Commonwealth Numbered Regulations - Explanatory Statements
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INSPECTOR-GENERAL OF THE AUSTRALIAN DEFENCE FORCE REGULATION 2016 (F2016L01558)
EXPLANATORY STATEMENT
Issued by the authority of the Minister for Defence
Subject- Defence Act 1903
Inspector-General of the Australian Defence Force Regulation 2016
The Defence Act 1903 (the Act) prescribes the control, administration, constitution and service of the Australian Defence Force (ADF).
Subsection 124(1) of the Act provides that the Governor-General may make regulations not inconsistent with the Act, prescribing all matters which by the Acts are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for securing the good government of the ADF, or for carrying out or giving effect to the Act.
Paragraph 124(1)(h) and subsections 124 (2AA) and (2AB) of the Act provide for the making of regulations addressing the procedures, powers and reporting obligations of the Inspector-General of the Australian Defence Force (Inspector-General ADF) in respect of the performance of the Inspector-General ADF's functions, including matters connected with inquiries, investigations and information gathering.
The purpose of the Inspector-General of the Australian Defence Force Regulation 2016 (the Regulation) is to continue the implementation of progressive changes to the ADF military justice system. It will achieve this by clarifying and enhancing the independence, powers and functions of the Inspector-General ADF, continuing reforms that were begun in the Defence Legislation Amendment (Military Justice Enhancements - Inspector-General ADF) Act 2015.
Previously, inquiries undertaken by the Inspector-General ADF were governed by the Defence (Inquiry) Regulations 1985. However, the Defence Legislation Amendment (Military Justice Enhancements - Inspector-General ADF) Act 2015 enhanced the independence, powers and functions of the Inspector-General ADF. To support these enhancements, the Regulation:
* clarifies the functions of the Inspector-General ADF;
* details the appointment, role, functions and powers of inquiry officers, inquiry assistants and Assistant Inspectors-General ADF;
* outlines how inquiries undertaken by the Inspector-General ADF are to be conducted;
* strengthens the powers of the Inspector-General ADF to require members of the Defence Force and other persons to give information, produce documents or answer questions;
* requires the Inspector-General ADF to prepare a report following the conduct of an inquiry; and
* outlines the offences and penalties for a person who fails to give information, produce documents or answer questions, or engages in conduct that constitutes contempt or a reprisal.
Details of the Regulation are set out in Attachment A.
The Act specifies no condition that must be met before the power to make the Regulation may be exercised.
The Regulation would be legislative instruments for the purposes of the Legislation Act 2003.
Commencement
The Regulation commences on 1 October 2016.
Regulatory Impact Statement
The Office of Best Practice Regulation advised that no regulatory impact statement was required (OBPR ID 16927).
Consultation
An exposure draft of the Regulation was circulated to relevant Defence stakeholders including the Office of the Defence Force Ombudsman.
Authority: Section 124 of the Defence Act 1903
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Inspector-General of the Australian Defence Force Regulation 2016
The Regulation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Regulation
The purpose of the Regulation is to continue the implementation of progressive changes to the Australian Defence Force (ADF) military justice system. It will achieve this by clarifying and enhancing the independence, powers and functions of the Inspector-General ADF, continuing the reform begun in the Defence Legislation Amendment (Military Justice Enhancements - Inspector-General ADF) Act 2015.
Human Rights Implications
The Regulation engages the following rights:
(a) Rights at work in Article 7 of the International Covenant on Economic, Social And Cultural Rights (ICESCR); and
(b) Right to a fair hearing in Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR).
Rights at work
Article 7 of the ICESCR requires that people are entitled to just and favourable conditions of work. The Regulation promotes this right by providing ADF members with access to a statutorily independent person for inquiring into flaws and failures in the military justice system and other matters concerning the ADF.
Right to a fair hearing
Article 14(1) of the ICCPR requires that people are entitled to a fair hearing of any criminal charges against them and of their rights and obligations in a suit at law.
