authorised by the person to whom the information relates.
Part 6A—Stop sexual harassment directions
37A Object of this Part
The object of this Part is to provide a process for directions to stop sexual harassment against certain members and other people.
37B Authorised application officers
(1) The Chief of the Defence Force or the Secretary may, by written instrument, authorise one or more of the following to receive and deal with applications made under section 37C:
(a) an officer of the Navy who holds a rank not below the rank of Commander;
(b) an officer of the Army who holds a rank not below the rank of Lieutenant‑Colonel;
(c) an officer of the Air Force who holds a rank not below the rank of Wing Commander;
(d) an APS employee in the Department who is:
(i) classified as Executive Level 1 or higher; or
(ii) acting in a position usually occupied by an APS employee who is so classified.
(2) A person so authorised is an authorised application officer.
37C Application for authorised application officer to deal with a sexual harassment dispute
(1) In this section:
eligible defence member means a defence member within the meaning of the Defence Force Discipline Act 1982.
(2) If:
(a) an eligible defence member (the aggrieved person) alleges they have been sexually harassed in contravention of Division 2 of Part 3‑5A of the Fair Work Act 2009 by one or more other persons (a respondent); and
(b) the aggrieved person was an eligible defence member at the time the sexual harassment allegedly occurred; and
(c) each of the respondents is an eligible defence member, and was an eligible defence member at the time the sexual harassment allegedly occurred;
the aggrieved person may apply to an authorised application officer for a stop sexual harassment direction to be made.
(3) If:
(a) an eligible defence member (the aggrieved person) alleges they have been sexually harassed in contravention of Division 2 of Part 3‑5A of the Fair Work Act 2009 by one or more other persons (a respondent); and
(b) the aggrieved person was an eligible defence member at the time the sexual harassment allegedly occurred; and
(c) the sexual harassment is alleged to have occurred at a Defence workplace;
the aggrieved person may apply to an authorised application officer for a stop sexual harassment direction to be made.
(4) If:
(a) a person (the aggrieved person) alleges they have been sexually harassed in contravention of Division 2 of Part 3‑5A of the Fair Work Act 2009 by one or more other persons (a respondent); and
(b) the Fair Work Commission would be prevented, by a declaration under section 527N of the Fair Work Act 2009, from making an order under section 527J of that Act in relation to the alleged harassment; and
(c) the activity to which the declaration applies is a naval, military or air force operation or practice (whether warlike or not warlike);
the aggrieved person may apply to an authorised application officer for a stop sexual harassment direction to be made.
37D Dealing with an application
(1) This section applies if a person (the applicant) makes an application under section 37C to an authorised application officer.
(2) The authorised application officer must either:
(a) deal with the application by:
(i) considering the application; and
(ii) deciding whether to issue a stop sexual harassment direction; or
(b) refer the application to another authorised application officer to deal with under paragraph (a).
Note: An authorised application officer may make an interim direction while the application is being considered (see section 37E).
(3) However, an authorised application officer may decide not to deal with or refer the application under subsection (2) if the authorised application officer considers that:
(a) doing so would be, or could reasonably be expected to be, prejudicial to:
(i) Australia’s defence; or
(ii) Australia’s national security; or
(b) a declaration under section 527P (declarations by the Director‑General of Security) or 527Q (declarations by the Director‑General of ASIS) of the Fair Work Act 2009 would prevent the Fair Work Commission making an order under section 527J of that Act in respect of the allegation of sexual harassment made in the application.
Time limits for dealing with and making a decision on an application
(4) Subject to subsection (3), the authorised application officer to whom an application is made, or an authorised application officer to whom an application is referred under paragraph (2)(b), must start dealing with the application within 14 days of the making of the application.
(5) The authorised application officer who deals with the application must make a decision under subparagraph (2)(a)(ii) within 60 days of the making of the application.
(6) If the authorised application officer does not make the decision within the period mentioned in subsection (5), the authorised application officer is taken to have made, at the end of that period, a decision not to issue a stop sexual harassment direction in relation to the application.
Notice of decision not to issue a stop sexual harassment direction
(7) If an authorised application officer decides under subparagraph (2)(a)(ii) not to issue a stop sexual harassment direction in relation to the application, or decides under subsection (3) not to deal with or refer the application, the authorised application officer:
(a) must give written notice of the decision to the applicant; and
(b) may give written notice of the decision to any other person who is responsible for dealing with the allegation of sexual harassment made in the application.
37E Interim directions
(1) This section applies if:
(a) a person (the applicant) makes an application under section 37C; and
(b) an authorised application officer is considering the application.
(2) An authorised application officer may issue one or more interim directions under this section if the authorised application officer is satisfied that:
(a) there is a plausible allegation that the applicant has been sexually harassed in contravention of Division 2 of Part 3‑5A of the Fair Work Act 2009; and
(b) the applicant has a reasonable apprehension that the applicant will continue to be subject to sexual harassment in contravention of that Division.
(3) An interim direction:
(a) must be in writing; and
(b) may apply to one or more people (who may be respondents or other people); and
(c) must set out the actions that the person, or each of the people, to whom it applies is required to do, or not to do, in order to comply with the interim direction.
(4) A copy of an interim direction:
(a) must be given to the applicant; and
(b) must be given to the person, or each person, to whom it applies; and
(c) may be given to the commanding officer or supervisor of the person, or each person, to whom it applies; and
(d) may be given to any other person who is responsible for dealing with the allegation of sexual harassment made in the application.
(5) The requirements set out in an interim direction under paragraph (3)(c) must be:
(a) reasonable; and
(b) necessary or desirable for the purpose of protecting the applicant from the risk of sexual harassment while the application is being considered.
(6) An interim direction continues in force until:
(a) an authorised application officer issues a stop sexual harassment direction in response to the application; or
(b) an authorised application officer decides not to issue a stop sexual harassment direction in response to the application; or
(c) the applicant withdraws the application; or
(d) the interim direction is revoked.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
37F Stop sexual harassment directions
(1) An authorised application officer may issue one or more stop sexual harassment directions if:
(a) a person (the applicant) makes an application under section 37C; and
(b) the authorised application officer is satisfied that:
(i) the applicant has been sexually harassed in contravention of Division 2 of Part 3‑5A of the Fair Work Act 2009 by one or more people; and
(ii) there is a risk that the applicant will continue to be sexually harassed in contravention of that Division by the person or people.
(2) A stop sexual harassment direction:
(a) must be in writing; and
(b) may apply to one or more people (who may be respondents or other people); and
(c) must set out the actions that the person, or each of the people, to whom it applies is required to do, or not to do, in order to comply with the direction; and
(d) may include recommendations to one or more people; and
(e) may specify a day on which the direction ceases to have effect, unless earlier revoked.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(3) A copy of a stop sexual harassment direction:
(a) must be given to the applicant; and
(b) must be given to the person, or each person, to whom the direction applies; and
(c) may be given to the commanding officer or supervisor of the person, or each person, to whom the direction applies; and
(d) may be given to any person who is responsible for dealing with the allegation of sexual harassment made in the application; and
(e) if the direction includes recommendations to one or more people under paragraph (2)(d)—must be given to that person, or to each such person.
(4) Without limiting the requirements that may be set out in a stop sexual harassment direction under paragraph (2)(c), a stop sexual harassment direction may require any of the following:
(a) a respondent to cease engaging in specified behaviour;
(b) regular monitoring of behaviour;
(c) the provision of information, support and training to workers;
(d) a safety risk assessment of a workplace;
(e) a review of workplace policies or culture.
(5) Without limiting the recommendations that may be included in a stop sexual harassment direction under paragraph (2)(d), a stop sexual harassment direction may recommend management, administrative or disciplinary action.
(6) If a stop sexual harassment direction specifies a day on which the direction ceases to have effect, the direction ceases to have effect on that day.
37G Review by Chief of the Defence Force or Secretary
(1) This section applies if:
(a) a person (the applicant) makes an application under section 37C; and
(b) an authorised application officer makes any of the following decisions (a reviewable decision):
(i) a decision not to issue a stop sexual harassment direction in relation to the application;
(ii) a decision to issue a stop sexual harassment direction in relation to the application, if the applicant is dissatisfied with the direction;
(iii) a decision not to deal with the application, or not to refer the application to another authorised application officer, under subsection 37D(3).
(2) The applicant may, within 21 days after the reviewable decision was made, ask either the Chief of the Defence Force or the Secretary (the reviewer) to review the reviewable decision.
(3) A request under subsection (2) must be in writing.
(4) If the applicant makes a request under subsection (2), the reviewer:
(a) must start dealing with the request within 14 days of the applicant making the request; and
(b) must reconsider the reviewable decision; and
(c) may, while reconsidering the reviewable decision, exercise any powers of an authorised application officer under section 37E (interim directions); and
(d) must make a decision on the review within 60 days of the applicant making the request; and
(e) must affirm, vary or set aside the reviewable decision; and
(f) if the reviewable decision is set aside—may make such other decision as the reviewer thinks appropriate; and
(g) may exercise any of the powers of an authorised application officer under this Part for the purposes of giving effect to the reviewer’s decision on the review.
(5) If the reviewer does not make a decision on the review within the period mentioned in paragraph (4)(d), the reviewer is taken to have made, at the end of that period, a decision to affirm the reviewable decision.
37H Withdrawing application or request
(1) A person who has made an application under section 37C may withdraw the application at any time by giving written notice to an authorised application officer.
(2) A person who has made a request under subsection 37G(2) may withdraw the request at any time by giving written notice to the person to whom the request was made.
