Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) In this Act, unless the contrary intention appears:
"accused person" means a person who has been charged with a service offence.
"active service" , in relation to a defence member, means:
(a) service by the member in connection with operations against the enemy;
(b) service by the member with a force specified in a declaration by the Governor - General that is in force under subsection 4(1); or
(c) service by the member in an area specified in a declaration by the Governor - General that is in force under subsection 4(2).
"aircraft" includes any machine that can derive support in the atmosphere from the reactions of the air.
"airman" means a member of the Australian Air Force, not being an officer.
"allied force" means a force of another country that is acting in co - operation with the Defence Force.
"ancillary offence" , in relation to an offence against this Act or the regulations, means an offence against:
(a) section 11.1, 11.4 or 11.5 of the Criminal Code ; or
(b) section 6 of the Crimes Act 1914 ;
that relates to that other offence.
"ancillary Territory offence" , in relation to another Territory offence (the first Territory offence ), means an offence against:
(a) section 11.1, 11.4 or 11.5 of the Criminal Code ; or
(b) section 6 of the Crimes Act 1914 ; or
(c) section 44, 47 or 48 of the Criminal Code 2002 of the Australian Capital Territory; or
(d) section 181 of the Crimes Act 1900 of the Australian Capital Territory; or
(e) a provision of a law in force in the Jervis Bay Territory (other than a Commonwealth law) that is prescribed for the purposes of this paragraph (see subsection (3A));
that relates to the first Territory offence.
"another country" means a country other than Australia.
"appropriate authority" :
(a) in relation to proceedings before a court martial, means:
(i) the Registrar; or
(ii) the President of the court martial; and
(b) in relation to proceedings before a Defence Force magistrate, means:
(i) the Registrar; or
(ii) the Defence Force magistrate; or
(c) in relation to proceedings before a summary authority, means the summary authority.
"audio link" means facilities (for example, telephone facilities) that enable audio communication between persons in different places.
"Australia" , when used in a geographical sense, includes the external Territories.
"authorized officer" means an officer, or an officer included in a class of officers, authorized, in writing, by the Chief of the Defence Force or a service chief for the purposes of the provision in which the expression occurs.
"charge" means a charge of a service offence.
"Chief Judge Advocate" means the Chief Judge Advocate appointed under section 188A.
"civil court" means a federal court or a court of a State or Territory.
"civil court offence" means:
(a) an offence against a law of the Commonwealth (other than a service offence); or
(b) an offence against a law of a State or Territory.
"civil detention facility" means a police station or any other premises in which persons in custody awaiting trial in a civil court may lawfully be detained.
"competent reviewing authority" has the meaning given by section 150A.
"constable" means a member, or a special member, of the Australian Federal Police or a member of the police force of a State or Territory.
"convicted person" means a person convicted of a service offence by a service tribunal, a reviewing authority or the Defence Force Discipline Appeal Tribunal.
"Court Martial and Defence Force Magistrate Rules" means the rules made under section 149A.
"custodial offence" means:
(a) an offence against subsection 54A(1) or (2); or
(b) an offence that:
(i) is an ancillary offence in relation to an offence against subsection 54A(1) or (2); and
(ii) was committed by a person at a time when the person was a detainee.
"custodial punishment" means a punishment of a kind referred to in subsection 68A(1).
"custody" means custody under this Act.
"defence civilian" means a person (other than a defence member) who:
(a) with the authority of an authorized officer, accompanies a part of the Defence Force that is:
(i) outside Australia; or
(ii) on operations against the enemy; and
(b) has consented, in writing, to subject himself or herself to Defence Force discipline while so accompanying that part of the Defence Force.
"Defence Force Discipline Appeal Tribunal" means the Defence Force Discipline Appeal Tribunal constituted under the Defence Force Discipline Appeals Act 1955 .
"Defence Force magistrate" means a Defence Force magistrate appointed under section 127.