Section 32 of the Regulation has the effect of abrogating the common law privilege against self-incrimination in inquiries conducted by the IGADF, an inquiry officer or an Assistant IGADF. However, both the Act and the Regulation support the right to a fair hearing, because the abrogation of the privilege against self-incrimination is accompanied by significant protections against the use of information obtained in subsequent criminal, disciplinary and civil trials.
The Inspector-General ADF's functions involve inquiring into events relating to the ADF, including service-related deaths and matters essential to the oversight of the military justice system. Ascertaining the true causes of significant events involving ADF members is frequently more important than possible prosecution of, or civil suit against, individuals. Compelling individuals to provide information about an event, even though it could implicate them in wrong-doing, while also protecting the information from subsequent use in criminal or civil proceedings, is an important mechanism to obtain information.
Previously, the privilege against self-incrimination was similarly abrogated for inquiries conducted by the Inspector-General ADF under the Defence (Inquiry) Regulations 1985, and for inquiries into service-related deaths conducted under those regulations. For consistency of approach and to ensure quality outcomes, similar powers should apply to the Inspector-General ADF in the Regulation.
Under the Regulation, self-incriminating information provided by witnesses before the Inspector-General ADF is subject to even greater protection than was available under the Defence (Inquiry) Regulations 1985. Information provided cannot be used in subsequent proceedings, as was previously the case. In addition, it cannot be the basis of a line of investigation that ultimately leads to evidence used in subsequent proceedings. That is, the Regulation provides for both a direct and indirect use immunity, while the previous position under the Defence (Inquiry) Regulations 1985 only provided a direct use immunity.
Conclusion
The Regulation is compatible with human rights because it ensures that the right of people to enjoy a fair trial is safeguarded, promoted and enhanced by eliminating the possibility of the unfair use of any admissions of wrongdoing.
Marise Payne
Minister for Defence
ATTACHMENT A - PROVISIONS IN INSPECTOR-GENERAL OF THE AUSTRALIAN DEFENCE FORCE REGULATION 2016
Part 1 - Preliminary
Section 1 - Name of Regulation
This section provides that the title of the Regulation is the Inspector-General Australian Defence Force Regulation 2016.
Section 2 - Commencement
This section provides that the Regulation commences on 1 October 2016.
Section 3 - Authority
This section provides that the Inspector-General Australian Defence Force Regulation 2016 is made under the Defence Act 1903.
Section 4 - Definitions
This section provides definitions for several terms contained in the Regulation:
(a) The term "Act" is defined to mean the Defence Act 1903.
(b) The term "Assistant IGADF" is defined to mean a person appointed as an Assistant Inspector-General Australian Defence Force under section 110P of the Defence Act 1903.
(c) The term "inquiry assistant" is defined to mean a person appointed as an inquiry assistant under section 110P of the Defence Act 1903.
(d) The term "inquiry officer is defined to mean a person appointed as an inquiry officer under section 110P of the Defence Act 1903.
(e) The term "service police officer" is defined to have the same meaning as in the Defence Force Discipline Act 1982.
Part 2 - Functions of the Inspector-General ADF
Section 5 - Functions of the Inspector-General ADF
In addition to the functions listed in the Act, the Act provides that Regulations may also prescribe the function of the IGADF if the function relates to:
(a) the military justice system, or
(b) complaints made by members of the ADF, where the relevant complaint is about a decision, act or omission in relation to the member's service in the ADF, or deaths of members of the ADF, or
(c) where the relevant death appears to have arisen out of, or in the course of, the member's service in the ADF.
This section provides that the additional functions of the IGADF are:
(a) to inquire into the death of a member of the ADF, where the relevant death appears to have arisen out of, or in the course of, the member's service in the ADF;
(b) to inquire into co-----plaints made by members of ADF under Part 7of the Defence Regulation 2016 [redress of grievance];
(c) to inquire into or investigate complaints relating to service police officers;
(d) to advise on, or determine, the procedure for handling complaints relating to service police officers, including conducting audits of the implementation of the complaint-handling procedure.