Part 7—Redress of grievances
38 Objects of this Part
The objects of this Part include:
(a) providing a process for a member to seek redress of a grievance the member has about a decision, act or omission that relates to the member’s service in the Defence Force; and
(b) ensuring (as far as is practicable) that the correct and preferable action is taken to redress the member’s grievance.
39 Chief of the Defence Force may authorise person to receive complaints
(1) The Chief of the Defence Force may, by written instrument, authorise one or more of the following to receive complaints made under this Part:
(a) an officer;
(b) an APS employee who holds, or performs the duties of, a position not below APS 6 in the Department.
(2) A person so authorised is an authorised complaint recipient.
40 Making a complaint
(1) A member may make a complaint under this Part if the member considers:
(a) that a decision, act or omission in relation to the member’s service is adverse or detrimental to him or her; and
(b) that the adverse or detrimental effect of the decision, act or omission is capable of being redressed by:
(i) the Chief of the Defence Force, or another member of the Defence Force; or
(ii) the Secretary or an employee of the Department; or
(iii) a delegate of, or a person authorised by, the Chief of the Defence Force or Secretary.
(2) However, a member must not make a complaint under this Part in relation to any of the following:
(a) a decision or act under this Part, or an omission to make a decision or do an act under this Part;
(b) a decision, act or omission of the Inspector‑General ADF;
(c) a decision, report, finding or recommendation of an inquiry under the Defence (Inquiry) Regulations 2018;
(d) a decision to give, or not to give, a particular assessment, grade or rating as the result of a performance appraisal;
(e) a decision, judgment or order made by a civil or criminal court, a service tribunal or the Defence Force Discipline Appeal Tribunal;
(f) a liability arising under section 68 or 69 of the Public Governance, Performance and Accountability Act 2013;
(g) an act that is part of the administrative process for making a decision, other than as part of a complaint about the decision.
41 Manner of making complaint
(1) A complaint by a member under this Part must:
(a) be made in a form approved by the Chief of the Defence Force; and
(b) include information about the decision, act or omission concerned; and
(c) specify the redress sought; and
(d) be given to the member’s commanding officer or to an authorised complaint recipient.
(2) If the complaint relates to a decision to end the member’s service, it must be made:
(a) within 21 days after the member was notified of the decision; or
(b) if the Inspector‑General ADF is satisfied that exceptional circumstances exist—within the time allowed by the Inspector‑General ADF.
(3) If the complaint does not relate to a decision to end the member’s service, it must be made:
(a) within 6 months after the member:
(i) was notified of the decision, act or omission concerned; or
(ii) could reasonably be expected to have known about the decision, act or omission; or
(b) if the Inspector‑General ADF is satisfied that exceptional circumstances exist—within the time allowed by the Inspector‑General ADF.
42 Action to consider complaint or redress grievance
A commanding officer or authorised complaint recipient who is given a complaint under this Part may do one or more of the following:
(a) consider the complaint;
(b) take action to redress the member’s grievance;
(c) refer the complaint to another person for consideration;
(d) refer the complaint to another person who is capable of redressing the member’s grievance;
(e) refer the complaint to be dealt with under another complaint handling procedure.
43 Notifying Inspector‑General ADF of complaint
(1) A commanding officer or an authorised complaint recipient who is given a complaint under this Part by a member must, within 14 days after receiving the complaint:
(a) notify the Inspector‑General ADF of the complaint; and
(b) notify the member, in writing, that the Inspector‑General ADF has been notified of the complaint.
(2) The commanding officer or authorised complaint recipient may also give the Inspector‑General ADF any other information or material that the commanding officer or authorised complaint recipient considers relevant.
(3) If the member is not notified in accordance with paragraph (1)(b), the member may give the complaint to the Inspector‑General ADF.
44 Inspector‑General ADF to consider complaint
(1) If a complaint is made by a member under this Part, the Inspector‑General ADF must consider the complaint.
(2) Subsection (1) has effect subject to section 46 of this instrument and subsection 110DB(1) of the Act.
Note: Subsection 110DB(1) of the Act provides that the Inspector‑General ADF may end an inquiry or investigation if he or she is satisfied that it is not warranted having regard to all the circumstances.
(3) In considering the complaint, the Inspector‑General ADF may adopt any procedure that he or she considers appropriate in the circumstances.
45 Action by Inspector‑General ADF
(1) After considering the complaint, the Inspector‑General ADF:
(a) must inform either the member’s commanding officer or a more senior officer in the member’s chain of command of the findings made by the Inspector‑General ADF in relation to the complaint; and
(b) may inform any of the following of the findings made by the Inspector‑General ADF in relation to the complaint:
(i) the Minister;
(ii) the Chief of the Defence Force;
(iii) a service chief;
(iv) the Secretary;
(v) a member of the Defence Force;
(vi) an employee of the Department;
(vii) any other person the Inspector‑General ADF considers is affected by a finding.
(2) The Inspector‑General ADF may give a report about the complaint, including the findings and any recommendations by the Inspector‑General ADF, to:
(a) any person mentioned in subsection (1); or
(b) if the report includes recommendations that the Inspector‑General considers would affect another person—to the other person.
(3) Recommendations made by the Inspector‑General ADF may include, but are not limited to, action that the Inspector‑General ADF considers should be taken to redress the adverse or detrimental effect of the decision, act or omission concerned.
(4) The Inspector‑General ADF must inform the member of the following:
(a) the findings made by the Inspector‑General in relation to the complaint;
(b) who has been informed of the findings;
(c) whether other persons have been given a report about the complaint, and if so who has been given the report.
46 Inspector‑General ADF may decide not to consider complaint
(1) The Inspector‑General ADF may decide not to consider the complaint, or to stop considering the complaint, if in the Inspector‑General ADF’s opinion:
(a) the commanding officer or authorised complaint recipient who received the complaint has satisfactorily resolved the complaint, or will be able to satisfactorily resolve the complaint; or
(b) the member’s grievance has already been considered under this Part or another complaint handling procedure; or
(c) it would be more appropriate for the member’s grievance to be dealt with under another complaint handling procedure; or
(d) the member did not make reasonable efforts to resolve the member’s grievance before submitting the complaint under this Part; or
(e) the complaint does not include sufficient information about a decision, act or omission to enable the complaint to be considered; or
(f) the complaint is frivolous or vexatious; or
(g) consideration of the complaint is not warranted having regard to all the circumstances.
(2) If the Inspector‑General ADF decides not to consider the complaint, the Inspector‑General ADF must notify the member, in writing, of:
(a) the decision; and
(b) the reasons for the decision.
46A Correct and preferable action to redress member’s grievance
(1) This section applies if a commanding officer or an authorised complaint recipient is deciding what action (if any) to take under section 42 in relation to a complaint made by a member under this Part.
(2) This section also applies if the Inspector‑General ADF is:
(a) deciding whether to consider, or to continue considering, a complaint made by a member under this Part; or
(b) considering such a complaint; or
(c) deciding what action to take after considering such a complaint.
(3) The commanding officer or authorised complaint recipient, and the Inspector‑General ADF, must have regard to the object of this Part mentioned in paragraph 38(b) (which is to ensure, as far as is practicable, that the correct and preferable action is taken to redress members’ grievances).
47 Withdrawing complaint
(1) A member may withdraw a complaint made under this Part at any time by giving written notice to:
(a) if the Inspector‑General ADF has been notified of the complaint—the Inspector‑General ADF; and
(b) otherwise—the commanding officer or authorised complaint recipient to whom the complaint was given.
(2) If a complaint is withdrawn, and the Inspector‑General ADF has not been notified of the complaint, the commanding officer or authorised complaint recipient (as appropriate):
(a) is not required to notify the Inspector‑General ADF of the complaint; and
(b) must inform the Inspector‑General ADF that the complaint was made and then withdrawn.
48 Victimisation
Causing detriment to another person
(1) A member, or an employee of the Department, commits an offence if:
(a) the member or employee engages in conduct that causes detriment to another person; and
(b) the member or employee intends to cause the detriment because the other person:
(i) has made, or proposes to make, a complaint under this Part; or
(ii) has redressed, or proposes to redress, a member’s grievance about a decision, act or omission that relates to the member’s service in the Defence Force; or
(iii) has taken, or proposes to take, any other action under this Part.
Penalty: 10 penalty units.
Threatening to cause detriment to another person
(2) A member, or an employee of the Department, commits an offence if:
(a) the member or employee makes a threat to another person (the second person) to cause detriment to the second person or to a third person; and
(b) the member or employee:
(i) intends the second person to fear that the threat will be carried out; or
(ii) is reckless as to causing the second person to fear that the threat will be carried out; and
(c) the member or employee makes the threat because a person:
(i) has made, or proposes to make, a complaint under this Part; or
(ii) has redressed, or proposes to redress, a member’s grievance about a decision, act or omission that relates to the member’s service in the Defence Force; or
(iii) has taken, or proposes to take, any other action in relation to this Part.
Penalty: 10 penalty units.
(3) For the purposes of subsection (2), a threat may be:
(a) express or implied; or
(b) conditional or unconditional.
(4) In a prosecution for an offence against subsection (2), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.
Part 8—Medical and dental treatment
49 Provision of medical and dental treatment
(1) The Commonwealth must arrange provision to a member of the Defence Force rendering continuous full time service of medical and dental treatment necessary to keep the member fit for the performance of the member’s duties.
(2) The provision of treatment under subsection (1) is not required to comply with a law of a State or Territory if it complies with a Defence Instruction.
(3) The Commonwealth must arrange for the supply of pharmaceuticals required for the provision of treatment under subsection (1), including arranging associated activities such as transport, storage and possession of the pharmaceuticals.
(4) The supply of pharmaceuticals (and associated activities) under subsection (3) is not required to comply with a law of a State or Territory if it complies with a Defence Instruction.
