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.
Overview
The Defence (Inquiry) Regulations (Amendment) Statutory Rules 1996 were enacted to amend the Defence (Inquiry) Regulations, which were originally made under the Defence Act 1903, the Naval Defence Act 1910 and the Air Force Act 1923. The primary objective of these regulations is to govern the conduct of inquiries related to the Defence Force. The amendments introduced by these statutory rules were issued under the authority of the Minister for Defence and aim to align the regulations with contemporary legal standards and practices. These amendments address issues such as the resignation of inquiry members, the admissibility of certain statements as evidence, and the definition of contempt, ensuring they do not exceed the provisions of the Royal Commissions Act 1902. The changes were made in response to recommendations from the Senate Standing Committee on Regulations and Ordinances, reflecting a commitment to transparency and procedural fairness in Defence Force inquiries.
Scope and Application
The Defence (Inquiry) Regulations (Amendment) Statutory Rules 1987 No. 36 amends the Defence (Inquiry) Regulations, which were originally made under the Defence Act 1903 and relate to the conduct of inquiries that pertain to the Defence Force. These regulations govern the resignation of inquiry members, the obligations of witnesses, and contempt provisions, among other matters. The regulations apply to individuals who are not members of the Defence Force, particularly in their roles as Presidents or members of various courts or boards of inquiry. The amendment ensures that the resignation process for these roles is clearly defined, with resignations to be made in writing and delivered to the appropriate authority, whether it be the Minister or the appointing authority. Additionally, the amendment refines the obligations of witnesses, ensuring that they are not compelled to answer questions that may incriminate them if the answers pertain to pending charges. The contempt provisions have been aligned with those of the Royal Commissions Act 1902 to avoid any overreach. Furthermore, statements or disclosures made by Defence Force members before Investigating Officers are now inadmissible as evidence before a service tribunal, extending a previously existing protection. The scope of these regulations is national, applying across all states and territories in Australia.
Key Provisions
The Defence (Inquiry) Regulations (Amendment) Statutory Rules 1987 No. 36 introduce several significant changes to the existing Defence (Inquiry) Regulations. Most notably, they introduce provisions allowing the resignation of the President and members of various courts and boards of inquiry, subject to specific conditions (regs 7A, 7B, 27A, 27B, and 43A, 43B). These provisions apply only to individuals who are not members of the Defence Force, and resignations must be submitted in writing to the relevant authority, either the Minister or the appointing authority, depending on the specific court or board.
Under the amended Regulations, witnesses before a General Court of Inquiry or a Board of Inquiry are required to answer questions even if the answers may incriminate them, with the caveat that the obligation not to answer does not apply if answering the question may incriminate the witness in relation to charges that are pending (regs 4 and 6). This amendment seeks to ensure that witnesses provide full testimony while protecting them from self-incrimination in certain circumstances.
The Regulations also modify the contempt provisions to align with the Royal Commissions Act 1902, ensuring that the conduct expected of those participating in Defence inquiries does not exceed the contempt provisions outlined in that Act (reg 8). Additionally, statements or disclosures made by Defence Force members before a court, board of inquiry, or Investigating Officer are rendered inadmissible as evidence in federal or state courts, or before a service tribunal, to prevent potential misuse of such statements (regs 9 and 11). These provisions are designed to maintain the integrity of Defence inquiries and protect the rights of Defence Force members.
Failure to comply with the requirements and prohibitions under the Defence (Inquiry) Regulations can lead to serious consequences. While the specific offences, penalties, and consequences are not detailed within the provided text, breaches of such regulations can typically result in disciplinary action against Defence Force members, inadmissibility of evidence in court proceedings, and other legal repercussions. The penalties for contempt and other breaches would be determined based on the severity of the breach and applicable laws, potentially including fines, imprisonment, or other sanctions as prescribed by relevant legislation.