Defence (Inquiry) Amendment Regulation 2013 (No. 1)

Administered by Department of Defence

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Defence (Inquiry) Amendment Regulation 2013 (No. 1)

 

Select Legislative Instrument No. 113, 2013

I, Professor Marie Bashir AC CVO, Administrator of the Government of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation under the Defence Act 1903, the Naval Defence Act 1910 and the Air Force Act 1923.

Dated 13 June 2013

Marie Bashir

Administrator

By Her Excellency’s Command

Stephen Smith

Minister for Defence

 

 

 

 

Contents

1 Name of regulation

2 Commencement

3 Authority

4 Schedule(s)

Schedule 1—Amendments

Defence (Inquiry) Regulations 1985

 

1  Name of regulation

  This regulation is the Defence (Inquiry) Amendment Regulation 2013 (No. 1).

2  Commencement

  This regulation commences on the day after it is registered.

3  Authority

  This regulation is made under the Defence Act 1903, the Naval Defence Act 1910 and the Air Force Act 1923.

4  Schedule(s)

  Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1—Amendments

 

Defence (Inquiry) Regulations 1985

1  Subregulation 62(8)

Omit “authorization under subregulation 63 (3)”, substitute “authorisation under subregulation 63(4) or (6).

2  Subregulation 62(9)

Omit “authorization under subregulation 63 (3)”, substitute “authorisation under subregulation 63(4) or (6).

3  Regulation 63

Repeal the regulation, substitute:

63  Disclosure of records or reports of Courts of Inquiry

Offence relating to disclosure

 (1) A person to whom this regulation applies commits an offence if:

 (a) the person does any of the following things:

 (i) discloses to a person, or makes available to the public generally, information contained in the records or report of a Court of Inquiry;

 (ii) copies a document, or part of a document, that forms part of the records or report of a Court of Inquiry;

 (iii) discloses to a person, or makes available to the public generally, a document, part of a document, or a copy of all or part of a document, that forms part of the records or report of a Court of Inquiry; and

 (b) the information or document referred to in paragraph (a) came to the knowledge, or into the possession, of the person in the course of the person’s employment as a person to whom this regulation applies; and

 (c) the information or document referred to in paragraph (a) does not relate to oral evidence given in public in the course of an inquiry.

Penalty: 10 penalty units or imprisonment for 3 months.

Defence

 (2) It is a defence to a prosecution for an offence against subregulation (1) that the person:

 (a) is authorised under subregulation (4) or (6) to disclose the information or document; and

 (b) disclosed the information or document in accordance with the authorisation.

Note: A defendant bears an evidential burden in relation to the matters mentioned in subregulation (2) (see section 13.3 of the Criminal Code).

 (3) It is a defence to a prosecution for an offence against subregulation (1) that the information, document, or part of a document has previously been made available to the public generally in accordance with an authorisation under:

 (a) subregulation (4) or (6); or

 (b) regulation 63 of these Regulations as in force at any time before this paragraph commences.

Note 1: This regulation was repealed and replaced in 2013.

Note 2: A defendant bears an evidential burden in relation to the matters mentioned in subregulation (3) (see section 13.3 of the Criminal Code).

General authority to disclose or copy

 (4) A person to whom this regulation applies is authorised to:

 (a) disclose to a person, or make available to the public generally, information contained in the records or report of a Court of Inquiry; and

 (b) copy a document, or part of a document, that forms part of the records or report of a Court of Inquiry; and

 (c) disclose to a person, or make available to the public generally:

 (i) a document that forms part of the records or report of a Court of Inquiry; or

 (ii) a part of a document that forms part of the records or report of a Court of Inquiry; or

 (iii) a copy of all or part of a document that forms part of the records or report of a Court of Inquiry;

in the performance of the person’s duties as a person to whom this regulation applies.

Ministerial directions about duties of person to whom this regulation applies

 (5) For subregulation (4):

 (a) the Minister may, in writing, direct a person to whom this regulation applies as to when doing a thing referred to in subregulation (4) is, or is not, in the performance of the person’s duties as a person to whom this regulation applies; and

 (b) a person’s authorisation under subregulation (4) applies subject to any direction by the Minister; and

 (c) a direction is not a legislative instrument.

Note: The Minister may give a direction to a person or a class of persons: see subsection 33(3A) of the Acts Interpretation Act 1901.

Ministerial authority to disclose or copy

 (6) The Minister may, in writing, authorise a person to whom this regulation applies to do any of the following:

 (a) disclose to a person or a class of persons, or make available to the public generally, information contained in the records or report of a Court of Inquiry;

 (b) copy a document, or part of a document, that forms part of the records or report of a Court of Inquiry;

 (c) disclose to a person or a class of persons, or make available to the public generally:

 (i) a document that forms part of the records or report of a Court of Inquiry; or

 (ii) a part of a document that forms part of the records or report of a Court of Inquiry; or

 (iii) a copy of all or part of a document that forms part of the records or report of a Court of Inquiry.

