EXPLANATORY STATEMENT
STATUTORY RULES 1985 NO. 332
ISSUED BY THE AUTHORITY OF THE MINISTER FOR DEFENCE
DEFENCE FORCE DISCIPLINE REGULATIONS (AMENDMENT)
The Defence Force Discipline Regulations (“the Regulations”) prescribe various matters for the purposes of the Act, including matters concerning detainees and evidence before service tribunals.
Sections 90 and 101X of the Defence Force Discipline Act 1982 (“the Act”) respectively specify the circumstances in which an authorized officer may issue a warrant for the arrest of a person, or a search warrant. Amongst other things, an information on oath or affirmation is required in each case.
Although the required oaths or affirmations may be administered in the ordinary way by Justices of the Peace etc, it became apparent that this would not be practicable in circumstances where elements of the Defence Force were in remote localities or overseas.
Accordingly, the Statute Law (Miscellaneous Provisions) Act (No. 1) 1985 inserted new sections 86A and 101AA in the Act, which empower an authorized officer to administer oaths and affirmations for the purposes of Parts V and VI. (Section 3 of the Act defines “authorized officer” as an officer of the Defence Force authorized by a chief of staff for the purposes of the provision in which the term appears).
Sub-sections 86A(2) and 101AA(2) of the Act respectively provide for the forms of oaths and affirmations administered by an authorized officer for the purposes of Parts V and VI to be as prescribed.
This Statutory Rule amends the Regulations to prescribe a form of oath or affirmation for the purposes of sub-sections 86A(2) and 101AA(2) of the Act.
Regulation 1 of the Statutory Rule inserts regulation 33A to provide that, for the purposes of sub-section 86A(2) of the Act, the prescribed form of oath or affirmation is Form 1A in Schedule 2.
Regulation 2 of the Statutory Rule inserts regulation 35A to provide that, for the purposes of sub-section 101AA(2) of the Act, the prescribed form of oath or affirmation is Form 1A in Schedule 2.
Regulation 3 of the Statutory Rule amends Schedule 2 to the Regulations to prescribe Form 1A, the form of oath or affirmation.
Commencement
The amendments come into operation on the date of gazettal of the Statutory Rule.
Overview
The Defence Force Discipline Regulations (Amendment) Statutory Rules 1996, issued by the authority of the Minister for Defence, were enacted to address the practical difficulties associated with administering oaths and affirmations required for warrants in the Defence Force Discipline Act 1982. This issue arose particularly in remote or overseas locations where traditional methods of oath administration, such as by Justices of the Peace, were not feasible. The original Act included provisions for issuing arrest and search warrants, which necessitated oaths or affirmations, but these provisions did not account for the challenges posed by the Defence Force’s operational contexts. To remedy this, the Statute Law (Miscellaneous Provisions) Act (No. 1) 1985 inserted new sections into the Defence Force Discipline Act, empowering authorized officers within the Defence Force to administer the required oaths and affirmations. The Regulations were subsequently amended to specify the forms of oaths and affirmations that authorized officers can use, ensuring compliance with the legislative framework while accommodating the unique circumstances of Defence Force operations.
Scope and Application
The Defence Force Discipline Regulations (Amendment) Statutory Rules 1985 pertain to the Defence Force Discipline Act 1982, governing the disciplinary framework within the Australian Defence Force. These Regulations are designed to address practical issues that arise in the administration of oaths and affirmations in remote or overseas locations where the usual judicial officers might not be available. They specifically focus on the administration of oaths and affirmations by authorised officers for the purposes of warrants for arrest and search warrants under the Act. This amendment applies to all personnel within the Defence Force who are authorised by a chief of staff to administer such oaths and affirmations as defined in the Act. The Regulations have a national reach within Australia, extending to Defence Force operations overseas. There are no stated exclusions or exemptions within the text, although the practical application may vary based on specific circumstances. The application of the Regulations is further extended and detailed through subordinate instruments, which prescribe the specific forms of oaths and affirmations to be used. These amendments come into effect on the date of their gazettal as per the Statutory Rule.
Key Provisions
The Defence Force Discipline Regulations (Amendment) Statutory Rule 1985 No. 332, issued under the authority of the Minister for Defence, introduces key amendments to the Defence Force Discipline Regulations. These amendments are aimed at addressing the practical challenges associated with administering oaths and affirmations in remote or overseas locations where Defence Force elements may be deployed. Specifically, sections 86A and 101AA of the Defence Force Discipline Act 1982, inserted by the Statute Law (Miscellaneous Provisions) Act (No. 1) 1985, empower authorised officers to administer oaths and affirmations for the purposes of Parts V and VI of the Act. The new Statutory Rule amends the Regulations to prescribe a uniform form of oath or affirmation, to be used in these circumstances, which is detailed in Form 1A in Schedule 2.
The main operative sections of the Statutory Rule, including regulation 1, regulation 2, and the amendments to Schedule 2, establish the prescribed form of oath or affirmation for authorised officers to use under sections 86A(2) and 101AA(2) of the Act. Regulation 1 inserts regulation 33A, which specifies that Form 1A in Schedule 2 is the prescribed form for the oath or affirmation required under section 86A(2). Similarly, regulation 2 inserts regulation 35A, specifying that Form 1A in Schedule 2 is the prescribed form for the oath or affirmation required under section 101AA(2). These regulations ensure that authorised officers have a standardised form to follow when administering oaths or affirmations in accordance with the Act.
The obligations imposed by the Statutory Rule on the parties and entities it governs include ensuring that authorised officers are aware of and comply with the prescribed form of oath or affirmation as detailed in Form 1A. This includes the requirement for authorised officers to administer the oath or affirmation in the specified form when issuing a warrant for arrest or a search warrant under sections 90 and 101X of the Act. Additionally, the Statutory Rule mandates that any documentation or proceedings involving these oaths or affirmations must reflect the prescribed form to maintain legal validity and consistency.
In terms of consequences for non-compliance, the Statutory Rule does not explicitly state offences or penalties for breaches. However, the importance of adhering to the prescribed form of oath or affirmation suggests that failure to do so could potentially invalidate the warrant or evidence before service tribunals. While the Statutory Rule does not outline specific penalties, any resultant legal challenges or issues stemming from non-compliance with the prescribed forms could lead to civil or criminal consequences under the Defence Force Discipline Act 1982 or other relevant legislation. The precise nature and severity of these consequences would depend on the specific circumstances and any subsequent judicial interpretation.