Bills Digest No. 38, 2017-18
PDF version [593KB]
Paula Pyburne
Law and Bills Digest Section
4 October 2017
Contents
Purpose of the Bill
Structure of the Bill
Background
About legislative instruments
Rationale for the Bill
Committee consideration
Selection of Bills Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Part 1—Defence Force inquiries
About Defence Force inquiries
Key provisions
Part 2—Defence aviation areas
Regulating Defence aviation areas
Triggering the Regulatory Powers Act
Monitoring powers
Additional purpose and monitoring
powers
Delegation
Part 3—By-laws for public areas
Triggering the Regulatory Powers Act
Existing strict liability offences
Infringement notices
Concluding comments
Date introduced: 14
September 2017
House: House of
Representatives
Portfolio: Defence
Commencement: Sections
1–3 commence on the day after Royal Assent. Parts 1–3 commence on the
earlier of a single day to be fixed by Proclamation or six months after
Royal Assent. The amendments in Part 4 are contingent on the enactment
of the Regulatory
Powers (Standardisation Reform) Act 2017.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at October 2017.
Purpose of
the Bill
The Defence Legislation Amendment (Instrument Making) Bill
2017 (the Bill) has two purposes:
Structure
of the Bill
The Bill comprises four Parts:
- Part
1: amends the existing regulation making power in the Defence Act in
relation to Defence inquiries
- Part
2: remakes the existing regulation making power in the Defence Act in
relation to Defence aviation areas and provides for the exercise of monitoring
powers under the Regulatory Powers Act in those areas
- Part
3: provides that strict liability offences under the Defence (Public Areas)
By-Laws 1987 will be subject to the infringement notice regime in the Regulatory
Powers Act and
- Part
4: contains contingent amendments.
Background
About
legislative instruments
The Legislative
Instruments Act 2003 was enacted to establish a regime to reform and
manage procedures for the making, scrutiny and publication of Commonwealth
legislative instruments. The regime included, amongst other things:
- a
Federal Register of Legislative Instruments which provided public access to
legislative instruments
- improved
mechanisms for Parliamentary scrutiny of legislative instruments and
- ‘sunsetting’
mechanisms to ensure periodic review of legislative instruments and if they no
longer have a continuing purpose, to repeal them.[1]
The Legislative Instruments Act has since been
updated and renamed the Legislation Act
2003. Section 48F of the Legislation Act provides that legislative
instruments are automatically repealed after a fixed period of time (subject to
some exceptions). The automatic repeal is called sunsetting.
Generally, legislative instruments sunset on the first
1 April or 1 October on or after the tenth anniversary of their
registration. This ensures that legislative instruments are kept up to date and
only remain in force for so long as they are needed.[2]
Rationale
for the Bill
The following legislative instruments (made under the Defence
Act) are scheduled to sunset on 1 April 2018:
According to the Explanatory Memorandum to the Bill, it is
‘necessary to re-make them’ and ‘where possible, the intention is to improve
the instruments by consolidating like provisions, improving consistency, and
making some amendments to enhance their operation’.[3]
This Bill does not remake those legislative instruments.
Rather, in the case of the Defence (Inquiry) Regulations and the Defence (Areas
Control) Regulations, it amends those provisions in the Defence Act which
contain the regulation making powers upon which they are based.
Committee
consideration
Selection
of Bills Committee
At its meeting of 14 September 2017, the Senate Standing Committee
for the Selection of Bills deferred consideration of the Bill.[4]
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing this Bills Digest the Senate
Standing Committee for the Scrutiny of Bills had not commented on the Bill.
Policy
position of non-government parties/independents
At the time of writing this Bills Digest there were no
comments in relation to the measures in the Bill by non-government parties or
independents in the public domain.
Position of
major interest groups
At the time of writing this Bills Digest no stakeholder
groups had comments on the Bill.
Financial
implications
According to the Explanatory Memorandum to the Bill, it
will have no additional financial impact on Commonwealth expenditure or
revenue.[5]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[6]
Parliamentary
Joint Committee on Human Rights
At the time of writing this Bills Digest the Parliamentary
Joint Committee on Human Rights had not commented on the Bill.