50 Recovery of the costs of treatment in certain circumstances
(1) If:
(a) the Commonwealth provides medical or dental treatment to a member under section 49 in relation to an illness or injury; and
(b) the Secretary is satisfied that the member may have an enforceable claim for damages against a person for the illness or injury;
the Secretary may, in writing, require the member to pay an amount to the Commonwealth for the treatment.
(2) The amount must not exceed the expense incurred by the Commonwealth.
(3) The amount is a debt due to the Commonwealth.
(4) Without limiting the means by which the debt may be recovered, the Commonwealth may deduct the amount from the member’s salary and allowances.
(5) Subsection (1):
(a) applies regardless of when the illness or injury occurred or when the enforceable claim for damages may have arisen; and
(b) continues to apply to a person who ceases to be a member at any time after receiving the treatment.
Part 9—Oaths and affirmations etc. for members serving overseas
51 Oaths and affirmations etc. for members outside Australia
(1) A competent officer may do the following for a member of the Defence Force who is serving outside Australia:
(a) administer an oath or affirmation;
(b) take an affidavit;
(c) witness the signing of a document.
(2) Any writing by the competent officer evidencing the oath, affirmation, affidavit or witnessing must include the signature, name and rank of the competent officer.
(3) However, the competent officer is not required to state the place where the oath or affirmation is administered, the affidavit is sworn or the document is witnessed.
(4) The oath, affirmation, affidavit or witnessing has effect:
(a) if it is substantially in accordance with a form provided by the Commonwealth, a State or a Territory; and
(b) for the purposes of any law of the Commonwealth, a State or a Territory.
(5) For the purposes of this Part, a reference to a member of the Defence Force includes a reference to:
(a) a person who accompanies a part of the Defence Force; or
(b) a member of the Defence Force who is a prisoner of war, interned or in custody in a place outside Australia.
52 Meaning of competent officer
Each of the following is a competent officer:
(a) an officer;
(b) a member of the naval, military or air force of Canada, New Zealand, the United Kingdom or the United States of America who holds a rank equivalent to an officer;
(c) in relation to a member of the Defence Force who is a prisoner of war, interned or in custody in a place outside Australia—the person who is the official representative of prisoners of war or other persons detained or interned in that place.
Part 10—Certification of deaths
53 Minister may issue death certificates
(1) The Minister may issue a death certificate for a member of the Defence Force if the Minister is satisfied that, while on service, the member:
(a) has died; or
(b) has become missing and is presumed to have died.
(2) The certificate must state:
(a) the date on which the member died or is presumed to have died; or
(b) a date before or after which the member died or is presumed to have died.
(3) The death certificate is evidence in all courts and for all purposes of the death, and time of death, of the member.
(4) For the purposes of this Part, a reference to a member of the Defence Force includes a reference to:
(a) a person who accompanies a part of the Defence Force; or
(b) a member of the Defence Force who is a prisoner of war, interned or in custody in a place outside Australia.
54 Cancellation and correction of death certificates
(1) If the Minister is satisfied that a death certificate (the original certificate) is incorrect, the Minister must:
(a) require the return of the original certificate; and
(b) either:
(i) cancel the original certificate; or
(ii) issue a corrected death certificate.
(2) Subsection (1) applies whether the original certificate is incorrect in respect of:
(a) a particular set out in the certificate; or
(b) the death of the member.
(3) If the original certificate is not returned, cancelling the original certificate or issuing a corrected death certificate does not affect the rights of a person acting in good faith in reliance on the original certificate.
Offences
(4) A person commits an offence if:
(a) the person has possession or control of a death certificate; and
(b) the Minister requires the person to return the death certificate; and
(c) the person fails to comply with the requirement as soon as practicable.
Penalty: 10 penalty units.
(5) A person commits an offence if:
(a) the person has possession or control of a death certificate; and
(b) either:
(i) the Minister requires the person to return the death certificate; or
(ii) the person knows that the Minister will require the person to return the death certificate; and
(c) the person makes use of, or purports to act in reliance on, the death certificate.
Penalty: 10 penalty units.
55 Dealing with property
(1) This section applies if a death certificate for a member is in effect.
(2) Leave of a court is not required for the distribution or administration of the member’s estate if:
(a) probate of the member’s will has been granted or is proposed to be granted; or
(b) administration of the member’s estate has been granted or is proposed to be granted.
(3) No bond, surety or other security must be required in relation to money or other property forming part of the member’s estate that would not have been required if the member’s death had been proved conclusively.
56 No civil or criminal liability for reliance on certificate or cancellation
A person is not subject to any civil or criminal liability only because the person has paid money or transferred property in good faith in reliance on a certificate or cancellation under this Part.
Part 11—Defence areas
Division 1—Application of Part
57 Application
(1) This Part does not apply to a person if, immediately before the repeal of the Defence Force Regulations 1952, Part VII of those regulations applied to the person.
Note: For the application of Part VII of the Defence Force Regulations 1952, see subsection 72TB(1) of the Act.
(2) Despite the repeal of the Defence Force Regulations 1952, Part VII of those regulations continues to apply in accordance with subsection 72TB(1) of the Act.
Division 2—Defence areas
58 Declaration of defence area
(1) The Minister may, by legislative instrument, declare an area of land, sea or airspace in or adjacent to Australia to be a defence area for use for a defence purpose.
(2) The declaration must:
(a) specify the defence purpose for which the area is required; and
(b) specify whether entry into a defence area is to be:
(i) prohibited at all times; or
(ii) prohibited during particular periods as determined under subsection 59(1).
(3) The Minister must not declare an area unless:
(a) the area is Commonwealth land; or
(b) for land that is not Commonwealth land—the consent in writing of the occupier of the land has been obtained; or
(c) it is necessary or expedient, in the interests of the safety or defence of Australia, to use the area for the purpose of:
(i) testing defence materiel; or
(ii) carrying out a defence operation or practice; or
(d) the area is a depot, factory, laboratory, store or other facility used by or on behalf of the Commonwealth in relation to defence materiel.
(4) The area may be used for the defence purpose specified in the declaration.
59 Prohibition of entry into defence area
(1) If entry into a defence area is to be prohibited during particular periods, the Chief of the Defence Force or the Secretary may determine a period when entry is prohibited.
Note: For example, entry may be prohibited while a defence operation or practice takes place.
(2) The Chief of the Defence Force or the Secretary must cause such notice to be given of a prohibition of entry into the area as is reasonably required, having regard to:
(a) whether entry is prohibited at all times; and
(b) the need to protect persons and property that might be affected by activities in the defence area; and
(c) the nature of the activities to be undertaken in the area; and
(d) the equipment to be used in those activities, and the risk to persons or property that is likely to arise from that use; and
(e) the forms of communication available for notifying the public.
(3) A person commits an offence if:
(a) the person is in a defence area; and
(b) at the time the person is in the area, entry into the area is prohibited.
Penalty: 20 penalty units.
(4) Subsection (3) does not apply if the person has permission from one of the following to be in the defence area at that time:
(a) a person authorised by the Chief of the Defence Force or the Secretary to grant permission;
(b) an officer participating in an activity being undertaken in the defence area at that time.
Note: See section 62 for requirements concerning permission.
60 Requirement to remove property from defence area
(1) If entry to a defence area is not prohibited at all times, the Chief of the Defence Force or the Secretary may direct that a person is required to ensure that an item of movable property is not present in the area during a period that entry is prohibited.
(2) To avoid doubt, a direction may identify the person to whom it applies by reference to a class of persons, and the property to which it applies by reference to a class of property.
Note: For example, a direction may require owners of vehicles, vessels and aircraft to ensure these items are not present.
(3) A direction may apply to a particular period during which entry is prohibited, or to all such periods.
(4) The Chief of the Defence Force or the Secretary must cause such notice to be given of the direction as is reasonably required, having regard to:
(a) the persons to whom the requirement applies; and
(b) the kind of property to which the requirement applies; and
(c) the period during which the requirement applies; and
(d) the forms of communication available for notifying the persons affected.
(5) A person commits an offence if:
(a) a direction under this section requires the person to ensure an item of movable property is not present in a defence area during a period; and
(b) the item is present in the area during that period.
Penalty: 20 penalty units.
(6) Subsection (5) does not apply if the person has permission from one of the following for the item of property to be in the defence area during that period:
(a) a person authorised by the Chief of the Defence Force or the Secretary to grant permission;
(b) an officer participating in an activity being undertaken in the defence area during that period.
Note: See section 62 for requirements concerning permission.
61 Installation of equipment
(1) The Chief of the Defence Force may authorise the installation, placement or construction of equipment (including a structure) for defence purposes within a defence area, including on the sea‑bed or in the subsoil beneath an area.
(2) If entry to the area is not prohibited at all times, the Chief of the Defence Force must cause such notice to be given of the location of the equipment, and of activities that would be likely to interfere with the operation of the equipment, as is reasonably required having regard to:
(a) the nature of the equipment; and
(b) the risk of damage to the equipment; and
(c) the risk of other interference with the operation of the equipment; and
(d) the forms of communication available for notifying persons in reasonable proximity to the equipment.
(3) A person commits an offence if the person interferes with the operation of equipment installed, placed or constructed in a defence area as authorised under this section.
Penalty: 20 penalty units.
(4) Subsection (3) does not apply if the person has permission from one of the following to engage in conduct that might or will interfere with the operation of the equipment:
(a) a person authorised by the Chief of the Defence Force or the Secretary to grant permission;
(b) an officer participating in a kind of activity for which the equipment was installed.
Note: See section 62 for requirements concerning permission.
62 Permission requirements
(1) Permission for the purposes of section 59, 60 or 61 must be given in writing and must specify the period for which the permission is effective.
