Defence (Inquiry) Amendment Regulations 2003 (No. 1)1
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 4 December 2003
P. M. JEFFERY
Governor-General
By His Excellency’s Command
ROBERT HILL
1 Name of Regulations
These Regulations are the Defence (Inquiry) Amendment Regulations 2003 (No. 1).
2 Commencement
These Regulations commence on gazettal.
3 Amendment of Defence (Inquiry) Regulations 1985
Schedule 1 amends the Defence (Inquiry) Regulations 1985.
Schedule 1 Amendment
(regulation 3)
[1] After Part 6
insert
Part 7 Inquiries by the Inspector-General of the Australian Defence Force
Division 1 Preliminary
80 Definitions
(1) In this Part:
Assistant IGADF means a person appointed under paragraph 82 (1) (c).
inquiry means an inquiry under this Part.
Inspector-General means the person appointed as the Inspector-General of the Australian Defence Force.
(2) In this Part (other than Division 3):
Inquiry Assistant means a person appointed under paragraph 82 (1) (b).
Note Definitions for Division 3 are set out in regulation 91.
(3) In this Part (other than Divisions 3 and 4):
Investigating Officer means a person appointed under paragraph 82 (1) (a).
Note Definitions for Division 3 are set out in regulation 91. A definition for Division 4 is set out in regulation 99.
81 Application of Divisions 1 to 6
Divisions 1 to 6 apply if:
(a) the Chief of the Defence Force directs the Inspector-General to inquire into a matter; or
(b) a service chief requests the Inspector-General to inquire into a matter; or
(c) the Inspector-General decides that it is appropriate to inquire into a matter.
Note The Inspector-General need not conduct an inquiry personally: see regulation 88.
82 Investigating Officers, Inquiry Assistants and Assistants IGADF
(1) The Inspector-General may appoint an eligible person to be:
(a) an Investigating Officer; or
(b) an Inquiry Assistant; or
(c) an Assistant IGADF.
(2) An appointment must be in writing.
83 Eligibility for appointment as Investigating Officer, Inquiry Assistant or Assistant IGADF
(1) The following persons are eligible to be appointed as an Investigating Officer, Inquiry Assistant or Assistant IGADF:
(a) a member of the Defence Force, of any rank;
(b) an APS employee, of any classification (including, but not limited to, an SES employee or acting SES employee);
(c) any other person who has agreed, in writing, to the appointment.
(2) However, a person is not eligible to be appointed in relation to an inquiry into a matter:
(a) that relates to the conduct of the person; or
(b) in relation to which the giving of evidence, or the production of documents, by the person is likely to be required.
84 Role of Investigating Officer
(1) An Investigating Officer must:
(a) inquire into the matter for which he or she is appointed; and
(b) report to the Inspector-General about the matter.
(2) The Inspector-General may:
(a) in writing; and
(b) at any time;
authorise an Investigating Officer to make recommendations resulting from the Investigating Officer’s findings.
85 Role of Assistant IGADF
An Assistant IGADF must help the Inspector-General, on an ongoing basis, to carry out the Inspector-General’s functions.
Note One of the functions that an Assistant IGADF may help with is inquiring into matters, under directions given by the Inspector-General under regulation 87.
86 Role of Inquiry Assistant
(1) An Inquiry Assistant must help the Inspector-General, an Investigating Officer or an Assistant IGADF to inquire into the matter for which the Inquiry Assistant was appointed.
(2) An Inquiry Assistant:
(a) may help the Inspector-General, Investigating Officer or Assistant IGADF to collect evidence for the purposes of the inquiry; and
(b) must give to the Inspector-General, Investigating Officer or Assistant IGADF any evidence he or she has collected for the purposes of the inquiry.
87 Directions to Assistant IGADF
(1) The Inspector-General may direct an Assistant IGADF, orally or in writing:
(a) to inquire into a matter; or
(b) to help the Inspector-General, an Investigating Officer or another Assistant IGADF to inquire into a matter.
(2) However, the Inspector-General must not direct an Assistant IGADF in relation to an inquiry into a matter:
(a) that relates to the conduct of the Assistant IGADF; or
(b) in relation to which the giving of evidence, or the production of documents, by the Assistant IGADF is likely to be required.
(3) If the Inspector-General directs an Assistant IGADF under subregulation (1), the Inspector-General may:
(a) orally or in writing; and
(b) at any time;
authorise the Assistant IGADF to make recommendations resulting from the Assistant IGADF’s finding.