"defence member" means:
(a) a member of the Permanent Navy, the Regular Army or the Permanent Air Force; or
(b) a member of the Reserves who:
(i) is rendering continuous full - time service; or
(ii) is on duty or in uniform.
"Deputy Chief Judge Advocate" means a Deputy Chief Judge Advocate appointed under section 188EC.
"Deputy Judge Advocate General" means a Deputy Judge Advocate General appointed under section 179.
"detainee" means a person who is undergoing a punishment of detention in a detention centre.
"detention centre" means a place, not being a prison, that is operated by the Defence Force as a place for the detention of persons on whom punishments of detention have been imposed.
"Director of Defence Counsel Services" has the same meaning as in the Defence Act 1903 .
"Director of Military Prosecutions" means the Director of Military Prosecutions appointed under section 188GF.
"disciplinary infringement" has the meaning given by subsection 9D(1).
"disciplinary infringement" provision has the meaning given by subsection 9D(2).
"discipline officer" has the meaning given by subsection 9H(2).
"elective punishment" means a punishment set out in column 3 of an item in the table in subsection 69B(2) or 69C(2).
"enemy person" means a person who is:
(a) a representative or agent of the enemy; or
(b) a member of:
(i) an armed force of a body politic that constitutes the enemy; or
(ii) an armed force or other force that constitutes the enemy.
"engage in conduct" means:
(a) do an act; or
(b) omit to perform an act.
"general order" means:
(a) a Defence Instruction;
(b) any other order, instruction or directive issued by, or under the authority of, the Chief of the Defence Force or a service chief; or
(c) a general, standing, routine or daily order in force with respect to a part of the Defence Force.
"hearing" , in relation to a service tribunal, includes the announcement of the verdict of the tribunal and the taking of action by the tribunal under Part IV in relation to a convicted person.
"infringement notice" means a notice given under section 9E.
"infringement officer" has the meaning given by subsection 9HA(2).
"infringement scheme" means Part IA.
"institution" , in relation to the Defence Force or an allied force, means a mess, club, band, canteen or other institution of the Defence Force or of the allied force, as the case may be.
"intoxicated" : a person is intoxicated if, and only if, the person's faculties are, because of the person being under the influence of intoxicating liquor or a drug (other than a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the person is unfit to be entrusted with the person's duty or with any duty that the person may be called on to perform.
"judge advocate" , in relation to a court martial, means the judge advocate of the court martial.
"Judge Advocate General" means the Judge Advocate General appointed under section 179.
"judge advocates' panel" means the panel referred to in subsection 196(1).
"junior officer" means a defence member who is an officer (other than an officer cadet) who holds:
(a) in the Navy--a rank of or below the rank of lieutenant; or
(b) in the Army--a rank of or below the rank of captain; or
(c) in the Air Force--a rank of or below the rank of flight lieutenant.
"legal officer" means an officer who is a legal practitioner.
"legal practitioner" means a person who is enrolled as a barrister, a solicitor, a barrister and solicitor or a legal practitioner of a civil court.
"medical practitioner" means a person who is registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.
"member below non-commissioned rank" means a defence member who is not an officer, an officer cadet, a warrant officer or a non - commissioned officer.
"minor disciplinary infringement" provision has the meaning given by subsection 9D(3).
"mutiny" means a combination between persons who are, or of whom at least 2 are, members of the Defence Force:
(a) to overthrow lawful authority in the Defence Force or in an allied force; or
(b) to resist such lawful authority in such a manner as to prejudice substantially the operational efficiency of the Defence Force or of, or of a part of, an allied force.
"non-commissioned officer" means:
(a) a sailor holding a rank not higher than the rank of chief petty officer and not lower than the rank of leading seaman;
(b) a soldier holding a rank not higher than the rank of staff sergeant and not lower than the rank of lance - corporal; or
(c) an airman holding a rank not higher than the rank of flight sergeant and not lower than the rank of corporal.
