Division Division 4A - Inspector-General of the Australian Defence Force Regulation 2016 - Inquiries conducted by Assistant IGADF who are judicial officers | Zoe
This is the Inspector‑General of the Australian Defence Force Regulation 2016.
3 Authority
This instrument is made under the Defence Act 1903.
4 Definitions
In this instrument:
Act means the Defence Act 1903.
Assistant IGADF means a person appointed as an Assistant IGADF under section 110P of the Act.
inquiry assistant means a person appointed as an inquiry assistant under section 110P of the Act.
inquiry officer means a person appointed as an inquiry officer under section 110P of the Act.
inquiry‑related information: see subsection 28K(1).
judicial officer means a judge, magistrate or justice of a federal court or a court of a State or Territory.
service police officer has the same meaning as in the Defence Force Discipline Act 1982.
Part 2—Functions of the Inspector‑General ADF
5 Functions of the Inspector‑General ADF
For paragraph 110C(1)(g) of the Act, the Inspector‑General ADF has the following functions:
(a) to inquire into the death of a member of the Defence Force, where the relevant death appears to have arisen out of, or in the course of, the member’s service in the Defence Force;
(b) to inquire into complaints made by members of the Defence Force under Part 7 of the Defence Regulation 2016;
(c) to inquire into or investigate complaints relating to service police officers;
(d) to advise on, or determine, the procedure for handling complaints relating to service police officers, including conducting audits of the implementation of the complaint‑handling procedure.
Note: For other functions of the Inspector‑General ADF, see section 110C of the Act.
Part 3—Inquiry officers, inquiry assistants and Assistants IGADF
Division 1—Eligibility for appointment
6 Eligibility for appointment as an inquiry officer, inquiry assistant or Assistant IGADF
(1) For subsection 110P(2) of the Act, the following persons are eligible to be appointed as an inquiry officer, inquiry assistant or Assistant IGADF:
(a) a member of the Defence Force, of any rank;
(b) an APS employee, of any classification (including an SES employee or an acting SES employee);
(c) any other person who has agreed, in writing, to the appointment.
Note: The Inspector‑General ADF may appoint inquiry officers, inquiry assistants and Assistants IGADF under subsection 110P(1) of the Act.
(2) However, a person is not eligible to be appointed as an inquiry officer, inquiry assistant or Assistant IGADF in relation to an inquiry into a matter:
(a) that relates to the conduct of the person; or
(b) in relation to which the person is likely to be required to give evidence or produce documents or things.
Division 2—Roles, functions and powers
7 Operation of this Division
For subsection 110P(3) of the Act, this Division sets out matters relating to the roles, functions and powers of inquiry officers, inquiry assistants and Assistants IGADF.
Note: Part 4 also sets out matters relating to the roles, functions and powers of inquiry officers, inquiry assistants and Assistants IGADF.
8 Role of an inquiry officer
(1) An inquiry officer must:
(a) inquire into the matter for which he or she is appointed; and
(b) report to the Inspector‑General ADF about the matter.
(2) The Inspector‑General ADF may, in writing, authorise an inquiry officer to make recommendations resulting from the inquiry officer’s findings.
9 Role of an inquiry assistant
(1) An inquiry assistant must help the Inspector‑General ADF, an inquiry officer or an Assistant IGADF to inquire into the matter for which the inquiry assistant is appointed.
(2) An inquiry assistant:
(a) may help the Inspector‑General ADF, inquiry officer or Assistant IGADF to collect evidence for the purposes of the inquiry; and
(b) must give to the Inspector‑General ADF, inquiry officer or Assistant IGADF any evidence he or she collects for the purposes of the inquiry.
10 Role of an Assistant IGADF
(1) An Assistant IGADF who is not a judicial officer must help the Inspector‑General ADF, on an ongoing basis, to carry out the functions of the Inspector‑General ADF.
(1A) An Assistant IGADF who is a judicial officer:
(a) must conduct inquiries into matters as directed by the Inspector‑General ADF; but
(b) must not must help the Inspector‑General ADF carry out any other function.
Note: For inquiries conducted by Assistant IGADF who are judicial officers, see Division 4A of Part 4.
(2) The Inspector‑General ADF may direct an Assistant IGADF, orally or in writing:
(a) to inquire into a matter; or
(b) to help the Inspector‑General ADF, an inquiry officer or another Assistant IGADF to inquire into a matter.
(3) However, the Inspector‑General ADF must not direct an Assistant IGADF to inquire into, or to help with an inquiry into, a matter:
(a) that relates to the conduct of the Assistant IGADF; or
(b) in relation to which the Assistant IGADF is likely to be required to give evidence or produce documents or things.