(4) The Inspector-General must make a record of an oral direction or authorisation as soon as practicable.
Division 2 Starting an inquiry
88 Way of conducting inquiry
(1) The Inspector-General may inquire into a matter under this Part:
(a) personally; or
(b) by appointing an Investigating Officer to inquire into the matter; or
(c) by directing an Assistant IGADF to inquire into the matter.
(2) The appointment of an Investigating Officer, or the giving of a direction to an Assistant IGADF, for a matter does not prevent:
(a) the Inspector-General from taking part personally in the inquiry into the matter; or
(b) an Inquiry Assistant from helping with an inquiry.
89 Scope of inquiry
(1) The Inspector-General may give a direction:
(a) adding anything to a matter into which an Investigating Officer or Assistant IGADF is to inquire; or
(b) varying the terms of the inquiry into a matter into which an Investigating Officer or Assistant IGADF is to inquire.
(2) The direction:
(a) if addressed to an Investigating Officer — must be in writing; or
(b) if addressed to an Assistant IGADF — may be oral or in writing.
(3) If the direction is oral, the Inspector-General must make a record of the direction as soon as practicable after giving it.
(4) The Investigating Officer or Assistant IGADF must extend, or vary, the inquiry in accordance with the direction.
90 Discretion not to inquire further
(1) This regulation applies if the Inspector-General, an Investigating Officer or an Assistant IGADF:
(a) is inquiring into a matter; and
(b) believes that:
(i) the matter could be more appropriately dealt with in a way other than by an inquiry under this Part; or
(ii) if a submission has been made to the Inspector-General about the matter — the submission is frivolous or vexatious; or
(iii) the continuation of the inquiry is not otherwise warranted, having regard to all the circumstances.
(2) If an Investigating Officer or Assistant IGADF forms the belief:
(a) the Investigating Officer or Assistant IGADF must inform the Inspector-General of that belief and the reasons for it; and
(b) the Inspector-General must decide whether the Inspector-General has the same belief.
(3) If the Inspector-General forms the belief (after being informed under subregulation (2) or otherwise), the Inspector-General may decide to end the inquiry.
(4) The Inspector-General must make a record, in writing, of:
(a) a decision to end the inquiry; and
(b) a decision not to end an inquiry, made following the Inspector-General being informed under subregulation (2) of an Investigating Officer’s or Assistant IGADF’s belief.
Note The end of an inquiry in this way does not prevent the later commencement of a new inquiry into the matter, or of an inquiry into something that includes the matter.
Division 3 Procedure for inquiry
91 Interpretation for Division 3
In this Division:
Inquiry Assistant includes an Assistant IGADF who is directed to help the Inspector-General, an Investigating Officer or Assistant IGADF to inquire into a matter.
Investigating Officer includes:
(a) the Inspector-General; and
(b) an Assistant IGADF who is directed to inquire into a matter.
92 Procedure
Subject to these Regulations, the procedure to be followed in the course of an inquiry is the procedure that the Inspector-General directs.
An Investigating Officer may inquire into a matter whether or not an inquiry under another Part or another inquiry under this Part is being made into:
(a) the matter; or
(b) something that includes the matter.
94 Conduct of inquiries in private
An Investigating Officer must not conduct an inquiry in public.
An Investigating Officer or Inquiry Assistant must not take evidence on oath or affirmation.
(1) A member of the Defence Force who appears as a witness before an Investigating Officer or an Inquiry Assistant must not refuse or fail to answer a question relevant to the inquiry put to the member by the Investigating Officer or Inquiry Assistant.
Penalty: 5 penalty units or imprisonment for 3 months.
(2) Subregulation (1) does not apply 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.
Note A defendant bears an evidential burden in relation to the matter in subregulation (2) (see subsection 13.3 (3) of the Criminal Code).
97 Duty to produce document or thing
(1) If a member of the Defence Force who appears as a witness before an Investigating Officer or an Inquiry Assistant is directed by the Investigating Officer or Inquiry Assistant to produce a document or a thing that:
(a) is in the custody or control of the member; and
(b) is relevant to the inquiry;
the member must not refuse or fail to produce the document or thing.
Penalty: 5 penalty units or imprisonment for 3 months.
(2) Subregulation (1) does not apply if the member considers, on reasonable grounds, that the production of a document or a thing may:
(a) disclose a secret process of manufacture; or
(b) be prejudicial to the defence of the Commonwealth.
