Defence (Inquiry) Regulations 2018

The Defence (Inquiry) Regulations 2018 (the instrument) prescribes the procedural and administrative framework for inquiries concerning the Defence Force that are conducted under the Defence Act 1903. Section 5 links the instrument to the Defence Act by identifying the matters prescribed for paragraph 124(1)(gc) of the Act. The instrument creates two distinct inquiry mechanisms: Commissions of Inquiry (Part 2) and inquiries conducted by inquiry officers (Part 3). It sets out who may appoint each, what powers they have to require documents and attendance, how hearings are to be conducted, report requirements, limits and exceptions on disclosure, and a uniform set of criminal offences and protections tied to those processes.

Mechanically, the instrument establishes (a) appointment rules and tenure mechanics for Commissioners, inquiry officers and their assistants (ss 8-15; 44-50); (b) procedural rules governing how inquiries are run (ss 16-23; 51-56); (c) compulsory process powers to require production of documents and attendance as witnesses, with minimum notice periods (ss 18-19; 53); (d) rules on the taking and use of evidence, including whether evidence must be given on oath (s 20) or must not be taken on oath (s 54); (e) report and record requirements (ss 24, 57) and directions that can restrict disclosure (s 25); (f) authorised channels for use and disclosure of inquiry records by the Minister, Chief of the Defence Force or authorised employees (ss 26-28; 58-60); and (g) a regime of offences with fixed penalties (20 penalty units) for non‑compliance, false evidence, contempt, reprisals and unauthorised disclosure (ss 29-37; 61-66). The instrument also designates COI and IO records and reports as exempt from the Freedom of Information Act 1982 (ss 42, 71), provides immunity for officials acting in good faith (ss 39, 68), and preserves transitional saving provisions and continuity for inquiries under the repealed Defence (Inquiry) Regulations 1985 (Part 5; Schedule 1).

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Defence (Inquiry) Regulations 2018

I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations.

Dated 15 March 2018

Peter Cosgrove

Governor‑General

By His Excellency’s Command

Darren Chester

Minister for Defence Personnel

Contents

Part 1—Preliminary

1 Name

2 Commencement

3 Authority

4 Schedules

5 Purpose of this instrument

6 Purpose of inquiries

7 Definitions

Part 2—Commissions of Inquiry

Division 1—Appointment of Commissions etc.

8 Appointment of Commissions of Inquiry etc.

9 Appointment of COI assistants

10 Appointment of legal practitioners assisting Commissions

11 Resignation of COI officials

12 Termination of appointment of COI officials

13 Replacement of COI officials

14 Termination of Commissions

15 Completion of inquiry

Division 2—Conduct of Commissions

16 Procedure generally

17 Times and places for conduct of inquiries

18 Notice to produce documents or things relevant to inquiry

19 Notice to attend as a witness to give evidence

20 Evidence to be given on oath or affirmation

21 Hearings of Commissions

22 Removal of certain persons from hearings

23 Appearance at hearings of Commissions

Division 3—Report of Commissions

24 Report of Commissions

Division 4—Use, disclosure and copying of information and documents

25 Directions regarding disclosure of evidence

26 Use, disclosure and copying of certain information and documents as an employee of the Commonwealth or member of the Defence Force

27 Minister may authorise use, disclosure and copying of certain information and documents

28 Minister may use, disclose and copy certain information and documents

Division 5—Offences

29 Failing or refusing to comply with notice to produce documents or things relevant to inquiry

30 Failing or refusing to comply with notice to attend as a witness to give evidence

31 Refusing to be sworn or to make affirmation

32 Failing or refusing to answer question

33 Giving false evidence

34 Contempt etc.

35 Taking reprisals

36 Disclosure of information or documents

37 Disclosure of COI records or COI reports of Commissions etc.

Division 6—Other matters

38 Self‑incrimination

39 Protection of COI officials from civil or criminal proceedings etc.

40 Protection of witnesses etc. from civil proceedings

41 Protection of certain publications

42 COI records and COI reports etc. are exempt documents

43 Delegation

Part 3—Inquiry officers

Division 1—Appointment of inquiry officers etc.

44 Appointment of inquiry officers etc.

45 Appointment of IO assistants

46 Resignation of inquiry officials

47 Termination of appointment of inquiry officials

48 Replacement of inquiry officials

49 Suspension of appointment of inquiry officials

50 Completion of inquiry

Division 2—Conduct of inquiries

51 Procedure generally

52 Times and places for conduct of inquiries

53 Ordering members of the Defence Force to give evidence or produce documents or things

54 Manner of taking evidence

55 Inquiries must not be conducted in public

56 Removal of certain persons from proceedings

Division 3—Report of inquiry officers

57 Report of inquiry officer

Division 4—Use, disclosure and copying of information and documents

58 Use, disclosure and copying of certain information and documents as an employee of the Commonwealth or member of the Defence Force

59 Minister may authorise use, disclosure and copying of certain information and documents

60 Minister may use, disclose and copy certain information and documents

Division 5—Offences

61 Failing or refusing to comply with an order to attend as a witness before an inquiry officer etc.

62 Failing or refusing to answer question

63 Giving false evidence

64 Contempt etc.

65 Taking reprisals

66 Disclosure of IO records or IO reports of inquiry officers etc.

Division 6—Other matters

67 Self‑incrimination

68 Protection of inquiry officials from civil or criminal proceedings etc.

69 Protection of witnesses etc. from civil proceedings

70 Protection of publication of IO report

71 IO records and IO reports etc. are exempt documents

72 Delegation

Part 4—Annual report

73 Annual report on operation of this instrument

Part 5—Transitional, application and saving provisions

74 Definitions

75 Continuation of incomplete old inquiries

76 Continued application of certain protection and immunity provisions in old regulations

77 Saving of directions relating to the disclosure of certain evidence etc.

78 Continued application of prohibition against disclosure of records or reports of Courts of Inquiry

79 Continued application of prohibition against disclosure of records or reports of Inquiry Officers

80 Saving of instruments made under regulation 63 of the old regulations

81 Continued application of provisions in the old regulations relating to reopening etc. of old inquiries by Courts of Inquiry

82 Continued application of provisions in the old regulations relating to reopening etc. of old inquiries by Inquiry Officers

83 Last annual report under old regulations

84 Continued application of provisions in the old regulations relating to IGADF inquiries

Schedule 1—Repeals

Defence (Inquiry) Regulations 1985

Part 1—Preliminary

1 Name

This instrument is the Defence (Inquiry) Regulations 2018.

2 Commencement

(1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
1. The whole of this instrument At the same time as Part 1 of Schedule 1 to the Defence Legislation Amendment (Instrument Making) Act 2017 commences. 26 March 2018

Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

(2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3 Authority

This instrument is made under the Defence Act 1903.

4 Schedules

Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

5 Purpose of this instrument

For the purposes of paragraph 124(1)(gc) of the Act, this instrument prescribes matters providing for, and in relation to, inquiries concerning the Defence Force.

6 Purpose of inquiries

The purpose of inquiries concerning the Defence Force that are conducted by Commissions or inquiry officers under this instrument is to facilitate the making of decisions relating to the Defence Force.

7 Definitions

Note: A number of expressions used in this instrument are defined in the Act, including the following:

(a) Chief of the Defence Force;

(b) Defence Force;

(d) officer;

(e) The Secretary.

In this instrument:

Act means the Defence Act 1903.

appointing authority for a Commission means:

(a) if the Commission is appointed by the Chief of the Defence Force and the Secretary acting jointly under subsection 8(1)—both of those persons acting jointly; or

(b) otherwise—the person who appoints the Commission under subsection 8(1).

COI assistant of a Commission means a person appointed under section 9 or subsection 13(2) as an assistant of the Commission.

COI member of a Commission means a person appointed under paragraph 8(3)(a) or subsection 8(4) or 13(2) as a member of the Commission and includes a member appointed as the President of the Commission.

COI official of a Commission means:

(a) a COI assistant of the Commission; or

(b) a COI member of the Commission; or

COI records of a Commission means:

(a) the transcript or other record of oral evidence given to a COI assistant of the Commission or at a hearing of the Commission; or

(b) documents produced to a COI assistant or COI member of the Commission or at a hearing of the Commission; or

COI report of a Commission means a report relating to the Commission’s inquiry prepared in accordance with section 24.

Commission means a Commission of Inquiry appointed under subsection 8(1).

engage in conduct includes omitting to perform an act.

inquiry officer means a person appointed under subsection 44(1) or 48(1) as an inquiry officer.

inquiry official means:

(a) an inquiry officer; or

(b) an IO assistant of the inquiry officer.

IO assistant of an inquiry officer means a person appointed under section 45 or subsection 48(1) as an assistant of the inquiry officer.

IO records of an inquiry officer means:

(a) the transcript or other record of oral evidence given to the inquiry officer or an IO assistant of the inquiry officer; or

(b) documents produced to the inquiry officer or the IO assistant of the inquiry officer; or

(c) documents prepared by the inquiry officer, or the IO assistant of the inquiry officer, that relate to the inquiry officer’s inquiry.

IO report of an inquiry officer means a report relating to the inquiry officer’s inquiry prepared in accordance with section 57.

President of a Commission means the person appointed under paragraph 8(3)(b) or (c) or subsection 13(2) as the President of the Commission.

Part 2—Commissions of Inquiry

Division 1—Appointment of Commissions etc.

8 Appointment of Commissions of Inquiry etc.

Appointment of Commission of Inquiry

(1) The Minister, the Chief of the Defence Force, or the Chief of the Defence Force and the Secretary acting jointly, may, by written instrument, appoint a Commission of Inquiry to:

(a) inquire into such matters concerning the Defence Force as are specified in the instrument; and

(b) prepare the COI report of the Commission of Inquiry by a specified date.

(2) The appointing authority for the Commission may at any time, by written instrument:

(a) amend the matters specified in the instrument made under paragraph (1)(a) relating to the Commission; or

(b) specify additional matters concerning the Defence Force for the Commission to inquire into; or

Appointment of COI members

(3) If a Commission is appointed under subsection (1), the appointing authority for the Commission must, in the instrument made under that subsection:

(a) appoint one or more persons as members of the Commission; and

(b) if the Commission has only one member—appoint that person as the President of the Commission; and

(4) The appointing authority for the Commission may at any time, by written instrument, appoint one or more persons as additional members of the Commission.

9 Appointment of COI assistants

The appointing authority for a Commission may, by written instrument, appoint one or more persons as assistants of the Commission.

10 Appointment of legal practitioners assisting Commissions

The appointing authority for a Commission may, in writing, appoint one or more legal practitioners to assist the Commission.

11 Resignation of COI officials

(1) A COI official of a Commission (other than a member of the Defence Force) may resign his or her appointment by giving a written resignation to:

(a) if the appointing authority for the Commission is the Chief of the Defence Force and the Secretary acting jointly under subsection 8(1)—either of those persons; or

(b) otherwise—the appointing authority for the Commission.

(2) The resignation takes effect on the day it is received by the person to whom it is given or, if a later day is specified in the resignation, on that later day.