(4) If the Inspector‑General ADF directs an Assistant IGADF under subsection (2), the Inspector‑General ADF may authorise the Assistant IGADF, either orally or in writing, to make recommendations resulting from the Assistant IGADF’s finding.
(5) The Inspector‑General ADF must make a record of an oral direction or authorisation as soon as practicable after the time the direction or authorisation is given.
11 Inquiry may involve multiple officers
The appointment of an inquiry officer, or the giving of a direction to an Assistant IGADF, for a matter does not prevent:
(a) the Inspector‑General ADF from taking part personally in the inquiry into the matter; or
(b) an inquiry assistant from helping with an inquiry.
Part 4—Conduct of inquiries
Division 1—General
12 Operation of this Part
(1) For paragraph 124(1)(h) of the Act, this Part sets out matters relating to the procedures, powers and reporting obligations of the Inspector‑General ADF in respect of inquiries conducted by the Inspector‑General ADF:
(a) on his or her own initiative; or
(b) at the request of an individual; or
(c) at the direction of the Minister or the Chief of the Defence Force.
(2) For subsection 110P(3) of the Act, this Part also sets out matters relating to the roles, functions and powers of inquiry officers, inquiry assistants and Assistants IGADF in respect of such inquiries.
13 Concurrent inquiries
The Inspector‑General ADF, an inquiry officer or an Assistant IGADF may inquire into a matter whether or not the matter, or something that includes the matter, is the subject of:
(a) another inquiry by the Inspector‑General ADF, an inquiry officer or an Assistant IGADF; or
(b) an inquiry under another complaint handling procedure.
14 Scope of inquiries conducted by inquiry officers or Assistants IGADF
(1) The Inspector‑General ADF may give a direction:
(a) adding anything to a matter into which an inquiry officer or an Assistant IGADF is to inquire; or
(b) varying the terms of an inquiry to be conducted by an inquiry officer or an Assistant IGADF.
(2) The direction:
(a) if given to an inquiry officer—must be in writing; or
(b) if given to an Assistant IGADF—may be oral or in writing.
(3) If the direction is oral, the Inspector‑General ADF must make a record of the direction as soon as practicable after giving it.
(4) The inquiry officer or Assistant IGADF must extend, or vary, the inquiry in accordance with the direction from the Inspector‑General ADF.
15 Change of inquiry personnel—inquiry officer
(1) This section applies if an inquiry officer (the original inquiry officer) is directed to inquire into a matter.
(2) If the original inquiry officer has not given the Inspector‑General ADF a report under section 25 in relation to the inquiry, the Inspector‑General ADF may:
(a) appoint another person as an inquiry officer (the new inquiry officer) to inquire into the matter in place of the original inquiry officer; or
(b) direct an Assistant IGADF to inquire into the matter in place of the original inquiry officer; or
(c) personally inquire into the matter in place of the original inquiry officer.
(3) If the original inquiry officer has given the Inspector‑General ADF a report under section 25 in relation to the inquiry, the Inspector‑General ADF may:
(a) appoint another person as an inquiry officer (the new inquiry officer) to inquire further into the matter; or
(b) direct an Assistant IGADF to inquire further into the matter; or
(c) personally inquire further into the matter.
(4) In inquiring, or further inquiring, into the matter, the new inquiry officer, Assistant IGADF or Inspector‑General ADF may have regard to:
(a) any record of proceedings made by an inquiry officer or an Assistant IGADF who previously took part in the inquiry; and
(b) any evidence collected by an inquiry assistant or Assistant IGADF who previously took part in the inquiry.
15A Change of inquiry personnel—Assistant IGADF who is a judicial officer
(1) This section applies if an Assistant IGADF who is a judicial officer:
(a) is directed to inquire into a matter; and
(b) becomes unavailable to continue the inquiry before giving a report to the Inspector‑General ADF under section 28F.
(2) The Inspector‑General ADF may:
(a) appoint another person as an inquiry officer to inquire into the matter in place of the Assistant IGADF who is unavailable; or
(b) direct another Assistant IGADF (the new Assistant IGADF) to inquire into the matter in place of the Assistant IGADF who is unavailable; or
(c) personally inquire into the matter in place of the Assistant IGADF who is unavailable.
(3) In inquiring into the matter, the inquiry officer, new Assistant IGADF or Inspector‑General ADF may have regard to:
(a) any record of proceedings made by an inquiry officer or an Assistant IGADF who previously took part in the inquiry; and
(b) any evidence collected by an inquiry assistant or Assistant IGADF who previously took part in the inquiry.
15B Change of inquiry personnel—other Assistant IGADF
(1) This section applies if an Assistant IGADF who is not a judicial officer (the original Assistant IGADF) is directed to inquire into a matter.
