EXPLANATORY STATEMENT
STATUTORY RULES 1989 NO. 97
ISSUED BY THE AUTHORITY OF THE
MINISTER FOR DEFENCE
SCIENCE AND PERSONNEL
DEFENCE FORCE DISCIPLINE REGULATIONS
(AMENDMENT)
Background
The Defence Force Discipline Act 1982 (“the Act”) provides a disciplinary system for the Defence Force, and creates service tribunals with power to deal with service charges against members of the Defence Force. Provision is also made for related matters, such as the procedures and rules of evidence that apply to service tribunals.
Various provisions of the Act, including sections 29 and 40, create offences where the speed of a motor vehicle may be a relevant fact or issue.
The Defence Force Discipline Regulations (“the Regulations”) prescribe various matters for the purposes of the Act, Part III of the Regulations provides for the giving of evidence before service tribunals.
The Defence Force is to commence using radar devices at Defence establishments to test the speed of vehicles driven by Defence Force personnel.
In order to admit in service tribunals the evidence gained by using these devices, it was necessary to prescribe appropriate evidentiary provisions. The Statutory Rule inserts new regulations 25A and 25B in the Regulations to prescribe these provisions. The new provisions follow the pattern of legislation in the civil community concerning radar speed testing, and include a number of safeguards to ensure the accuracy of evidence gained from radar devices.
Defence Force Discipline Regulations (Amendment)
Regulation 25A provides for the admissibility of evidence from radar devices before service tribunals, and sets out procedures for the testing, sealing and operation of those devices.
Subregulation 25A(1) defines various terms used in the regulation, including “authorised tester” and “radar device”. The term “authorised tester” is limited to persons holding an appointment under subregulation 25A(4), while the term “radar device” is confined to the device known as “The Kustom Falcon”.
Subregulation 25A(2) provides that evidence from a radar device can be used as evidence before a service tribunal in proceedings where the speed of a motor vehicle is a relevant fact or issue.
Subregulation 25A(3) ensures that this evidence is admissible only where the service tribunal is satisfied that the device has been properly tested, sealed and operated having regard to the procedures that are specified in regulation 25A, and that the radar device has been tested within 12 months prior to its use.
Subregulation 25A(4) enables an officer not below the rank of brigadier (or equivalent) to appoint an electrical engineer or an electronic technician as an authorised tester.
Subregulation 25A(5) sets out the requirements for testing the radar device. These include the need for the test to be conducted by an authorised tester who must be satisfied that certain prescribed criteria have been met. The authorised tester must also sign and date a statement containing specified details of the test that has been conducted.
Subregulation 25A(6) sets out the requirements for sealing the radar device after the test.
Subregulation 25A(7) sets out the requirements to be complied with by a service policeman operating the radar device.
Subregulation 25A(8) provides that the production to a service tribunal of a document of appointment is evidence that the person named in the document is an authorised tester. Subregulations 25A(9) and (10) enable certificates of the testing and sealing of the device, and of its operation by a service policeman, to be used as evidence before a service tribunal.
The documents signed pursuant to subregulations 25A(8), (9) and (10) must be in accordance with the relevant forms that are added to Schedule 2 of the Regulations. These documents are not intended to constitute conclusive evidence, nor is it intended that they shift the persuasive burden of proof that rests on the prosecution.
Regulation 25B makes it an offence for a person to tamper with, interfere with, or damage a radar device.
Commencement
This Statutory Rule comes into operation on the date of gazettal.
Overview
The Defence Force Discipline Regulations (Amendment) Statutory Rule 1989 No. 97, issued under the authority of the Minister for Defence Science and Personnel, amends the Defence Force Discipline Regulations to incorporate provisions for the use of radar devices in testing the speed of vehicles driven by Defence Force personnel. Enacted in response to the Defence Force's decision to utilise radar devices at Defence establishments, these regulations aim to ensure that evidence derived from these devices is admissible in service tribunals and follows the standards set in the civil community regarding radar speed testing. This amendment is designed to maintain the integrity of the disciplinary system for the Defence Force by providing clear guidelines and safeguards for the accuracy and admissibility of radar evidence.
The primary objective of these regulations is to establish the legal framework for using radar devices within the Defence Force, ensuring that such evidence is admissible in service tribunals when the speed of a motor vehicle is relevant. The regulations introduce new rules to define terms, establish procedures for testing, sealing, and operating radar devices, and set out safeguards to verify the accuracy and reliability of the evidence obtained. By aligning these procedures with civil community standards, the regulations aim to uphold the standards of evidence and ensure fairness in the disciplinary process for Defence Force personnel.
Scope and Application
The Defence Force Discipline Regulations (Amendment) Statutory Rule 1989 No. 97 pertains specifically to the Defence Force and its disciplinary system as outlined in the Defence Force Discipline Act 1982. It introduces new regulations, namely 25A and 25B, to accommodate the use of radar devices at Defence establishments for testing the speed of vehicles driven by Defence Force personnel. These amendments ensure that the evidence gathered from radar devices can be admissible in service tribunals, where the speed of a motor vehicle is a relevant fact or issue. Regulation 25A provides detailed procedures for the testing, sealing, and operation of radar devices, ensuring their admissibility in service tribunals, while Regulation 25B criminalises any tampering, interference, or damage to these devices. These regulations apply to the Defence Force personnel and any other individuals who may be implicated in proceedings before a service tribunal. The geographic reach of these regulations is limited to Defence establishments within Australia, and they do not extend beyond this jurisdictional scope. The new provisions are designed to mirror the evidentiary standards found in civil community radar speed testing, ensuring consistency and reliability in the evidence presented in service tribunals.
Key Provisions
The main operative sections of these regulations are Regulations 25A and 25B, which are designed to ensure the admissibility and integrity of evidence from radar devices in service tribunals (Reg 25A(2)). Regulation 25A provides detailed procedures for the testing, sealing, and operation of radar devices, with a specific focus on the device known as “The Kustom Falcon” (Reg 25A(1), (4)). Regulation 25A(3) mandates that such evidence is only admissible if the service tribunal is satisfied that the device has been properly tested, sealed, and operated within the specified timeframe. Regulation 25B, on the other hand, criminalises any act of tampering, interference, or damage to a radar device (Reg 25B).
The Regulations impose several obligations on parties involved with the radar devices. Firstly, it is mandatory for radar devices to be tested by an authorised tester who must meet certain qualifications and criteria (Reg 25A(4), (5)). The tester must conduct a thorough test, document the results, and sign a statement verifying the test details (Reg 25A(5), (8)). After testing, the radar device must be sealed in accordance with specified procedures to ensure its integrity (Reg 25A(6)). Additionally, service policemen operating the radar device must adhere to the outlined requirements to ensure accurate and reliable operation (Reg 25A(7)). Certificates attesting to the testing, sealing, and operation of the radar device can be presented as evidence in service tribunals (Reg 25A(9), (10)).
There are significant consequences for breaches of these regulations. Regulation 25B explicitly makes it an offence for any person to tamper with, interfere with, or damage a radar device (Reg 25B). While the exact penalties are not detailed in the provided text, such offences typically attract criminal penalties under the Defence Force Discipline Act 1982 or other relevant legislation. Admissibility of evidence from improperly tested or sealed devices could lead to legal challenges and potential dismissal of cases in service tribunals, affecting the disciplinary process and the outcomes for Defence Force personnel.