12 Termination of appointment of COI officials

The appointing authority for a Commission may, at any time, by written notice given to a COI official of the Commission, terminate the appointment of the COI official with effect on a specified day.

13 Replacement of COI officials

(1) This section applies if a COI official of a Commission (the former COI official):

(a) resigns in accordance with section 11; or

(b) is given a notice of termination under section 12; or

(2) The appointing authority for the Commission may, by written instrument, appoint another person as a COI official of the Commission to replace the former COI official with effect from a specified date.

(3) If a person is appointed as a COI official of a Commission under subsection (2), that person may, for the purposes of exercising his or her powers or performing his or her functions as a COI official of the Commission, have regard to the COI records (if any) of the Commission.

14 Termination of Commissions

(1) If the appointing authority for a Commission considers that it is appropriate in all the circumstances to do so, the appointing authority may, at any time, by written notice given to the President of the Commission:

(a) terminate the appointment of the Commission; or

(b) suspend the appointment of the Commission for a specified period.

(2) If:

(a) a Commission (the first Commission) is appointed to inquire into particular matters; and

(b) the appointment is terminated under paragraph (1)(a); and

(c) after the termination, another Commission (the second Commission) is appointed to inquire into the same or similar matters;

the second Commission may have regard to the COI records (if any) of the first Commission.

15 Completion of inquiry

The appointing authority for a Commission may, after receiving the COI report of the Commission, determine in writing that the Commission’s inquiry has been completed.

Division 2—Conduct of Commissions

16 Procedure generally

(1) Subject to this Division, the appointing authority for a Commission may specify in writing how the Commission is to conduct its inquiry.

(2) A Commission:

(a) must conduct its inquiry fairly, economically, quickly and informally; and

(b) must comply with the rules of procedural fairness; and

(d) may inform itself on any matter relevant to its inquiry in such manner as the President of the Commission thinks fit.

17 Times and places for conduct of inquiries

A Commission may:

(a) conduct its inquiry at such times, and at such places, as the President of the Commission determines; and

(b) conduct its inquiry and exercise its powers in or outside Australia.

18 Notice to produce documents or things relevant to inquiry

(1) If the President of a Commission reasonably believes that a person has documents or things that are relevant to the Commission’s inquiry, the President may, by written notice given to the person, require the person to produce any such documents or things:

(a) to a COI member or COI assistant of the Commission at a specified place within a specified period; or

(b) at a specified hearing of the Commission.

Note: Failure to comply with the notice is an offence (see section 29).

(2) The period specified in the notice under paragraph (1)(a) must be a period of at least 14 days after the day the notice is given.

(3) The hearing specified in the notice under paragraph (1)(b) must be at least 14 days after the day the notice is given.

19 Notice to attend as a witness to give evidence

(1) If the President of a Commission reasonably believes that a person has information that is relevant to the Commission’s inquiry, the President may, by written notice given to the person, require the person:

(a) to attend as a witness before a COI assistant of the Commission at a specified time and place to give evidence; or

(b) to attend as a witness at a specified hearing of the Commission to give evidence.

Note: Failure to comply with the notice is an offence (see section 30).

(2) The time specified in the notice under paragraph (1)(a) must be at least 14 days after the day the notice is given.

(3) The hearing specified in the notice under paragraph (1)(b) must be at least 14 days after the day the notice is given.

(4) If a person is given a notice under subsection (1), the person is entitled to be paid a reasonable allowance for expenses incurred by the person for transport, meals and accommodation in connection with complying with the notice.

20 Evidence to be given on oath or affirmation

All evidence given at a hearing of a Commission, or to a COI assistant of a Commission, must be given on oath or affirmation.

21 Hearings of Commissions

(1) A hearing of a Commission must be held in private.

(2) Despite subsection (1), the appointing authority for a Commission may, by written notice given to the President of the Commission, direct:

(a) that the Commission hold one or more of its hearings in public; or

(b) that a person, or persons included in a class of persons, specified in the notice may be present during all or part of a private hearing of the Commission.

(3) If the President of a Commission is satisfied that it is necessary to do so in the interests of:

(a) the defence, security or international relations of the Commonwealth; or

(b) fairness to a person who the President considers may be affected by the Commission’s inquiry; or

the President may:

(d) order that a person, or persons included in a class of persons, specified in the order must not be present at all or part of a public or private hearing of the Commission; or

(e) order that all or part of a public hearing must be held in private and give directions as to the persons who may be present.

(4) The President of a Commission may make an order under subsection (3) in relation to a hearing of the Commission despite any direction given under subsection (2) in relation to the hearing.

(5) If the President of a Commission makes an order under subsection (3), the President may authorise a person to take such reasonable action as is required to give effect to the order.

22 Removal of certain persons from hearings

(1) The President of a Commission may order that a person be removed from a hearing of the Commission if the President considers that the person has:

(a) insulted a COI official of the Commission during the hearing; or

(b) disturbed or interrupted the hearing; or

(c) engaged in conduct during the hearing that would, if a Commission were a court of record, constitute a contempt of that court.

(2) If the President of a Commission makes an order under subsection (1), the President may authorise a person to take such reasonable action as is required to give effect to the order.

23 Appearance at hearings of Commissions

Person likely to be materially adversely affected

(1) If the President of a Commission considers that a person is likely to be materially adversely affected by the Commission’s inquiry, the President:

(a) may permit the person, or a representative of the person, to appear at any hearing of the Commission that is held in private; and

(b) must permit the person, or a representative of the person, to appear at all or part of a hearing of the Commission that is held in public if all or that part of the hearing is likely to deal with matters that are likely to materially adversely affect the person.

(2) If:

(a) the President of the Commission permits a person, or a representative of a person, to appear at a hearing of the Commission under subsection (1); and

(b) the President considers that the person is likely to be materially adversely affected by evidence given by a witness at the hearing;

the President must permit the person, or the representative of the person, to examine the witness at the hearing in relation to that evidence.

Deceased person

(3) If the President of a Commission considers that the record or reputation of a deceased person is likely to be materially adversely affected by the Commission’s inquiry, the President:

(a) may permit a representative of the person to appear at any hearing of the Commission that is held in private; and

(b) must permit a representative of the person to appear at all or part of a hearing of the Commission that is held in public if all or that part of the hearing is likely to deal with matters that are likely to materially adversely affect the person.

(4) If:

(a) the President of the Commission permits a representative of a deceased person to appear at a hearing of the Commission under subsection (3); and

(b) the President considers that the deceased person’s record or reputation is likely to be materially adversely affected by evidence given by a witness at the hearing;

the President must permit the representative of the deceased person to examine the witness at the hearing in relation to that evidence.

Examination questions

(5) If the President of a Commission considers it proper to do so, the President may disallow any question put in an examination under subsection (2) or (4).

Services of legal officers

(6) If:

(a) a representative of a person is permitted to appear at a hearing of the Commission under subsection (1) or (3); and

(b) the representative is a legal officer provided by the Director of Defence Counsel Services;

the services of the legal officer must be made available at the expense of the Commonwealth.

Orders under sections 21 and 22

(7) This section has effect subject to any order made by the President of the Commission under section 21 or 22.

Division 3—Report of Commissions

24 Report of Commissions

(1) Subject to subsection (2), if the President of a Commission is satisfied that all information relevant to the Commission’s inquiry that is practicable to obtain has been obtained, the President must prepare a report, to be signed by the President and any other COI member of the Commission, setting out:

(a) the findings of the Commission; and

(b) any recommendations of the Commission arising from those findings.

(2) If a Commission has 2 or more COI members and those COI members cannot agree on a report, each COI member of the Commission must make a statement in writing, to be signed by that member, of:

(a) the findings made by the COI member; and

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

and those statements constitute the report of the Commission.

(3) The President of the Commission must give a copy of the report to:

(a) if the appointing authority for the Commission is the Chief of the Defence Force and the Secretary acting jointly under subsection 8(1)—both of those persons; or

(b) otherwise—the appointing authority for the Commission.

(4) The report must be accompanied by a copy of the COI records of the Commission.

Division 4—Use, disclosure and copying of information and documents

25 Directions regarding disclosure of evidence

(1) If the President of a Commission is satisfied that it is necessary to do so in the interests of:

(a) the defence, security or international relations of the Commonwealth; or

(b) fairness to a person who the President considers may be affected by the Commission’s inquiry; or

the President may give a written direction that prohibits the disclosure of any or all of the following:

(d) specified information contained in oral evidence given to a COI assistant or at a hearing of the Commission;

(e) specified documents received by a COI member or COI assistant of the Commission and accepted as evidence during the course of the Commission’s inquiry;

(f) specified documents prepared by a COI official of the Commission that relate to the Commission’s inquiry.

(2) A direction under subsection (1) given by the President of a Commission does not prohibit:

(a) the disclosure of information or documents specified in the direction to:

(i) a COI official of the Commission; or

(ii) a person authorised, in writing, by the President for the purposes of this paragraph; or

(b) the inclusion of information or documents specified in the direction in the COI report of the Commission.

(3) A direction under subsection (1) that prohibits the disclosure of a document also prohibits:

(a) the disclosure of part of that document or the disclosure of a copy of all or part of that document; and

(b) the disclosure of information contained in that document.

26 Use, disclosure and copying of certain information and documents as an employee of the Commonwealth or member of the Defence Force

(1) A person who is an employee of the Commonwealth or a member of the Defence Force may do the following things in the performance of the person’s duties as such an employee or such a member:

(a) use information contained in the COI records or COI report of a Commission;

(b) disclose:

(i) information contained in the COI records or COI report of a Commission; or

(ii) a document, a part of a document, or a copy of all or a part of a document, that forms part of the COI records or COI report of a Commission;

(2) Subsection (1) applies despite any direction given under subsection 25(1).

27 Minister may authorise use, disclosure and copying of certain information and documents

(1) The Minister may, in writing, authorise an employee of the Commonwealth or a member of the Defence Force to do any of the following things:

(a) use information contained in the COI records or COI report of a Commission for a specified purpose;

(b) disclose:

(i) information contained in the COI records or COI report of a Commission; or

(ii) a document, a part of a document, or a copy of all or a part of a document, that forms part of the COI records or COI report of a Commission;

Note: The Minister may authorise a person or a class of persons (see subsection 33(3A) of the Acts Interpretation Act 1901).

(2) An authorisation under subsection (1) may be expressed to be subject to conditions specified in the authorisation.

(3) An authorisation under subsection (1) has effect despite any direction given under subsection 25(1).

28 Minister may use, disclose and copy certain information and documents

Despite any direction given under subsection 25(1), the Minister may:

(a) use information contained in the COI records or COI report of a Commission for purposes relating to the Defence Force; and

(b) disclose:

(i) information contained in the COI records or COI report of a Commission; or

(ii) a document, a part of a document, or a copy of all or a part of a document, that forms part of the COI records or COI report of a Commission; and

Division 5—Offences

29 Failing or refusing to comply with notice to produce documents or things relevant to inquiry

(1) A person commits an offence if:

(a) the person is given a notice under section 18; and

(b) the person fails or refuses to comply with the notice.

Penalty: 20 penalty units.