Part 1—Defence Force
inquiries
About
Defence Force inquiries
According to the Department of Defence website:
The Australian Defence Force (ADF) conducts inquiries
principally to inform internal decision-making. The ability of ADF commanders
to appoint internal administrative inquiries and obtain timely information on
incidents that affect personnel, assets, training and policy, is vital for the
safety and reputation of our people and the maintenance of our capability.
Without a capacity to conduct effective inquiries, the ADF’s
ability to examine incidents and learn lessons from its experiences would be
diminished. The outcomes of these inquiries assist in the development of
procedures and policy concerning the safety of our personnel and the ADF's
ability to achieve tasks assigned by government.
However, ADF inquiries are not courts of law and their
reports are not judicial findings. They do not preclude, and are not in any way
intended to inhibit Federal, State or Territory agencies from holding their own
investigations or inquiries.
The most common types of inquiry appointed to inquire into
deaths or other serious matters concerning the ADF are Commissions of Inquiry,
Boards of Inquiry and Inquiry Officer Inquiries.[7]
Currently, the Defence (Inquiry)
Regulations 1985 are made in accordance with the regulation making power in
section 124 of the Defence Act. Specifically paragraph 124(1)(gc) currently
provides that the Governor-General may make regulations in relation to the ‘appointment,
procedures and powers of courts of inquiry, Chief of Defence Force commissions
of inquiry, inquiry officers and inquiry assistants’.
Key
provisions
Item 2 of Part 1 of the
Bill repeals and replaces paragraph 124(1)(gc) of the Defence Act so that
the Governor‑General may make regulations prescribing matters, providing
for and in relation to inquiries concerning the Defence Force, other than
inquiries conducted by:
Items 3–5 of Part 1 of the Bill make consequential amendments
to subsections 124(2A) and 124(2C) by omitting references to ‘a court of
inquiry, a board of inquiry, a Chief of the Defence Force commission of
inquiry, an inquiry officer or an inquiry assistant’ and substituting
references to an ‘inquiry’. Together, the amendments in Part 1 of the Bill will
allow the making of regulations relating to ‘inquiries’.
According to the Explanatory Memorandum to the Bill when
re-making the Defence (Inquiry) Regulations, ‘the intention is to consolidate
the different types of inquiries, instead articulating one form of inquiry that
would be flexible and scalable to suit the relevant circumstances’.[8]
Part 2—Defence aviation areas
Currently paragraph 124(1)(na) of the Defence Act
provides that the Governor-General may make regulations in relation to:
The regulation, control or prohibition of the construction or
use of buildings, erections or installations, the use of apparatus, machines or
vehicles, and the removal in whole or in part of buildings, erections, installations,
apparatus, trees or other natural obstacles, within prescribed areas, being
areas in which the regulation, control, prohibition or removal is necessary for
the defence of Australia.
The Defence (Areas
Control) Regulations 1989 are made in accordance with that provision. They
are directed towards certain prescribed areas surrounding 12 defence airfields.[9]
Item 8 of Part 2 of the Bill repeals paragraph 124(1)(na) of the Defence
Act.
Regulating
Defence aviation areas
Item 7 of Part 2 of the Bill inserts proposed
Part IXD—Defence aviation areas into the Defence Act. Within new Part IXD, proposed section
117AD provides an additional regulation making
power (to that in section 124 of the Defence Act) for and in relation to:
- the
regulation or prohibition of the construction or use of buildings, structures
or objects within defence aviation areas
- the
regulation or prohibition of the bringing of objects into, or having objects
within, defence aviation areas and
- the
removal (in whole or in part), marking, lighting, screening, modification or
relocation of buildings, structures or objects (including trees or other
natural obstacles) within defence aviation areas.
Proposed subsection 117AC(1) of the Defence Act provides that the Minister
may, by legislative instrument, declare an area of land, sea or airspace in or
adjacent to Australia to be a defence aviation area. Such a
declaration is not to be made unless the Minister is satisfied:
- it
is necessary for the defence of Australia for any of the matters set out in section
117AD to apply in those areas and
- the
matters are necessary for the purpose of preventing or reducing hazards to the
following as they relate to the defence of Australia: aircraft, aviation‑related
communications, navigation or surveillance.[10]
A declaration of an area may also specify height
restrictions that apply in relation to buildings, structures and objects
(including trees and other natural obstacles) within the area.[11]
This is consistent with the current form of the Defence (Areas Control)
Regulations.
