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Defence (Inquiry) Amendment Regulations 2000 (No. 1)

Authoritative Version
  • - F2000B00344
  • No longer in force
SR 2000 No. 327 Regulations as made
These Regulations amend the Defence (Inquiry) Regulations.
Administered by: Defence
General Comments: This instrument was backcaptured in accordance with Section 36 of the Legislative Instruments Act 2003
Registered 01 Jan 2005
Tabling HistoryDate
Tabled HR06-Feb-2001
Tabled Senate06-Feb-2001
Gazetted 04 Dec 2000
Date of repeal 19 Mar 2014
Repealed by Defence (Spent and Redundant Instruments) Repeal Regulation 2014

Defence (Inquiry) Amendment Regulations 2000 (No. 1)1

Statutory Rules 2000 No. 3272

I, WILLIAM PATRICK DEANE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Defence Act 1903.

Dated 1 December 2000

WILLIAM DEANE

Governor-General

By His Excellency’s Command

J. MOORE


1              Name of Regulations

                These Regulations are the Defence (Inquiry) Amendment Regulations 2000 (No. 1).

2              Commencement

                These Regulations commence on gazettal.

3              Amendment of Defence (Inquiry) Regulations

                Schedule 1 amends the Defence (Inquiry) Regulations.


Schedule 1        Amendments

  

(regulation 3)

[1]         Regulation 1

substitute

1              Name of Regulations

                These Regulations are the Defence (Inquiry) Regulations 1985.

[2]         Subregulation 3 (1), definition of appointing officer

substitute

appointing officer, in relation to an Investigating Officer or an inquiry assistant, means the officer who appointed the Officer or assistant.

Note   See Part 6.

[3]         Part VI, heading

substitute

Part 6                 Investigating officers and inquiry assistants

[4]         Regulations 68, 69 and 70

substitute

68            Definitions

                In this Part:

APS employee, and ongoing APS employee, have the respective meanings given by the Public Service Act 1999.

the inquiry, in relation to an Investigating Officer, means the inquiry that the Officer has been appointed to conduct.

69            Investigating officers and inquiry assistants

         (1)   An investigating officer may be appointed to inquire into a matter concerning a part of the Defence Force.

         (2)   One or more inquiry assistants may be appointed to assist an Investigating Officer to inquire into a matter concerning a part of the Defence Force.

70            Eligibility to be investigating officer or inquiry assistant

         (1)   The following persons are eligible to be appointed as an Investigating Officer or inquiry assistant:

                (a)    an officer;

               (b)    a warrant officer;

                (c)    an ongoing employee in the Australian Public Service who is performing duties at or above the classification of APS Level 4;

               (d)    any other person (except an APS employee who does not comply with paragraph (c)).

         (2)   However, a person mentioned in paragraph (1) (c) or (d) is not eligible to be appointed unless:

                (a)    for a person mentioned in paragraph (1) (c) — the person has agreed in writing to the appointment; and

               (b)    for a person mentioned in paragraph (1) (d):

                          (i)    a proposal to appoint the person has been approved in writing by the Chief of the Defence Force or the Chief of an arm of the Defence Force; and

                         (ii)    the person has agreed in writing to the appointment.

70A         Appointment of Investigating Officers and inquiry assistants

         (1)   An Investigating Officer or inquiry assistant may be appointed by one of the following officers in relation to an inquiry into a matter concerning the part of the Defence Force that is under the command or control of the officer:

                (a)    a commanding officer in the Defence Force;

               (b)    an officer who has the powers of a formation commander under the Australian Military Regulations 1927;

                (c)    an officer who holds an appointment superior to that of an officer mentioned in paragraph (a) or (b).

         (2)   However, subregulation (1) does not authorise an officer to appoint an Investigating Officer in relation to an inquiry into a matter if an appointment of an Investigating Officer is in force in relation to an inquiry into the same matter.

         (3)   An appointment must:

                (a)    be made in writing; and

               (b)    give the name of the Investigating Officer or inquiry assistant to whom the instrument of appointment relates.

70B         Power of Investigating Officer

         (1)   This regulation applies if a person is appointed as an Investigating Officer.

         (2)   The instrument appointing the person must state whether or not the Investigating Officer is empowered to make recommendations resulting from the findings of the Investigating Officer.

         (3)   If the instrument does not empower the Investigating Officer to make recommendations resulting from the findings of the Investigating Officer in relation to a matter, the appointing officer may, in writing, authorise the Investigating Officer to make recommendations in relation to that matter.

         (4)   If the appointing officer adds a matter to the matters into which an Investigating Officer is to inquire, or varies a matter into which the Investigating Officer is to inquire, the appointing officer may, in writing, authorise the Investigating Officer to make recommendations resulting from the findings of the Investigating Officer in relation to that matter.