(2) Subsection (1) does not apply to the extent that:

(a) the person believes on reasonable grounds that compliance with the notice is likely to cause damage to the defence, security or international relations of the Commonwealth; or

(b) it would be unduly onerous for the person to comply with the notice.

Note: A defendant bears an evidential burden in relation to the matters mentioned in subsection (2) (see section 13.3 of the Criminal Code).

30 Failing or refusing to comply with notice to attend as a witness to give evidence

(1) A person commits an offence if:

(a) the person is given a notice under section 19; and

(b) the person fails or refuses to comply with the notice.

Penalty: 20 penalty units.

(2) Subsection (1) does not apply to the extent that it would be unduly onerous for the person to comply with the notice.

Note: A defendant bears an evidential burden in relation to the matter mentioned in subsection (2) (see section 13.3 of the Criminal Code).

31 Refusing to be sworn or to make affirmation

(1) A person commits an offence if:

(a) the person appears as a witness at a hearing of a Commission; and

(b) the person is called upon by the President of the Commission to be sworn or to make an affirmation; and

Penalty: 20 penalty units.

(2) A person commits an offence if:

(a) the person attends as a witness before a COI assistant of a Commission to give evidence; and

(b) the person is called upon by the COI assistant to be sworn or to make an affirmation; and

Penalty: 20 penalty units.

32 Failing or refusing to answer question

(1) A person commits an offence if:

(a) the person appears as a witness at a hearing of a Commission; and

(b) the person fails or refuses to answer a question put to that person by:

(i) a COI member of the Commission; or

(ii) a legal practitioner appointed under section 10 to assist the Commission; or

(iii) a person permitted by the President of the Commission under section 23 to examine the person; and

(d) the President requires the person to answer the question.

Penalty: 20 penalty units.

(2) A person commits an offence if:

(a) the person attends as a witness before a COI assistant of a Commission to give evidence; and

(b) the person fails or refuses to answer a question put to that person by the COI assistant; and

(d) the COI assistant requires the person to answer the question.

Penalty: 20 penalty units.

(3) Subsections (1) and (2) do not apply if:

(a) the person appears as a witness at a hearing of a Commission or attends as a witness before a COI assistant of a Commission to give evidence; and

(b) the person fails or refuses to answer a question; and

(c) the person believes on reasonable grounds that the answer to the question is likely to cause damage to the defence, security or international relations of the Commonwealth.

Note: A defendant bears an evidential burden in relation to the matters mentioned in subsection (3) (see section 13.3 of the Criminal Code).

33 Giving false evidence

(1) A person commits an offence if the person gives false evidence at a hearing of a Commission.

Penalty: 20 penalty units.

(2) A person commits an offence if the person gives false evidence to a COI assistant of a Commission.

Penalty: 20 penalty units.

34 Contempt etc.

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct insults a COI official of a Commission in the course of the Commission’s inquiry.

Penalty: 20 penalty units.

(2) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct disturbs or interrupts a hearing of a Commission.

Penalty: 20 penalty units.

(3) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct would, if a Commission were a court of record, constitute a contempt of that court.

Penalty: 20 penalty units.

35 Taking reprisals

(1) A person commits an offence if the person prevents or dissuades another person from:

(a) giving information to a COI member or a COI assistant of a Commission; or

(b) producing a document or thing to a COI member or a COI assistant of a Commission; or

Penalty: 20 penalty units.

(2) A person commits an offence if the person causes another person to be victimised, penalised or prejudiced in some way for:

(a) giving information to a COI member or a COI assistant of a Commission; or

(b) producing a document or thing to a COI member or a COI assistant of a Commission; or

Penalty: 20 penalty units.

(3) In a prosecution for an offence against subsection (1) or (2), it is not necessary to prove that the other person:

(a) gave any information to a COI member or a COI assistant of a Commission; or

(b) produced any document or thing to a COI member or a COI assistant of a Commission; or

36 Disclosure of information or documents

(1) A person commits an offence if:

(a) the person discloses information or all or a part of a document; and

(b) the disclosure is prohibited by a direction under subsection 25(1).

Penalty: 20 penalty units.

(2) Subsection (1) does not apply if the person is permitted to disclose the information or all or the part of the document under section 26 or 28.

Note: A defendant bears an evidential burden in relation to the matter mentioned in subsection (2) (see section 13.3 of the Criminal Code).

(3) Subsection (1) does not apply if the person is authorised to disclose the information or all or the part of the document under section 27.

Note: A defendant bears an evidential burden in relation to the matter mentioned in subsection (3) (see section 13.3 of the Criminal Code).

37 Disclosure of COI records or COI reports of Commissions etc.

(1) A person commits an offence if:

(a) the person is an employee of the Commonwealth or a member of the Defence Force; and

(b) the person does any of the following things:

(i) discloses information contained in the COI records or COI report of a Commission;

(ii) discloses a document, a part of a document, or a copy of all or a part of a document, that forms part of the COI records or COI report of a Commission;

(iii) copies a document, or a part of a document, that forms part of the COI records or COI report of a Commission; and

(c) the information or all or the part of the document mentioned in paragraph (b) came to the knowledge, or into the possession, of the person in the course of the performance of the person’s duties as an employee of the Commonwealth or member of the Defence Force; and

(d) the information or all or the part of the document mentioned in paragraph (b) does not relate to oral evidence given in public at a hearing of a Commission.

Penalty: 20 penalty units.

(2) Subsection (1) does not apply if the person is permitted to disclose the information or all or the part of the document mentioned in paragraph (1)(b) under section 26.

Note: A defendant bears an evidential burden in relation to the matter mentioned in subsection (2) (see section 13.3 of the Criminal Code).

(3) Subsection (1) does not apply if the person is authorised to disclose the information or all or the part of the document mentioned in paragraph (1)(b) under section 27.

Note: A defendant bears an evidential burden in relation to the matter mentioned in subsection (3) (see section 13.3 of the Criminal Code).

Division 6—Other matters

38 Self‑incrimination

(1) An individual appearing as a witness at a hearing of a Commission, or attending as a witness before a COI assistant of a Commission, is not excused from answering a question, when required to do so, on the ground that the answer to the question might tend to incriminate the individual.

Note: Subsection 124(2C) of the Act provides that a statement or disclosure made by a witness in the course of giving evidence before an inquiry under this instrument is not admissible in evidence against the witness other than in proceedings relating to the giving of false testimony.

(2) Despite subsection (1), an individual is not required to answer a question if the answer to the question might tend to incriminate the individual in respect of an offence with which the individual has been charged and in respect of which the charge has not been finally dealt with by a court or otherwise disposed of.

39 Protection of COI officials from civil or criminal proceedings etc.

(1) A COI official of a Commission is not liable to civil or criminal proceedings for or in relation to an act done, or omitted to be done, in good faith, in the performance or purported performance, or exercise or purported exercise, of the COI official’s functions or powers under or in relation to this instrument.

(2) A COI official of a Commission is not compellable, in any court proceedings or proceedings before a service tribunal, to provide information, or produce a document, that relates to the performance or purported performance, or exercise or purported exercise, of the COI official’s functions or powers under or in relation to this instrument unless the court or service tribunal requires the COI official to do so in the interests of justice.

40 Protection of witnesses etc. from civil proceedings

Civil proceedings do not lie against a person (the first person) for loss, damage or injury of any kind suffered by another person as a result of the first person doing any of the following things in good faith:

(a) producing a document or thing:

(i) at a hearing of a Commission; or

(ii) to a COI assistant or COI member of a Commission;

(b) disclosing information to a COI assistant or COI member of a Commission;

41 Protection of certain publications

(1) No civil or criminal proceedings (other than proceedings for an offence against subsection 36(1)) lie in respect of the publication of a fair and accurate account of all or part of a hearing of a Commission that is conducted in public.

(2) No civil or criminal proceedings lie in respect of the publication of the COI report of a Commission if the COI report was disclosed in accordance with Division 4 of this Part.

42 COI records and COI reports etc. are exempt documents

Section 38 of the Freedom of Information Act 1982 applies to:

(a) the COI records of a Commission and information contained in those records; and

(b) the COI report of a Commission and information contained in that report.

Note: Section 37 of this instrument prohibits, among other things, the disclosure of the things mentioned in paragraphs (a) and (b) of this section.

43 Delegation

(1) The Chief of the Defence Force, the Secretary or the Minister may, in writing, delegate any or all of his or her powers under this Part to:

(a) an officer of the Navy who holds a rank not below the rank of Commodore; or

(b) an officer of the Army who holds a rank not below the rank of Brigadier; or

(2) In exercising powers under a delegation, the delegate must comply with any directions of the Chief of the Defence Force, the Secretary or the Minister (as the case may be).

Part 3—Inquiry officers

Division 1—Appointment of inquiry officers etc.

44 Appointment of inquiry officers etc.

(1) The Chief of the Defence Force may, by written instrument, appoint a person as an inquiry officer to:

(a) inquire into such matters concerning the Defence Force as are specified in the instrument; and

(b) prepare the IO report of the inquiry officer by a specified date.

(2) The Chief of the Defence Force may, by written instrument, authorise the inquiry officer to make recommendations arising from the inquiry officer’s findings in relation to one or more of the matters referred to in paragraph (1)(a).

(3) The Chief of the Defence Force may at any time, by written instrument:

(a) amend the matters specified in the instrument made under paragraph (1)(a) relating to the inquiry officer; or

(b) specify additional matters concerning the Defence Force for the inquiry officer to inquire into; or

45 Appointment of IO assistants

The Chief of the Defence Force may, by written instrument, appoint one or more persons as assistants of the inquiry officer.

46 Resignation of inquiry officials

(1) An inquiry official (other than a member of the Defence Force) may resign his or her appointment by giving a written resignation to the Chief of the Defence Force.

(2) The resignation takes effect on the day it is received by the Chief of the Defence Force or, if a later day is specified in the resignation, on that later day.

47 Termination of appointment of inquiry officials

(1) The Chief of the Defence Force may, at any time, by written notice given to an inquiry official terminate the appointment of the inquiry official with effect on a specified day.

(2) If:

(a) an inquiry officer (the first inquiry officer) is appointed to inquire into particular matters; and

(b) the appointment is terminated under subsection (1); and

(c) after the termination, another inquiry officer (the second inquiry officer) is appointed to inquire into the same or similar matters;

the second inquiry officer may have regard to the IO records (if any) of the first inquiry officer.

48 Replacement of inquiry officials

(1) If an inquiry official (the previous inquiry official):

(a) resigns in accordance with section 46; or

(b) is given a notice of termination under section 47; or

the Chief of the Defence Force may, by written instrument, appoint another person as an inquiry official to replace the previous inquiry official with effect from a specified date.

(2) If a person is appointed as an inquiry official under subsection (1), the person may, for the purposes of exercising his or her powers or performing his or her functions as an inquiry official, have regard to the IO records (if any) of the relevant inquiry officer.

49 Suspension of appointment of inquiry officials

If the Chief of the Defence Force considers that it is appropriate in all the circumstances to do so, the Chief of the Defence Force may, at any time, by written notice given to an inquiry official, suspend the appointment of the inquiry official for a specified period.