(2) If the original Assistant IGADF has not given the Inspector‑General ADF a report under section 25 in relation to the inquiry, the Inspector‑General ADF may:
(a) appoint another person as an inquiry officer to inquire into the matter in place of the original Assistant IGADF; or
(b) direct another Assistant IGADF (the new Assistant IGADF) to inquire into the matter in place of the original Assistant IGADF; or
(c) personally inquire into the matter in place of the original Assistant IGADF.
(3) If the original Assistant IGADF has given the Inspector‑General ADF a report under section 25 in relation to the inquiry, the Inspector‑General ADF may:
(a) appoint another person as an inquiry officer to inquire further into the matter; or
(b) direct another Assistant IGADF (the new Assistant IGADF) to inquire further into the matter; or
(c) personally inquire further into the matter.
(4) In inquiring, or further inquiring, into the matter, the inquiry officer, new Assistant IGADF or Inspector‑General ADF may have regard to:
(a) any record of proceedings made by an inquiry officer or an Assistant IGADF who previously took part in the inquiry; and
(b) any evidence collected by an inquiry assistant or Assistant IGADF who previously took part in the inquiry.
16 Completion of inquiries
An inquiry that has not ended under subsection 110DB(1) of the Act is completed:
(a) if subsection 27(3) or (4) applies—when the Inspector‑General ADF gives the report mentioned in the relevant subsection; or
(b) in any other case—when the Inspector‑General ADF makes the record of the findings of the inquiry mentioned in subsection 27(2).
Division 2—Procedure
17 Procedure generally
(1) Subject to this instrument, an inquiry is to be conducted in such manner as the Inspector‑General ADF considers appropriate having regard to the subject matter of the inquiry.
(2) In conducting an inquiry, the Inspector‑General ADF, an inquiry officer or an Assistant IGADF is not bound by the rules of evidence.
18 Times and places for conduct of inquiries
(1) An inquiry is to be conducted at such times, and at such places, as:
(a) for an inquiry conducted by an inquiry officer—the inquiry officer determines; or
(b) for an inquiry conducted by an Assistant IGADF—the Assistant IGADF determines; or
(c) otherwise—the Inspector‑General ADF determines.
(2) An inquiry may be conducted either within or outside Australia.
19 Conduct of inquiries in public or private
(1) The Inspector‑General ADF may:
(a) direct that all or part of an inquiry is to be conducted in public or private; and
(b) if the inquiry is to be conducted in private—determine the people who can be present at the inquiry.
(2) However, an inquiry that is conducted by an inquiry officer must not be conducted in public.
20 Legal representation at inquiries
(1) A person who attends an inquiry to answer questions may be accompanied by a lawyer.
(2) The person’s lawyer may only address the inquiry at such times as:
(a) for an inquiry conducted by an inquiry officer—the inquiry officer determines; or
(b) for an inquiry conducted by an Assistant IGADF—the Assistant IGADF determines; or
(c) otherwise—the Inspector‑General ADF determines.
21 Directions regarding disclosure of evidence
(1) If the Inspector‑General ADF is satisfied that it is necessary to do so in the interests of the defence of the Commonwealth, or of fairness to a person who the Inspector‑General ADF considers may be affected by an inquiry, the Inspector‑General ADF may give a direction restricting the disclosure of the following:
(a) information contained in oral evidence given during the inquiry, whether in public or in private;
(b) all or part of any document received during the course of the inquiry;
(c) information contained in a report about the inquiry that is given to a person under section 27.
(2) The Inspector‑General ADF may, in writing, authorise an inquiry officer, or an Assistant IGADF, to give a direction under subsection (1) in relation to an inquiry that the inquiry officer has been appointed to conduct, or that the Assistant IGADF has been directed to conduct.
(3) A person commits an offence if the person contravenes a direction given under subsection (1).
Penalty: 10 penalty units.
Division 3—Information gathering powers
22 Power to require members of the Defence Force to give information, produce documents or answer questions etc.
(1) This section applies in relation to any inquiry conducted by the Inspector‑General ADF, an inquiry officer or an Assistant IGADF (other than an inquiry to which section 23 applies).
(2) The Inspector‑General ADF may give a notice to a member of the Defence Force under subsection (3) if the Inspector‑General ADF has reason to believe that the member has information or a document or thing that is relevant to the inquiry.
Note: See section 24 for when an inquiry officer or Assistant IGADF may exercise this power.
(3) The Inspector‑General ADF may, by written notice given to the member, require the member:
(a) to give any such information to the Inspector‑General ADF, an inquiry officer or an Assistant IGADF; or
(b) to produce any such document or thing to the Inspector‑General ADF, an inquiry officer or an Assistant IGADF; or
(c) to appear before the Inspector‑General ADF, an inquiry officer or an Assistant IGADF to answer questions.
