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Defence (Inquiry) Amendment Regulations 2005 (No. 2)

Authoritative Version
  • - F2005L03686
  • No longer in force
SLI 2005 No. 276 Regulations as made
These Regulations amend the Defence (Inquiry) Regulations 1985 to indentify the power to make recommendations and representation before Boards of Inquiry, to remove the privilege against self-incrimination and change Investigating Officer to Inquiry Officer.
Administered by: Defence
Registered 28 Nov 2005
Tabling HistoryDate
Tabled HR30-Nov-2005
Tabled Senate30-Nov-2005
Date of repeal 19 Mar 2014
Repealed by Defence (Spent and Redundant Instruments) Repeal Regulation 2014

Defence (Inquiry) Amendment Regulations 2005 (No. 2)1

Select Legislative Instrument 2005 No. 276

I, PHILIP MICHAEL JEFFERY, 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, the Naval Defence Act 1910 and the Air Force Act 1923.

Dated 23 November 2005

P. M. JEFFERY

Governor-General

By His Excellency’s Command

DE-ANNE KELLY


1              Name of Regulations

                These Regulations are the Defence (Inquiry) Amendment Regulations 2005 (No. 2).

2              Commencement

                These Regulations commence on the day after they are registered.

3              Amendment of Defence (Inquiry) Regulations 1985

                Schedule 1 amends the Defence (Inquiry) Regulations 1985.


Schedule 1        Amendments

(regulation 3)

  

[1]           After regulation 20

insert

20A         Tabling of report

         (1)   Subject to subregulation (2), as soon as practicable after any disciplinary or administrative action has been taken as a consequence of a report of a General Court of Inquiry, the Minister must table the following in each House of the Parliament:

                (a)    the report;

               (b)    the recommendations of the General Court of Inquiry;

                (c)    a statement setting out details of the action (if any) taken to implement the recommendations;

               (d)    if a recommendation is rejected, a statement of the reasons for rejecting the recommendation.

         (2)   If the Minister is of the opinion that disclosure of information contained in the report or other material to be tabled under subregulation (1) would be contrary to the public interest because of a reason or combination of reasons mentioned in subregulation (3), the Minister may decide:

                (a)    having regard to the amount of information of that kind in the report — not to table the report; or

               (b)    to leave the information out of the report or other material to be tabled.

         (3)   For subregulation (2), the reasons are that:

                (a)    the information relates to a secret process of manufacture; or

               (b)    disclosure of the information would be prejudicial to the defence of the Commonwealth; or

                (c)    disclosure of the information would unreasonably affect the privacy of an individual.

         (4)   If the Minister decides not to table the report, or to leave out information from material to be tabled under subregulation (1), the material that is tabled (or, if no material is tabled, a separate statement that itself must be tabled) must set out:

                (a)    for a decision not to table the report — that fact; and

               (b)    for a decision to leave out information:

                          (i)    that fact (although the information that has been left out does not have to be identified); and

                         (ii)    the reason or reasons why the information was left out.

[2]           Regulation 25

substitute

25            Power to make recommendations

                A Board of Inquiry is empowered to make recommendations arising from its findings.

[3]           Regulation 33

substitute

33            Appearances and representation

         (1)   If the President of a Board of Inquiry considers that a person (person A) may be affected by the inquiry conducted by the Board, the President may authorise person A to appear before the Board.

         (2)   If the President of a Board of Inquiry considers that the record or reputation of a person (person B):

                (a)    who has died; and

               (b)    whose death may have been the result of an incident being inquired into by the Board;

may be affected by the inquiry conducted by the Board, the President may authorise a single representative of person B to appear before the Board.

         (3)   Person A, and the representative of person B, may appoint another person (person C) (who may be a legal practitioner) to represent him or her for the purposes of the inquiry, and person C is authorised to appear before the Board.

         (4)   If a legal practitioner appointed under subregulation (3) is an officer in the Defence Force, his or her services must be made available at the expense of the Commonwealth.