50 Completion of inquiry

The Chief of the Defence Force may, after receiving the IO report of an inquiry officer, determine in writing that the inquiry officer’s inquiry has been completed.

Division 2—Conduct of inquiries

51 Procedure generally

(1) Subject to this Division, the Chief of the Defence Force may specify in writing how an inquiry officer is to conduct his or her inquiry.

(2) An inquiry officer:

(a) must conduct his or her inquiry fairly, economically, quickly and informally; and

(b) must comply with the rules of procedural fairness; and

(d) may inform himself or herself on any matter relevant to his or her inquiry in such manner as he or she thinks fit.

52 Times and places for conduct of inquiries

An inquiry officer may:

(a) conduct his or her inquiry at such times, and at such places, as the inquiry officer determines; and

(b) conduct his or her inquiry and exercise his or her powers in or outside Australia;

unless the Chief of the Defence Force specifies otherwise under subsection 51(1).

53 Ordering members of the Defence Force to give evidence or produce documents or things

An inquiry officer may order a member of the Defence Force to do either or both of the following for the purposes of the inquiry officer’s inquiry:

(a) attend as a witness before the inquiry officer, or an IO assistant of the inquiry officer, at a specified time and place to give evidence;

(b) to produce a document or thing to the inquiry officer, or an IO assistant of the inquiry officer, at a specified place within a specified period.

Note: Failure to comply with an order is an offence (see section 61).

54 Manner of taking evidence

An inquiry official must not take evidence on oath or affirmation.

55 Inquiries must not be conducted in public

An inquiry officer must not conduct the inquiry officer’s inquiry in public.

56 Removal of certain persons from proceedings

(1) An inquiry officer may order that a person be removed from the place where the proceedings of the inquiry officer’s inquiry are being held if the inquiry officer considers that the person has:

(a) insulted the inquiry officer, or an IO assistant of the inquiry officer, during the proceedings; or

(b) disturbed or interrupted the proceedings; or

(c) engaged in conduct during the proceedings that would, if the inquiry officer or an IO assistant of the inquiry officer were a court of record, constitute a contempt of that court.

(2) If the inquiry officer makes an order under subsection (1), the inquiry officer may authorise a person to take such reasonable action as is required to give effect to the order.

Division 3—Report of inquiry officers

57 Report of inquiry officer

(1) Subject to any direction of the Chief of the Defence Force, if an inquiry officer is satisfied that all information relevant to his or her inquiry that is practicable to obtain has been obtained, the inquiry officer must prepare a report setting out:

(a) his or her findings; and

(b) if the inquiry officer is authorised under subsection 44(2) to make recommendations arising from any or all of those findings—those recommendations.

(2) The inquiry officer must give a copy of the report to the Chief of the Defence Force.

(3) The report must be accompanied by a copy of the IO records of the inquiry officer.

Division 4—Use, disclosure and copying of information and documents

58 Use, disclosure and copying of certain information and documents as an employee of the Commonwealth or member of the Defence Force

A person who is an employee of the Commonwealth or a member of the Defence Force may do the following things in the performance of the person’s duties as such an employee or such a member:

(a) use information contained in the IO records or IO report of an inquiry officer;

(b) disclose:

(i) information contained in the IO records or IO report of an inquiry officer; or

(ii) a document, a part of a document, or a copy of all or a part of a document, that forms part of the IO records or IO report of an inquiry officer;

59 Minister may authorise use, disclosure and copying of certain information and documents

(1) The Minister may, in writing, authorise an employee of the Commonwealth or a member of the Defence Force to do any of the following things:

(a) use information contained in the IO records or IO report of an inquiry officer for a specified purpose;

(b) disclose:

(i) information contained in the IO records or IO report of an inquiry officer; or

(ii) a document, a part of a document, or a copy of all or a part of a document, that forms part of the IO records or IO report of an inquiry officer;

Note: The Minister may authorise a person or a class of persons (see subsection 33(3A) of the Acts Interpretation Act 1901).

(2) An authorisation under subsection (1) may be expressed to be subject to conditions specified in the authorisation.

60 Minister may use, disclose and copy certain information and documents

The Minister may:

(a) use information contained in the IO records or IO report of an inquiry officer for purposes relating to the Defence Force; and

(b) disclose:

(i) information contained in the IO records or IO report of an inquiry officer; or

(ii) a document, a part of a document, or a copy of all or a part of a document, that forms part of the IO records or IO report of an inquiry officer; and

Division 5—Offences

61 Failing or refusing to comply with an order to attend as a witness before an inquiry officer etc.

Order to attend as a witness before an inquiry officer etc.

(1) A person commits an offence if:

(a) the person is given an order under paragraph 53(a); and

(b) the person fails or refuses to comply with the order.

Penalty: 20 penalty units.

(2) Subsection (1) does not apply to the extent that it would be unduly onerous for the person to comply with the order.

Note: A defendant bears an evidential burden in relation to the matter mentioned in subsection (2) (see section 13.3 of the Criminal Code).

Order to produce documents or things to an inquiry officer etc.

(3) A person commits an offence if:

(a) the person is given an order under paragraph 53(b); and

(b) the person fails or refuses to comply with the order.

Penalty: 20 penalty units.

(4) Subsection (3) does not apply to the extent that:

(a) the person believes on reasonable grounds that compliance with the order is likely to cause damage to the defence, security or international relations of the Commonwealth; or

(b) it would be unduly onerous for the person to comply with the order.

Note: A defendant bears an evidential burden in relation to the matters mentioned in subsection (4) (see section 13.3 of the Criminal Code).

62 Failing or refusing to answer question

(1) A person commits an offence if:

(a) the person is a member of the Defence Force; and

(b) the person appears as a witness before an inquiry officer or an IO assistant of the inquiry officer; and

(d) the question is relevant to the inquiry officer’s inquiry; and

(e) the inquiry officer or IO assistant requires the person to answer the question.

Penalty: 20 penalty units.

(2) Subsection (1) does not apply if the person believes on reasonable grounds that the answer to the question is likely to cause damage to the defence, security or international relations of the Commonwealth.

Note: A defendant bears an evidential burden in relation to the matter mentioned in subsection (2) (see section 13.3 of the Criminal Code).

63 Giving false evidence

A person commits an offence if the person gives false evidence to an inquiry official.

Penalty: 20 penalty units.

64 Contempt etc.

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct insults an inquiry officer, or an IO assistant of the inquiry officer, in the course of the inquiry officer’s inquiry.

Penalty: 20 penalty units.

(2) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct disturbs or interrupts the proceedings of the inquiry of an inquiry officer.

Penalty: 20 penalty units.

(3) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct would, if an inquiry official were a court of record, constitute a contempt of that court.

Penalty: 20 penalty units.

65 Taking reprisals

(1) A person commits an offence if the person prevents or dissuades another person from:

(a) giving information to an inquiry official; or

(b) producing a document or thing to an inquiry official; or

Penalty: 20 penalty units.

(2) A person commits an offence if the person causes another person to be victimised, penalised or prejudiced in some way for:

(a) giving information to an inquiry official; or

(b) producing a document or thing to an inquiry official; or

Penalty: 20 penalty units.

(3) In a prosecution for an offence against subsection (1) or (2), it is not necessary to prove that the other person:

(a) gave any information to an inquiry official; or

(b) produced any document or thing to an inquiry official; or

66 Disclosure of IO records or IO reports of inquiry officers etc.

(1) A person commits an offence if:

(a) the person is an employee of the Commonwealth or a member of the Defence Force; and

(b) the person does any of the following things:

(i) discloses information contained in the IO records or IO report of an inquiry officer;

(ii) discloses a document, a part of a document, or a copy of all or a part of a document, that forms part of the IO records or IO report of an inquiry officer;

(iii) copies a document, or a part of a document, that forms part of the IO records or IO report of an inquiry officer; and

Penalty: 20 penalty units.

(2) Subsection (1) does not apply if the person is permitted to disclose the information or all or the part of the document mentioned in paragraph (1)(b) under section 58.

Note: A defendant bears an evidential burden in relation to the matter mentioned in subsection (2) (see section 13.3 of the Criminal Code).

(3) Subsection (1) does not apply if the person is authorised to disclose the information or all or the part of the document mentioned in paragraph (1)(b) under section 59.

Note: A defendant bears an evidential burden in relation to the matter mentioned in subsection (3) (see section 13.3 of the Criminal Code).

Division 6—Other matters

67 Self‑incrimination

(1) An individual attending as a witness before an inquiry official is not excused from answering a question, when required to do so, on the ground that the answer to the question might tend to incriminate the individual.

68 Protection of inquiry officials from civil or criminal proceedings etc.

(1) An inquiry official is not liable to civil or criminal proceedings for or in relation to an act done, or omitted to be done, in good faith, in the performance or purported performance, or exercise or purported exercise, of the inquiry official’s functions or powers under or in relation to this instrument.

(2) An inquiry official is not compellable, in any court proceedings or proceedings before a service tribunal, to provide information, or produce a document, that relates to the performance or purported performance, or exercise or purported exercise, of the inquiry official’s functions or powers under or in relation to this instrument unless the court or service tribunal requires the inquiry official to do so in the interests of justice.

69 Protection of witnesses etc. from civil proceedings

(a) producing a document or thing to an inquiry official;

(b) disclosing information to an inquiry official;

70 Protection of publication of IO report

No civil or criminal proceedings lie in respect of the publication of the IO report of an inquiry officer if the IO report was disclosed in accordance with Division 4 of this Part.

71 IO records and IO reports etc. are exempt documents

Section 38 of the Freedom of Information Act 1982 applies to:

(a) the IO records of an inquiry officer and information contained in those records; and

(b) the IO report of an inquiry officer and information contained in that report.

Note: Section 66 of this instrument prohibits, among other things, the disclosure of the things mentioned in paragraphs (a) and (b) of this section.

72 Delegation

(1) The Chief of the Defence Force may, in writing, delegate any or all of his or her powers under this Part to:

(a) an officer of the Navy who holds a rank not below the rank of Lieutenant; or

(b) an officer of the Army who holds a rank not below the rank of Captain; or

(2) The Minister may, in writing, delegate any or all of his or her powers under this Part to:

(a) an officer of the Navy who holds a rank not below the rank of Commodore; or

(b) an officer of the Army who holds a rank not below the rank of Brigadier; or

(3) In exercising powers under a delegation, the delegate must comply with any directions of the Chief of the Defence Force or Minister (as the case may be).

Part 4—Annual report

73 Annual report on operation of this instrument

(1) As soon as practicable after the end of a financial year, the Chief of the Defence Force must prepare a report on the operation of this instrument during the financial year.

(2) For the purposes of subsection (1), the period that begins on the day this instrument commences and ends on 30 June 2019 is taken to be a financial year.

(3) The report must be included in the annual report of the Department.

Part 5—Transitional, application and saving provisions

74 Definitions

In this Part:

commencement means the commencement of this instrument.

Court of Inquiry has the same meaning as in the old regulations, as in force immediately before commencement.