Note: For self‑incrimination, see section 32.
(4) The notice must:
(a) if paragraph (3)(a) or (b) applies:
(i) specify the period (which must be at least 14 days after the notice is given to the member) within which the member is required to comply with the notice; and
(ii) specify the manner in which the member is required to comply with the notice; and
(b) if paragraph (3)(c) applies—specify a time and place at which the member is to appear; and
(c) in any case—state the effect of section 29 (offence for failure to comply).
Oath or affirmation
(5) The Inspector‑General ADF may require answers provided under paragraph (3)(c) to be verified by, or given on, oath or affirmation and either orally or in writing.
(6) The Inspector‑General ADF, or the inquiry officer or Assistant IGADF to whom information or answers are verified or given, may administer the oath or affirmation.
23 Power to require a person to give information, produce documents or answer questions etc.
(1) This section applies in relation to the following kinds of inquiry:
(a) an inquiry into the death of a member of the Defence Force, where the relevant death appears to have arisen out of, or in the course of, the member’s service in the Defence Force;
(b) an inquiry into a matter concerning the Defence Force, if the Minister or the Chief of the Defence Force has directed the Inspector‑General ADF to inquire into the matter.
(2) The Inspector‑General ADF may give a notice to a person under subsection (3) if the Inspector‑General ADF has reason to believe that the person has information or a document or thing that is relevant to the inquiry.
Note: See section 24 for when an inquiry officer or an Assistant IGADF may exercise this power.
(3) The Inspector‑General may, by written notice given to the person, require the person:
(a) to give any such information to the Inspector‑General ADF, an inquiry officer or an Assistant IGADF; or
(b) to produce any such document or thing to the Inspector‑General ADF, an inquiry officer or an Assistant IGADF; or
(c) to appear before the Inspector‑General ADF, an inquiry officer or an Assistant IGADF to answer questions.
Note: For self‑incrimination, see section 32.
(4) The notice must:
(a) if paragraph (3)(a) or (b) applies:
(i) specify the period (which must be at least 14 days after the notice is given to the person) within which the person is required to comply with the notice; and
(ii) specify the manner in which the person is required to comply with the notice; and
(b) if paragraph (3)(c) applies—specify a time and place at which the person is to appear; and
(c) in any case—state the effect of section 29 (offence for failure to comply).
Oath or affirmation
(5) The Inspector‑General ADF may require answers provided under paragraph (3)(c) to be verified by, or given on, oath or affirmation and either orally or in writing.
(6) The Inspector‑General ADF, or the inquiry officer or Assistant IGADF to whom information or answers are verified or given, may administer the oath or affirmation.
24 Powers that may be exercised by inquiry officers and Assistants IGADF
The Inspector‑General ADF may, in writing, authorise an inquiry officer, or an Assistant IGADF, to exercise the powers of the Inspector‑General ADF under section 22 or 23 in relation to an inquiry if:
(a) the inquiry officer has been appointed to conduct, or the Assistant IGADF has been directed to conduct, the inquiry; and
(b) the inquiry is of a kind to which section 22 or 23 applies.
Division 4—Reports and recommendations
25 Report by inquiry officer or Assistant IGADF
(1) If:
(a) an inquiry officer or an Assistant IGADF has conducted an inquiry into a matter and is satisfied that all information relevant to the inquiry that is practicable to obtain has been obtained; and
(b) a decision has not been made to end the inquiry under subsection 110DB(1) of the Act;
the inquiry officer or Assistant IGADF must prepare a report.
(2) The report must:
(a) set out the findings of the inquiry officer or Assistant IGADF in relation to the inquiry; and
(b) if the inquiry officer or Assistant IGADF is authorised to make recommendations—any recommendations that the inquiry officer or Assistant IGADF thinks appropriate to make because of those findings.
(3) The report must be accompanied by:
(a) a copy of the transcript or other record of any oral evidence taken during the inquiry; and
(b) a copy of each document accepted as evidence during the inquiry; and
(c) a list of all other things that were produced to the inquiry with information about where each thing is located.
(4) The inquiry officer or Assistant IGADF must give the report to the Inspector‑General ADF as soon as practicable.
26 Further report by inquiry officer or Assistant IGADF
(1) If:
(a) an inquiry officer or an Assistant IGADF has given the Inspector‑General ADF a report under section 25; and
(b) the Inspector‑General ADF considers that the inquiry officer or Assistant IGADF should inquire further, and prepare a further report, in relation to the matter to which the inquiry relates;
the Inspector‑General ADF may direct the inquiry officer or Assistant IGADF accordingly and must specify in the direction the matters with which the further report is to deal.