As a result, section 5 reflects and underpins the broadening of the jurisdiction of the IGADF consistent with the recent amendments to the Defence Act 1903.
Part 3 - Inquiry officers, inquiry assistants and Assistants IGADF
Division 1 - Eligibility for appointment
Section 6 - Eligibility for appointment as an inquiry officer, inquiry assistant or Assistant IGADF
This section provides for the appointment of members of the ADF of any rank, an Australian Public Service employee of any classification, or any other person who has agreed in writing to the appointment, as an inquiry officer, inquiry assistant or Assistant IGADF.
This section also provides that a person is not eligible to be appointed as an inquiry officer, inquiry assistant or Assistant IGADF if the inquiry relates to the conduct of that person or the inquiry is likely to require the person to give evidence or produce documents or things. Otherwise, this could give rise to a real or perceived conflict of interest and potential allegations of a lack of impartiality.
This section substantially reflects the eligibility requirements previously provided for in regulation 83 of the Defence (Inquiry) Regulations 1985.
Division 2 - Roles, functions and powers
Section 7 - Operation of this Division
This section provides a summary of the operation of the Division with respect to the roles, functions and powers of inquiry officers, inquiry assistants and Assistant IGADF.
Section 8 - Role of an inquiry officer
This section provides that an inquiry officer must inquire into the matter for which he or she is appointed and report to the IGADF about the matter. The IGADF may also authorise an inquiry officer to make recommendations resulting from the inquiry officer's findings.
This section substantially reflects previous regulation 84 of the Defence (Inquiry) Regulations 1985.
Section 9 - Role of an inquiry assistant
This section provides that an inquiry assistant must help the IGADF, an inquiry officer or an Assistant IGADF to inquire into the matter for which the inquiry assistant is appointed. An inquiry assistant may help collect evidence for the purposes of the inquiry and must give the IGADF, an inquiry officer or an Assistant IGADF any evidence the inquiry assistant collects for the purposes of the inquiry.
This section substantially reflects previous regulation 86 of the Defence (Inquiry) Regulations 1985.
Section 10 - Role of an Assistant IGADF
This section provides that an Assistant IGADF must help the IGADF to carry out the functions of the IGADF,on an ongoing basis. This section also provides that the IGADF may direct an Assistant IGADF to inquire into a matter or help the IGADF, an inquiry officer or another Assistant IGADF to inquire into a matter.
The IGADF's direction under this section may be oral or in writing, however, the IGADF must not direct that an Assistant IGADF inquire or help inquire into a matter that relates to his or her own conduct, or in relation to which he or she may be required to give evidence or produce documents or things. Similar to section 6 above, this could give rise to a real or perceived conflict of interest and potential allegations of a lack of impartiality.
This section also provides that, where the IGADF gives an oral direction, he or she must make a record of it as soon as practicable thereafter.
This section substantially reflects previous regulations 85 and 87 of the Defence (Inquiry) Regulations 1985.
Section 11 - Inquiry may involve multiple officers
This section provides that the IGADF is not prevented from taking part in an inquiry into a matter even if an inquiry officer has been appointed or an Assistant IGADF has been directed to inquire into the matter. Similarly, an inquiry assistant is not prevented from helping with an inquiry because an inquiry officer has been appointed or an Assistant Inspector-General Australian Defence Force has been directed to inquire into the matter.
This section substantially reflects previous subregulation 88(2) of the Defence (Inquiry) Regulations 1985.
Part 4 - Conduct of inquiries
Division 1 - General
Section 12 - Operation of this Part
This section provides a summary of the operation of the Part, its purpose being to clarify procedures, powers and reporting obligations of IGADF in relation to inquiries. The Part applies to inquiries which are conducted on the IGADF's own initiative, at the request of an individual or at the direction of the Minister or the Chief of the Defence Force.
This section reflects previous regulation 81 of the Defence (Inquiry) Regulations 1985 to include inquiries conducted by the IGADF at the direction of the Minister or at the request of an individual.