(2) Permission may be subject to conditions (including conditions in relation to the conduct of the person to whom the permission is given) that are reasonably required for:
(a) the protection of persons and property in the defence area; or
(b) the safety or defence of Australia; or
(c) the protection of official secrets.
(3) A person commits an offence if:
(a) the person is given permission for the purposes of section 59, 60 or 61; and
(b) the person engages in conduct that is in breach of a condition of the permission.
Penalty: 20 penalty units.
63 Removal from defence area
(1) A person may be removed from a defence area if the person:
(a) is in the defence area in contravention of subsection 59(3); or
(b) fails to comply with a condition of permission given to the person for the purposes of section 59 or 61.
(2) An item of movable property may be removed from a defence area if:
(a) the item is in the defence area in contravention of subsection 60(5); or
(b) a condition of permission given for the purposes of section 60 in relation to the item is not complied with.
(3) The person or item may be removed by or under the direction of:
(a) a member of the Defence Force; or
(b) a police officer; or
(c) an Australian Government officer; or
(d) a person authorised by the Minister.
(4) The power of removal is without prejudice to any proceedings that may be taken against a person.
64 Offence of obstructing or hindering
(1) A person commits an offence if:
(a) the person obstructs or hinders another person; and
(b) the other person is:
(i) a member of the Defence Force; or
(ii) a police officer; or
(iii) an Australian Government officer; or
(iv) a person authorised by the Minister for section 63; and
(c) the other person is exercising a power under section 63 to remove a person or item of movable property.
Penalty: 20 penalty units.
(2) A person commits an offence if:
(a) the person obstructs or hinders another person; and
(b) the other person is acting under a direction given under section 63.
Penalty: 20 penalty units.
65 Other defence operations and practices
Nothing in this Division affects the power of the Commonwealth to undertake defence operations and practices outside of defence areas.
66 Division binds the Crown
This Division binds the Crown in each of its capacities.
Division 3—Compensation
67 Compensation for loss or damage
(1) The Commonwealth is liable to pay a reasonable amount of compensation to a person who suffers any of the following forms of loss or damage as a result of the operation of this Part:
(a) a personal injury;
(b) damage to property;
(c) a loss of income.
(2) Without limiting how the loss or damage may be caused by the operation of this Part, subsection (1) applies if the person:
(a) is ordinarily resident in a place when it is declared a defence area under section 58, and suffers the loss or damage because of the declaration; or
(b) suffers the loss or damage because of the use of land for an activity in a defence area.
(3) If the Commonwealth and the person do not agree on the amount of compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
68 Compensation for acquisition of property
(1) If the operation of this Part would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
Part 11A—Defence aviation areas
Division 1—General
68A Application
This Part is made for the purposes of Part IXD of the Act.
68B Interpretation
For the purposes of this Part:
(a) a reference to the height of an object on land is to be read as a reference to the height of the highest point of the object above the lowest point of the natural ground level of the land covered by the object; and
(b) a reference to the height of an object at sea is to be read as a reference to the height of the highest point of the object above mean sea level; and
(c) a reference to constructing a building, structure or object includes a reference to:
(i) causing or permitting a building, structure or object to be constructed, altered or extended; or
(ii) bringing a building, structure or object into a defence aviation area; and
(d) a reference to the marking or lighting of a building, structure or object is to be read as a reference to marking or lighting the building, structure or object in such manner that the existence of the building, structure or object can be recognised by day and by night from an aircraft; and
(e) a reference to an object hazardous to aircraft or to aviation‑related communications, navigation or surveillance is to be read as a reference to an object:
(i) that is, or may become, an obstacle or hazard to aircraft; or
(ii) that interferes, or may interfere, with the control of aircraft; or
(iii) that interferes, or may interfere, with aviation‑related communications, navigation or surveillance required for the control of aircraft or for the defence of Australia.
Division 2—Requirements in relation to defence aviation areas
Subdivision A—Construction of buildings, structures and objects
68C Construction of buildings, structures and objects in defence aviation areas above specified height restrictions
(1) A person commits an offence if:
(a) the person constructs a building, structure or object within an area; and
(b) the area is a defence aviation area; and
(c) the building, structure or object exceeds the height restriction applying to the building, structure or object within the defence aviation area as specified in a Ministerial declaration for the defence aviation area; and
(d) the person does not have a valid approval under section 68F to construct the building, structure or object at a height that exceeds the height restriction applying to the building, structure or object.
Penalty: 20 penalty units.
(2) Strict liability applies to paragraphs (1)(b), (c) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
68D Construction of buildings, structures and objects in defence aviation areas that generate plumes or air turbulence above specified height restrictions
(1) A person commits an offence if:
(a) the person constructs a building, structure or object within an area; and
(b) the area is a defence aviation area; and
(c) the building, structure or object generates plumes or air turbulence, or causes plumes or air turbulence to be generated, above the height restriction applying to the building, structure or object within the defence aviation area as specified in a Ministerial declaration for the defence aviation area; and
(d) the person does not have a valid approval under section 68F to construct the building, structure or object.
Penalty: 20 penalty units.
(2) Strict liability applies to paragraphs (1)(b), (c) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
68E Applications for approval
(1) A person may apply to the Minister for approval to construct, within a defence aviation area, a building, structure or object that:
(a) exceeds the height restriction (the relevant height restriction) applying to the building, structure or object within the defence aviation area, or part of the defence aviation area, specified in a Ministerial declaration for the defence aviation area; or
(b) is likely to:
(i) generate plumes or air turbulence above the relevant height restriction; or
(ii) cause plumes or air turbulence to be generated above the relevant height restriction.
(2) An application for approval must:
(a) be in writing and signed by, or on behalf of, the applicant; and
(b) be given to the Minister; and
(c) specify the height of the building, structure or object proposed to be constructed; and
(d) state the purpose for which the building, structure or object is proposed to be used; and
(e) state whether in connection with the building, structure or object any object hazardous to:
(i) aircraft; or
(ii) aviation‑related communications, navigation or surveillance;
is proposed, or is likely, to be brought into the defence aviation area; and
(f) specify the height of any other objects that may reasonably be expected to be within the defence aviation area in connection with the building, structure or object; and
(g) be accompanied by plans, including elevation views, that show the shape, size, position, geographic coordinates and material of the building, structure or object and the contours of the land on which the building, structure or object is to be constructed; and
(h) include a detailed description of measures to prevent or reduce any hazards to:
(i) aircraft; or
(ii) aviation‑related communications, navigation or surveillance;
that may reasonably be expected to be caused by the building, structure or object; and
(i) if the building, structure or object is likely to generate plumes or air turbulence, or to cause plumes or air turbulence to be generated, above the relevant height restriction—include a detailed description of the likely plumes or air turbulence and the measures to prevent or reduce any hazards to:
(i) aircraft; or
(ii) aviation‑related communications, navigation or surveillance;
that may reasonably be expected to be caused by the plumes or air turbulence.
(3) The Minister may, by notice in writing, require an applicant to provide such further information with respect to an application as is reasonably required for a proper consideration of the application.
(4) The Minister is not required to consider, or further consider, the application until the further information is provided.
68F Grant or refusal of approval
(1) The Minister may, by instrument in writing, grant, or refuse to grant, approval to construct a building, structure or object within a defence aviation area.
(2) An approval may be subject to such conditions as the Minister considers necessary to prevent or reduce hazards to:
(a) aircraft; or
(b) aviation‑related communications, navigation or surveillance.
(3) Without limiting subsection (2), an approval may be subject to such conditions with respect to any or all of the following:
(a) the position of the building, structure or object;
(b) its shape, size or height;
(c) the manner of its construction;
(d) the materials of which it is to be constructed;
(e) the purpose for which it may be used;
(f) the manner in which it is to be marked;
(g) the height of any apparatus to be used in its construction;
(h) the manner in which that apparatus is to be marked.
(4) The conditions must be specified in the approval.
(5) The Minister must not:
(a) refuse to grant approval; or
(b) grant approval subject to conditions; or
(c) impose, either at the time of approval or by subsequent variation, conditions with respect to the marking or lighting of a building, structure or object;
except for the purpose of preventing or reducing hazards to:
(d) aircraft; or
(e) aviation‑related communications, navigation or surveillance.
68G Conditions of approval to be complied with
A person commits an offence if:
(a) an approval is granted under section 68F; and
(b) the approval is subject to a condition; and
(c) the person fails to comply with the condition.
Penalty: 20 penalty units.
Subdivision B—Hazardous objects
68H Hazardous objects
(1) A person commits an offence if:
(a) the person brings into, or has within, a defence aviation area an object; and
(b) the object is hazardous to:
(i) aircraft; or
(ii) aviation‑related communications, navigation or surveillance; and
(c) the person does not have a valid approval under section 68K to bring into, or have within, the defence aviation area the object.
Penalty: 20 penalty units.
(2) A person commits an offence if:
(a) the person uses an object in a defence aviation area; and
(b) the object is used in a manner that is hazardous to:
(i) aircraft; or
(ii) aviation‑related communications, navigation or surveillance; and
(c) the person does not have a valid approval under section 68K to use the object in that manner in the defence aviation area.
Penalty: 20 penalty units.
68J Applications for approval
(1) A person may apply to the Minister for approval to do either or both of the following:
(a) bring into, or have within, a defence aviation area an object of a kind mentioned in paragraph 68H(1)(b);
(b) use an object in a defence aviation area in the manner mentioned in paragraph 68H(2)(b).
(2) An application must be in the form approved by the Minister and must contain the information required by the form.
(3) The Minister may, by notice in writing, require an applicant to provide such further information with respect to an application as is reasonably required for a proper consideration of the application.
