Chapter 2
Overview of bill
Provisions of the bill
2.1
The provisions of the bill amend Part VIIIB of the Defence Act
which provide for the establishment and functions of the Inspector-General ADF
(as well as administrative and other matters). The key provisions of the bill
are contained in Schedule 1 which has two parts – the amendments and the application
and transitional provisions. Clause 2 of the bill provides that the provisions
in Schedule 1 will commence on the 28th day after Royal Assent.
Part 1–Amendments
Objects
2.2
Items 1 and 2 amend existing section 110A Object of Part. The additions made
to section 110A are underlined below.
110A Object of Part
The main object of this Part is to provide the Chief
of the Defence Force with:
(a) a mechanism for internal audit and review of the military
justice system independent of the ordinary chain of command; and
(b) an avenue independent of the ordinary chain of command
by which failures and flaws in the military justice system can be exposed and
examined so that the cause of any injustice (whether systemic or otherwise) may
be remedied.
Functions
2.3
Section 110C provides for the function of the Inspector-General ADF.
Item 3 repeals paragraph 110C(1)(e) and substitutes a number of other
paragraphs. Item 4 repeals subsection 110C(2). Item 5 adds new subsections 4, 5
and 6. For convenience, the amendments to section 110C are extracted below. The
additions to section 110C are underlined, those parts removed are struck
through.
110C Functions of the Inspector-General ADF
(1) The Inspector-General ADF has the following functions:
(a) to inquire into or investigate matters concerning the
military justice system;
(b) to conduct performance reviews of the military justice system,
including internal audits, at the times and in the manner the Inspector-General
ADF considers appropriate;
(c) to advise on matters concerning the military justice
system, including making recommendations for improvements;
(d) to promote military justice values across the Defence
Force;
(e) to do anything incidental or conducive to the
performance of any of the preceding functions.
(e) if directed by the Minister to do so—to inquire into
or investigate a matter concerning the Defence Force;
(f) if directed by the Chief of the Defence Force to do so—to
inquire into or investigate a matter concerning the Defence Force;
(g) such functions as are prescribed by the regulations;
(h) such functions as are conferred on the
Inspector-General ADF by or under this Act;
(i) such functions as are conferred on the
Inspector-General ADF by or under any other law of the Commonwealth;
(j) to do anything incidental or conducive to the
performance of any of the above functions.
Note: Subsection (4) limits
the functions that may be prescribed by regulations made for the purposes of
paragraph (g).
(2) In addition to his or her functions under subsection
(1), the Inspector-General ADF also has:
(a) the functions conferred on the Inspector-General ADF
by or under this Act or any other law of the Commonwealth; and
(b) such other functions as are prescribed by the
regulations.
(3) The function referred to in paragraph (1)(a) includes the
following:
(a) carrying out preliminary assessments as to whether an inquiry
or investigation should be conducted by the Inspector-General ADF;
(b) referring matters to other appropriate authorities to be
dealt with.
(4) Regulations made for the purposes of paragraph (1)(g)
must not prescribe a function unless the function relates to:
(a) the military justice system; or
(b) complaints made by members of the Defence Force, where
the relevant complaint is about a decision, act or omission in relation to the
member's service in the Defence Force; or
(c) deaths of members of the Defence Force, where the
relevant death appears to have arisen out of, or in the course of, the member's
service in the Defence Force.
(5) To avoid doubt, a function prescribed by regulations
made for the purposes of paragraph (1)(g) may be to inquire into or investigate
a matter mentioned in paragraph (4)(b) or (c).
(6) Subsection (5) does not limit paragraph (1)(g).
Note: The regulations may make
provision in relation to the procedures and powers of the Inspector-General ADF
in respect of the performance of the Inspector-General ADF's functions (see
paragraph 124(1)(h)).
Inquiries and investigations
2.4
Item 6 of Schedule 1 repeals section 110D which provides for when the
Inspector-General ADF can conduct inquiries or investigations.