Section 13 - Concurrent inquiries
This section provides that the IGADF may inquire concurrently into a matter that is also subject of either another inquiry by the IGADF, an inquiry officer or an Assistant IGADF or an inquiry under another complaint handling process.
This section amends previous section 93 of the Defence (Inquiry) Regulations 1985 by including inquiries conducted concurrently under another complaint handling procedure, in addition to inquiries conducted by the IGADF, an inquiry officer or an Assistant IGADF. The effect of this provision is that there is a broader scope for concurrent inquiries which may be undertaken by the IGADF, whereas previously regulation 93 of the Defence (Inquiry) Regulations1985 referred only to a concurrent inquiry conducted under those regulations.
Section 14 - Scope of inquiries conducted by inquiry officers or Assistants IGADF
This section provides that the Inspector-General IGADF may add to or vary the terms of an inquiry to be conducted by an inquiry officer or an Assistant IGADF, and prescribes how a direction must be given. If such a direction is given, the inquiry officer or Assistant IGADF must extend or vary the inquiry in accordance with the direction.
This section substantially reflects previous regulation 89 of the Defence (Inquiry) Regulations 1985.
Section 15 - Change of inquiry personnel
This section provides that the IGADF may appoint or direct a replacement inquiry officer or Assistant IGADF, if the original appointee becomes unavailable to continue the inquiry before giving a report to the IGADF or becomes unavailable to inquire further into the matter or prepare a further report after giving a report to the IGADF. This section also provides that the replacement inquiry officer or Assistant IGADF may have regard to any record of proceedings made or any evidence collected by the original inquiry officer or Assistant IGADF
This section substantially reflects previous regulation 103 of the Defence (Inquiry) Regulations 1985.
Section 16 - Completion of inquiries
This section provides for the completion of inquiries that have not ended pursuant to subsection 110DB(1) of the Act because the IGADF is satisfied that the inquiry or investigation or the continuation of the inquiry or investigation was not warranted having regard to all the circumstances.
This section, when read with section 27, provides that an inquiry, which has been directed by the Minister or CDF is completed when the IGADF gives the inquiry report to the Minister or CDF (as the case may be). In any other case, the inquiry is completed when the IGADF makes the record of the findings of the inquiry under subsection 27(2).
This section substantially reflects previous regulation 104 of the Defence (Inquiry) Regulations 1985.
Division 2 - Procedure
Section 17 - Procedure generally
This section provides that the IGADF may conduct the inquiry in any manner which is, in his or her view, appropriate to the circumstances and having regard to the subject matter of the inquiry. In addition, in conducting an inquiry, the IGADF, an inquiry officer or an Assistant IGADF is not bound by the rules of evidence.
This section substantially reflects the previous provisions of regulation 107 of the Defence (Inquiry) Regulations 1985, which applied regulation 50 to IGADF inquiries.
Section 18 - Times and places for conduct of inquiries
This section provides that the times and places for an inquiry are determined by the inquiry officer for an inquiry officer inquiry, the Assistant IGADF for Assistant IGADF inquiries or otherwise by the IGADF. This section also provides that an inquiry may be conducted either within or outside Australia.
This section substantially reflects the previous provisions of regulation 107of the Defence (Inquiry) Regulations 1985 which applied regulation 49 to IGADF inquiries.
Section 19 - Conduct of inquiries in public or private
This section enables the IGADF to direct that all or part of an inquiry is to be conducted in public or private. Furthermore, this section also provides that when the inquiry is to be conducted in private, the IGADF may determine those persons who can be present at the inquiry. The present exception, that an inquiry that is conducted by an inquiry officer must not be conducted in public, is retained.
This section substantially reflects previous regulation 94 of the Defence (Inquiry) Regulations 1985, but it adds the current discretion found in regulation 117 of the Defence (Inquiry) Regulations 1985 for the IGADF to conduct inquiries or by an Assistant IGADF noting his recently expanded jurisdiction.
Section 20 - Legal representation at inquiries
This section provides that a person who attends an inquiry to answer questions may be accompanied by a lawyer. However, the person's lawyer may only address the inquiry at such times as determined by the inquiry officer for an inquiry officer inquiry, the Assistant IGADF for Assistant IGADF inquiries or otherwise by the IGADF.