 (7) An authorisation under subregulation (6):

 (a) may be expressed to be subject to conditions specified in the authorisation; and

 (b) may be given whether or not the information or documents to which it relates is or are the subject, in whole or in part, of a direction under subregulation 62(1).

 (8) Subregulation (1) is not to be taken to limit the operation of subregulation (6).

 (9) The Minister may, in writing, delegate his or her powers under subregulation (5) or (6).

 (10) In this regulation:

person to whom this regulation applies:

 (a) means a person employed by the Commonwealth; and

 (b) includes a member of the Defence Force.

records, in relation to a Court of Inquiry, means:

 (a) the transcript or other record of oral evidence taken during the course of an inquiry by the Court; and

 (b) documents received by the Court and accepted as evidence during the course of an inquiry by the Court; and

 (c) statements made under regulation 52 and received by the Court during the course of an inquiry by the Court, whether or not they are accepted as evidence.

report:

 (a) means a report of a Court of Inquiry; and

 (b) in the case of a General Court of Inquiry—includes a statement of an assessor made under subregulation 19(2).

4  Subregulation 64(2)

Omit “63 (2)”, substitute “63(1)”.

5  Subregulation 64(3)

Omit “63 (2)”, substitute “63(1)”.

Overview

The Defence (Inquiry) Amendment Regulation 2013 (No. 1) was enacted to amend the Defence (Inquiry) Regulations 1985, which govern the handling and disclosure of records and reports from Courts of Inquiry within the Defence sector. This regulation was introduced to address issues related to the unauthorised disclosure of sensitive information from Courts of Inquiry, which can have significant implications for national security and the integrity of military investigations. Enacted by Professor Marie Bashir AC CVO, the Administrator of the Government of the Commonwealth of Australia, on the advice of the Federal Executive Council, this regulation aims to strengthen the legal framework governing the disclosure of such information, ensuring it is only shared in a controlled and authorised manner. The policy objective is to maintain the confidentiality and integrity of military inquiries while allowing for necessary disclosures under proper authorisation.

Scope and Application

The Defence (Inquiry) Amendment Regulation 2013 (No. 1) is a legislative instrument made under the Defence Act 1903, the Naval Defence Act 1910, and the Air Force Act 1923. This regulation applies to any person employed by the Commonwealth, including members of the Defence Force, and concerns the disclosure of records or reports of Courts of Inquiry. It specifies that unauthorised disclosure of such information is an offence, with a penalty of 10 penalty units or imprisonment for 3 months. However, it allows for authorised disclosure in the performance of duties or under specific ministerial authorisation, which can be subject to conditions or directions. The regulation also outlines the procedures for ministerial directions and delegation of authority concerning these disclosures, and it includes definitions for key terms such as "records" and "report."

Key Provisions

The Defence (Inquiry) Amendment Regulation 2013 (No. 1) amends the Defence (Inquiry) Regulations 1985, specifically addressing the disclosure of records and reports from Courts of Inquiry. The regulation applies to any person employed by the Commonwealth, including members of the Defence Force. The regulation modifies subregulation 62(8) and subregulation 62(9) to change the authorisation requirements for disclosure and copying of documents from subregulation 63(3) to subregulation 63(4) or (6). It also repeals the previous regulation 63 and replaces it with new provisions concerning the disclosure of records or reports of Courts of Inquiry. Under the new regulation, a person to whom it applies commits an offence if they disclose or copy information or documents from the records or report of a Court of Inquiry without the appropriate authorisation. This applies to information or documents that come to their knowledge or possession during their employment and do not relate to oral evidence given in public during an inquiry. The offence carries a penalty of 10 penalty units or imprisonment for three months. Defences to prosecution include being authorised under subregulation (4) or (6) to disclose the information or document and doing so in accordance with the authorisation, or if the information or document has already been made available to the public in accordance with an authorisation. The regulation also outlines the general authority to disclose or copy records and reports in the performance of one's duties, subject to any directions from the Minister. The Minister has the authority to direct or authorise specific disclosures or copying of information or documents, and these authorisations can include conditions or be given in writing. The regulation further explains that an authorisation under subregulation (6) does not limit the operation of subregulation (6), and the Minister may delegate their powers under subregulations (5) or (6). In summary, the Defence (Inquiry) Amendment Regulation 2013 (No. 1) tightens the controls around the disclosure of records and reports from Courts of Inquiry by specifying the required authorisations and introducing penalties for unauthorised disclosures. It ensures that only authorised personnel can disclose or copy sensitive information, thereby protecting the integrity of the inquiry process and maintaining the confidentiality of certain documents unless expressly permitted by the Minister or pursuant to a direction.

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