EXPLANATORY STATEMENT
STATUTORY RULES 1990 NO. 10
ISSUED BY THE AUTHORITY OF THE MINISTER FOR DEFENCE SCIENCE AND PERSONNEL DEFENCE (INQUIRY) REGULATIONS (AMENDMENT)
The Defence (Inquiry) Regulations (“the Regulations”), made under the Defence Act 1903, the Naval Defence Act 1910 and the Air Force Act 1923, prescribe various matters in relation to the conduct of inquiries concerning the Defence Force.
The Regulations provide legislative cover for three levels of inquiry:
• General Court of Inquiry;
• Board of Inquiry; and
• inquiry by an Investigating Officer.
A General Court of Inquiry would be appointed in relation to a matter of major importance. A Board of Inquiry would investigate a matter of significance to the Defence Force which does not warrant a quasi-judicial inquiry. An Investigating Officer investigates less important matters.
Regulation 69 of the Regulations provides for the appointment of Investigating Officers. Subregulation 69(2) provided that a person was not eligible to be an Investigating Officer unless he or she was an officer of the Defence Force. In some cases, officers with the necessary expertise are not readily available and it would be appropriate for an inquiry to be conducted by a warrant officer or a member of the Australian Public Service.
The Statutory Rule therefore replaces subregulation 69(2) with a provision that expands the class of persons eligible to be appointed as Investigating Officers to include warrant officers and Commonwealth public servants, not below the level of Administrative Service Officer Class 4. (The responsibilities of an Administrative Service Officer Class 4 are broadly equivalent to those of a warrant officer.)
An associated provision ensures that a public servant can only be appointed as an Investigating Officer with his or her consent. This proviso is appropriate because carrying out the duties of an Investigating Officer is normally a military function, and a public servant is outside the command structure.
The Statutory Rule comes into operation on the date of gazettal.
Overview
The Defence (Inquiry) Regulations (Amendment) Statutory Rule 1990 No. 10, issued under the authority of the Minister for Defence Science and Personnel, aims to amend the Defence (Inquiry) Regulations, which were enacted under the Defence Act 1903, the Naval Defence Act 1910, and the Air Force Act 1923. The primary problem addressed by this amendment is the restriction in the eligibility of personnel to be appointed as Investigating Officers for inquiries within the Defence Force. Initially, only Defence Force officers were eligible for this role, which sometimes hindered the appointment of suitably qualified individuals, such as warrant officers or experienced public servants, for less significant inquiries. The policy objective of this amendment is to broaden the pool of eligible personnel by including warrant officers and certain Commonwealth public servants, ensuring that inquiries are conducted by individuals with the appropriate expertise, thereby enhancing the efficiency and effectiveness of the inquiry process.
Scope and Application
The Defence (Inquiry) Regulations, amended by the Statutory Rules 1990 No. 10, apply to individuals and entities involved in the Defence Force, including its officers and members. These Regulations govern the conduct of various levels of inquiries within the Defence Force, such as General Courts of Inquiry, Boards of Inquiry, and inquiries by Investigating Officers. The amendments particularly affect the eligibility criteria for Investigating Officers, broadening the scope to include warrant officers and certain Commonwealth public servants, such as those at the level of Administrative Service Officer Class 4, thereby addressing situations where Defence Force officers with the necessary expertise may not be readily available. The Regulations are applicable nationally, encompassing all states and territories of Australia. Notably, the amendment ensures that public servants can only be appointed as Investigating Officers with their consent, reflecting the distinct nature of their role outside the usual military command structure. These Regulations, therefore, ensure the effective and appropriate conduct of inquiries within the Defence Force.
Key Provisions
The Defence (Inquiry) Regulations (Amendment) Statutory Rules 1990 No. 10, issued under the authority of the Minister for Defence, primarily amend the eligibility criteria for Investigating Officers conducting inquiries within the Defence Force. Specifically, Regulation 69, which concerns the appointment of Investigating Officers, is updated to allow for the inclusion of warrant officers and certain Commonwealth public servants in the class of eligible appointees (Section 69). Previously, only Defence Force officers were eligible to be appointed as Investigating Officers (Section 69(2)). The amendment ensures that the pool of potential Investigating Officers is broadened to include warrant officers and public servants at least at the level of Administrative Service Officer Class 4, thereby facilitating the appointment of suitably qualified individuals even when Defence Force officers with the requisite expertise are not readily available.
The Regulations impose obligations on the Defence Force to ensure that inquiries are conducted by appropriately qualified personnel. Under the amended provisions, the Defence Force must consider the expertise and availability of potential Investigating Officers, including warrant officers and public servants, before making appointments. This requirement aims to ensure that inquiries are carried out efficiently and effectively, with the necessary expertise brought to bear on the matters under investigation. Additionally, the Regulations mandate that public servants can only be appointed as Investigating Officers with their consent, acknowledging the potential conflict between their usual duties and the additional responsibilities of an Investigating Officer.
Breaches of the Regulations may not explicitly detail specific offences or penalties within the text provided, but the general legal framework under which these Regulations operate would typically include provisions for disciplinary action, fines, or other penalties for non-compliance. Given that the Regulations are made under the Defence Act 1903, the Naval Defence Act 1910, and the Air Force Act 1923, any breach could potentially lead to severe consequences, including administrative sanctions, criminal charges, or civil liabilities, depending on the nature and severity of the breach. The exact penalties would be determined by the relevant Acts and the context in which the breach occurs.