This section complements the current provisions of the Defence (Inquiry) Regulations 1985. This section provides clarity for all participants in an inquiry in relation to a person's entitlement to individual legal advice and the ability of the person's lawyer to participate directly in the inquiry proceedings. Such a person would include, but is not limited to a person who may be or may perceive themselves to be potentially adversely affected by the inquiry proceedings. This section strikes a balance between the compellability of members of the ADF and other persons when an inquiry is directed by the Minister or CDF, with the ability of the IGADF to collect all information relevant to the inquiry.
Section 21 - Directions regarding disclosure of evidence
This section enables the IGADF to give directions on the disclosure of evidence if he or she is satisfied that it is necessary to do so in the interests of the defence of the Commowealth or of fairness to a person the IGADF considers may be affected by an inquiry. These directions may include information that is contained in oral evidence given during the inquiry (whether given in public or in private), all or part of any document received during the course of the inquiry or information contained in a report about the inquiry given to a person consistent with the Regulations (section 27).
The section further provides that the IGADF may authorise an inquiry officer or an Assistant IGADF to exercise the same power in relation to an inquiry they have been appointed or directed to conduct.
The section imposes a penalty of 10 penalty units on a person who contravenes such a direction.One penalty unit is equivalent to $180 (section 4AA of the Crimes Act 1914).
This section substantially reflects previous subregulation 102(5) of the Defence (Inquiry) Regulations 1985.
Division 3 - Information gathering powers
Section 22 - Power to require members of the Defence Force to give information, produce documents or answer questions etc
This section applies to any inquiry conducted by the IGADF, an inquiry officer or an Assistant IGADF, other than an inquiry to which section 23 applies. Section 23 provides for persons other than ADF members to give information, produce documents or answer questions. Section 22 provides that the IGADF may give an ADF member a notice if IGADF has reason to believe that the member has information or a document or a thing relevant to the inquiry. The section further prescribes the procedure for giving such a notice, including specifying the manner and the period in which the member is required to comply, which must be at least 14 days after the member is given the notice. It is an offence under section 29 for a Defence member to fail to comply with such a notice (10 penalty units).
This section also enable the IGADF to require that, when a member has been directed to appear before an inquiry to answer questions, the answers must be verified by, or given on oath or affirmation and either orally or in writing. The oath or affirmation may be administered by the IGADF, the inquiry officer or the Assistant IGADF.
This section is similar to previous regulations 96 and 97 of the Defence (Inquiry) Regulations 1985. However, it somewhat differnet to the language in regulation 96 in respect of a Defence member's duty to answer questions in response to a direction from the IGADF to a Defence member to give information to an inquiry conducted under this Regulation. This section re-focuses the emphasis of the previous regulations 96 and 97 which were placed on a Defence member's duties. Section 22 places the emphasis on the powers of the IGADF to obtain evidence which is relevant to the inquiry. The intent of this section is to strengthen and consolidate the powers of the IGADF in the Regulation.
The historical lawful excuse provided to an ADF member not to be required to answer a question or produce a required document or thing on the basis that in doing so would be prejudicial to the defence of the Commonwealth is maintained in section 29 (see below). However, the lawful excuse provided to an ADF member not to answer a question or produce a required document or thing on the basis that in doing so would 'disclose a secret process of manufacture' has not been retained.
Section 19 of the Regulation gives the IGADF the discretion to direct that all or part of an inquiry is to be conducted in private; inquiries conducted by inquiry officers must not be conducted in public. Section 19 and section 22 will ensure that certain information, documents or things relevant to an inquiry are protected from public disclosure, which may include information that will disclose a secret process of manufacture. This will ensure that the IGADF, Assistant IGADF or inquiry officer is reasonably able to collect all information which is relevant to the inquiry. This section also reflects the recent amendments to the Defence Act 1903.