Note A defendant bears an evidential burden in relation to the matter in subregulation (2) (see subsection 13.3 (3) of the Criminal Code).
98 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 Inquiry Assistant is not admissible in evidence against the member in proceedings before a service tribunal.
(2) The statement or disclosure is admissible in evidence against the member if the member is prosecuted for an offence against these Regulations.
99 Interpretation for Division 4
In this Division:
Investigating Officer includes an Assistant IGADF who is directed to inquire into a matter.
100 Report after inquiry by Investigating Officer
(1) If:
(a) an Investigating Officer has inquired into a matter and is satisfied that all information relevant to the inquiry that is practicable to obtain has been obtained; and
(b) a decision has not been made to end the inquiry under subregulation 90 (3);
the Investigating Officer must prepare a report.
(2) The report must:
(a) set out the findings of the Investigating Officer in relation to the inquiry; and
(b) if the Investigating Officer is authorised to make recommendations — any recommendations that the Investigating Officer thinks appropriate to make because of those findings.
Note An Investigating Officer may be authorised to make recommendations as part of the Investigating Officer’s appointment: see regulation 82.
(3) The report must be accompanied by:
(a) a copy of the transcript or other record of any oral evidence taken during the inquiry; and
(b) a copy of each document accepted as evidence during the inquiry; and
(c) a list of all other things that were produced to the inquiry with information about where each thing is located.
(4) The Investigating Officer must give the report to the Inspector-General as soon as practicable.
101 Further inquiry and report
(1) If:
(a) an Investigating Officer has given the Inspector-General a report under regulation 100; and
(b) the Inspector-General considers that the Investigating Officer should inquire further, and prepare a further report, in relation to the matter to which the inquiry relates;
the Inspector-General may direct the Investigating Officer accordingly and must specify in the direction the matters with which the further report is to deal.
Note See regulation 103 for what happens if an Investigating Officer becomes unavailable.
(2) If the Inspector-General directs an Investigating Officer under subregulation (1):
(a) compliance with the direction is an additional function of the Investigating Officer in relation to the inquiry; and
(b) helping further with the inquiry is an additional function of an Inquiry Assistant in relation to the inquiry.
(3) The further report must be accompanied by:
(a) a copy of the transcript or other record of any oral evidence taken during the further inquiry; and
(b) a copy of each document accepted as evidence during the further inquiry; and
(c) a list of all other things that were produced to the inquiry with information about where each thing is located.
(4) The Investigating Officer must give the further report to the Inspector-General as soon as practicable.
102 Record or report after inquiry by Inspector-General
(1) This regulation applies if:
(a) an Investigating Officer has given the Inspector-General a report under regulation 100 and a further report under regulation 101 has been given to the Inspector-General or is not required; or
(b) the Inspector-General personally has inquired into a matter and:
(i) is satisfied that all information relevant to the inquiry that is practicable to obtain has been obtained; and
(ii) a decision has not been made to end the inquiry under subregulation 90 (3).
(2) The Inspector-General must:
(a) make a record of the findings in relation to the inquiry; and
(b) include with the record a copy of:
(i) the transcript or other record of any oral evidence taken during the inquiry; and
(ii) any documents accepted as evidence during the inquiry.
(3) If the Inspector-General thinks it appropriate to make any recommendations resulting from the findings in relation to the inquiry:
(a) the Inspector-General must give a report of the findings or recommendations to:
(i) an official in the Department to whom the Inspector-General considers it appropriate for the report to be given; or
(ii) a member of the Defence Force to whom the Inspector-General considers it appropriate for the report to be given; or
(iii) a person who is affected by a submission or the inquiry (whether or not the person made a submission); or
(iv) if the Inspector-General considers it appropriate for the report to be given to the Chief of the Defence Force — the Chief of the Defence Force; or
(v) if the Chief of the Defence Force has directed the Inspector-General to give him or her a report in relation to the matter — the Chief of the Defence Force; and
(b) the report must be accompanied by a complete copy of (or, if subregulation (4) applies, extracts from):
(i) the transcript or other record of any oral evidence taken during the inquiry; and
(ii) any document accepted as evidence during the inquiry.
