Defence Force Regulations (Amendment)

Overview

The Defence Force Regulations (Amendment) Statutory Rules 1990 No. 92 were enacted to address a concern raised by the Senate Standing Committee on Regulations and Ordinances regarding the strict liability nature of a provision within the Defence Force Regulations, which were originally made under the Defence Act 1903. This concern pertained specifically to subregulation 53(2A), which established an offence for disturbing equipment or interfering with the operation of equipment in declared practice areas, where installation had been authorised. The intent behind the amendment was to ensure that a criminal offence could only be established if the accused knowingly engaged in such activities. This change was implemented by inserting the word “knowingly” into subregulation 53(2A), thereby aligning with the requirement for a criminal intention to be present. These Statutory Rules were issued by the authority of the Minister for Defence Science and Personnel and came into effect on the date of their gazette.

Scope and Application

The Defence Force Regulations, made under the Defence Act 1903, govern the organisation and administration of the Defence Force, with Part XI specifically addressing Defence operations and practices that necessitate the exclusion of the public. Regulation 49 allows for the declaration of defence practice areas and the authorisation of activities within these areas by a chief of staff, including the installation of equipment in the sea or on the seabed of a declared practice area for up to two years. Regulation 53 prohibits entry into these practice areas and originally established an offence for disturbing or interfering with authorised equipment without requiring proof of criminal intent, as noted by the Senate Standing Committee on Regulations and Ordinances. This Statutory Rule amends subregulation 53(2A) by introducing the requirement of a "knowingly" committed offence, ensuring that criminal intent is necessary for the offence to be established. This amendment responds directly to the identified concern and aligns the regulation with the need for a mens rea element in criminal offences. The Statutory Rule, which amends the existing regulations, comes into effect on the date of its gazette.

Key Provisions

The Defence Force Regulations (Amendment) Statutory Rule 1990 No. 92, issued under the authority of the Minister for Defence Science and Personnel, amends the Defence Force Regulations. The Regulations, made under the Defence Act 1903, detail the organisation and administration of the Defence Force. Specifically, Part XI of the Regulations outlines the scheme for Defence operations and practices where the exclusion of the public is necessary. Regulation 49, which is pertinent here, allows for the declaration of defence practice areas and the authorisation of activities within those areas. Subregulation 49(4) provides the authority for a chief of staff to approve the installation of equipment in the sea or on the seabed of a declared practice area, or in superjacent waters, for up to two years. These Regulations impose several obligations on the parties involved. The chief of staff, under Regulation 49(4), must carefully consider and approve any installations within the specified areas. This process ensures that equipment installations are monitored and authorised, maintaining control over sensitive Defence operations. Regulation 53 further obligates the Defence Force to prohibit the entry of persons into practice areas, thereby safeguarding the integrity and security of these operations. Subregulation 53(2A) imposes a duty on individuals to avoid disturbing or interfering with any authorised equipment within these areas, emphasising the need for respect and adherence to Defence regulations. The Statutory Rule addresses an amendment to subregulation 53(2A) to ensure that an offence is not committed unless there is a criminal intention. Originally, subregulation 53(2A) created an offence of strict liability, which means that a person could be found guilty of disturbing or interfering with equipment even without intent. By inserting the word “knowingly” into subregulation 53(2A), the amendment now requires that the act of disturbing or interfering with equipment must be done knowingly. This change aligns with the concerns expressed by the Senate Standing Committee on Regulations and Ordinances, ensuring that only intentional misconduct is penalised. This amendment, therefore, protects against the possibility of individuals being prosecuted without evidence of intent, maintaining a fair and just legal standard. The Statutory Rule also delineates the consequences for breaches of the amended subregulation 53(2A). While the specific penalties are not detailed in the Statutory Rule itself, the Defence Force Regulations and related legislation outline the potential penalties for such offences. Generally, offences under the Defence Force Regulations can attract substantial penalties, including fines and imprisonment. The precise penalties would depend on the severity of the offence and the specific circumstances under which it was committed. These consequences underscore the seriousness with which the Defence Force regards the security and integrity of its operations.