The lawful excuse provided to a Defence member not to answer a question or produce a required document or thing on the ground that in doing so might incriminate the Defence member is addressed separately in section 32 of the Regulation and explained below.
Section 23 - Power to require a person to give information, produce documents or answer questions etc
This section applies only to inquiries into the death of a Defence member, where the death appears to have arisen out of, or in the course of, the member's Defence Force service or to inquiries into matters concerning the Defence Force which the Minister or the Chief of the Defence Force have directed the IGADF to conduct. Section 23 provides that the IGADF may give a person a notice if he or she has reason to believe that that person has information or a document or a thing relevant to the inquiry. Section 23 also prescribes the procedure for giving such a notice. It is an offence under section 29 for a person to fail to comply with a notice.
The section also gives a discretion to the IGADF to require that, when a person has been directed to appear before an inquiry to answer questions, the answers must be verified by, or given on oath or affirmation, either orally or in writing. The oath or affirmation may be administered by the IGADF, the inquiry officer, or the Assistant IGADF as the case may be.
The powers in this section go further than previously provided to IGADF inquiries in the Defence (Inquiry) Regulations 1985. The section is required as a consequence of the amendments to section 110C of the Defence Act 1903 whereby an IGADF inquiry may be directed to inquire into any matter concerning the Defence Force by the Chief of the Defence Force or the Minister for Defence. This section recognises that inquiries into deaths or into matters which have been drawn to the attention of the Minister for Defence or the Chief of Defence may need to consider information held by persons other than Defence members. In order for the IGADF inquiry to effectively inquire into a matter, it may be necessary to require a person with any relevant information to produce it to the inquiry, whether that person is an Australian public servant or a member of the public.
Section 24 - Powers that may be exercised by inquiry officers and Assistants IGADF
This section provides that an inquiry officer or an Assistant IGADF may be authorised in writing by the IGADF to exercise the powers in sections 22 and 23 in relation to an inquiry that he or she has been appointed or directed, as the case may be, to conduct. However, the inquiry must be of a kind to which sections 22 or 23 apply.
Section 24 complements sections 22 and 23 and is intended to re-focus the emphasis from the Defence member's duty to the powers of the IGADF to obtain evidence.
Division 4 - Reports and recommendations
Section 25 - Report by inquiry officer or Assistant IGADF
Section 25 requires an inquiry officer or an Assistant IGADF to prepare a report once they have conducted an inquiry into a matter and are satisfied that all relevant information which is practicable to obtain has been obtained. However, a decision to end the inquiry under subsection 110DB(1) of the Act must not have been made.
Section 25 outlines the matters which must be included in the report. The report must set out the inquiry officer or Assistant IGADF's findings in relation to the inquiry. Where the inquiry officer or Assistant IGADF is authorised to make recommendations, the report must also set out any recommendations that the inquiry officer or Assistant IGADF thinks appropriate to make because of those findngs. The report must also be accompanied by copies of the transcript or other record of oral evidence taken during the inquiry, each document accepted as evidence during the inquiry and a list of all other things produced to the inquiry, including any information on where these may be located.
The section further requires the inquiry officer or Assistant IGADF to give the report to the IGADF as soon as practicable.
This section substantially reflects previous regulation 100 of the Defence (Inquiry) Regulations 1985.
Section 26 - Further report by inquiry officer or Assistant IGADF
This section enables the IGADF to direct an inquiry officer or Assistant IGADF who has given the IGADF an inquiry report under section 25, to inquire further into a matter and prepare a further report where the IGADF thinks he or she should do so. A direction must specify the matters to be addressed in the further report; compliance with the direction is an additional function of the inquiry officer, Assistant IGADF or any inquiry assistant in relation to the inquiry.
The section also requires that the further report is to be accompanied by copies of the transcript or other record of oral evidence taken during the further inquiry, each document accepted as evidence during the further inquiry and a list of all other things produced to the further inquiry with information about where these are located.
The sectionalso requires the inquiry officer or Assistant IGADF to give the further report to the IGADF as soon as practicable.