(2) If the Inspector‑General ADF directs an inquiry officer or an Assistant IGADF under subsection (1):
(a) compliance with the direction is an additional function of the inquiry officer or Assistant IGADF in relation to the inquiry; and
(b) helping further with the inquiry is an additional function of an inquiry assistant in relation to the inquiry.
(3) The further report must be accompanied by:
(a) a copy of the transcript or other record of any oral evidence taken during the further inquiry; and
(b) a copy of each document accepted as evidence during the further inquiry; and
(c) a list of all other things that were produced to the inquiry with information about where each thing is located.
(4) The inquiry officer or Assistant IGADF must give the further report to the Inspector‑General ADF as soon as practicable.
27 Report by Inspector‑General ADF
(1) This section applies if:
(a) an inquiry officer or an Assistant IGADF:
(i) has given the Inspector‑General ADF a report under section 25 or 28F; and
(ii) if a further report under section 26 is required—has given that report to the Inspector‑General ADF; or
(b) the Inspector‑General ADF has inquired into a matter personally and:
(i) is satisfied that all information relevant to the inquiry that is practicable to obtain has been obtained; and
(ii) a decision has not been made to end the inquiry under subsection 110DB(1) of the Act.
Record of findings
(2) The Inspector‑General ADF must:
(a) make a record of the findings in relation to the inquiry; and
(b) include with the record a copy of:
(i) the transcript or other record of any oral evidence taken during the inquiry; and
(ii) any documents accepted as evidence during the inquiry.
Reports
(3) If the Minister or the Chief of the Defence Force directed the Inspector‑General ADF to conduct the inquiry, the Inspector‑General ADF must give the Minister or the Chief of the Defence Force (as the case may be) a report about the inquiry, including the findings and any recommendations that the Inspector‑General ADF thinks it appropriate to make.
(4) If the Inspector‑General ADF conducts an inquiry into the death of a member of the Defence Force, the Inspector‑General ADF must give the Chief of the Defence Force a report about the inquiry, including the findings and any recommendations that the Inspector‑General ADF thinks it appropriate to make.
Note: See paragraph 5(a).
(5) The Inspector‑General ADF may, if he or she thinks it appropriate to do so:
(a) inform one or more of the following persons of the findings in relation to the inquiry:
(i) if the Minister did not direct the Inspector‑General ADF to conduct the inquiry—the Minister;
(ii) if the Chief of the Defence Force did not direct the Inspector‑General ADF to conduct the inquiry—the Chief of the Defence Force;
(iii) a service chief;
(iv) an employee of the Department;
(v) a member of the Defence Force;
(vi) a person who is affected by a submission or the inquiry (whether or not the person made a submission);
(vii) any other person; or
(b) give one or more of those persons a report about the inquiry, including the findings and any recommendations that the Inspector‑General ADF thinks it appropriate to make.
Note: If the Minister or the Chief of the Defence Force directed the Inspector‑General ADF to conduct the inquiry, the Inspector‑General ADF must give the Minister or the Chief of the Defence Force (as the case may be) a report about the inquiry under subsection (3).
(5A) However, if the Minister or the Chief of the Defence Force directed the Inspector‑General ADF to conduct the inquiry, the Inspector‑General ADF must consult the Minister or the Chief of the Defence Force (as the case may be) before:
(a) informing a person of the findings in relation to the inquiry under subsection (5); or
(b) giving a person a report about the inquiry under subsection (5).
(6) A report mentioned in subsection (3), (4) or paragraph (5)(b) may be accompanied by a copy of:
(a) the transcript or other record of any oral evidence taken during the inquiry; and
(b) any document accepted as evidence during the inquiry.
(7) A report given to a person under paragraph (5)(b) need not include information that the Inspector‑General ADF considers inappropriate for any of the following reasons:
(a) considerations of privacy;
(b) the person’s responsibilities;
(c) the person’s interest in the matter;
(d) the information is classified or relates to national security;
(e) the relevance of the information to other information considered not appropriate for the person because of paragraph (a), (b), (c) or (d).
28 Public release of reports
(1) If, under subsection 27(3), the Minister or the Chief of the Defence Force is given a report about an inquiry, the Minister or Chief of the Defence Force (as the case may be) may publicly release all or part of the report.
(2) If, under subsection 27(4) or paragraph 27(5)(b), the Chief of the Defence Force is given a report about an inquiry, the Chief of the Defence Force may, following consultation with the Inspector‑General ADF, publicly release all or part of the report.
(3) If, under paragraph 27(5)(b), the Inspector‑General ADF gives a person a report about an inquiry, the Inspector‑General ADF may publicly release all or part of the report.