2.5
Item 7 of Schedule 1 inserts 110DA and 110DB. New section 110DA applies to
Inspector-General ADF inquiries or investigations conducted into matters
concerning the military justice system and inquiries or investigations
conducted by the Inspector-General ADF under the regulations. It empowers the
Inspector-General ADF to conduct an inquiry or investigation on his or her own
initiative, at the request of a service chief or at the request of an
individual.[1]
2.6
New section 110DB provides that the Inspector-General ADF may end an
inquiry or investigation if satisfied that continuing it is not warranted in the
circumstances, unless that investigation or inquiry has been directed by the
Minister.[2]
Reports
2.7
The existing section 110R requires the Inspector-General ADF to prepare
such reports on the operations of the Inspector-General ADF as directed by the
Chief of the Defence Force. Item 8 repeals existing section 110R and
substitutes a new section 110R. New section 110R provides that as soon as
practicable after the end of each financial year the Inspector-General must
give the Minister, for presentation to the Parliament, a report on the
operations of the Inspector-General ADF during the financial year.[3]
This includes the operations of persons appointed as inquiry officers, inquiry
assistants and Assistant Inspector-General ADF under existing section 110P.
Self-incrimination
2.8
Existing section 124 deals with the creation of regulations under the
Defence Act. This includes regulations for 'the procedures, powers and reporting
obligations of the Inspector-General ADF in respect of the performance of the Inspector-General
ADF's functions, including in relation to any matter connected with inquiries,
investigations and performance reviews' (existing paragraph 124(1)(h)).
2.9
Item 9 inserts two new subsections following existing subsection
124(2A). New subsection 124(2AA) provides that regulations may be made for
Inspector-General ADF investigations and inquiries that require a person
appearing as a witness to answer a question even if the answer may tend to incriminate
the person.
2.10
New subsection 124(2AB) provides that the regulations may make provision
for requiring a person appearing as a witness before a person appointed under
section 110P (Assistant Inspector-General ADF, or appointed inquiry
officers or inquiry assistants) to answer questions even if the answers may tend
to incriminate the person.
2.11
However, both subsections 124(2AA) and 124(2AB) are subject to existing
subsection 124(2B). Items 10 and 11 of Schedule 1 amend this subsection. The
amended subsection is extracted below with additions underlined and parts
omitted struck through.
Subsection (2A) does Subsections (2A), (2AA), and (2AB)
do not authorise the making of a regulation containing a requirement
referred to in the subsection concerned that subsection where the
answer to the question may 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.
2.12
The explanatory memorandum (EM) states:
[T]his provides that the Inspector-General ADF, a
Inspector-General ADF appointed inquiry officer, Inspector-General ADF
appointed inquiry assistant or Assistant Inspector-General ADF cannot require
answers to questions from a person which may tend to incriminate that person in
respect of an offence with which that person has been charged and in respect of
which the charge has not been finally dealt with by a court or otherwise
disposed of.[4]
2.13
Item 12 of Schedule 1 inserts new subsection 124(2CA) after existing
subsection 124(2C). New subsection 124(CA) provides that if a witness makes a
statement or disclosure in the course of giving evidence before the
Inspector-General ADF, or persons appointed under section 110P, then:
-
the statement or disclosure; and
-
the making of the statement or disclosure; and
-
any information, document or thing obtained as a direct or indirect
consequence of the making of the statement or disclosure
are not admissible
in evidence against the witness 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 in
proceedings by way of prosecution for giving false testimony at the hearing
before the Inspector-General ADF or a person appointed under section 110P.
Part 2–Application and transitional
provisions
2.14
Item 13 of Schedule 1 provides for the continued operation of 110D
(which is repealed by item 6) in relation to an inquiry or investigation that
started before the commencement of the item.
2.15
Item 14 clarifies that new section 110DA, as inserted by item 7 of
Schedule 1, applies in relation to an inquiry or investigation that started at
or after the commencement of this item.
2.16
Item 15 provides that amended section 110R, which imposes an obligation
on the Inspector-General to make an annual report applies in relation to the
financial year in which this item commences and each later financial year.[5]
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