"officer" means:
(a) in relation to the Australian Navy--a person appointed as an officer of the Australian Navy, including a person who holds the rank in the Australian Navy of Acting Sub - Lieutenant or of Midshipman; and
(b) in relation to the Australian Army and the Australian Air Force--a person appointed as an officer of the Australian Army or the Australian Air Force.
"officer cadet" means a defence member who holds a rank of:
(a) in the Navy--midshipman; or
(b) in the Army--staff cadet or officer cadet; or
(c) in the Air Force--officer cadet.
"order" includes:
(a) a general order; and
(b) a command given to a member of the Defence Force by a superior officer.
"overseas court" means a court of a place outside Australia that has jurisdiction to try charges of offences against the law of that place.
"overseas offence" means an offence against a law of a place outside Australia.
"Part IA record" has the meaning given by section 9JB(2).
"place of confinement" means:
(a) a civil detention facility; or
(b) a detention centre.
"police member" means:
(a) a service police officer; or
(b) a sailor, soldier or airman who is a member of a police corps or service.
"prescribed acquittal" means an acquittal of a service offence by a court martial or a Defence Force magistrate on the ground of unsoundness of mind.
"prescribed defence member" has the meaning given by section 9CA.
"President" , in relation to a court martial, means the President of the court martial.
"prisoner" means a convicted person on whom a punishment of imprisonment has been imposed.
"proclaimed date" means the date fixed for the purposes of subsection 2(2).
"prohibited drug" means:
(a) a border controlled drug (within the meaning of Part 9.1 of the Criminal Code ); or
(b) a border controlled plant (within the meaning of Part 9.1 of the Criminal Code ); or
(c) an anabolic steroid (within the meaning of Part 8 of the Crimes Act 1900 of the Australian Capital Territory).
"property" includes:
(a) real property; and
(b) personal property; and
(c) money; and
(d) a thing in action or other intangible property; and
(e) electricity; and
(f) a wild creature that is:
(i) tamed; or
(ii) ordinarily kept in captivity; or
(iii) reduced (or in the course of being reduced) into the possession of a person.
"public place" , in relation to a service offence, includes a place that at the time of the commission of the offence:
(a) was used by the public; or
(b) was open to the public, whether or not on the payment of money.
"punishment" includes a combination of punishments.
"receive" , in relation to property, includes handle, retain, remove, dispose of or realize the property.
"reduced punishment" has the meaning given by subsection 9G(3).
"Registrar" means the Registrar of Military Justice appointed under section 188FB.
"Regulatory Powers Act" means the Regulatory Powers (Standard Provisions) Act 2014 .
"relevant Territory offence" , in relation to an offence against section 61, means the Territory offence on which the offence against section 61 is based.
"removal order" means an order under subsection 84A(2).
"reparation order" means an order under section 84.
"Reserves" means the Naval Reserve, the Army Reserve and the Air Force Reserve.
"restitution order" means an order under section 83.
"review" means a review by a reviewing authority, or by the Chief of the Defence Force or a service chief, in accordance with Part VIIIA, of the proceedings of a service tribunal.
"reviewing authority" means a reviewing authority appointed under section 150.
"rules of procedure" means the following:
(a) the Summary Authority Rules;
(b) the Court Martial and Defence Force Magistrate Rules.
"sailor" means a member of the Australian Navy, not being an officer.
"Schedule 1A offence" means:
(a) an offence specified in Schedule 1A; or
(b) an offence that is an ancillary offence in relation to an offence referred to in paragraph (a).
"senior discipline officer" has the meaning given by subsection 9H(5).
"service chief" means the Chief of Navy, the Chief of Army or the Chief of Air Force.
"service land" means land (including a building or other structure) used or occupied by:
(a) the Defence Force;
(b) an allied force; or
(c) an institution of the Defence Force or of an allied force.
"service offence" means:
(a) an offence against this Act or the regulations;
(b) an offence that:
(i) is an ancillary offence in relation to an offence against this Act or the regulations; and
(ii) was committed by a person at a time when the person was a defence member or a defence civilian.