Division 4A—Inquiries conducted by Assistant IGADF who are judicial officers
28A Application of this Division
(1) This Division applies in relation to the conduct of an inquiry by an Assistant IGADF who is a judicial officer.
(2) This Division has effect despite any other provision of this instrument.
28B Inspector‑General ADF involvement
The Inspector‑General ADF must not take part personally in the inquiry.
28C Procedure of inquiry
(1) The Assistant IGADF must conduct the inquiry in such manner as the Assistant IGADF considers appropriate having regard to the subject matter of the inquiry.
(2) The Inspector‑General ADF must not give directions about:
(a) the manner in which the inquiry is to be conducted; or
(b) times and places for the conduct of the inquiry; or
(c) whether all or any part of the inquiry is to be conducted in public or private; or
(d) who can be present at any part of the inquiry conducted in private.
28D Scope of the inquiry
(1) If the Assistant IGADF thinks it appropriate to do so for the purposes of the inquiry, the Assistant IGADF may:
(a) add anything to the matter into which the Assistant IGADF is to inquire; or
(b) vary the terms of the inquiry; or
(c) consult with any person in relation to the inquiry.
(2) The Inspector‑General ADF must not give a direction:
(a) adding anything to the matter into which the Assistant IGADF is to inquire; or
(b) varying the terms of the inquiry.
28E Evidence and information gathering powers
The Assistant IGADF may exercise the powers of the Inspector‑General ADF under the following provisions without being authorised to do so by the Inspector‑General:
(a) subsection 21(1) (directions regarding disclosure of evidence);
(b) section 22 (information gathering);
(c) section 23 (information gathering);
(d) subsection 28M(1) (directions regarding disclosure of inquiry‑related information).
28F Report by Assistant IGADF
(1) The Assistant IGADF must prepare a report if:
(a) the Assistant IGADF is satisfied that all information relevant to the inquiry that is practicable to obtain has been obtained; and
(b) a decision has not been made to end the inquiry under subsection 110DB(1) of the Act.
(2) The report must:
(a) set out the findings of the Assistant IGADF in relation to the inquiry; and
(b) any recommendations that the Assistant IGADF thinks appropriate to make because of those findings.
(3) The report must be accompanied by:
(a) a copy of the transcript or other record of any oral evidence taken during the inquiry; and
(b) a copy of each document accepted as evidence during the inquiry; and
(c) a list of all other things that were produced to the inquiry with information about where each thing is located.
(4) The Assistant IGADF must give the report to the Inspector‑General ADF as soon as practicable.
No further inquiry or report
(5) The Inspector‑General ADF must not direct the Assistant IGADF to inquire further into, or prepare a further report in relation to, the matter to which the inquiry relates.
28G Reports to other persons
Reports given by the Inspector‑General ADF
(1) Any report about, including the findings and any recommendations in relation to, the inquiry given by the Inspector‑General ADF under subsections 27(3) to (5) must be the report (including the findings and any recommendations) given to the Inspector‑General ADF by the Assistant IGADF under section 28F.
Reports given by the Assistant IGADF
(2) The Assistant IGADF may, if the Assistant IGADF thinks it appropriate to do so:
(a) inform one or more of the following persons of the findings in relation to the inquiry:
(i) the Minister;
(ii) the Chief of the Defence Force;
(iii) a service chief;
(iv) an employee of the Department;
(v) a member of the Defence Force;
(vi) a person who is affected by a submission or the inquiry (whether or not the person made a submission);
(vii) any other person; or
(b) give one or more of those persons a report about the inquiry, including the findings and any recommendations that the Assistant IGADF thinks it appropriate to make.
(3) A report given under paragraph (2)(b) may be accompanied by a copy of:
(a) the transcript or other record of any oral evidence taken during the inquiry; and
(b) any document accepted as evidence during the inquiry.
(4) A report given to a person under paragraph (2)(b) need not include information that the Assistant IGADF considers would be inappropriate to include for any of the following reasons:
(a) considerations of privacy;
(b) the person’s responsibilities;
(c) the person’s interest in the matter;
(d) the information is classified or relates to national security;
(e) the relevance of the information to other information considered not appropriate for the person because of paragraph (a), (b), (c) or (d).
28H Public release of reports
(1) The Inspector‑General ADF must not, under subsection 28(3), publicly release all or part of the report about the inquiry unless the Inspector‑General ADF has consulted the Assistant IGADF about the release.
(2) If, under paragraph 28G(2)(b), the Assistant IGADF gives a person a report about the inquiry, the Assistant IGADF may, following consultation with the Chief of the Defence Force, publicly release all or part of the report (including a redacted version of the report).