IGADF inquiry means an inquiry referred to in regulation 126 of the old regulations, as in force immediately before commencement.

inquiry assistant means an inquiry assistant appointed under subregulation 69(2) of the old regulations.

Inquiry Officer means an Inquiry Officer appointed under subregulation 69(1) of the old regulations.

old inquiry means an inquiry under the old regulations (other than an IGADF inquiry).

old regulations means the Defence (Inquiry) Regulations 1985.

75 Continuation of incomplete old inquiries

(1) This section applies in relation to an old inquiry if:

(a) the old inquiry started before commencement; and

(b) immediately before commencement, the old inquiry has not been completed.

(2) Despite the repeal of the old regulations:

(a) the old inquiry may continue after commencement as if the repeal had not happened; and

(b) the old regulations, as in force immediately before commencement, continue to apply in relation to the old inquiry after commencement as if the repeal had not happened; and

(i) that was made under the old regulations before commencement; and

(ii) that was in force immediately before commencement;

continues in force, and may be dealt with, after commencement as if the repeal had not happened; and

(d) anything done in relation to the inquiry:

(i) that was done under the old regulations before commencement; and

(ii) that had effect immediately before commencement;

continues to have effect, and may be dealt with, after commencement as if the repeal had not happened.

76 Continued application of certain protection and immunity provisions in old regulations

Despite the repeal of the old regulations, the following provisions continue to apply, after commencement, in relation to an old inquiry that was completed before commencement as if the repeal had not happened:

(a) regulations 61 and 64 of the old regulations;

(b) regulation 78 of the old regulations to the extent that regulation relates to the application of regulations 61 and 64 of those regulations to, and in relation to, an Inquiry Officer or an inquiry assistant.

77 Saving of directions relating to the disclosure of certain evidence etc.

(1) This section applies in relation to a direction if:

(a) the direction was given under subregulation 62(1) of the old regulations before commencement; and

(b) the direction related to an old inquiry that was completed before commencement; and

(2) Despite the repeal of the old regulations:

(a) the direction continues to have effect, and may be dealt with, after commencement as if the repeal had not happened; and

(b) any authorisation given under subregulation 62(3) or paragraph 62(4)(c) of the old regulations before commencement:

(i) that relates to the direction; and

(ii) that was in effect immediately before commencement;

continues to have effect, and may be dealt with, after commencement as if the repeal had not happened; and

(c) subregulations 62(7) to (9) of the old regulations continue to apply, after commencement, in relation to a contravention of the direction that occurs after commencement as if the repeal had not happened.

78 Continued application of prohibition against disclosure of records or reports of Courts of Inquiry

(1) This section applies in relation to the following:

(a) information contained in the records or report of a Court of Inquiry (the protected CI information);

(b) a document, a part of a document, or a copy of all or a part of a document, that forms part of the records or reports of a Court of Inquiry (the protected CI document);

whether the inquiry of the Court of Inquiry is completed before or after commencement.

(2) Despite the repeal of the old regulations, regulation 63 of those regulations continues to apply, after commencement, in relation to protected CI information or a protected CI document as if the repeal had not happened.

(3) Section 38 of the Freedom of Information Act 1982 applies, after commencement, to protected CI information and protected CI documents in relation to which regulation 63 of the old regulations continues to apply under subsection (2) of this section.

Note: Regulation 63 of the old regulations prohibits, among other things, the disclosure of protected CI information and protected CI documents.

79 Continued application of prohibition against disclosure of records or reports of Inquiry Officers

(1) This section applies in relation to the following:

(a) information contained in the records or report of an Inquiry Officer (the protected IO information);

(b) a document, a part of a document, or a copy of all or a part of a document, that forms part of the records or reports of an Inquiry Officer (the protected IO document);

whether the inquiry of the Inquiry Officer is completed before or after commencement.

(2) Despite the repeal of the old regulations:

(a) regulation 78 of the old regulations (to the extent that regulation relates to the application of regulation 63 of those regulations to, and in relation to, an Inquiry Officer or an inquiry assistant) continues to apply, after commencement, in relation to the inquiry of the Inquiry Officer as if the repeal had not happened; and

(b) regulation 63 of the old regulations continues to apply, after commencement, in relation to protected IO information or a protected IO document as if the repeal had not happened.

(3) Section 38 of the Freedom of Information Act 1982 applies, after commencement, to protected IO information and protected IO documents in relation to which regulation 63 of the old regulations continues to apply under paragraph (2)(b) of this section.

Note: Regulation 63 of the old regulations prohibits, among other things, the disclosure of protected IO information and protected IO documents.

80 Saving of instruments made under regulation 63 of the old regulations

(1) This section applies in relation to a written instrument (the old instrument) if:

(a) the old instrument was made under regulation 63 of the old regulations before commencement; and

(b) the old instrument was in force immediately before commencement.

(2) Despite the repeal of the old regulations, the old instrument continues in force, and may be dealt with, after commencement for the purposes of sections 78 and 79 of this instrument as if the repeal had not happened.

81 Continued application of provisions in the old regulations relating to reopening etc. of old inquiries by Courts of Inquiry

(1) This section applies in relation to an old inquiry that is an inquiry by a Court of Inquiry if:

(a) the old inquiry was completed before commencement; and

(b) the Court of Inquiry was in existence immediately before commencement.

(2) Despite the repeal of the old regulations:

(a) regulations 66 and 67 of the old regulations continue to apply, after commencement, in relation to the old inquiry as if the repeal had not happened; and

(b) any direction relating to the old inquiry:

(i) that was given under subregulation 66(1) of the old regulations before commencement; and

(ii) that had effect immediately before commencement;

continues to have effect, and may be dealt with, after commencement as if the repeal had not happened.

82 Continued application of provisions in the old regulations relating to reopening etc. of old inquiries by Inquiry Officers

(1) This section applies in relation to an old inquiry that is an inquiry by an Inquiry Officer if:

(a) the old inquiry was completed before commencement; and

(b) the appointment of the Inquiry Officer was in existence immediately before commencement.

(2) Despite the repeal of the old regulations:

(a) regulations 76 and 77 of the old regulations continue to apply, after commencement, in relation to the old inquiry as if the repeal had not happened; and

(b) any direction relating to the old inquiry:

(i) that was given under subregulation 76(1) of the old regulations before commencement; and

(ii) that had effect immediately before commencement;

continues to have effect, and may be dealt with, after commencement as if the repeal had not happened.

83 Last annual report under old regulations

Despite the repeal of regulation 125 of the old regulations, that regulation continues to apply, in relation to a report on the operation of those regulations during the financial year beginning on 1 July 2017, as if:

(a) that repeal had not happened; and

(b) that financial year ended at the end of the day before commencement.

84 Continued application of provisions in the old regulations relating to IGADF inquiries

(1) Despite the repeal of the old regulations:

(a) regulation 126 of those regulations continues to apply, after commencement, in relation to an IGADF inquiry as if the repeal had not happened; and

(b) regulations 61 and 64 of the old regulations (to the extent they apply to, and in relation to, an IGADF inquiry because of paragraph (a) of this subsection) continue to apply, after commencement, in relation to an IGADF inquiry as if the repeal had not happened; and

(c) regulation 63 of the old regulations (to the extent it applies to, and in relation to, an IGADF inquiry because of paragraph (a) of this subsection) continues to apply, after commencement, in relation to the following as if the repeal had not happened:

(i) information contained in the records or report of an IGADF inquiry (the protected IGADF information);

(ii) a document, a part of a document, or a copy of all or a part of a document, that forms part of the records or reports of an IGADF inquiry (the protected IGADF document).

(2) Section 38 of the Freedom of Information Act 1982 applies, after commencement, to protected IGADF information and protected IGADF documents in relation to which regulation 63 of the old regulations continues to apply under paragraph (1)(c) of this section.

Note: Regulation 63 of the old regulations prohibits, among other things, the disclosure of protected IGADF information and protected IGADF documents.

Schedule 1—Repeals

Defence (Inquiry) Regulations 1985

1 The whole of the instrument

Repeal the instrument.

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Defence (Inquiry) Regulations 2018

Dated 15 March 2018

Peter Cosgrove

Governor‑General

By His Excellency’s Command

Darren Chester

Minister for Defence Personnel

Contents

Part 1—Preliminary

1 Name

2 Commencement

3 Authority

4 Schedules

5 Purpose of this instrument

6 Purpose of inquiries

7 Definitions

Part 2—Commissions of Inquiry

Division 1—Appointment of Commissions etc.

8 Appointment of Commissions of Inquiry etc.

9 Appointment of COI assistants

10 Appointment of legal practitioners assisting Commissions

11 Resignation of COI officials

12 Termination of appointment of COI officials

13 Replacement of COI officials

14 Termination of Commissions

15 Completion of inquiry

Division 2—Conduct of Commissions

16 Procedure generally

17 Times and places for conduct of inquiries

18 Notice to produce documents or things relevant to inquiry

19 Notice to attend as a witness to give evidence

20 Evidence to be given on oath or affirmation

21 Hearings of Commissions

22 Removal of certain persons from hearings

23 Appearance at hearings of Commissions

Division 3—Report of Commissions

24 Report of Commissions

Division 4—Use, disclosure and copying of information and documents

25 Directions regarding disclosure of evidence

26 Use, disclosure and copying of certain information and documents as an employee of the Commonwealth or member of the Defence Force

The instrument organises inquiry work around two parallel but distinct concepts: Commissions of Inquiry (Commission/COI) and inquiry officers (IO). Each has its own appointment route, scope, procedures, reporting duties and disclosure rules.