In addition, a declaration of an area may apply, adopt or
incorporate, with or without modification a map or a matter contained in an
instrument to the extent that the matter relates to a map.[12]
According to the Explanatory Memorandum to the Bill:
The purpose of the provision is to allow some flexibility so
that relevant map-related material can be incorporated into the declaration if
required. In the event that this provision is relied on, there will be clear
mechanisms for making the material publicly accessible and available at no or
at a minimum cost, so that those affected by the provision can easily
understand their rights and obligations at law.[13]
Triggering
the Regulatory Powers Act
Monitoring
powers
Proposed
section 117AE of the Defence Act operates
so that a provision of the regulations made for the purposes of
section 117AD is subject to monitoring under Part 2 of the Regulatory
Powers Act.[14]
Part 2 of the Regulatory Powers Act creates a
framework for monitoring whether provisions of the regulations made under proposed
section 117AD have been complied with. It includes powers of entry and
inspection. The monitoring powers (set out at section 19 of the Regulatory
Powers Act) which may be exercised on premises that an authorised
person[15]
has entered under warrant or consent, include the power to:
- search the premises and any thing on the premises
- examine or observe any activity conducted on the premises
-
inspect, examine, take measurements of or conduct tests on any
thing on the premises
- make any still or moving image or any recording of the premises
or any thing on the premises
- inspect any document on the premises
- take extracts from, or make copies of, any such document
- take
onto the premises such equipment and materials as the authorised person requires
in order to exercise powers in relation to the premises
- operate
electronic equipment on the premises, to put relevant data in documentary form or
copy the data onto a device and remove the documents or device from the
premises[16]
-
secure electronic equipment where an authorised person enters
premises under a monitoring warrant[17]
- secure
a thing for a period of 24 hours in circumstances where the thing is found
during the exercise of monitoring powers on the premises and an authorised
person believes on reasonable grounds that it relates to the contravention of a
related provision.[18]
These powers may only be exercised to:
- determine
whether the regulations made under section 117AD of the Defence Act are
being complied with and/or
- determine
whether information supplied under those regulations is correct.[19]
A monitoring warrant may be issued if the issuing
officer[20]
is satisfied that it is reasonably necessary for one or more authorised persons
to have access to premises for the purpose of determining whether a provision
that is subject to monitoring has been, or is being, complied with or that information
subject to monitoring is correct.[21]
In that case the relevant warrant must do all of the following:
-
describe the premises to which the warrant relates
- state that the warrant is issued under section 32 of the Regulatory
Powers Act
-
state the purpose for which the warrant is issued
- authorise
one or more authorised persons (whether or not named in the warrant) from time
to time while the warrant remains in force to enter the premises and to
exercise the monitoring powers
- state whether entry is authorised to be made at any time of the
day or during specified hours of the day and
- specify
the day (not more than three months after the issue of the warrant) on which
the warrant ceases to be in force.[22]
An authorised officer may enter premises and exercise the
monitoring powers only if the occupier of the premises has consented to the
entry, or the entry is made under a monitoring warrant.[23]
A defence aviation area inspector may be assisted by other persons in
exercising powers or performing functions or duties under Part 2 of the Regulatory
Powers Act.[24]
Additional
purpose and monitoring powers
According to the Explanatory Memorandum to the Bill:
The Defence (Areas Control) Regulations provides for
authorised persons to enter land and premises for a range of purposes,
including removing or marking hazardous objects. These powers will need to be
re-made, as they are an important aspect of the scheme ensuring that there is a
mechanism to deal with hazardous objects if people are unwilling to comply with
requirements ... However, noting that the powers go beyond simply monitoring
compliance with legislation, for example by including the important powers to
remove or mark hazardous objects, it was considered necessary to apply some
limited modification to Part 2 of the Regulatory Powers Act. [25]
Proposed section 117AF contains that modification.