28J Protection and chain of command
In relation to the inquiry, the Assistant IGADF:
(a) has the same protection and immunity as a Justice of the High Court; and
(b) is not subject to the chain of command.
Division 4B—Disclosure of inquiry‑related information
28K Application of this Division
(1) This Division applies in relation to information (inquiry‑related information) that relates to the conduct of an inquiry by the Inspector‑General ADF, an Assistant IGADF or an inquiry officer, including:
(a) a report about the inquiry; and
(b) information, documents or other things collected or created in relation to the conduct of the inquiry.
Note: Paragraph (b) would cover, for example:
(a) a copy of the transcript or any other record of oral evidence taken during the inquiry; and
(b) a copy of a document accepted as evidence during the inquiry; and
(c) any non‑evidentiary information or documents that are created in the course of planning the inquiry, or taking action in relation to the inquiry, whether created before, during or after the inquiry.
(2) This Division has effect despite any other provision of this instrument.
28L Disclosure of inquiry‑related information
(1) The Inspector‑General ADF may disclose inquiry‑related information to any of the following:
(a) the Office of the Special Investigator;
(b) the Australian Federal Police or the police force of a State or Territory;
(c) the Director of Public Prosecutions of the Commonwealth or a State or Territory;
(d) the National Anti‑Corruption Commission;
(e) an AGS lawyer (within the meaning of section 55I of the Judiciary Act 1903);
(f) if the Inspector‑General ADF considers that the disclosure is relevant to the performance of another Commonwealth, State or Territory agency or authority’s functions—that agency or authority;
(g) if:
(i) another person (the third party) is providing services to a person or entity mentioned in one of paragraphs (a) to (f); and
(ii) the Inspector‑General ADF considers that the disclosure is relevant to enabling the third party to assist the person or entity in the performance of the person or entity’s functions; and
(iii) the Inspector‑General ADF is satisfied that, in all the circumstances, the disclosure is appropriate;
that third party.
Note: A disclosure of personal information made in accordance with this section is taken to be authorised by this instrument for the purposes of paragraph 6.2(b) of Australian Privacy Principle 6.
(2) Inquiry‑related information given to a person or entity under subsection (1) need not include information that the Inspector‑General ADF considers inappropriate for any of the following reasons:
(a) considerations of privacy;
(b) the person’s responsibilities;
(c) the person’s interest in the matter;
(d) the information is classified or relates to national security;
(e) the relevance of the information to other information considered not appropriate for the person or entity because of paragraph (a), (b), (c) or (d).
28M Directions regarding disclosure of inquiry‑related information
(1) If the Inspector‑General ADF is satisfied that it is necessary to do so in the interests of the defence of the Commonwealth, or of fairness to a person who the Inspector‑General ADF considers may be affected by an inquiry, the Inspector‑General ADF may give a direction restricting the disclosure of inquiry‑related information.
(2) The Inspector‑General ADF may, in writing, authorise an inquiry officer, or an Assistant IGADF, to give a direction under subsection (1) in relation to an inquiry that the inquiry officer has been appointed to conduct, or that the Assistant IGADF has been directed to conduct.
(3) A person commits an offence if the person contravenes a direction given under subsection (1).
Penalty: 10 penalty units.
Division 5—Offences etc.
29 Failure to answer questions etc.
(1) A person commits an offence if:
(a) the person is given a notice under subsection 22(3) or 23(3); and
(b) the person fails to comply with the notice.
Penalty: 10 penalty units.
(2) Subsection (1) does not apply if the person considers, on reasonable grounds, that complying with the notice may be prejudicial to the defence of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3 (3) of the Criminal Code).
30 Contempt etc.
(1) This section applies in relation to any inquiry conducted by the Inspector‑General ADF, an inquiry officer or an Assistant IGADF.
(2) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct insults the Inspector‑General ADF, an inquiry officer or an Assistant IGADF in the course of an inquiry.
Penalty: 10 penalty units.
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct disturbs or interrupts the proceedings of an inquiry.
Penalty: 10 penalty units.
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct would, if an inquiry were a court of record, constitute a contempt of that court.
Penalty: 10 penalty units.
(5) Where the Inspector‑General ADF, an inquiry officer or an Assistant IGADF considers that a person has, during the proceedings of an inquiry, engaged in conduct mentioned in any of subsections (2) to (4), the Inspector‑General ADF, inquiry officer or Assistant IGADF may direct that the person be removed from the place where the proceedings are being held.
(6) The removal of a person from a place under subsection (5) does not preclude the institution of proceedings against the person for an offence against any of subsections (2) to (4).
31 Taking reprisals
(1) A person commits an offence if the person prevents or dissuades another person from giving information, producing a document or thing, or answering questions, for the purposes of an inquiry conducted by the Inspector‑General ADF, an inquiry officer or an Assistant IGADF.