(4) The Minister is not required to consider, or further consider, the application until the further information is provided.
68K Grant or refusal of approval
(1) The Minister may, by instrument in writing, grant, or refuse to grant, an approval for the purposes of subsection 68J(1).
(2) An approval may be subject to such conditions as the Minister considers necessary to prevent or reduce hazards to:
(a) aircraft; or
(b) aviation‑related communications, navigation or surveillance.
(3) Without limiting subsection (2), an approval may be subject to conditions with respect to any or all of the following:
(a) the time when the object may be brought into the defence aviation area;
(b) the period during which it may remain in the defence aviation area;
(c) the position of the object;
(d) its shape or size;
(e) the purpose for which it may be used;
(f) the manner in which it may be used;
(g) the times during which it may be used;
(h) the manner in which it is to be marked.
(4) The conditions must be specified in the approval.
(5) The Minister must not:
(a) refuse to grant approval; or
(b) grant approval subject to conditions; or
(c) impose, either at the time of approval or by subsequent variation, conditions with respect to the marking or lighting of a building, structure or object;
except for the purpose of preventing or reducing hazards to:
(d) aircraft; or
(e) aviation‑related communications, navigation or surveillance.
68L Conditions of approval to be complied with
A person commits an offence if:
(a) an approval is granted under section 68K; and
(b) the approval is subject to a condition; and
(c) the person fails to comply with the condition.
Penalty: 20 penalty units.
Subdivision C—Buildings, structures or objects may be removed or marked etc.
68M Removal or marking etc. of buildings, structures or objects
(1) If there is within a defence aviation area:
(a) a building, structure or object that exceeds the height restriction applying to the building, structure or object within the defence aviation area as specified in a Ministerial declaration for the defence aviation area; or
(b) a building, structure or object that generates plumes or air turbulence, or causes plumes or air turbulence to be generated, above the height restriction applying to the building, structure or object within the defence aviation area as specified in a Ministerial declaration for the defence aviation area; or
(c) any other object that constitutes or may constitute a hazard to:
(i) aircraft operating in, or in the vicinity of, the defence aviation area; or
(ii) aviation‑related communications, navigation or surveillance;
the Minister may, by notice in writing, give directions with respect to:
(d) the removal (in whole or in part), within a time of not less than 28 days specified in the notice, of the whole or a specified part of the building, structure or object; or
(e) the marking, lighting, screening, modification or relocation of the building, structure or object within a time specified in the notice.
(2) The Minister may give a direction under subsection (1) only if the Minister is reasonably satisfied that it is necessary to do so for the purpose of preventing or reducing hazards to:
(a) aircraft; or
(b) aviation‑related communications, navigation or surveillance.
(3) The time specified in a notice must be a reasonable time in all the circumstances.
(4) The powers conferred by subsection (1) may be exercised in relation to a building, structure or object whether or not approval has been granted under section 68F or 68K.
(5) A notice under subsection (1) in relation to a building, structure or object may be given to any person whom the Minister reasonably believes occupies, or has an interest in, the land on which the building, structure or object is situated.
(6) A notice under subsection (1) must not be given to a person unless it is reasonable that the person should be required to comply with the requirement of the notice.
(7) A person commits an offence if:
(a) a notice is given to the person under this section; and
(b) the person:
(i) fails to comply with a direction in the notice; or
(ii) fails to comply with a direction within the time specified in the notice.
Penalty: 20 penalty units.
68N Removal or marking of buildings, structures or objects in urgent situations
(1) This section applies if the Minister is satisfied on reasonable grounds that:
(a) a building, structure or object within a defence aviation area; or
(b) plumes or air turbulence generated by a building, structure or object within a defence aviation area; or
(c) the use of an object within a defence aviation area;
constitutes, contributes to or results in, a serious and imminent risk to aircraft or aviation‑related communications, navigation or surveillance.
(2) Despite section 68M, the Minister may, by notice in writing, give directions with respect to the following:
(a) the removal of the whole or a specified part of the building, structure or object within a time specified in the notice;
(b) the marking, lighting, screening, modification or relocation of the building, structure or object within a time specified in the notice.
(3) The time specified in the notice must be reasonable in all the circumstances.
Note: The notice may require immediate compliance if the circumstances are sufficiently serious.
(4) A notice under subsection (2) must not be given to a person unless it is reasonable that the person should be required to comply with the requirement of the notice.
(5) A person commits an offence if:
(a) a notice is given to the person under this section; and
(b) the person:
(i) fails to comply with a direction in the notice; or
(ii) fails to comply with a direction within the time specified in the notice.
Penalty: 20 penalty units.
Division 3—Monitoring
68P Provisions subject to monitoring under the Regulatory Powers Act
For the purposes of subsection 117AE(1) of the Act, the following provisions of this Part are prescribed:
(a) section 68C;
(b) section 68D;
(c) section 68G;
(d) section 68H;
(e) section 68L;
(f) section 68M;
(g) section 68N.
68Q Information subject to monitoring under the Regulatory Powers Act
For the purposes of subsection 117AE(2) of the Act, the following provisions of this Part are prescribed:
(a) section 68E;
(b) section 68J.
Division 4—Compensation
68R Compensation for diminution of land value, loss or damage
(1) For the purposes of paragraph 124(1)(r) of the Act, the Commonwealth is, subject to subsection (2), liable to pay a reasonable amount of compensation to a person if:
(a) the value of land is diminished as a result of a Ministerial declaration and the person has an interest in the land; or
(b) because of the removal under this Part of a building, structure or object from a defence aviation area the person suffers loss or damage, or incurs expense, as a direct result of that removal; or
(c) because of the marking or lighting under this Part of a building, structure or object in a defence aviation area the person suffers loss or damage, or incurs expense, as a direct result of that marking or lighting.
(2) Paragraphs (1)(b) and (c) do not apply in relation to a building, structure or object if:
(a) the building, structure or object was constructed within a defence aviation area without a valid approval under section 68F; or
(b) the person brings the object into, or has the object within, a defence aviation area without a valid approval under section 68K; or
(c) the person uses the object in a defence aviation area in a manner that is hazardous to:
(i) aircraft; or
(ii) aviation‑related communications, navigation or surveillance;
without a valid approval under section 68K; or
(d) an approval in force under section 68F or 68K in relation to the building, structure or object, or a condition to which such an approval is subject, is contravened.
(3) If the Commonwealth and the person do not agree on the amount of compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
68S Compensation for acquisition of property
(1) If the operation of this Part would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
Division 5—Review of decisions
68T Review by Administrative Review Tribunal
Applications may be made to the Administrative Review Tribunal for review of:
(a) a decision under subsection 68F(1) to refuse to grant approval to construct a building, structure or object; or
(b) a decision under subsection 68F(2) to impose a condition subject to which a building, structure or object may be constructed; or
(c) a decision under subsection 68K(1) to refuse to grant approval for the purposes of subsection 68J(1); or
(d) a decision under subsection 68K(2) to impose a condition on an approval for the purposes of subsection 68J(1); or
(e) a direction under subsection 68M(1) or 68N(2) to remove a building, structure or object; or
(f) a direction under subsection 68M(1) or 68N(2) with respect to the marking, lighting, screening, modification or relocation of a building, structure or object.
Part 11B—Counter‑UXS measures
Division 1—Preliminary
68TA Definitions
In this Part:
aircraft has the same meaning as in the Civil Aviation Act 1988.
ASA means the Australian Submarine Agency.
ASD means the Australian Signals Directorate.
authorised person means a person:
(a) who is:
(i) a member of the Australian Defence Force; or
(ii) an AFP appointee (within the meaning of the Australian Federal Police Act 1979); or
(iii) a member of the police force or police service of a State or Territory; or
(iv) authorised by the Secretary or the Chief of the Defence Force under subsection 68TC(1) to be an authorised person; or
(v) authorised by the Head of ASA under subsection 68TC(3) to be an authorised person; or
(vi) authorised by the Director‑General of ASD under subsection 68TC(5) to be an authorised person; and
(b) who has appropriate training, qualifications, skills or experience in conducting counter‑UXS measures.
counter‑UXS measures includes, but is not limited to, the following measures:
(a) measures to identify a UXS device;
(b) measures to detect and track a UXS device;
(c) measures to disable a UXS device;
(d) measures to interfere with, or manipulate, the operation of a UXS device (including diverting or re‑routing the device);
(e) measures to take control of a UXS device;
(f) measures to modify a UXS device;
(g) measures to seize, capture or detain a UXS device;
(h) measures to destroy a UXS device;
(i) measures to exploit a UXS device (including using the device for defence purposes).
defence asset means any of the following:
(a) a vehicle, vessel or aircraft that is owned by the Commonwealth for use by the Australian Defence Force or the Department;
(b) a vehicle, vessel or aircraft belonging to, or operated by, a visiting force within the meaning of the Defence (Visiting Forces) Act 1963;
(c) an asset declared for the purposes of this paragraph by the Minister under section 68TD.
Defence contractor means a person who is engaged to perform either or both of the following kinds of services for the Department, the Australian Defence Force, the ASA or the ASD:
(a) security services;
(b) services in relation to counter‑UXS measures.
defence premises has the meaning given by subsection 71A(1) of the Act.
personal information has the same meaning as in the Privacy Act 1988.
protected defence area means any of the following:
(a) a defence area;
(b) a defence aviation area;
(c) defence premises;
(d) any of the following that is in Australia, and is owned or occupied by the Commonwealth for use by the ASA or the ASD:
(i) an area of land or any other place (whether or not it is enclosed or built on);
(ii) a building or other structure;
(e) a defence prohibited area as mentioned in subsection 87(2);
(f) a defence practice area as mentioned in subsection 87(3);
(g) an area of land declared by the Minister under section 116Q of the Act;
(h) a restricted area within the meaning of the Defence (Special Undertakings) Act 1952;
(i) naval waters within the meaning of the Control of Naval Waters Act 1918;
(j) a Commonwealth explosives area within the meaning of section 13 of the Explosives Act 1961;
(k) an area declared for the purposes of this paragraph by the Minister under section 68TE of this instrument.
sensitive information has the same meaning as in the Privacy Act 1988.