Appointment and authority. Commissions can be appointed by the Minister, by the Chief of the Defence Force, or jointly by the Chief of the Defence Force and the Secretary (s 8(1)). Inquiry officers are appointed by the Chief of the Defence Force (s 44(1)). Both instruments must specify the matters to be inquired into and the date by which a report is to be prepared (ss 8(1)(b), 44(1)(b)). Appointing authorities can amend terms, add matters, or change report dates (ss 8(2), 44(3)).
Personnel and support. The appointing authority must appoint COI members and a President for a Commission (s 8(3)). Assistants and legal practitioners can be appointed to support Commissions (ss 9-10). The Chief of the Defence Force may appoint IO assistants (s 45). Provisions address resignation, termination, replacement and suspension of those officials (ss 11-13; 46-49). Replacement appointees may have regard to predecessor records (ss 13(3), 48(2)).
Procedure, evidence and hearings. Commissions must conduct inquiries “fairly, economically, quickly and informally” and comply with procedural fairness but are not bound by rules of evidence (s 16). Commissions take evidence on oath or affirmation (s 20) and generally sit in private but may be directed to sit in public by the appointing authority (s 21(1)-(2)). The President can exclude persons or order parts of public hearings to be private for defence, fairness or effective conduct reasons (s 21(3)-(4)). Inquiry officers must also act fairly, quickly and informally (s 51) but must not conduct inquiries in public and must not take evidence on oath (ss 55, 54).
Compulsory process. The President of a Commission may serve written notices to produce documents or attend to give evidence (ss 18-19) with minimum notice periods of 14 days (ss 18(2), 19(2)-(3)). Inquiry officers may order members of the Defence Force to attend as witnesses or produce material (s 53). Failure to comply attracts criminal penalties (see Division 5 in each Part).
Reports and records. Presidents and inquiry officers prepare reports when satisfied they have obtained all practicable information (ss 24(1), 57(1)). Reports must be accompanied by COI/IO records (ss 24(4), 57(3)). Where Commission members disagree, each member must sign a written statement and those constitute the report (s 24(2)).
Disclosure, use and control. The President may direct that specified information, documents or evidence be withheld from disclosure where necessary for defence, security, international relations, fairness or effective conduct (s 25). That direction can extend to parts and copies of documents (s 25(3)). At the same time, the instrument provides authorised disclosure routes: Commonwealth employees and Defence members may use and disclose COI/IO records in the performance of duties (ss 26, 58); the Minister may authorise specific disclosures (ss 27, 59) and may himself use, disclose and copy records despite any direction (ss 28, 60).
Protections and immunities. COI and IO officials have civil and criminal immunity for acts done in good faith in performance (ss 39(1), 68(1)). Witnesses and other persons are protected from civil proceedings for material produced or evidence given in good faith (ss 40, 69). Publication protections for fair and accurate accounts of public hearings and for reports disclosed in accordance with the instrument are specified (ss 41, 70). COI/IO records and reports are explicitly exempt from FOI under section 38 of the FOI Act (ss 42, 71).
Offences and burden. The instrument sets a common penalty point across provisions: 20 penalty units for the various offences (see ss 29-37 and 61-66). The instrument repeatedly notes that defendants carry an evidential burden for specified defences (for example, that compliance would be unduly onerous or would damage defence/security/international relations) and refers to section 13.3 of the Criminal Code (notes following several offences).
Delegation and reporting. The Chief of the Defence Force, the Secretary or the Minister may delegate certain powers under Part 2 to officers of specified minimum ranks (s 43). Part 3 also provides specific delegation paths (s 72). The Chief of the Defence Force must prepare an annual report on the operation of the instrument to be included in the Department’s annual report (s 73).

These concepts operate in a coordinated but asymmetrical way: Commissions have more court‑like trappings (oath, capacity to be public, ability to permit representation and legal assistance) while inquiry officers are designed as internal fact‑finding tools with a requirement that inquiries be private and no oath-taking. The instrument also builds overlapping disclosure channels: presidential directions limit disclosure, but the Minister and authorised Commonwealth employees or Defence members have separately expressed powers to use and disclose material.

The instrument specifies particular classes of persons who are directly affected by its powers, duties and prohibitions. The primary categories are:

Appointing authorities and decision makers. The Minister, the Chief of the Defence Force (CDF), and the Secretary (when acting jointly with the CDF) are given appointment powers for Commissions (s 8(1)) and the CDF exclusively appoints inquiry officers (s 44(1)). These offices therefore decide when, where and on what terms inquiries occur, what matters are covered, who sits on Commissions (s 8(3)) and whether hearings can be public (s 21(2)).
COI officials and inquiry officials. Persons appointed as COI members, COI assistants, legal practitioners to assist Commissions, inquiry officers and IO assistants (ss 8(3), 9-10, 44-45). These officials carry investigatory and procedural powers, prepare reports (ss 24, 57), and are afforded statutory protections from civil and criminal proceedings for acts done in good faith (ss 39(1), 68(1)). They are not compellable to give evidence in other proceedings except where a court or service tribunal requires it in the interests of justice (ss 39(2), 68(2)).
Members of the Defence Force. As both subjects and sources of evidence, Defence members are directly affected. Inquiry officers may order Defence members to attend and produce documents (s 53). Members who are witnesses before inquiry officers or Commissions face obligations to answer questions, subject to narrow exceptions related to charged matters or national security concerns (ss 32, 62, 38, 67). They are also subject to offences for non‑compliance, false evidence and contempt (ss 29-37; 61-66).
Commonwealth employees. Employees of the Commonwealth are affected in two ways: (a) they may be required to produce documents or attend as witnesses when the President reasonably believes they hold relevant documents or information (ss 18-19); and (b) rules regulate how COI/IO records and reports may be used, disclosed and copied by such employees in the performance of their duties (ss 26, 58). There are also offences for unauthorised disclosure by employees (ss 37, 66).
Witnesses and representatives. Private individuals, deceased persons’ representatives and persons “likely to be materially adversely affected” by an inquiry are given procedural rights to appear, give submissions and have representatives examine witnesses under specified conditions (s 23). If a representative is a legal officer provided by the Director of Defence Counsel Services, the Commonwealth must meet the cost of that legal officer when permitted to appear (s 23(6)).
Third parties and the public. Publication and disclosure provisions affect media and other third parties. Public hearings may be directed by appointing authorities (s 21(2)), but default positions are privacy for Commissions and obligatory secrecy for inquiry officers (s 21(1); s 55). The instrument creates criminal penalties for unauthorised disclosure (ss 36-37; 66), but allows fair and accurate accounts of public hearings to be published without civil or criminal proceedings (s 41(1)).
Ministers and delegates. The Minister may authorise employees or Defence members to use or disclose COI/IO records and reports (ss 27, 59) and may, despite directions, use or disclose such material for Defence purposes (ss 28, 60). The instrument also contemplates delegations by the CDF, Secretary and Minister to officers of specified ranks (s 43; s 72), so those delegations determine who in practice exercises appointment and modification powers.
Entities subject to Freedom of Information. COI/IO records and reports are declared exempt documents under s 38 of the FOI Act (ss 42, 71), affecting anyone seeking access under FOI; related transitional provisions continue that protection for certain records under the old regulations (Part 5, ss 78-84).

In sum, those who produce evidence (public servants, Defence members), those who run or assist inquiries (COI/IO officials and their assistants), appointing officials (Minister/CDF/Secretary), and the public (media, representatives of affected persons) are the principal affected groups. The statutory offences and disclosure controls determine legal exposure for employees and Defence members who handle or disclose inquiry material. Transitional provisions preserve the operation of, and protections for, inquiries started under the old 1985 Regulations (ss 75-84), meaning persons involved in legacy inquiries are also affected by carry‑over rules.

The instrument creates a range of enforceable duties and recognisable rights for different participants. These should be read with the documentary references to the Defence Act 1903 and the Criminal Code evidential burden notes that appear in multiple places.

Duties

Appointing and amending inquiries. The Minister, CDF, or CDF and Secretary jointly must make written instruments to appoint Commissions and specify matters and report dates (s 8(1)). The appointing authority can amend those matters, add matters or amend report dates at any time in writing (s 8(2)). The CDF has equivalent amendment powers for inquiry officers (s 44(3)).
Appointment and replacement obligations. For Commissions, the appointing authority must appoint one or more members and designate a President (s 8(3)). Resignation, termination and replacement of COI and IO officials are governed by ss 11-13 and 46-49, which require written notice instruments and allow replacement appointees to have regard to predecessor records (ss 13(3), 48(2)).
Fair conduct and procedural fairness. Commissions and inquiry officers must conduct inquiries “fairly, economically, quickly and informally” and comply with procedural fairness (ss 16(2)(a)-(b), 51(2)(a)-(b)). They are not bound by rules of evidence (ss 16(2)(c), 51(2)(c)).
Compulsory process obligations. The President may require production of documents and attendance by witnesses when he or she reasonably believes those documents or information are relevant (ss 18(1), 19(1)). The IO may order Defence members to attend and produce material (s 53). Notices of production or attendance must allow at least 14 days (ss 18(2), 19(2)-(3)).
Reporting. Presidents and inquiry officers must prepare reports when satisfied they have obtained all practicable information and must accompany reports with COI/IO records (ss 24(1), 24(4), 57(1)-(3)).
Disclosure direction powers. The President may direct that specified information or documents not be disclosed to protect defence, security, international relations, fairness or effective conduct (s 25(1)). Such directions can cover information in oral evidence, documents received as evidence, or documents prepared by COI officials (s 25(1)(d)-(f)) and may extend to parts and copies (s 25(3)).

Rights

Rights to representation and examination. Persons likely to be materially adversely affected may be permitted to appear, or must be permitted to appear at public hearings that materially affect them, and may have representatives examine witnesses where relevant (s 23(1)-(2)). Representatives of deceased persons have similar rights (s 23(3)-(4)).
Witness allowances. Persons given a notice to attend under s 19(1) are entitled to be paid a reasonable allowance for transport, meals and accommodation expenses incurred complying with the notice (s 19(4)).
Legal assistance at Commonwealth expense. If a permitted representative is a legal officer provided by the Director of Defence Counsel Services, the legal officer’s services must be made available at the expense of the Commonwealth (s 23(6)).
Use and disclosure in performance of duties. Commonwealth employees and Defence members may use, disclose and copy information and documents that form part of COI/IO records or reports in the performance of their duties (ss 26(1), 58). Those provisions apply “despite any direction” under s 25(1) (s 26(1) expressly states it applies despite s 25(1)).
Ministerial authorisation and use. The Minister may authorise specific disclosures or use for specified purposes and may himself use and disclose material despite presidential directions (ss 27-28, 59-60). Authorisations may be subject to conditions (ss 27(2), 59(2)).
Protections against civil and criminal proceedings. Witnesses and persons providing documents in good faith are protected from civil proceedings for loss or damage arising from their participation (ss 40, 69). Publication of fair and accurate accounts of public hearings and reports disclosed in accordance with the instrument attract publication protections (ss 41, 70). COI/IO officials have immunity for acts done in good faith (ss 39(1), 68(1)).
FOI exemption. COI records and COI reports and IO records and IO reports are treated as exempt documents under s 38 of the FOI Act (ss 42, 71), limiting external access under FOI.

Exceptions and limits

Self‑incrimination. Witnesses are not excused from answering on grounds of self‑incrimination, subject to a narrow exception where the answer might incriminate an individual in respect of an offence with which they have been charged and which has not been finally dealt with (ss 38(1)-(2), 67(1)-(2)). The instrument notes that statements made are inadmissible in evidence against the witness except for perjury or giving false testimony under s 124(2C) of the Defence Act (note to s 38).
Evidential burden. Several offences provide limited defences (for example, that compliance would be unduly onerous or that disclosure would damage defence/security/international relations). The instrument repeatedly records that a defendant bears an evidential burden in relation to those matters and refers to s 13.3 of the Criminal Code (notes to multiple provisions).
Ministerial and CDF override. Directions by the President under s 25 do not prevent the Minister (or persons authorised by the Minister) from using or disclosing material for Defence purposes or for authorised purposes (ss 27-28). Commonwealth employees’ ability to use or disclose material in the performance of duties operates “despite any direction” (s 26(1)).

Overall, the instrument imposes compulsory process and reporting duties while providing multiple, specified rights of participation, limited immunity for officials and careful channels for authorised disclosure. The regime balances restricted public access (privacy, secrecy and FOI exemption) with internal and ministerial discretion to use and disclose for Defence purposes.

The instrument establishes a consistent set of criminal offences across both Commissions and inquiry officers, defines maximum penalties, provides limited defences, and sets out enforcement mechanisms and protections for certain actors.

