Commonwealth Numbered Regulations - Explanatory Statements

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DEFENCE FORCE DISCIPLINE REGULATIONS (AMENDMENT) 1992 NO. 314

STATUTORY RULES 1992 No. 314

ISSUED BY THE AUTHORITY OF THE MINISTER FOR DEFENCE, SCIENCE AND PERSONNEL

DEFENCE FORCE DISCIPLINE ACT 1982

DEFENCE FORCE DISCIPLINE REGULATIONS (AMENDMENT)

The Defence Force Discipline Regulations ("the Regulations"), made under the Defence Force Discipline Act 1982 ("the Act"), prescribe various matters for the purposes of the Act.

Section 101W of the Act enables the search of persons and property by an investigating officer as part of the investigation of a service offence. Subsection 101W(1) deals with the circumstances where an investigating officer may search a defence member or defence civilian (defined in subsection 3(1)), or the clothing worn by, or property under the immediate control of, that person. Subsection 101W(2) deals with the circumstances where an investigating officer may search any service land or premises (other than married quarters), any service ship, aircraft or vehicle, or any non-service ship, aircraft or vehicle on service land. Subsection 101W(3) deals with the circumstances where an investigating officer may search private land or premises (including married quarters), or non-service ships, aircraft or vehicles not on service land.

Under subsections 101W(1) and (2) these searches can generally only be undertaken in pursuance of a search warrant, or if a person gives his or her consent in accordance with section 101ZA of the Act. Under subsection 101W(3) a search can only be undertaken if the affected person gives his or her consent in accordance with section 101ZA.

Section 101ZA sets out the requirements for obtaining a person's consent. Subsection 101ZA(2) provides that an investigating officer who obtains the consent of a person for the purposes of section 101W must ask the person to sign an acknowledgement in accordance with the prescribed form. The required acknowledgement covers the fact that the person has been informed that consent may be refused, the fact that consent has been voluntary, and the time and date of consent.

Regulation 43 of the Regulations provides that the prescribed form for the purposes of subsection 101ZA(2) of the Act is set out in Form 5 of Schedule 2 of the Regulations.

Form 5 was limited to the types of searches that are covered by subsection 101W(1) of the Act: the search of a defence member or defence civilian, his or her clothing, or property under his or her immediate control.

The Statutory Rule replaces the previous Form 5 with a new form which enables persons to consent to the types of searches that are covered by subsections 101W(2) and (3) of the Act, in addition to enabling

them to consent to the searches covered by subsection 101W(1).

The Statutory Rule comes into operation on the date of gazettal.