Note: A service offence is an offence against a law of the Commonwealth: see section 3A.
"service police officer" means an officer who is a member of a police corps or service, and includes a provost marshal and a deputy provost marshal.
"service property" means property used by, or in the possession or under the control of:
(a) the Defence Force;
(b) an allied force; or
(c) an institution of the Defence Force or of an allied force;
and service aircraft , service armoured vehicle , service missile , service ship , service vehicle and service weapon have corresponding meanings.
"service tribunal" means a court martial, a Defence Force magistrate or a summary authority.
"ship" means a vessel or boat of any description, and includes:
(a) any floating structure; and
(b) any air cushion vehicle.
"soldier" means a member of the Australian Army, not being an officer.
"summary authority" means:
(a) a superior summary authority; or
(b) a commanding officer.
"Summary Authority Rules" means the rules made under section 149.
"superior authority" means a superior authority appointed under section 5A.
"superior officer" , in relation to a member of the Defence Force, means another member of the Defence Force who holds a higher rank, or a higher relative rank, in the Defence Force than the member, and includes any other member of the Defence Force who, by virtue of his or her office or appointment, is entitled to exercise command over the member.
"superior summary authority" means a superior summary authority appointed under section 105.
"Territory offence" means:
(a) an offence against a law of the Commonwealth in force in the Jervis Bay Territory other than this Act or the regulations; or
(b) an offence punishable under any other law in force in the Jervis Bay Territory (including any unwritten law) creating offences or imposing criminal liability for offences.
Note 1: Paragraph (a) of this definition includes an offence (an ancillary Territory offence ) against section 11.1 (attempt), section 11.4 (incitement) or section 11.5 (conspiracy) of the Criminal Code or section 6 (accessory after the fact) of the Crimes Act 1914 in relation to another Territory offence within the meaning of that paragraph.
Note 2: Paragraph (b) of this definition includes an offence (an ancillary Territory offence ) against section 44 (attempt), section 47 (incitement) or section 48 (conspiracy) of the Criminal Code 2002 of the Australian Capital Territory or section 181 (accessory after the fact) of the Crimes Act 1900 of the Australian Capital Territory in relation to another Territory offence within the meaning of that paragraph.
Note 3: The laws of the Australian Capital Territory in force in the Jervis Bay Territory apply, and Chapter 2 of the Criminal Code does not apply, for the purpose of determining criminal liability for offences referred to in paragraph (b) of this definition.
"the enemy" means a body politic or an armed force engaged in operations of war against Australia or an allied force and includes any force (including mutineers and pirates) engaged in armed hostilities against the Defence Force or an allied force.
"video link" means facilities (for example, closed - circuit television facilities) that enable audio and visual communication between persons in different places.
"warrant officer" means a sailor, soldier or airman who holds the rank of warrant officer.
(2) A reference in this Act to the Defence Force shall be read as including a reference to a part of that Force.
(3) A reference in this Act to an arm of the Defence Force shall be read as a reference to the Australian Navy, the Australian Army or the Australian Air Force, as the case may be.
(3A) Before the Governor - General makes a regulation prescribing a provision of a law for the purposes of paragraph (e) of the definition of ancillary Territory offence in subsection (1), the Minister must be satisfied that the provision is equivalent to, or has the same effect as, a provision referred to in paragraph (c) or (d) of that definition.
(4) For the purposes of subparagraph (b)(ii) of the definition of defence member in subsection (1):
(a) a member of the Reserves is taken to be on duty from the time appointed for him or her to report to, or to attend at, a specified place for any naval, military or air force service that he or she is required to render by or under the Defence Act 1903 until he or she is released or discharged from that service; and
(b) a member of the Reserves is taken to be on duty while acting, or purporting to act, in his or her capacity as a member of the Reserves.
(5) A member of the Defence Force who is serving in a rank or grade to which the member has not been duly appointed or promoted shall, while so serving in that rank or grade, be deemed, for the purposes of this Act, to hold that rank or grade.