UXS device: see section 68TB.
vessel has the same meaning as in the Navigation Act 2012.
68TB Meaning of UXS device
A UXS device is an uncrewed device that:
(a) does not have a person onboard the device; and
(b) either:
(i) is autonomous; or
(ii) is remotely operated; and
(c) moves:
(i) on the ground; or
(ii) on water; or
(iii) underwater; or
(iv) in the air.
Note: UXS devices include devices such as the following:
APS employee in the Department and Defence contractors
(1) The Secretary or the Chief of the Defence Force may, in writing, appoint:
(a) a specified person; or
(b) a person holding, occupying, or performing the duties of, a specified office or position;
to be an authorised person for the purposes of subparagraph (a)(iv) of the definition of authorised person in section 68TA.
(2) The Secretary or the Chief of the Defence Force must not appoint a person under subsection (1) unless the person is:
(a) an APS employee in the Department; or
(b) a Defence contractor performing services for the Department or the Australian Defence Force.
Employees of ASA and Defence contractors
(3) The Head of ASA may, in writing, appoint:
(a) a specified person; or
(b) a person holding, occupying, or performing the duties of, a specified office or position;
to be an authorised person for the purposes of subparagraph (a)(v) of the definition of authorised person in section 68TA.
(4) The Head of ASA must not appoint a person under subsection (3) unless the person is:
(a) an employee of ASA; or
(b) a Defence contractor performing services for ASA.
Employees of ASD and Defence contractors
(5) The Director‑General of ASD may, in writing, appoint:
(a) a specified person; or
(b) a person holding, occupying, or performing the duties of, a specified office or position;
to be an authorised person for the purposes of subparagraph (a)(vi) of the definition of authorised person in section 68TA.
(6) The Director‑General of ASD must not appoint a person under subsection (5) unless the person is:
(a) an employee of ASD; or
(b) a Defence contractor performing services for ASD.
68TD Minister may declare defence asset
For the purposes of paragraph (c) of the definition of defence asset in section 68TA, the Minister may, in writing, declare a thing to be a defence asset if the Minister reasonably believes that it is in the interests of the defence of Australia or national security to make the declaration.
68TE Minister may declare protected defence area
For the purposes of paragraph (k) of the definition of protected defence area in section 68TA, the Minister may, by legislative instrument, declare an area of land, sea or airspace in Australia, to be a protected defence area if the Minister reasonably believes that it is in the interests of the defence of Australia or national security to make the declaration.
Division 2—Counter‑UXS Measures
68TF Counter UXS measures
(1) This section applies if:
(a) a UXS device:
(i) has entered, or will enter or is reasonably likely to enter, a protected defence area; or
(ii) is in the vicinity of a protected defence area; and
(b) an authorised person reasonably believes that the UXS device:
(i) poses a safety or security threat to the area, or any person or thing in the area; or
(ii) may compromise or adversely affect Australia’s defence or security interests, or Australia’s defence activities or operations.
(2) This section also applies if an authorised person reasonably believes that a UXS device:
(a) poses a safety or security threat to a defence asset; or
(b) constitutes a risk to a defence asset in a way that may compromise or adversely affect Australia’s defence or security interests, or Australia’s defence activities or operations.
(3) The authorised person may take counter‑UXS measures that are reasonable and safe in the circumstances:
(a) to prevent, eliminate, minimise or otherwise deal with the threat; or
(b) to protect Australia’s defence or security interests, or Australia’s defence activities or operations.
(4) In taking counter‑UXS measures under subsection (3), an authorised person must:
(a) have regard to any guidelines or directions issued by the Minister in relation to counter‑UXS measures; and
(b) act consistently with the obligations of Australia under any agreement between Australia and another country, or other countries, relating to the safety of air navigation or maritime navigation.
(5) Subsection (3) applies only to the extent that the counter‑UXS measures do not constitute an offence under the Criminal Code Act 1995.
(6) This section is not intended to exclude or limit the executive power of the Commonwealth or the operation of any other law of the Commonwealth, or the law of a State or Territory, in relation to counter‑UXS measures.
Division 3—Miscellaneous
68TG Personal information
An authorised person is authorised to do any of the following:
(a) collect personal information (including sensitive information) for purposes related to the taking of counter‑UXS measures;
(b) collect, for purposes related to the taking of counter‑UXS measures, personal information about an individual in connection with counter‑UXS activities from a source other than the individual;
(c) use the personal information for purposes related to the taking of counter‑UXS measures;
(d) disclose the personal information to one or more of the following persons or bodies, for the purposes of the performance of the functions of the person or body:
(i) an intelligence or security agency;
(ii) the Australian Federal Police or the police force or police service of a State or Territory;
(iii) the Director of Public Prosecutions of the Commonwealth or a State or Territory;
(iv) the Australian Border Force;
(v) the Civil Aviation Safety Authority;
(vi) Airservices Australia;
(vii) the Australian Maritime Safety Authority;
(viii) a foreign government, or an international body, with which the Department has a written agreement providing for the sharing of information.
Note: Collection, use or disclosure of personal information made in accordance with this section is taken to be authorised by law for the purposes of paragraph 3.4(a) and subparagraph 3.6(a)(ii) of Australian Privacy Principle 3, paragraph 6.2(b) of Australian Privacy Principle 6 and paragraph 8.2(c) of Australian Privacy Principle 8.
68TH Retrieving information contained in UXS devices in lawful possession of authorised person
(1) An authorised person is authorised to collect information contained in a UXS device that is in the lawful possession of the authorised person, and may do so by any means the authorised person considers appropriate in the circumstances.
(2) Subsection (1) applies only to the extent that the collection of the information does not constitute an offence under the Criminal Code Act 1995.
68TI Authorised person may inspect etc. UXS devices
(1) An authorised person may inspect, examine, dismantle, take measurements of, or conduct tests on, a UXS device that is in the lawful possession of the authorised person.
(2) Subsection (1) applies only to the extent that the conduct mentioned in that subsection does not constitute an offence under the Criminal Code Act 1995.
68TJ Agencies and bodies may disclose information about UXS devices to Department or Australian Defence Force
(1) This section applies if an agency or body collects information (including personal information or sensitive information) or data in relation to a UXS device.
(2) The agency or body is authorised to disclose the information and data to the Department or the Australian Defence Force for purposes relevant to the taking of counter‑UXS measures in accordance with this Part.
68TK Persons assisting
An authorised person may, in exercising powers or performing functions under this Part, be assisted by other persons with relevant training, qualifications, skills or experience.
68TL Compensation for loss or damage
(1) Subject to subsection (3), the Commonwealth is liable to pay a reasonable amount of compensation to a person who suffers any of the following forms of loss or damage as a result of an authorised person taking counter‑UXS measures:
(a) a personal injury;
(b) damage to property;
(c) a loss of income.
(2) If the Commonwealth and the person do not agree on the amount of compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
(3) Subsection (1) does not apply to the following loss or damage:
(a) damage to a UXS device that is used in the commission of an offence against a law of the Commonwealth, a State or Territory;
(b) loss of income by an operator or owner of a UXS device that is used in the commission of an offence against a law of the Commonwealth, a State or Territory.
68TM Compensation for acquisition of property
(1) If the operation of this Part would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
Part 12—Aid to civilian authorities
69 Aid to civilian authorities
(1) This section applies if the Defence Force is called out:
(a) other than under Part IIIAAA of the Act; and
(b) to protect either of the following against domestic violence:
(i) Commonwealth interests in Australia;
(ii) a State or self‑governing Territory.
(2) The Chief of the Defence Force must utilise the Defence Force in a way that is reasonable and necessary to protect the Commonwealth interests, the State or the self‑governing Territory.
(3) The Chief of the Defence Force must comply with any directions given by the Minister about the utilisation of the Defence Force, except that:
(a) the Defence Force must not be used to stop or restrict any protest, dissent, assembly or industrial action except where there is a reasonable likelihood of the death of, or serious injury to, persons or serious damage to property; and
(b) the Reserves must not be used unless the Minister, after consulting the Chief of the Defence Force, is satisfied that sufficient members of the Permanent Forces are not available.
(4) In protecting a State or self‑governing Territory, the Chief of the Defence Force must, as far as is reasonably practicable, ensure that the Defence Force:
(a) cooperates with the police force of the State or Territory; and
(b) undertakes particular tasks only if requested in writing to do so by one or more of the following:
(i) a member of the police force of the State or Territory;
(ii) an officer of a civil authority specified by the Minister.
(5) This section does not require or permit the Chief of the Defence Force to transfer any command of the Defence Force.
Part 13—Visiting Forces
70 Countries to which provisions of Part IXA of the Act apply
For subsection 116A(2) of the Act, each provision of Part IXA of the Act applies in relation to each of the countries in the following table.