It extends the monitoring powers to include the taking of action that may
include the removal (in whole or in part), destruction or modification of a
building, structure or object.[26]
In addition, it permits a defence aviation inspector (that
is—an authorised person) and a person assisting a defence aviation
inspector to use such force against persons and things as is necessary
and reasonable in the circumstances.[27]
Delegation
Proposed
section 117AH of the Defence Act empowers
the Secretary, or the Chief of the
Defence Force, to delegate the powers and functions of the chief executive
under Part 2 of the Regulatory Powers Act and the power to appoint a defence
aviation inspector, in writing, to any of the following:
- an
SES employee, or an acting SES employee, in the Department
- an
officer of the Navy who holds the rank of Commodore or a higher rank
- an
officer of the Army who holds the rank of Brigadier or a higher rank
- an
officer of the Air Force who holds the rank of Air Commodore or a higher rank.
Part 3—By-laws for
public areas
Currently Part IXB of the Defence Act relates to
public areas of Defence land. Under existing subsection 116Q(1) the Minister
may, by notice published in the Gazette, declare an area specified in
the notice to be a public area and assign a name to that area. For the purposes
of subsection 116Q(1) of the Defence Act, area means ‘an
area of land that is owned or held under lease by the Commonwealth and used, or
intended for use, for the purposes of defence’. The Explanatory Memorandum
notes:
There are currently two existing public areas: the Beecroft
public area in New South Wales, and the Garden Island public area in Western
Australia. Each public area is a significant tract of Defence land, where there
is a strong interest in enabling public entry for recreational purposes where
this can be achieved consistently with defence requirements.[28]
Section 116ZD of the Defence Act empowers the
Minister to make by-laws, for and in relation to the control and management of
public areas. The Defence (Public Areas) By-Laws are made under this section.
Triggering
the Regulatory Powers Act
Item 9 of Part 3 of the Bill inserts proposed section
116ZCA into the Defence Act which provides that each of the strict
liability offences against the by‑laws is subject to an infringement
notice under Part 5 of the Regulatory Powers Act—provided that
the by‑laws specify the offence for the purposes of proposed subsection 116ZCA(1).
Existing
strict liability offences
The Defence (Public Areas) By-laws currently give rise to
a number of strict liability offences which are set out below:[29]
- vehicle
offences: a person is guilty of an offence if the person brings a vehicle
into, or uses a vehicle in, the public area that is, or forms part of, an
island. In any other public area a person is guilty of an offence if the person
uses a vehicle in the public area, and not on a road or in a parking area or
camping area[30]
- offences
about lighting fires: a person is guilty of an offence if, in a public area
the person lights, maintains or uses a fire which is not in a portable barbecue
or portable stove that uses liquefied petroleum gas or in a fireplace made
available by the Commonwealth for use by persons in the public area[31]
- offences
about firearms: a person is guilty of an offence if the person uses or has
in his or her possession a firearm in a public area[32]
- offences
about signs: a person is guilty of an offence if the person contravenes a
direction, warning or requirement on a sign erected or placed with the approval
of a commanding officer or removes or interferes with a such sign[33]
- other
offences: a person is guilty of an offence if, in a public area, the person
does any of the following:
- erects
or places an unapproved sign or erects a building, booth, stall, post or other
structure
- supplies
goods or services
- engages
in conduct that damages, destroys or removes a natural or artificial structure
or feature
- takes,
or engages in conduct that damages, injures or destroys an animal or plant or
the nest or dwelling of an animal.[34]
It is not known whether these offences will remain, or
whether new offences will be created, when the Defence (Public Areas) By-laws
are remade.
Infringement
notices
The provisions about infringement notices are governed by Part 5
of the Regulatory Powers Act. They apply to strict liability offences of
the Defence (Public Areas) By-laws. If an infringement officer (in
this case a ranger[35])
believes on reasonable grounds that a person has contravened a provision
subject to an infringement notice he, or she, may give to the person an
infringement notice for the alleged contravention. That notice must be given
within 12 months after the day on which the contravention is alleged to have
taken place.[36]
Item 11 of Part 3 of the Bill amends existing
paragraph 116ZD(2)(za) of the Defence Act to increase the maximum amount
of a fine from 5 penalty units to 10 units. Currently a penalty unit is
equivalent to $210. This means that the maximum fine will be $2,100.