(6) A member of the Defence Force who holds a rank temporarily (however described) shall, while so holding that rank, be deemed, for the purposes of this Act, to hold that rank.
(7) For the purposes of this Act, a person's membership of the Defence Force is not affected by reason only of the person's attachment to, or allotment for duty with:
(a) the armed forces of another country;
(b) a force raised or organized by the United Nations or another international body; or
(c) a Peacekeeping Force within the meaning of Part IV of the Veterans' Entitlements Act 1986 .
(8) For the purposes of this Act, a comparison of the severity of a combination of punishments with that of a single punishment or of another combination of punishments shall be made as follows:
(a) any punishment on one side of the comparison that is the same as a punishment on the other side of the comparison shall be disregarded;
(b) if, after the operation of paragraph (a), 2 or more punishments remain for consideration on either side of the comparison, regard shall be had only to the more severe, or the most severe, of the punishments so remaining on that side.
(9) A reference in this Act to the amount of a convicted person's pay for a specific number of days (including a person who has no pay entitlement in respect of the day on which he or she was convicted) shall be read as a reference to an amount that is the product of:
(a) the amount that is to be taken, for the purposes of this Act, to be the amount of daily rate of pay applicable in relation to a class of persons in which the person is included, being an amount ascertained in accordance with regulations that are in force for the purposes of this paragraph and are applicable in respect of the day on which the person was so convicted; and
(b) the number of days specified in the reference.
(10) Regulations made for the purposes of paragraph (9)(a) may provide for an amount of daily rate of pay to be ascertained by reference to a determination under section 58H of the Defence Act 1903 as in force at a particular time or as in force from time to time.
Note: In addition, section 14 of the Legislation Act 2003 allows regulations to prescribe matters by reference to disallowable legislative instruments as in force at a particular time or from time to time. That section would, for example, allow a regulation to prescribe matters by reference to a determination under section 58B of the Defence Act 1903 as in force at a particular time or from time to time.
(11) A reference to a commanding officer in a provision of this Act that confers a power on a commanding officer includes:
(a) a reference to an officer performing the duties and functions of a commanding officer by virtue of:
(i) a direction given by means of a Defence Instruction; or
(ii) an order, instruction or directive issued by, or under the authority of, the Chief of the Defence Force or a service chief; and
(b) a reference to an officer appointed under subsection 5(1) whose instrument of appointment under that section authorizes the officer to exercise that power;
but does not include a reference to an officer in respect of whom a determination relating to the exercise of that power is in force under subsection 5(3).
(12) A reference in this Act to a person who is on guard duty shall be read as including a reference to a person who:
(a) is posted or ordered to patrol; or
(b) is a member of a guard or other party mounted or ordered to patrol;
for the purpose of:
(c) protecting any person, any premises or place or any ship, vehicle, aircraft or other thing;
(d) preventing or controlling access to, or egress from, any premises or place or any ship, vehicle, aircraft or other thing; or
(e) regulating traffic by land or water.
(16) Where:
(a) a detainee is granted leave of absence from a detention centre; and
(b) the detainee refuses or fails to return to the detention centre before the end of the leave of absence;
the detainee shall be taken, for the purposes of this Act, to have escaped from custody and from the detention centre.
(17) A reference in a provision of this Act to the officer in charge of a detention centre is a reference to the officer who is responsible for the administration of the detention centre, and includes a reference to a member of the Defence Force, or to a member of the Defence Force included in a class of members of the Defence Force, authorized by a commanding officer, in writing, for the purposes of the provision in relation to the detention centre.
(18) The provisions of this Act in so far as they protect the individual are in addition to, and not in derogation of, any rights and freedoms of the individual, whether under the law of the Commonwealth or of a State or Territory, and this Act is not intended to exclude or limit the operation of any law of the Commonwealth or of a State or Territory providing for those rights and freedoms in so far as it is capable of operating concurrently with this Act.