70C         Power of inquiry assistant

                If a person is appointed as an inquiry assistant to assist an Investigating Officer, the person:

                (a)    may assist the Investigating Officer to gather evidence for the purposes of the inquiry; and

               (b)    must give to the Investigating Officer any evidence he or she has gathered for the purposes of the inquiry.

[5]         Regulation 73

substitute

73            Manner of taking evidence

                An Investigating Officer and an inquiry assistant must not take evidence on oath or affirmation.

[6]         Regulations 74 and 74A

substitute

74            Duty to answer questions

         (1)   A member of the Defence Force who appears as a witness before an Investigating Officer or inquiry assistant must not, without reasonable excuse, refuse or fail to answer a question relevant to the inquiry put to the member by an Investigating Officer or inquiry assistant.

Penalty:   5 penalty units or imprisonment for 3 months.

         (2)   Without limiting the circumstances that may constitute a reasonable excuse for subregulation (1), if the member considers, on reasonable grounds, that answering a question may:

                (a)    disclose a secret process of manufacture; or

               (b)    be prejudicial to the defence of the Commonwealth;

the member has a reasonable excuse for not answering the question.

74A         Duty to produce document or article

         (1)   If a member of the Defence Force who appears as a witness before an Investigating Officer or an inquiry assistant is ordered by the Officer or assistant to produce a document or an article that:

                (a)    is in the custody or control of the member; and

               (b)    is relevant to the inquiry;

the member must not, without reasonable excuse, refuse or fail to produce the document or article.

Penalty:   5 penalty units or imprisonment for 3 months.

         (2)   Without limiting the circumstances that may constitute a reasonable excuse for subregulation (2), if the member considers, on reasonable grounds, that the production of a document or an article may:

                (a)    disclose a secret process of manufacture; or

               (b)    be prejudicial to the defence of the Commonwealth;

the member has a reasonable excuse for not producing the document or article.

74B         Admissibility of statement or disclosure

         (1)   Subject to subregulation (2), a statement or disclosure made by a member of the Defence Force while giving evidence before an Investigating Officer or an inquiry assistant is not admissible in evidence against that person in proceedings before a service tribunal.

         (2)   A statement or disclosure mentioned in subregulation (1) is admissible in evidence against the member if the member is prosecuted for an offence against these Regulations.

[7]         After regulation 75

insert

75A         Completion of inquiry

         (1)   An inquiry is taken to be completed when the report of the Investigating Officer has been:

                (a)    prepared under regulation 75; and

               (b)    given to the appointing officer.

         (2)   The inquiry is taken to be completed whether or not the report has been signed by the Investigating Officer.

[8]         Regulations 77 and 78

substitute

77            Duration and termination of appointment

         (1)   Subject to subregulation (2), if a person is appointed as an Investigating Officer or an inquiry assistant, the appointment continues until the end of 2 months after the inquiry is taken to be completed.

         (2)   If an Investigating Officer has been directed, under regulation 76, to make a further report:

                (a)    the appointment of the person to be an Investigating Officer is taken to continue in existence until the end of 2 months after the re‑opened inquiry is taken to be completed; and

               (b)    the appointment of a person to be an inquiry assistant to the Investigating Officer is taken to continue in existence until the end of 2 months after the re-opened inquiry is taken to be completed.

78            Application of provisions to Investigating Officers and inquiry assistants

         (1)   If a person is appointed as an Investigating Officer, regulations 49, 50, 53, 56, 57, subregulations 60 (5) and (6), regulations 61 and 63 and subregulations 64 (1) and (3) apply to and in relation to the Investigating Officer as if the Investigating Officer constituted a Court of Inquiry.

         (2)   However:

                (a)    a reference to the appointing authority in a provision mentioned in subregulation (1) is to be read as a reference to the appointing officer; and

               (b)    a power or function that may be exercised or performed by the President of a Court of Inquiry under a provision mentioned in subregulation (1) may, in relation to an inquiry under this Part, be performed by the Investigating Officer.

         (3)   If a person is appointed as an inquiry assistant, subregulation 49 (2), regulations 50, 53, 56, subregulation 57 (1), subregulations 60 (5) and (6), regulations 61 and 63, subregulations 64 (1) and (3) apply to and in relation to the inquiry assistant as if the inquiry assistant constituted a Court of Inquiry.

         (4)   However:

                (a)    a reference to the appointing authority in a provision mentioned in subregulation (3) is to be read as a reference to the appointing officer; and

               (b)    a power or function that may be exercised or performed by the President of a Court of Inquiry under a provision mentioned in subregulation (3) may, in relation to an inquiry under this Part, be performed by the inquiry assistant.


Notes

1.       These Regulations amend Statutory Rules 1985 No. 114, as amended by 1987 No. 36; 1990 Nos. 10 and 207; 1997 No. 43.

2.       Notified in the Commonwealth of Australia Gazette on 4 December 2000.