The Secretary and the Chief of Defence Force are relevant
chief executive officers under Part 5 of the Regulatory Powers
Act, which allows them to exercise powers such as allowing a person more
time to pay an infringement notice amount or withdraw an infringement notice.[37]
The Secretary and the Chief of Defence Force may, in
writing, delegate their powers under Part 5 of the Regulatory Powers Act
to:
- an
SES employee, or an acting SES employee, in the Department
- an
officer of the Navy who holds the rank of Commodore or a higher rank
- an
officer of the Army who holds the rank of Brigadier or a higher rank and
- an
officer of the Air Force who holds the rank of Air Commodore or a higher rank.[38]
Concluding
comments
The impetus for the Bill is the need to remake three
separate legislative instruments which are due to sunset on 1 April 2018. The
Bill does not remake those instruments. Instead, it amends the relevant
regulation making powers in the Defence Act and also provides for triggers
to certain standard enforcement powers in the Regulatory Powers Act.
Defence inquiries, as a component of the military justice
system, have been the subject of considerable scrutiny and commentary in the
recent past.[39]
Defence inquiries have also been one of the policy areas which the Department
of Defence has researched and assessed for long term reform through the Re-Thinking
Systems Review.[40]
As noted above, the Explanatory Memorandum indicates that the proposed
amendments to the power to regulate Defence inquiries could facilitate ‘re-making’
the Defence (Inquiries) Regulations 1985 with the intention ‘to consolidate the
different types of inquiries, instead articulating one form of inquiry that
would be flexible and scalable to suit the relevant circumstances’.[41]
However, it is not clear if ‘re-making’ the regulations concerning Defence
inquiries is linked to outcomes of the Re-Thinking Systems Review.
In relation to the power to make regulations for the
control of areas, the amendments contained in the Bill repeal a broad power to
make regulations in existing paragraph 124(1)(na) of the Defence Act and
insert new Part IXD which is directed to ‘defence aviation areas’. On its face,
this change could limit the scope of regulations which can be made. Under the
proposed amendments, the Minister would be unable to make regulations unless
satisfied it is both necessary for the defence of Australia and necessary for
the purpose of preventing and reducing hazards to aircraft or aviation-related
communication, navigation or surveillance. The rationale for repealing the
broader power in existing paragraph 124(1)(na) to make regulations to control
any area where the ‘regulation, control, prohibition or removal is necessary
for the defence of Australia’ does not appear to be addressed in the
Explanatory Memorandum.
Part 3 of the Bill amends Part IXB of the Defence Act
to establish an infringement notice scheme for strict liability offences contained
the by-laws created to regulate public areas of defence land. The Minister’s second
reading speech notes that existing ‘paragraph 116ZD(2)(r) enables the by-laws
to include this type of scheme for some offences’ but that the current ‘by-laws
do not currently include an infringement notice scheme’.[42]
No detailed explanation is provided for the reasons to introduce an
infringement notice scheme. Potentially, an infringement notice scheme may
provide better compliance with the by-laws by allowing rangers broader discretion
concerning penalties. The Explanatory Memorandum notes that the ‘highest
possible penalty in an infringement notice would be $420’ and that ‘[g]iven the
nature of the offences that could be appropriate in a public area, this level
of penalty may be necessary in some cases to adequately deter people from
breaching the by-laws’.[43]
[1]. M
Coombs, Legislative
Instruments Bill 2003, Bills digest, 26, 2003–04, Department of the
Parliamentary Library, Canberra, 2003, p. 1.
[2]. Legislation Act
2003, section 49.
[3]. Explanatory
Memorandum, Defence Legislation Amendment (Instrument Making) Bill 2017, p.
2.
[4]. Senate
Selection of Bills Committee, Report,
11, 2017, The Senate, 14 September 2017.
[5]. Explanatory
Memorandum, Defence Legislation Amendment (Instrument Making) Bill 2017, p.
4.
[6]. The
Statement of Compatibility with Human Rights can be found at pages 5–6 of the Explanatory
Memorandum to the Bill.
[7]. Department
of Defence (DoD), ‘Inquiry
home’, DoD website.