[4]           Paragraph 36 (1) (b)

omit

if the Board is empowered to make recommendations —

[5]           Subregulation 36 (2)

substitute

         (2)   If the members of a Board of Inquiry cannot agree on a document prepared under subregulation (1), each member of the Board must make a statement in writing, to be signed by that member, of:

                (a)    the findings made by the member; and

               (b)    any recommendations arising from those findings that the member may think fit to make;

and those statements constitute the report of the Board.

[6]           Regulation 70B

substitute

70B         Power of Inquiry Officer

         (1)   A person who is appointed as an Inquiry Officer is empowered to make recommendations resulting from his or her findings (including findings about a matter added under subregulation (2)).

         (2)   The appointing officer may add a matter to the matters into which an Inquiry Officer is to inquire, or vary a matter into which the Inquiry Officer is to inquire.

[7]           After subregulation 74 (3)

insert

      (3A)   A person appearing as a witness before an Inquiry Officer or an inquiry assistant is not excused from answering a question, when required to do so, on the ground that the answer to the question may tend to incriminate that person, except where the answer to the question:

                (a)    may tend to incriminate that person in respect of an offence with which that person has been charged; and

               (b)    the charge has not been finally dealt with by a court or otherwise disposed of.

[8]           Regulation 74B

omit

[9]           Paragraph 75 (1) (b)

omit

if the Investigating Officer is empowered to make recommendations —

[10]         After subregulation 96 (2), including the note

insert

         (3)   A person appearing as a witness before an Inquiry Officer or an Inquiry Assistant is not excused from answering a question, when required to do so, on the ground that the answer to the question may tend to incriminate that person, except where the answer to the question:

                (a)    may tend to incriminate that person in respect of an offence with which that person has been charged; and

               (b)    the charge has not been finally dealt with by a court or otherwise disposed of.

[11]         Regulation 98

omit

[12]         Changing of references to Investigating Officer

                The following provisions are amended by omitting each mention of ‘Investigating’ and inserting ‘Inquiry’:

                ·      subregulation 3 (1), definition of appointing officer

                ·      subregulation 3 (1), definition of inquiry, paragraph (b)

                ·      regulation 68, definition of the inquiry

                ·      regulation 69, including the heading

                ·      regulation 70, heading

                ·      subregulation 70 (1)

                ·      regulation 70A, including the heading

                ·      regulation 70C

                ·      regulation 71

                ·      regulation 72

                ·      regulation 73

                ·      paragraphs 74 (1) (a), (1) (b), (2) (a) and (2) (b)

                ·      paragraphs 74A (1) (a), (1) (b), (2) (a) and (2) (b)

                ·      regulation 75, including the heading

                ·      regulation 75A

                ·      regulation 76

                ·      regulation 77

                ·      regulation 78, heading

                ·      subregulation 78 (1)

                ·      paragraph 78 (2) (b)

                ·      subregulation 80 (3), definition of Investigating Officer

                ·      regulation 82, heading

                ·      paragraph 82 (1) (a)

                ·      regulation 83, heading

                ·      subregulation 83 (1)

                ·      regulation 84, including the heading

                ·      regulation 86

                ·      paragraph 87 (1) (b)

                ·      paragraph 88 (1) (b)

                ·      subregulation 88 (2)

                ·      regulation 89

                ·      regulation 90

                ·      regulation 91, definitions of Inquiry Assistant and       Investigating Officer

                ·      regulation 93

                ·      regulation 94

                ·      regulation 95

                ·      subregulation 96 (1)

                ·      subregulation 97 (1)

                ·      regulation 99, definition of Investigating Officer

                ·      regulation 100, including the heading and the note at the             foot of subregulation (2)

                ·      regulation 101, including the note at the foot of subregulation (1)

                ·      paragraph 102 (1) (a)

                ·      regulation 103

                ·      paragraph 105 (1) (a)

                ·      subregulation 105 (2)

                ·      regulation 107, heading

                ·      paragraph 107 (1) (b)

                ·      subregulation 107 (2)


Note

1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.frli.gov.au.