This section substantially reflects previous regulation 101 of the Defence (Inquiry) Regulations 1985.
Section 27 - Report by IGADF
This section addresses the mandatory requirements for giving an inquiry report, including a further inquiry report, to the IGADF. If the IGADF has conducted the inquiry personally, he or she must be satisfied that all information relevant to an inquiry that is practicable to obtain has been obtained and the inquiry has not been ended under subsection 110DB(1) of the Act. As a result, the IGADF must make a record of findings in relation to the inquiry, including a copy of the transcript or other record of oral inquiry evidence and any documents accepted as evidence in the course of the inquiry.
The section requires the IGADF to give to the Minister for Defence or the Chief of the Defence Force, as the case may be, who directed the inquiry to be conducted, a report of the inquiry, including any findings and any recommendations. If the inquiry was conducted into the death of a Defence member, the report with findings and any recommendations must be given to the Chief of the Defence Force. The transcript or other record of oral evidence from the inquiry and any document accepted as evidence during the inquiry may also be given to the Minister or the Chief of the Defence Force.
The section further enables the IGADF to inform relevant persons of the inquiry's findings or to provide a copy of inquiry report, including any findings and recommendations. The list of persons in paragraph 27(1)(a) includes a Service Chief, Defence members, Defence employees or persons affected by a submission or by the inquiry, in addition to the Minister and the Chief of the Defence Force. This section also enables the IGADF to redact information from a copy of a report provided to a person if the IGADF considers that it is inappropriate for that information to be included.For example, for considerations of privacy, the nature of the person's responsibilities or the person's interest in the matter, Furthermore, the information may be classified, related to national security or its relevance to other information is such that it is considered inappropriate to be included in the report.
This section substantially reflects previous regulation 102 of the Defence (Inquiry) Regulations 1985 while also addressing the expanded responsibilities of the IGADF provided for in section 110C of the Defence Act 1903.
Section 28 - Public release of reports
This section enables certain persons to publicly release inquiry reports of inquiries conducted by the IGADF, an Assistant IGADF or an inquiry officer under the Regulation.
If the Minister or the Chief of the Defence Force directed the IGADF to conduct an inquiry, then the Minister or the Chief of the Defence Force may publicly release all or part of that report.
If the inquiry concerns the death of a Defence member, the Chief of the Defence Force may publicly release all or part of the inquiry report in consultation with the IGADF.
If the IGADF gives one or more of the persons identified in paragraph 27(1)(a) a report of an inquiry, the IGADF may publicly release all or part of the report.
Division 5 - Offences etc
Section 29 - Failure to answer questions etc
This section makes it an offence for a person to fail to comply with a notice they are given under subsections 22(3) or 23(3). The section also provides a defence if the person considers, on reasonable grounds, that complying with the notice may be prejudicial to the defence of the Commonwealth. The person bears the evidential burden in respect of this offence, which means that the person must provide evidence which suggests a reasonable possibility that, in this case for example, complying with the notice would be prejudicial to the defence of the Commonwealth..
Complementing section 29, section 19 (discussed above) enables the IGADF to direct that all or part of an inquiry is to be conducted in private and that inquiry officer inquiries must not be conducted in public. This may protect certain information, documents or things from public disclosure. For example, information which is relevant to the inquiry but would involve disclosing a secret process of manufacture. These provisions also ensure that the IGADF, Assistant IGADF or inquiry officer are reasonably able to collect all information which is relevant to the inquiry.
Section 30 - Contempt etc
This section creates three offences which can be described as contempt of an IGADF, Assistant IGADF or inquiry officer inquiry. It is an offence for a person to insult the IGADF, an inquiry officer or an Assistant IGADF in the course of an inquiry. It is also an offence to disturb or interrupt the proceedings of an inquiry. It is also an offence to engage in conduct that would constitute contempt.
The section also provides that, where the IGADF, an inquiry officer or an Assistant IGADF considers that a person has engaged in conduct of the kind expressed above,, he or she may direct that the person be removed from the place where the proceedings are being held. However, removing the person does not prejudice the proceedings being instituted against that person for an offence against this section.