Penalty quantum and common offences

The instrument uses the unitary monetary descriptor “20 penalty units” as the penalty for the principal offences it creates. Specific offences carrying that penalty include failing or refusing to comply with a notice to produce documents (s 29(1)), failing to comply with a notice to attend as a witness (s 30(1)), refusing to be sworn or to make an affirmation (s 31(1)-(2)), failing or refusing to answer a relevant question when required (ss 32(1)-(2)), giving false evidence (ss 33(1)-(2)), contempt‑like conduct (ss 34(1)-(3)), taking reprisals against witnesses or potential witnesses (ss 35(1)-(2)), and disclosing information prohibited by a direction (s 36(1)). The parallel Part 3 offences for inquiries by inquiry officers use the same 20 penalty units for non‑compliance with orders to attend or produce (s 61) and for similar misconduct (ss 62-66).
The instrument treats unauthorised disclosure by Commonwealth employees or Defence members of COI or IO records or reports as a standalone offence carrying the 20 penalty units sanction (ss 37(1), 66(1)). Those provisions specifically require that the information or document came to the person’s knowledge or possession in the course of their duties and that the material does not relate to oral evidence given in public at a hearing (s 37(1)(c)-(d)).

Defences and evidential burdens

Several offences contain express statutory exceptions. For example, non‑compliance with production notices or orders will not apply “to the extent that” the person believes on reasonable grounds that compliance is likely to cause damage to defence, security or international relations of the Commonwealth, or where compliance would be unduly onerous (see s 29(2); s 61(4)). Non‑attendance exceptions recognise undue onerousness as a defence in s 30(2) and s 61(2).
The instrument repeatedly records in notes that a defendant bears an evidential burden in relation to the specified defences and points to section 13.3 of the Criminal Code (repeatedly noted after s 29(2), s 30(2), s 32(3), s 36(2)-(3), s 61(2), s 61(4), and others). That implies the prosecution does not have to disprove the matter beyond reasonable doubt; rather, the defendant must raise sufficient evidence to support the defence, at which point the prosecution bears the usual burden of proof.

Enforcement mechanisms and procedural steps

Notices to produce and to attend require written form and minimum notice periods: at least 14 days for production (s 18(2)) and at least 14 days for attendance (s 19(2)-(3)). These procedural requirements create measurable enforcement thresholds and a temporal buffer before criminal liability can accrue.
For Commissions, the President may require answers and may order removal of persons from hearings (ss 21-22). For inquiry officers, comparable powers to remove persons from proceedings exist (s 56). Where removal is ordered, both the President and the inquiry officer may authorise reasonable action to effect the order (ss 21(5), 22(2), 56(2)).
Contempt‑style conduct is criminalised (ss 34, 64), framed by reference to conduct that would, if a Commission or inquiry official were a court of record, constitute contempt. The instrument therefore imports a functional analogue of court contempt into the inquiry context with a statutory penalty.

Protections limiting enforcement exposure

The instrument provides a non‑compellability protection for COI and IO officials in relation to testifying in courts or service tribunals about acts done in performance of their powers unless required in interests of justice (ss 39(2), 68(2)). This reduces potential prosecutorial or civil exposure of officials.
Witnesses have a constrained protection against self‑incrimination: they are not excused from answering questions on those grounds (ss 38(1), 67(1)), but answers that might tend to incriminate in respect of an existing charge that has not been finally dealt with are excluded (ss 38(2), 67(2)). The instrument notes that such statements are not admissible against the witness except for giving false testimony in proceedings under s 124(2C) of the Defence Act (note to s 38), capping prosecutorial avenues.

Practical enforcement implications

Enforcement will involve the appointing authority and Presidents/inquiry officers issuing and enforcing notices and orders. Criminal liability for non‑compliance is available but subject to the procedural constraints and defences noted. The instrument’s repeated cross‑references to the Criminal Code’s evidential burden provision indicate that where national security or undue onerousness is invoked, defendants must adduce evidence to establish that defence.
The instrument also provides administrative routes to circumvent disclosure prohibitions (Ministerial authorisation, ss 27-28; Departmental and Defence personnel use in duties, ss 26, 58). These internal pathways reduce the scope for prosecutions in practice but also create compliance requirements around authorisations and permitted use.

In short, the instrument creates a uniform set of offences with fixed monetary penalties, paired with procedural protections, defined defences carrying an evidential burden, and administrative mechanisms that both limit and channel how evidence and records may be used and disclosed.

The instrument expressly interfaces with a small number of named statutes and references to the Criminal Code and earlier regulations. The text identifies these cross‑references and sets out how the Defence (Inquiry) Regulations 2018 fit into, override, or interact with those instruments.

Defence Act 1903

The instrument is made under the Defence Act 1903 (s 3). Section 5 directly states that the instrument prescribes matters for paragraph 124(1)(gc) of the Act. The instrument therefore operates as subordinate legislation under the Defence Act and implements, defines or supplements the Act’s inquiry powers.

Freedom of Information Act 1982 (FOI Act)

The instrument declares that COI and IO records and reports are deemed exempt documents for the purposes of section 38 of the FOI Act (s 42 for COI; s 71 for IO). The instrument therefore removes those documents from ordinary FOI access, subject to the operation of section 38 of the FOI Act as applied. Transitional provisions (ss 78-84) continue FOI‑related protections for records and documents of prior courts of inquiry, Inquiry Officers and IGADF inquiries under the old regulations.

Criminal Code (Commonwealth)

The instrument repeatedly notes that a defendant bears an evidential burden in relation to particular matters (for example, that compliance would be unduly onerous or disclosure would damage national defence/security/international relations), and each such note references section 13.3 of the Criminal Code (notes to ss 29, 30, 32, 36, 61, 66 and others). That cross‑reference signals that defences or exceptions in the instrument are subject to the Criminal Code’s allocation of evidential burdens.

Defence Act procedural provisions

The instrument refers to s 124(2C) of the Defence Act in a note to s 38 (Self‑incrimination), explaining that statements or disclosures made in the course of giving evidence before an inquiry under this instrument are not admissible in evidence against the witness other than in proceedings relating to false testimony. That is an internal cross‑reference to how evidence provided to inquiries may be used in criminal proceedings.

Repeal and transition from Defence (Inquiry) Regulations 1985

The instrument repeals the Defence (Inquiry) Regulations 1985 (Schedule 1). Part 5 contains multiple transitional provisions preserving the operation of old inquiries and certain protection provisions of the old regulations (ss 75-84). For example, where an old inquiry commenced prior to the new instrument’s commencement and had not been completed, it may continue under the old regulations as if repeal had not occurred (s 75). Specific protections, including regulation 63 prohibitions relating to disclosure in the old regulations, continue to apply in certain respects (ss 76, 78-84).

Service tribunals and courts

COI and IO officials are not compellable in court proceedings or proceedings before a service tribunal to provide information or documents relating to their functions unless the court or service tribunal requires it in the interests of justice (ss 39(2), 68(2)). This limits judicial and tribunal powers to extract inquiry materials from COI/IO officials, subject to an “interests of justice” threshold.

Administrative law and procedural fairness

The instrument places procedural fairness duties on Commissions and inquiry officers (ss 16(2)(b), 51(2)(b)), which situates these inquiries within the norms of administrative law. The material is not bound by rules of evidence (ss 16(2)(c), 51(2)(c)), creating a discretionary fact‑finding regime that must nonetheless observe procedural fairness, a common law duty.

Authorisations and conditions

Ministerial authorisations under ss 27 and 59 may be expressed to be subject to conditions, and the instrument notes that the Minister may authorise persons or classes of persons per subsection 33(3A) of the Acts Interpretation Act 1901 (notes to ss 27 and 59). That links to standard interpretative powers and the Acts Interpretation Act mechanisms for authorisation.

In practical terms, the instrument forms part of the Defence legislative architecture and modifies the disclosure landscape by exempting COI/IO records from FOI, while also embedding Criminal Code evidential burden principles into its enforcement regime. It preserves certain elements of the prior regulatory regime for continuity, and creates narrowly framed limits on judicial compellability for inquiry officials. For those managing or subject to inquiries, coherence with the Defence Act, awareness of FOI exemptions and the evidential burden allocation under the Criminal Code will be essential.

The instrument itself, as provided, contains limited internal amendment history because it is the instrument that repealed the Defence (Inquiry) Regulations 1985 and commenced on the date tied to another Act. The following points are explicitly stated within the instrument and are the only amendment‑history facts in the provided text:

Commencement. The instrument commenced “at the same time as Part 1 of Schedule 1 to the Defence Legislation Amendment (Instrument Making) Act 2017 commences” and is dated to be taken as commencing on 26 March 2018 (Commencement table, s 2(1) and Column 2). The text includes a note that the commencement table relates only to the instrument as originally made and will not be amended to reflect later amendments.
Repeal of prior regulations. Schedule 1 repeals the Defence (Inquiry) Regulations 1985 (Schedule 1,Repeals: “Defence (Inquiry) Regulations 1985: The whole of the instrument , Repeal the instrument.”). That is a direct, full repeal of the previous regulatory instrument.
Transitional, application and saving provisions. Part 5 (ss 74-84) is, effectively, the instrument’s transitional amendment history, preserving continuity for incomplete inquiries under the old regulations and saving certain protection and immunity provisions and instruments made under the old regulations. Specific savings include continuation of incomplete old inquiries (s 75), continued application of certain protection and immunity provisions from the old regulations (s 76), savings of directions made under the old regulations relating to disclosure (s 77), continued application of prohibitions against disclosure of records and reports of Courts of Inquiry and Inquiry Officers (ss 78-79), and saving of instruments made under regulation 63 of the old regulations (s 80). Regulation 126 and related provisions for IGADF inquiries under the old regulations continue to apply where relevant (s 84).
Annual reporting transitional detail. The instrument treats the period from commencement to 30 June 2019 as a financial year for the purposes of the first annual report under s 73(2). This specifies the reporting timetable during the initial implementation period.

There are no other amendment entries, amending instruments or subsequent modifications recorded in the provided text. The instrument itself contains provisions permitting delegations, modifications of terms of appointment and internal amendment of commissions and inquiries by the appointing authority (see ss 8(2), 13(2), 44(3)), but those are operational powers rather than external amendment history.

Because the supplied text is the instrument as made in March 2018 and does not include later amending instruments or annotations, any later amendments, judicial interpretations or secondary legislative changes are outside the text available for analysis. The instrument’s transitional provisions are the principal mechanism by which earlier regulatory structures remain relevant and preserved for ongoing matters started under the 1985 regulations.

The supplied instrument text does not contain any decisions, cases, or judicial history. It names no court decisions and references no litigation. Where the instrument touches on evidentiary or prosecutorial elements, it does so by cross‑reference to statutory provisions (for example, section 13.3 of the Criminal Code, as noted in multiple places) or to provisions of the Defence Act (for example, s 124(2C) of the Defence Act noted in s 38). Those references are descriptive and do not record judicial interpretations.