Penalty: 10 penalty units.
(2) A person commits an offence if the person causes another person to be victimised, penalised or prejudiced in some way for giving information, producing a document or thing, or answering questions, for the purposes of an inquiry conducted by the Inspector‑General ADF, an inquiry officer or an Assistant IGADF.
Penalty: 10 penalty units.
(3) In a prosecution for an offence against subsection (1) or (2), it is not necessary to prove that the other person gave any information, produced any document or thing or answered any questions for the purposes of an inquiry conducted by the Inspector‑General ADF, an inquiry officer or an Assistant IGADF.
Division 6—Miscellaneous
32 Self‑incrimination
(1) A person is not excused from giving information, producing a document or thing or answering a question under section 22 or 23 on the ground that the information, the production of the document or thing, or the answer to the question, might tend to incriminate the person or expose the person to a penalty.
(2) However, in the case of an individual:
(a) the information given or the document or thing produced; and
(b) giving the information or producing the document or thing; and
(c) any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or thing;
are not admissible in evidence against the individual in any civil or criminal proceedings in any federal court or court of a State or Territory, or proceedings before a service tribunal, other than proceedings by way of a prosecution for giving false testimony that relates to section 22 or 23.
Note: For immunity in relation to the use and the derivative use of a statement or disclosure made in the course of giving evidence, the making of the statement or disclosure, and any information, document or thing obtained as a direct or indirect consequence of making the statement or disclosure, see subsection 124(2CA) of the Act.
(3) Despite subsection (1), a person is not required to answer a question if the answer to the question might tend to incriminate the person in respect of an offence with which the person has been charged and in respect of which the charge has not been finally dealt with by a court or otherwise disposed of.
33 Protection from liability in civil proceedings
Civil proceedings do not lie against a person for loss, damage or injury of any kind suffered by another person by reason of any of the following acts done in good faith:
(a) the making of a submission to the Inspector‑General ADF, an inquiry officer or an Assistant IGADF;
(b) the making of a statement to, or the giving of a document or information to, the Inspector‑General ADF, an inquiry officer or an Assistant IGADF as a part of, or in connection with, a submission.
34 Witness expenses
A person (other than a member of the Defence Force) who attends an inquiry in accordance with a notice given under section 23 is entitled to be paid a reasonable allowance for expenses incurred by the person for transport, meals and accommodation in connection with attending the inquiry.
34A Delegation
(1) The Chief of the Defence Force may, by instrument in writing, delegate the functions or powers of the Chief of the Defence Force under this Part to an officer holding a rank not lower than the naval rank of captain or the rank of colonel or group captain.
(2) The Inspector‑General ADF may, by instrument in writing, delegate the Inspector‑General ADF’s power under section 28L to a member of the staff assisting the Inspector‑General ADF referred to in subsection 110O(1) of the Act who:
(a) is an SES, or acting SES, employee;
(b) is an APS employee who holds, or is acting in, an Executive Level 2 or equivalent position;
(c) is an officer of the Navy who holds a rank not below the rank of Captain;
(d) is an officer of the Army who holds a rank not below the rank of Colonel;
(e) is an officer of the Air Force who holds a rank not below the rank of Group Captain.
Part 5—Conduct of performance reviews
35 Operation of this Part
For paragraph 124(1)(h) of the Act, this Part sets out matters relating to the procedures and powers of the Inspector‑General ADF in respect of performance reviews of the military justice system, including internal audits, conducted by the Inspector‑General ADF.
36 Reasonable assistance in relation to the conduct of performance reviews
The Inspector‑General ADF may require a member of the Defence Force, or an employee of the Department, to give all reasonable assistance in connection with the conduct of a performance review of the military justice system, including an internal audit.
Part 6—Transitional provisions
37 Amendments made by the Inspector‑General of the Australian Defence Force Amendment Regulations 2018
The amendments made by the Inspector‑General of the Australian Defence Force Amendment Regulations 2018 apply in relation to the following:
(a) an inquiry begun but not ended or completed before the commencement of those regulations;
(b) an inquiry begun on or after that commencement.
38 Amendments made by the Inspector‑General of the Australian Defence Force Amendment Regulations 2021
(1) Subsection 27(5), as amended by the Inspector‑General of the Australian Defence Force Amendment Regulations 2021, applies in relation an inquiry begun before, on or after the commencement of that instrument.
(2) Division 4B of Part 4, as inserted by the Inspector‑General of the Australian Defence Force Amendment Regulations 2021, applies in relation to the disclosure of inquiry‑related information on and after the commencement of that instrument, regardless of whether the information was collected or created before, on or after that commencement.