Defence Force Discipline Regulations (Amendment) 1992 No. 314
EXPLANATORY STATEMENT
STATUTORY RULES 1992 No. 314
ISSUED BY THE AUTHORITY OF THE MINISTER FOR DEFENCE, SCIENCE AND PERSONNEL
DEFENCE FORCE DISCIPLINE ACT 1982
DEFENCE FORCE DISCIPLINE REGULATIONS (AMENDMENT)
The Defence Force Discipline Regulations ("the Regulations"), made under the Defence Force Discipline Act 1982 ("the Act"), prescribe various matters for the purposes of the Act.
Section 101W of the Act enables the search of persons and property by an investigating officer as part of the investigation of a service offence. Subsection 101W(1) deals with the circumstances where an investigating officer may search a defence member or defence civilian (defined in subsection 3(1)), or the clothing worn by, or property under the immediate control of, that person. Subsection 101W(2) deals with the circumstances where an investigating officer may search any service land or premises (other than married quarters), any service ship, aircraft or vehicle, or any non-service ship, aircraft or vehicle on service land. Subsection 101W(3) deals with the circumstances where an investigating officer may search private land or premises (including married quarters), or non-service ships, aircraft or vehicles not on service land.
Under subsections 101W(1) and (2) these searches can generally only be undertaken in pursuance of a search warrant, or if a person gives his or her consent in accordance with section 101ZA of the Act. Under subsection 101W(3) a search can only be undertaken if the affected person gives his or her consent in accordance with section 101ZA.
Section 101ZA sets out the requirements for obtaining a person's consent. Subsection 101ZA(2) provides that an investigating officer who obtains the consent of a person for the purposes of section 101W must ask the person to sign an acknowledgement in accordance with the prescribed form. The required acknowledgement covers the fact that the person has been informed that consent may be refused, the fact that consent has been voluntary, and the time and date of consent.
Regulation 43 of the Regulations provides that the prescribed form for the purposes of subsection 101ZA(2) of the Act is set out in Form 5 of Schedule 2 of the Regulations.
Form 5 was limited to the types of searches that are covered by subsection 101W(1) of the Act: the search of a defence member or defence civilian, his or her clothing, or property under his or her immediate control.
The Statutory Rule replaces the previous Form 5 with a new form which enables persons to consent to the types of searches that are covered by subsections 101W(2) and (3) of the Act, in addition to enabling
them to consent to the searches covered by subsection 101W(1).
The Statutory Rule comes into operation on the date of gazettal.
Overview
The Defence Force Discipline Regulations (Amendment) 1992 No. 314, issued by the authority of the Minister for Defence, Science and Personnel, amends the Defence Force Discipline Regulations made under the Defence Force Discipline Act 1982. This amendment addresses a gap in the existing framework by broadening the scope of consent forms used for searches within the Defence Force. The policy objective is to ensure that the regulations keep pace with evolving operational requirements and legal standards, enhancing the efficiency and legality of investigations into service offences. The amendment specifically updates the form used for obtaining consent for searches to include scenarios beyond those covered under the original form, ensuring that all types of searches permitted by the Act are adequately covered.
Scope and Application
The Defence Force Discipline Regulations (Amendment) 1992 applies to the Defence Force Discipline Act 1982, impacting defence members and civilians, as well as any property under their control. The amendment extends the scope of searches that can be conducted under the Act, including searches of service land, premises, ships, aircraft, and vehicles, whether service-owned or not, as well as private land and premises. The amended regulations modify the prescribed form for obtaining consent for searches, ensuring that it now covers all types of searches permitted under the Act, thereby streamlining the consent process for investigating officers. The amendment ensures the form accommodates consent for searches on service and non-service property, both on and off service land, thus broadening its application. The amendment does not explicitly state any exclusions or thresholds but extends the application through the updated form, ensuring compliance with the updated search provisions.
Key Provisions
The key provisions of the Defence Force Discipline Regulations (Amendment) 1992 No. 314 relate primarily to searches conducted as part of the investigation of service offences under the Defence Force Discipline Act 1982. Section 101W outlines the circumstances under which an investigating officer may conduct searches. Subsection 101W(1) allows for the search of defence members, defence civilians, and their clothing or property under immediate control. Subsection 101W(2) covers searches of service land, ships, aircraft, vehicles, and non-service ships, aircraft, or vehicles on service land, while subsection 101W(3) pertains to searches of private land or premises, including married quarters, and non-service ships, aircraft, or vehicles not on service land. The searches under subsections 101W(1) and (2) can generally only be undertaken in pursuance of a search warrant or with the consent of the person, as per section 101ZA, whereas searches under subsection 101W(3) can only be conducted with the consent of the affected person.
These provisions impose obligations on investigating officers to adhere to the prescribed conditions for conducting searches. They must ensure that any search of a defence member, defence civilian, or their property under immediate control is conducted with a search warrant or with the person's consent, as per section 101W(1). For searches of service land, ships, aircraft, vehicles, or non-service ships, aircraft, or vehicles on service land, the same conditions apply as per section 101W(2). However, for searches of private land, premises, or non-service ships, aircraft, or vehicles not on service land, consent is the only permissible basis for conducting the search, as per section 101W(3). Section 101ZA further stipulates that any consent must be voluntary and documented through a signed acknowledgement, which includes specific information about the consent being informed and voluntary, along with the date and time of consent.
In terms of compliance and enforcement, breaches of these provisions may result in civil or criminal consequences. Although the explanatory statement does not detail specific penalties, it is implicit that failure to follow the prescribed procedures for obtaining consent or conducting searches could result in legal ramifications. Such breaches might be subject to the general provisions of the Defence Force Discipline Act 1982, which could include fines, imprisonment, or other penalties as determined by the courts. The amendments introduced by the Statutory Rule are designed to ensure that the process for obtaining consent for searches is comprehensive and legally sound, thereby protecting the rights of individuals while facilitating effective investigations.