Countries to which each provision of Part IXA of the Act applies
Argentina
Bangladesh
Brazil
Brunei Darussalam
Cambodia
Canada
Chile
China
Czech Republic
Denmark
Egypt
Fiji
France
Germany
Hungary
India
Indonesia
Iraq
Ireland
Italy
Japan
Jordan
Kenya
Malaysia
Mozambique
Nepal
Netherlands
New Zealand
Norway
Pakistan
Papua New Guinea
Philippines
Poland
Portugal
Qatar
Republic of Korea
Singapore
South Africa
Spain
Sri Lanka
Sweden
Thailand
Timor‑Leste
Tonga
Turkey
United Arab Emirates
United Kingdom
United States of America
Uruguay
Zimbabwe
71 Form of warrant
For section 116F of the Act, the form in Schedule 2 is prescribed as the form of a warrant.
72 Sentences imposed by service tribunals of other countries
(1) This section applies if a sentence is imposed on a member of the Defence Force by a service tribunal of a country to which section 116B of the Act applies, while the member is attached to the forces of that country.
(2) The sentence may, to the extent to which it has not been enforced outside Australia, be enforced in Australia as if it had been imposed by a court martial constituted under the Defence Force Discipline Act 1982.
(3) This section does not authorise carrying out a sentence of death or corporal punishment.
73 Evidence of facts by certificate
(1) For the purpose of legal proceedings within Australia, the Minister may, in writing, certify that:
(a) on a specified date, a named person was a member of the Defence Force attached to the forces of a specified country, being a country in relation to which section 116B of the Act applies; and
(b) on the specified date, a specified service tribunal of the country passed a sentence set out in the certificate on the named person; and
(c) the sentence, or a part of it specified in the certificate, has not been enforced.
(2) The certificate is, when produced in the proceedings, sufficient evidence of the certified facts unless the contrary is proved.
Part 14—Prohibited words and letters
74 Prohibited words
The following are prohibited words:
(a) Active Reserve;
(b) Air Force;
(c) Air Force Reserve;
(d) Army Reserve;
(e) Australian Air Force;
(f) Australian Air Force Reserve;
(g) Australian Army;
(h) Australian Army Reserve;
(i) Australian Defence Force;
(j) Australian Defence Force Reserves;
(k) Australian Flying Corps;
(l) Australian Imperial Forces;
(m) Australian Military Forces;
(n) Australian Navy;
(o) Australian Regular Army;
(p) Defence Force;
(q) Defence Force Reserves;
(r) Defence Reserves;
(s) Her Majesty’s Australian Ship;
(t) High Readiness Reserve;
(u) HMA Ship;
(v) Naval Reserve;
(w) Permanent Air Force;
(x) Permanent Military Forces;
(y) Regular Army;
(z) Royal Australian Air Force;
(za) Royal Australian Naval Reserve;
(zb) Royal Australian Navy;
(zc) Specialist Reserve;
(zd) Standby Reserve.
75 Prohibited letters
The following are prohibited letters:
(a) ADF;
(b) AFC;
(c) AIF;
(d) AMF;
(e) ARA;
(f) HMAS;
(g) RAAF;
(h) RAN;
(i) RANR.
76 Use of prohibited words or letters
(1) A person commits an offence if:
(a) the person uses prohibited words or prohibited letters; and
(b) the use is in connection with:
(i) a trade, business, calling or profession; or
(ii) an organisation or body of persons; and
(c) the use is not in accordance with a consent obtained under section 77.
Penalty: 10 penalty units.
(2) Strict liability applies to paragraph (1)(c).
77 Consent to use prohibited words or letters
Application
(1) A person may apply to the Minister for consent to use prohibited words or prohibited letters in connection with:
(a) a trade, business, calling or profession; or
(b) an organisation or body of persons.
(2) An application under subsection (1) must:
(a) be in writing; and
(b) set out the prohibited words or prohibited letters to which the application relates; and
(c) set out the proposed use of the prohibited words or prohibited letters.
Matters to which the Minister must have regard
(3) Without limiting the matters to which the Minister may have regard when deciding whether to approve the application, the Minister must have regard to the following:
(a) either:
(i) the trade, business, calling or profession of the applicant; or
(ii) the purposes, constitution and structure of the applicant;
(b) if the applicant has previously been given consent to use prohibited words or prohibited letters—the way in which the applicant used the prohibited words or prohibited letters to which the consent related;
(c) the period for which consent is sought.
Minister may request further information
(4) The Minister may, by written notice, require the applicant to give the Minister further information in connection with the application.
Consent may be subject to conditions
(5) Consent may be given subject to conditions, including but not limited to conditions about the following matters:
(a) notifying the Minister about any change to:
(i) the purposes, constitution or structure of the applicant; or
(ii) the trade, business, calling or profession of the applicant; or
(iii) any other matter, to the extent that the change may affect the ability of the applicant to use the prohibited words or prohibited letters in the applicant’s trade, business, calling or profession;
(b) the period for which consent is given;
(c) the way in which the applicant may, or may not, use the prohibited words or prohibited letters to which the consent relates;
(d) the protection and use of the prohibited words or prohibited letters to which the consent relates.
78 Review by Administrative Review Tribunal
Applications may be made to the Administrative Review Tribunal for review of:
(a) a decision of the Minister under section 77 to refuse an application for consent; or
(b) a decision of the Minister under section 77 relating to a condition.
79 Treatment of partnerships
(1) This Part applies to a partnership as if it were a person, but with the changes set out in this section.
(2) An offence against this Part that would otherwise have been committed by the partnership is taken to have been committed by each partner in the partnership, at the time the offence was committed, who:
(a) did the relevant act or made the relevant omission; or
(b) aided, abetted, counselled or procured the relevant act or omission; or
(c) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).
80 Treatment of unincorporated associations and bodies
(1) This Part applies to an unincorporated association or body of persons as if it were a person, but with the changes set out in this section.
(2) An offence against this Part that would otherwise have been committed by the association or body is taken to have been committed by each member of the committee of management of the association or body, at the time the offence was committed, who:
(a) did the relevant act or made the relevant omission; or
(b) aided, abetted, counselled or procured the relevant act or omission; or
(c) was in any way knowingly concerned in, or party, to the relevant act or omission (whether directly or indirectly and whether by any act or omission of the member).
Part 15—War graves
81 War graves
Despite any law of a State or Territory, the Director of War Graves, or an officer of the Defence Force in charge of a unit specifically raised for the purpose of the registration of, or inquiries concerning, the graves of deceased members of the Defence Force:
(a) may establish or cause to be established such cemeteries as are required for the burial of bodies of persons who have died while on service as members of the Defence Force or as a result of service as members of the Defence Force; and
(b) may authorise and direct the exhumation and the reinterment, cremation or other disposal of the body of:
(i) a member of the Defence Force who has died while on service; or
(ii) a person who, immediately before his or her death, was a dependant of a member of the Defence Force on service, and whose grave is located in the Terendak Military Cemetery in Malaysia; and
(c) may enter a cemetery and inspect, maintain or execute any work in connection with the grave of a person who has died while on service as a member of the Defence Force or as a result of service as a member of the Defence Force or authorise any other person to enter a cemetery and inspect, maintain or execute any work in connection with such a grave.
Part 15A—Australian Defence Force Cadets
81A Laws relating to equipment
(1) A cadet is not to be required, under a law of a State or a Territory, to obtain or hold a licence or other permission to possess, use or transport an item of equipment that is:
(a) the property of the Commonwealth; and
(b) used for the performance of the cadet’s duties as a cadet.
Note: Examples: A firearm, ammunition or a ceremonial sword.
(2) Subsection (1) does not apply in relation to a licence or permission to operate a vehicle.
Part 16—Delegations
82 Delegation of Minister’s powers
(1) The Minister may, by instrument in writing, delegate his or her powers or functions under Part 10 to the following:
(a) an officer of the Navy who holds a rank not below the rank of Commodore;
(b) an officer of the Army who holds a rank not below the rank of Brigadier;
(c) an officer of the Air Force who holds a rank not below the rank of Air Commodore;
(d) an SES employee performing duty in the Department.
(1A) The Minister may, by instrument in writing, delegate his or her powers under Part 11A to the following:
(a) an officer of the Navy who holds a rank that is not below the rank of Lieutenant Commander;
(b) an officer of the Army who holds a rank that is not below the rank of Major;
(c) an officer of the Air Force who holds a rank that is not below the rank of Squadron Leader;
(d) an APS employee who holds, or performs the duties of, a position not below APS6 position in the Department.
(1B) The Minister may, by instrument in writing, delegate the Minister’s powers under Part 11B to the Secretary or the Chief of the Defence Force.
(2) The Minister may, by instrument in writing, delegate his or her powers or functions under Part 14 to the following:
(a) an officer of the Navy who holds a rank not below the rank of Lieutenant Commander;
(b) an officer of the Army who holds a rank not below the rank of Major;
(c) an officer of the Air Force who holds a rank not below the rank of Squadron Leader;
(d) an APS employee who holds, or performs the duties of, a position not below APS 6 in the Department.
83 Delegation of Secretary’s powers
(1A) The Secretary may, by instrument in writing, delegate the powers of the Secretary under section 37G (review of decisions relating to applications for stop sexual harassment directions) to the following:
(a) an officer of the Navy who holds a rank not below the rank of Rear Admiral;
(b) an officer of the Army who holds a rank not below the rank of Major General;
(c) an officer of the Air Force who holds a rank not below the rank of Air Vice‑Marshal;
(d) an SES employee who holds an SES Band 2 position, or an equivalent or higher position, in the Department.
(1) The Secretary may, by instrument in writing, delegate his or her powers under Part 8 to the following:
(a) an officer of the Navy who holds a rank not below the rank of Commodore;
(b) an officer of the Army who holds a rank not below the rank of Brigadier;
(c) an officer of the Air Force who holds a rank not below the rank of Air Commodore;
(d) an SES employee performing duty in the Department.