Consequently, the instrument as provided has no internal litigation history to report. Practitioners should note two practical consequences from the text:

The instrument sets up offences and procedural mechanisms that could give rise to litigation (criminal prosecutions for non‑compliance, civil suits where exceptions are contested, FOI claims that engage the exemptions under ss 42 and 71). The instrument itself prescribes evidential burdens and procedural steps; any litigation would therefore hinge on those statutory parameters and on relevant provisions of the Criminal Code, Defence Act and FOI Act.
Several provisions create judicially reviewable decisions, for example: (a) appointment and termination decisions by the appointing authority (ss 8, 12, 14, 47), (b) directions prohibiting disclosure given by the President under s 25, and (c) orders excluding persons from hearings under s 21(3) or s 22. These administrative decisions could be subject to judicial review on standard public law grounds (procedural fairness, jurisdictional error, reasonableness), though the instrument provides internal procedural constraints and protections.

Because the instrument preserves old inquiries and instruments under the Defence (Inquiry) Regulations 1985 (Part 5), any existing litigation or historical judicial decisions related to the old regulations are not recorded here. Practitioners requiring authoritative litigation history must consult case law databases and post‑2018 decisions; none are included in the text supplied.

This section flags concrete, source‑grounded features where the instrument creates non‑obvious obligations, asymmetries or practical pitfalls. Each point is traceable to a specific provision.

Public versus private dichotomy between Commissions and inquiry officers. Commissions default to private hearings (s 21(1)) but the appointing authority may direct that hearings be public (s 21(2)). The President may, however, exclude particular persons or make part of a public hearing private on defence, fairness or effective conduct grounds (s 21(3)-(4)). By contrast, inquiry officers must not conduct their inquiries in public (s 55). The difference in default publicity and the President’s blind‑spot power to privatise parts of public hearings can create surprising limitations on public access.
Oath versus no oath. Commissions require evidence to be given on oath or affirmation (s 20). Inquiry officers must not take evidence on oath or affirmation (s 54). That creates a legal and practical difference in the admissibility and character of testimony between the two mechanisms that affects forensic planning and potential subsequent proceedings.
Ministerial and internal override of non‑disclosure directions. The President can issue a direction prohibiting disclosure of specified evidence or documents (s 25). However, s 26(1) allows Commonwealth employees or Defence members to use or disclose material in performance of their duties “despite any direction” under s 25(1). The Minister can authorise disclosures (s 27) and may himself use or disclose material despite s 25(1) (s 28). These overlapping channels mean a presidential direction does not absolutely exclude internal use or ministerial authorised disclosure, complicating attempts to treat a direction as an absolute confidentiality barrier.
Employee/Defence member disclosure offences and narrow exceptions. Sections 37 and 66 criminalise disclosure or copying of COI/IO records by employees or Defence members where the material came to them in the course of duty, unless permitted under ss 26/58 or authorised under ss 27/59. The statutory exceptions are narrow and the instrument repeatedly places the evidential burden on the defendant for pleas like “would be unduly onerous” or “likely to cause damage to defence/security”. Practically, employees must be cautious about sharing material and should secure Ministerial authorisation or ensure use falls squarely within the “performance of duties” wording.
Minimum notice periods and “unduly onerous” defence. Notices to produce or attend must generally allow 14 days (ss 18(2), 19(2)-(3)). Offences for non‑compliance often include a defence where compliance would be “unduly onerous” (for example, s 29(2), s 61(4)). The instrument gives an evidential burden to a defendant pleading this defence, requiring evidence to support the claim. This dynamic shifts initial compliance risk to potential respondents, who must document reasons to rely on the defence.
Compulsory orders specifically for Defence members. An inquiry officer may order a member of the Defence Force to attend or produce documents (s 53). The instrument creates different direct ordering power against Defence members compared with civilians. Practitioners advising Defence members should note the specific exposure under Part 3 and the penalties in s 61.
FOI exemption but limited publication protection. COI/IO records and reports are exempt from FOI via s 38 of the FOI Act as applied by ss 42 and 71. However, s 41(1) provides that fair and accurate accounts of public hearings have protection from civil or criminal proceedings (other than s 36(1) offences). Because Commissions can be directed to sit in public, counsel and media must plan for which parts are public and which remain protected by direction.
Non‑compellability and later court use. COI/IO officials are not compellable to provide information or documents in courts or service tribunals except where the forum requires it in the interests of justice (ss 39(2), 68(2)). This can restrict evidence lines in subsequent litigation and requires judges to balance “interests of justice” before compelling officials.
Delegation ranks and practical exercise of powers. Delegations are permitted but are constrained by minimum rank thresholds (s 43; s 72). For Part 2, delegates must be officers holding ranks not below Commodore/Brigadier/Air Commodore; for Part 3, lower ranks may be used for CDF delegations (Lieutenant, Captain, Flight Lieutenant) but the Minister may delegate to senior ranks (Commodore, Brigadier, Air Commodore). Appointment and exercise of powers therefore depend on internal rank structures and may require formal delegation instruments.
Transitional carry‑overs may preserve older rules. The instrument preserves the operation of certain provisions of the old regulations for inquiries that commenced earlier (s 75 and ss 76-84). Practitioners handling legacy inquiries need to check which regulation (old or new) applies to a given inquiry and whether particular prohibitions or authorisations continue to operate.
Publication risk beyond public hearings. Even where hearings are public, sections prohibiting disclosure (s 25) and the employee‑specific disclosure offences (ss 37, 66) mean publication of certain materials could still attract liability if the material was not part of public oral evidence or has been specifically protected by direction.

These “gotchas” are procedural and legal traps that the instrument itself creates; they emphasise the need for careful document control, timely legal advice on notices and authorisations, meticulous recordkeeping of ministerial and presidential directions, and attention to the distinct procedural rules applying to Commissions and to inquiry officers.

This section sets out concrete, source‑grounded steps and practices for entities and persons who must comply with the instrument: appointing authorities, COI/IO officials, Defence Force members, Commonwealth employees, representatives and media participants. Each recommendation is traceable to specific provisions.

Understand the appointing authority and scope

Identify who appointed the inquiry (s 8(1); s 44(1)): the Minister, the Chief of the Defence Force, or jointly the Chief and the Secretary for Commissions; the Chief of the Defence Force for inquiry officers. Confirm the written instrument’s specified matters and the date for the report (ss 8(1)(a)-(b), 44(1)(a)-(b)). If you represent a person likely to be materially adversely affected, determine whether the inquiry is a Commission or an IO inquiry because rights to representation and publicity differ (s 23; s 55).

Respond to notices promptly and document reasons

If served with a notice under s 18 (produce documents) or s 19 (attend as a witness), note the minimum 14‑day period required before the specified action is due (ss 18(2), 19(2)-(3)). Ensure logistics for attendance are arranged and claim the reasonable allowance for expenses under s 19(4) where applicable.
If non‑compliance is contemplated because compliance would be “unduly onerous” or would likely damage defence/security/international relations, gather and preserve evidence substantiating that belief. Several offence provisions (e.g. ss 29(2), 61(4), 32(3)) place an evidential burden on the defendant per the Criminal Code; contemporaneous documentation will be vital.

Seek legal advice and consider representation rights

Advise persons likely to be materially adversely affected about their right to appear or be represented at hearings (s 23(1)-(4)). If the representative is a legal officer from the Director of Defence Counsel Services, the Commonwealth must meet the cost (s 23(6)).

Manage disclosure risk and use channels for authorised disclosure

Before disclosing COI/IO records or report material, check whether a direction under s 25 applies prohibiting disclosure. If a direction exists, reliance on s 26 (use/disclosure in performance of duties) may still permit use by Commonwealth employees or Defence members, and the Minister may authorise or use/disclose under ss 27-28 or 59-60. Obtain written Ministerial authorisation where disclosure extends beyond clear “performance of duties” parameters (s 27(1); s 59(1)). If authorised under s 27/59, ensure the authorisation’s conditions (if any) are complied with (ss 27(2), 59(2)).
For employees and Defence members, confine use and disclosure of COI/IO records to what is strictly necessary to perform official duties (ss 26(1), 58). Unauthorised copying or disclosure by such persons is an offence (ss 37, 66).

Preserve records and prepare for reporting

Maintain and secure COI/IO records and transcripts: reports must be accompanied by COI/IO records (ss 24(4), 57(3)). Record custodians should ensure chain of custody and access controls, consistent with FOI exemption objectives (ss 42, 71).
If an official is appointed or replaced, ensure new officials have access to predecessor records per ss 13(3) and 48(2) and ensure that replacement instruments are in writing (s 13(2), s 48(1)).

Follow procedural fairness and hearing rules

Counsel and representatives should ensure procedural fairness is invoked and preserved. Commissions must observe procedural fairness (s 16(2)(b)) and inquiry officers the same (s 51(2)(b)). Check whether a hearing is public or private: Commissions default to private but can be directed public (s 21(1)-(2)); inquiry officers must not hold public inquiries (s 55).
If a party believes a President’s exclusion order or direction is improper, note that the President may make orders for the interests of defence, fairness or effective conduct (s 21(3)). Consider procedural remedies through administrative review if necessary, keeping in mind the instrument’s internal powers.

Deal with compellability and other privileged concerns

Advise witnesses that self‑incrimination is not generally a valid reason to refuse to answer at inquiries (ss 38(1), 67(1)), but there is a carved‑out exception where answering would tend to incriminate in respect of an existing, unresolved charge (ss 38(2), 67(2)). Prepare to raise that exception formally with evidence if applicable.

Avoid reprisals and manage whistleblower risk

The prevention of reprisals is an offence (ss 35, 65). Ensure managers and supervisors do not attempt to dissuade or penalise persons from giving evidence, producing documents, or answering questions. HR and compliance units should issue clear internal instructions referencing the statutory prohibitions.

Ensure delegation instruments are formal and rank‑compliant

If powers are to be delegated (s 43; s 72), ensure delegation instruments are in writing and the delegate meets the statutory rank thresholds. Delegates must comply with any directions of the delegator in exercising powers (s 43(2); s 72(3)).

Publication and media handling

For public hearings, ensure any published account is “fair and accurate” to avail s 41(1) publication protections. For COI/IO reports disclosed in accordance with Division 4, publication has protection (s 41(2); s 70). Take care when publishing documents that were not part of public oral evidence, as disclosure offences may arise (ss 36, 37, 66).

Consider transitional issues for legacy inquiries

If advising on an inquiry that began under the Defence (Inquiry) Regulations 1985, verify the applicable rules per Part 5: incomplete old inquiries continue under the old regulations (s 75), and certain old provisions and instruments continue to have effect (ss 76-84). Confirm which regulatory regime governs the inquiry before taking procedural steps.

Reporting obligations

The Chief of the Defence Force must prepare and include an annual report on the operation of the instrument in the Department’s annual report (s 73). For those supplying material for that report, ensure records and summaries are prepared in a timely way.

By following these steps and anchoring actions to the cited provisions, participants can manage compliance risk. Where in doubt about the scope of an order, direction or authorisation, seek early written clarifications from the appointing authority or Minister, and obtain legal advice, given the criminal penalties and evidential‑burden designations that the instrument contains.

Defence (Inquiry) Regulations 2018

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