EXPLANATORY STATEMENT
STATUTORY RULES 1987 NO. 36
ISSUED BY THE AUTHORITY OF THE MINISTER FOR DEFENCE
DEFENCE (INQUIRY) REGULATIONS (AMENDMENT)
The Defence (Inquiry) Regulations (“the Regulations”), made under the Defence Act 1903 (“the Act”), the Naval Defence Act 1910 and the Air Force Act 1923, prescribe various matters in relation to the conduct of inquiries that relate to the Defence Force.
Background
The Regulations came into operation on 3 July 1985.
Following a request from the Senate Standing Committee on Regulations and Ordinances, the Minister for Defence agreed to amendment of the regulations to provide for the resignation of the President or a member of a court or board of inquiry. He also agreed to an amendment of a contempt provision (regulation 57) if it exceeded in any way the contempt provisions of section 60 of the Royal Commissions Act 1902.
Regulation 3 of the Statutory Rule inserts new regulations 7A and 7B in the Regulations. They permit, respectively, the resignation of the President and a member of a General Court of Inquiry. The new regulations only apply in relation to a person who is not a member of the Defence Force. Resignations are to be by writing delivered to the Minister.
Regulation 4 of the Statutory Rule makes a consequential amendment to sub-regulation 14(5) of the Regulations by qualifying the obligation imposed on a witness before a General Court of Inquiry to answer a question, whether or not the answer tends to incriminate that witness. The words added to the sub-regulation reproduce a limitation imposed by sub-section 124(2B) of the Act in relation to charges that are pending.
Regulation 5 of the Statutory Rule inserts new regulations 27A and 27B in the Regulations. They permit, respectively, the resignation of the President and a member of a Board of Inquiry. The new regulations only apply in relation to a person who is not a member of the Defence Force.
Resignations are to be by writing delivered to the appointing authority.
Regulation 6 of the Statutory Rule amends sub-regulation 32(5) of the Regulations by qualifying the obligation imposed on a witness before a Board of Inquiry to answer a question, whether or not the answer tends to incriminate that witness. The words added are identical to those added to sub-regulation 14(5) by regulation 4.
Regulation 7 of the Statutory Rule inserts new regulations 43A and 43B in the Regulations. They permit, respectively, the resignation of the President and a member of a Combined Board of Inquiry. The new regulations only apply in relation to a person who is not a member of the Defence Force. Resignations are to be by writing delivered to the appointing authority.
Regulation 8 of the Statutory Rule replaces sub-regulation 57(1) of the Regulations. The new sub-regulation 57(1) reproduces the words of section 60 of the Royal Commissions Act 1902, in order that there be no risk of exceeding the provisions of that section, which describe behaviour constituting contempt.
Regulation 9 of the Statutory Rule repeals regulation 65 of the Regulations, consequential on the insertion of sub-section 124(2C) in the Act. Sub-section 124(2C) makes inadmissible as evidence in proceedings in any federal court or court of a State or Territory, or before a service tribunal, a statement or disclosure made by a member of the Defence Force before a court or board of inquiry. With one exception, which is dealt with by regulation 11 of the Statutory Rule, this overlaps the provisions of regulation 65.
Regulation 10 of the Statutory Rule makes a drafting amendment to regulation 69 of the Regulations to ensure consistency of terminology throughout.
Regulation 11 of the Statutory Rule inserts a new regulation 74A in the Regulations. This regulation extends the protection previously afforded by regulation 65 to persons giving evidence before Investigating Officers. It makes inadmissible as evidence before a service tribunal a statement or disclosure made by a member of the Defence Force before an Investigating Officer.
Regulation 12 of the Statutory Rule makes a consequential drafting amendment to regulation 78 of the Regulations.