This section reflects previous regulation 107, which applies regulation 57, of the Defence (Inquiry) Regulations 1985. However, section 30 simplifes regulation 57 by removing distinctions between similar kinds of conduct. For example, removing separate references to use of 'insulting language' towards the inquiry and the 'writing or speaking of words that are false or defamatory' of the inquiry.
Section 31 - Taking reprisals
This section creates an offence which intends to protect witnesses in an inquiry conducted by the IGADF. An attempt by a person to dissuade, victimise or prejudice a witness providing evidence is liable to be prosecuted. A penalty of 10 penalty units is provided. This reflects those principles of public and legal policy which encourages the disclosure of information that will assist the collection of evidence during an inquiry.
Division 6 - Miscellaneous
Section 32 - Self-incrimination
This section provides that a person is not excused from giving information, producing a document or thing or answering a question under sections 22 or 23 on the grounds that doing so may tend to incriminate the person or expose them to a penalty. Importantly, however, the section also provides that if an individual is required to give information, produce a document or answer a question, this is not admissible against the individual in: any civil or criminal proceedings in any federal court or court of a State or Territory or proceedings before a service tribunal,
other than prosecution proceedings for giving false testimony that relates to sections 22 or 23. The section also provides that a person is not required to answer a question if the answer to the question might tend to incriminate the person in respect of an offence with which the person has been charged and in respect of which the charge has not been finally dealt with by a court or otherwise disposed of.
Although this section has the effect of removing the common law privilege against self-incrimination in inquiries conducted by the IGADF, an inquiry officer or an Assistant IGADF, the section generally reflects previous regulation 96 of the Defence (Inquiry) Regulations 1985, but broadens the protection for the person from certain derivative uses of the information they give, or documents or things they provide to an inquiry, which is currently limited to statements or disclosures made by a witness in the course of an inquiry. This section supports the IGADF, an inquiry officer or an Assistant IGADF in the collection of any evidence relevant to an inquiry while balancing the ability of a witness to seek relief from potential criminal consequences.
Section 33 - Protection from liability in civil proceedings
This section provides that, when done in good faith, a person will not be liable to civil proceedings for any loss, damage or injury of any kind suffered by another person where the person making a submission to, or making a statement or giving a document or information to the IGADF, an inquiry officer or an Assistant IGADF following a submission to an inquiry.
This section generally reflects previous regulation 106 of the Defence (Inquiry) Regulations 1985, but section 33 is expanded to allow for inquiries conducted by an inquiry officer or an Assistant IGADF in addition to the IGADF.
Section 34 - Witness expenses
This section enables a person who is not a Defence member and who has received a notice to appear before an inquiry under section 23, to be paid a reasonable allowance for transport, meals and accommodation where they are required to attend an inquiry.
This section substantially reflects previous regulation 107, which applies subregulation 60(5) of the Defence (Inquiry) Regulations 1985 but substitutes a 'reasonable allowance' for the reference to the 'scale of fees payable to witnesses prescribed by the Public Works Committee Regulations'. This enables the flexibility to respond to the individual circumstances of a witness required to attend an inquiry. By excluding any payment to Defence members recognises that a Defence member's attendance is part of his or her duty and therefore the member would have separately received travel, meal and allowance entitlements.
Part 5 - Conduct of performance reviews
Section 35 - Operation of this Part
This procedural provision identifies the statutory authority for the Regulation as paragraph 124(1) (h) of the Act, that is, to set out matters relating to the IGADF's powers and procedures in respect of his or her conduct of the performance reviews of the military justice system, including internal audits.
Section 36 - Reasonable assistance in relation to the conduct of performance reviews
This section enables the IGADF to require a Defence Force member or a Defence employee to give all reasonable assistance in respect of the conduct of a performance review of the military justice system, including an internal audit. This ensures the effective conduct of performance reviews of the military justice system and internal audits conducted by the IGADF, which are some of the functions of the IGADF in section 110C and paragraph 124(1) (h) of the Act.