(4) A report given to a person mentioned in subparagraph (3) (a) (i), (ii) or (iii), and the material accompanying the report, may be limited to matters arising out of the inquiry that the Inspector-General considers are appropriate to convey to that person because of:
(a) considerations of privacy; and
(b) the person’s responsibilities; and
(c) the person’s interest in the matter; and
(d) its relevance to matters appropriate to convey to the person because of paragraphs (a), (b) and (c).
Division 5 Change in inquiry personnel
103 Change in inquiry personnel
(1) This regulation applies if:
(a) an Investigating Officer who is appointed to inquire into a matter, or an Assistant IGADF who is directed to inquire into a matter, becomes unavailable to continue the inquiry before giving a report to the Inspector-General under subregulation 100 (3); or
(b) an Investigating Officer who gives a report to the Inspector-General under subregulation 100 (3) becomes unavailable:
(i) to inquire further into a matter; or
(ii) to prepare a further report.
(2) The Inspector-General may:
(a) appoint another eligible person as an Investigating Officer (the new Investigating Officer) to take over the responsibilities of the Investigating Officer or Assistant IGADF who is unavailable; or
(b) direct an Assistant IGADF (the new Investigating Officer) to inquire into the matter in place of the Investigating Officer or Assistant IGADF who is unavailable; or
(c) personally take over the inquiry.
(3) A new Investigating Officer and the Inspector-General may have regard to any record of proceedings of the inquiry made by any other Investigating Officer who previously took part in the inquiry.
(4) A new Investigating Officer and the Inspector-General may have regard to any evidence collected by an Inquiry Assistant or Assistant IGADF even if, after collecting the evidence, the Inquiry Assistant or Assistant IGADF becomes unavailable to help further with an inquiry.
(5) In this regulation:
Investigating Officer has the same meaning as in Division 4 (except in new Investigating Officer).
Division 6 Ending of inquiry
104 Ending of inquiry
An inquiry that has not been ended under subregulation 90 (3) ends:
(a) if subregulation 102 (3) applies — when the Inspector-General gives the report mentioned in that subregulation; or
(b) in any other case —when the Inspector-General makes the record of the findings of the inquiry mentioned in subregulation 102 (2).
105 Duration and ending of appointments
(1) The appointments of:
(a) an Investigating Officer; and
(b) an Inquiry Assistant;
end when a report of the inquiry in relation to which the appointments were made is given to the Inspector-General under subregulation 100 (4).
(2) However, if the Inspector-General directs an Investigating Officer under subregulation 101 (1) to inquire further and make a further report, the appointments of the Investigating Officer and any Inquiry Assistant who had been appointed in relation to the inquiry:
(a) are taken, despite subregulation (1), to continue in force; and
(b) end when the further report is given to the Inspector-General.
(3) A direction given to an Assistant IGADF under regulation 87 in relation to an inquiry ceases to have effect:
(a) as specified in the direction; or
(b) as otherwise directed by the Inspector-General.
Division 7 General provisions
106 Protection of submissions
Civil proceedings do not lie against a person for loss, damage or injury of any kind suffered by another person by reason of any of the following acts done in good faith:
(a) the making of a submission to the Inspector-General;
(b) the making of a statement to, or the giving of a document or information to, the Inspector-General as a part of, or in connection with, a submission.
107 Application of general provisions to Inspector-General, Investigating Officer, Inquiry Assistant and Assistant IGADF
(1) 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:
(a) the Inspector-General; and
(b) an Investigating Officer; and
(c) an Assistant IGADF acting under a direction mentioned in paragraph 87 (1) (a);
in the course of an inquiry as if that person constituted a Court of Inquiry.
(2) However, 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, be exercised or performed by the Inspector-General, the Investigating Officer or the Assistant IGADF.
(3) Subregulation 49 (2), regulations 50, 53, 56, subregulation 57 (1), subregulations 60 (5) and (6), regulations 61 and 63 and subregulations 64 (1) and (3) apply to and in relation to:
(a) an Inquiry Assistant; or
(b) an Assistant IGADF acting under a direction mentioned in paragraph 87 (1) (b);
as if that person constituted a Court of Inquiry.
(4) However, 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, be exercised or performed by the Inquiry Assistant or the Assistant IGADF.
Notes
1. These Regulations amend Statutory Rules 1985 No. 114, as amended by 1987 No. 36; 1990 Nos. 10 and 207; 1997 No. 43; 2000 No. 327; 2001 No. 278; 2002 No. 278.
2. Notified in the Commonwealth of Australia Gazette on 11 December 2003.