(2) The Secretary may, by instrument in writing, delegate his or her powers under Part 11 to the following:
(a) an officer of the Navy who holds a rank not below the rank of Lieutenant Commander;
(b) an officer of the Army who holds a rank not below the rank of Major;
(c) an officer of the Air Force who holds a rank not below the rank of Squadron Leader;
(d) an APS employee who holds, or performs the duties of, a position not below APS 6 in the Department.
84 Delegation of Chief of the Defence Force’s powers
(1) The Chief of the Defence Force may, by instrument in writing, delegate his or her powers under Part 3 (other than paragraph 24(3)(c)), 4 or 5 to the following:
(a) an officer;
(b) a member enlisted in the Navy who holds a rank not below the rank of Chief Petty Officer;
(c) a member enlisted in the Army who holds a rank not below the rank of Warrant Officer Class 2;
(d) a member enlisted in the Air Force who holds a rank not below the rank of Flight Sergeant;
(e) an APS employee who holds, or performs the duties of, a position not below APS 4 in the Department.
(1A) The Chief of the Defence Force may, by instrument in writing, delegate to a service chief all or any of the powers of the Chief of the Defence Force under paragraph 24(3)(c).
(1B) The Chief of the Defence Force may, by instrument in writing, delegate the powers of the Chief of the Defence Force under section 37G (review of decisions relating to applications for stop sexual harassment directions) to the following:
(a) an officer of the Navy who holds a rank not below the rank of Rear Admiral;
(b) an officer of the Army who holds a rank not below the rank of Major General;
(c) an officer of the Air Force who holds a rank not below the rank of Air Vice‑Marshal;
(d) an SES employee who holds an SES Band 2 position, or an equivalent or higher position, in the Department.
(2) The Chief of the Defence Force may, by instrument in writing, delegate his or her powers under Part 7 to the following:
(a) an officer of the Navy who holds a rank not below the rank of Commodore;
(b) an officer of the Army who holds a rank not below the rank of Brigadier;
(c) an officer of the Air Force who holds a rank not below the rank of Air Commodore;
(d) an SES employee performing duty in the Department.
(3) The Chief of the Defence Force may, by instrument in writing, delegate his or her powers under Part 11 to the following:
(a) an officer of the Navy who holds a rank not below the rank of Lieutenant Commander;
(b) an officer of the Army who holds a rank not below the rank of Major;
(c) an officer of the Air Force who holds a rank not below the rank of Squadron Leader;
(d) an APS employee who holds, or performs the duties of, a position not below APS 6 in the Department.
Part 17—Application and transitional provisions
Division 1—General
85 Processes begun under Defence Force Regulations 1952 or Defence (Personnel) Regulations 2002
The Defence Force Regulations 1952 and the Defence (Personnel) Regulations 2002 continue to apply in relation to an application made, or a process begun, under those regulations before their repeal.
86 Applications relating to prohibited words or letters
(1) An application for consent made under the Defence (Prohibited Words and Letters) Regulations 1957 but not decided before 1 July 2016 is taken, after that day, to be an application under section 77 of this instrument.
(2) A consent to use prohibited words or prohibited letters, given under the Defence (Prohibited Words and Letters) Regulations 1957, that has not expired before 1 July 2016 has effect, after that day, as if it were given under section 77 of this instrument.
87 Defence areas
(1) An authorisation under regulation 34 of the Defence Force Regulations 1952 continues in effect despite the repeal of those regulations, and may be revoked as if those regulations had not been repealed.
(2) Part VII of the Defence Force Regulations 1952 continues to apply in relation to a prohibited area that was, immediately before the repeal of those regulations, declared under subregulation 35(1) of those regulations.
(3) Part XI of the Defence Force Regulations 1952 continues to apply in relation to a defence practice area that was, immediately before the repeal of those regulations, declared under subregulation 49(1) of those regulations.
(4) A claim for compensation relating to an authorisation mentioned in subsection (1), or relating to an area mentioned in subsection (2) or (3), may be dealt with under the Defence Force Regulations 1952 as if those regulations had not been repealed, even if the authorisation or the declaration of the area has been revoked before the claim arises.
88 Retirement age
(1) If, immediately before the repeal of the Defence (Personnel) Regulations 2002, a member’s compulsory retirement age under those regulations (the existing retirement age) was not:
(a) for a member other than a chaplain—the compulsory retirement age specified for the member in Schedule 1 of those regulations; or
(b) for a chaplain—the compulsory retirement age specified for the chaplain in subregulation 116(1) of those regulations;
then the member’s retirement age for the purpose of section 24 of this instrument is the existing retirement age.
(2) A member who, immediately before the repeal of the Defence (Personnel) Regulations 2002, was able to make an election under those regulations in relation to the member’s compulsory retirement age may make the election as if those regulations had not been repealed. If the member does so, the member’s retirement age for the purpose of section 24 of this instrument is in accordance with the election.
(3) The Chief of the Defence Force may revoke an extension of a compulsory retirement age that was made under subregulation 11(1) or 12(1) of the Defence (Personnel) Regulations 2002. If the extension is revoked, the retirement age of a member whose compulsory retirement age was extended is to be determined as if the extension had been revoked before the repeal of those regulations.
89 Medical and dental treatment
If, immediately before the repeal of the Defence Force Regulations 1952, the Minister would have been able to require a member to pay an amount to the Commonwealth for treatment provided to the member under regulation 58E of those regulations, the Secretary may exercise the power in subsection 50(1) of this instrument as if the treatment had been provided under section 49 of this instrument.
Division 2—Amendments made by Defence Amendment (Defence Aviation Areas) Regulations 2018
90 Definitions
In this Division:
affected land has the same meaning as in the old regulations.
commencement day means the day on which this Division commences.
old regulations means the Defence (Areas Control) Regulations 1989 as in force immediately before the commencement day.
91 Things done by, or in relation to, the Minister
If, before the commencement day, a thing was done by, or in relation to, the Minister under the old regulations, then the thing is taken, on and after that day, to have been done by, or in relation to, the Minister under this instrument.
92 Things started but not finished by the Minister
(1) This section applies if:
(a) before the commencement day, the Minister started doing a thing under the old regulations; and
(b) immediately before that day, the Minister had not finished doing that thing.
(2) The Minister may, on and after the commencement day, finish doing the thing under this instrument.
93 Transitional—appeals to the Administrative Appeals Tribunal made, but not determined, before commencement
(1) This section applies if:
(a) an appeal or application (the old appeal or application) was made to the Administrative Appeals Tribunal under the old regulations before the commencement day; and
(b) before the commencement day, the old appeal or application had not been determined under the old regulations.
(2) Despite the repeal of the old regulations by Schedule 2 to this instrument, the old regulations continue to apply in relation to the old appeal or application as if the repeal had not happened.
94 Transitional—applications under old regulations continue to have effect
(1) This section applies if:
(a) an application was made under regulation 8 of the old regulations for approval to construct a building on land this is affected land (the relevant land); and
(b) immediately before the commencement day, the application had not been finally determined; and
(c) on or after the commencement day, the Minister declares an area to be a defence aviation area under section 117AC of the Act; and
(d) the relevant land falls within the defence aviation area; and
(e) either:
(i) the building exceeds the height restriction applying to the building within the defence aviation area, or part of the defence aviation area, specified in the declaration; or
(ii) the building is likely to generate plumes or air turbulence above that height restriction.
(2) At and after the time the declaration takes effect, the application is taken to be (and may be dealt with as) an application made under section 68E of this instrument to construct the building in the defence aviation area.
95 Transitional—approvals under old regulations continue in force
(1) This section applies if:
(a) immediately before the commencement day, an approval under regulation 10 of the old regulations (including any conditions to which the approval was subject) was in force in relation to a building on land that is affected land (the relevant land); and
(b) on or after the commencement day, the Minister declares an area to be a defence aviation area under section 117AC of the Act; and
(c) the relevant land falls within the defence aviation area.
(2) At and after the time the declaration takes effect, the approval (including any conditions to which the approval was subject) has effect as if the approval had been given under section 68F of this instrument in relation to the building.
Division 3—Amendments made by the Defence Amendment (RCDVS Implementation) Regulations 2025
96 Definitions
In this Division:
amending instrument means the Defence Amendment (RCDVS Implementation) Regulations 2025.
97 Early end of service
Sexual violence
(1) Subject to subsection (2), the amendments of section 24 made by Part 1 of Schedule 1 to the amending instrument, to the extent that they relate to sexual violence engaged in by a member, apply in relation to sexual violence engaged in before, on or after the commencement of the amending instrument.
Time for responding to notices
(2) Paragraph 24(2)(b), as substituted by Part 1 of Schedule 1 to the amending instrument, applies in relation to a notice that is given to a member on or after the commencement of the amending instrument.
98 Service in the Defence Force—requirements for notices
The amendments of section 30 made by Part 1 of Schedule 1 to the amending instrument apply:
(a) in relation to a notice given to a member on or after the commencement of the amending instrument; and
(b) if the notice relates to conduct of the member—whether the conduct occurred before, on or after that commencement.
99 Redress of grievances—time for making complaint
The amendment of subsection 41(2) made by Part 2 of Schedule 1 to the amending instrument applies:
(a) in relation to a decision to end a member’s service that is made on or after the commencement of the amending instrument; and
(b) if the decision relates to conduct of the member—whether the conduct occurred before, on or after that commencement.
100 Other changes to time periods
(1) The amendments of subsections 14(2) and 16(2) made by Part 3 of Schedule 1 to the amending instrument apply in relation to notices given on or after the commencement of the amending instrument.
(2) The amendment of subsection 37G(2) made by Part 3 of Schedule 1 to the amending instrument applies in relation to a reviewable decision that is made under subsection 37G(1) of this instrument on or after the commencement of the amending instrument.