[8]. Explanatory
Memorandum, Defence Legislation Amendment (Instrument Making) Bill 2017, p.
2.
[9]. Currently,
Schedule 1 to the Defence (Areas Control) Regulations describes each of those
areas.
[10]. Defence
Act, proposed subsection 117AC(2).
[11]. Ibid.,
proposed subsection 117AC(3).
[12]. Ibid.,
proposed subsection 117AC(4).
[13]. Explanatory
Memorandum, Defence Legislation Amendment (Instrument Making) Bill 2017, p.
10.
[14]. Item
12 in Part 4 of the Bill inserts the definition of Regulatory Powers
Act into subsection 4(1) of the Defence Act being the Regulatory Powers
(Standard Provisions) Act 2014.
[15]. Proposed
section 117AG of the Defence Act empowers the Secretary or Chief of
Defence Force to appoint an APS employee of the Department or a member of the
Defence Force to be a defence aviation inspector. Proposed
subsection 117AE(5) provides that for the purposes of Part 2 of the Regulatory
Powers Act a defence aviation inspector is both an authorised
applicant and an authorised person.
[16]. Regulatory
Powers Act, subsections 20(1) and (4).
[17]. Ibid.,
subsection 21(2).
[18]. Ibid.,
subsection 22(1).
[19]. Ibid.,
subsection 18(1) and proposed subsections 117AE(1) and (2) of the Defence
Act.
[20]. Defence
Act, proposed paragraph 117AE(3)(c) provides that an issuing
officer means a magistrate.
[21]. Regulatory
Powers Act, section 32.
[22]. Ibid.,
subsection 32(4).
[23]. Ibid.,
section 18.
[24]. Defence
Act, proposed subsection 117AE(4).
[25]. Explanatory
Memorandum, Defence Legislation Amendment (Instrument Making) Bill 2017, p.
12.
[26]. Defence
Act, proposed subsection 117AF(2).
[27]. Ibid.,
proposed subsection 117AF(3).
[28]. Explanatory
Memorandum, Defence Legislation Amendment (Instrument Making) Bill 2017, p.
3.
[29]. The
imposition of strict liability means that a fault element does not need to be
satisfied. However, the offence will not criminalise honest errors and a person
cannot be held liable if he, or she, had an honest and reasonable belief that
they were complying with relevant obligations.
[30]. Defence
(Public Areas) By-Laws, section 6.
[31]. Ibid.,
section 7.
[32]. Ibid.,
section 9.
[33]. Ibid.,
section 11.
[34]. Defence
(Public Areas) By-Laws, section 12.
[35]. Proposed
subsection 116ZCA(2) provides that a ranger is an infringement
officer. Under section 116S of the Defence Act, the Minister may
appoint a person as a ranger. In addition, section 116T of the Defence
Act provides that any member of the Australian Federal Police or member of
the police force of a Territory is a ranger.
[36]. Regulatory
Powers Act, subsections 103(1) and (2).
[37]. Ibid.,
sections 105 and 106.
[38]. Defence
Act, proposed subsection 116ZCA(4).
[39]. See,
for example, DoD, Re-thinking
systems of inquiry, investigation, review and audit in Defence: report on Stage
A (Research and Analysis stage) for the Secretary and Chief of the Defence
Force, DoD, Canberra, 1 August 2012, Annex C; R
Creyke, ‘Defence
watchdogs seminar: administrative oversight of military justice: military administrative
inquiries’, December 2008, Commonwealth Ombudsman website.
[40]. DoD,
Re-thinking
systems of inquiry, investigation, review and audit in Defence: report on Stage
B: models: for the Secretary and Chief of the Defence Force, DoD,
Canberra, October 2013, p. xiv.
[41]. Explanatory
Memorandum, Defence Legislation Amendment (Instrument Making) Bill 2017, p.
2.
[42]. K
O’Dwyer, ‘Second
reading speech: Defence Legislation Amendment (Instrument Making) Bill 2017’,
House of Representatives, Debates, (proof), 14 September 2017, p.
10.
[43]. Explanatory
Memorandum, Defence Legislation Amendment (Instrument Making) Bill 2017, p.
16.
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