Commonwealth Numbered Regulations

DEFENCE LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) REGULATIONS 2001 (NO. 1) 2001 NO. 278 - SCHEDULE 4

(regulation 6)

[1] After regulation 3A

insert

3B Application of Criminal Code

Chapter 2 of the Criminal Code applies to offences against these Regulations.

Note
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

[2] Subregulations 14 (1), (2), (3) and (4)

substitute

(1)

A person is guilty of an offence if:

(a)

the person is served with a summons to appear before a General Court of Inquiry; and

(b)

a reasonable amount for the costs of the person's conveyance to appear before the Court has been tendered to the person; and

(c)

the person fails to appear and report at the time and place specified in the summons.

Penalty:
5 penalty units or imprisonment for 3 months.

(1AA)

A person is guilty of an offence if:

(a)

the person is served with a summons to appear before a General Court of Inquiry; and

(b)

a reasonable amount for the costs of the person's conveyance to appear before the Court has been tendered to the person; and

(c)

the person fails to appear and report from day to day.

Penalty:
5 penalty units or imprisonment for 3 months.

(1A)

An offence against subregulation (1) or (1AA) is an offence of strict liability.

Note
For strict liability , see section 6.1 of the Criminal Code .

(1B)

It is a defence to a prosecution for an offence against subregulation (1) or (1AA) if:

(a)

the person has been excused by the President of the Court from appearing and reporting at the time and place specified in the summons or from day to day; or

(b)

the person has a reasonable excuse for failing to so appear and report.

Note
A defendant bears an evidential burden in relation to the matters mentioned in subregulation (1B) (see section 13.3 of the Criminal Code ).

(2)

A person is guilty of an offence if the person:

(a)

appears before a General Court of Inquiry; and

(b)

is called upon by the President of the Court to be sworn or to make an affirmation; and

(c)

refuses to be sworn or to make an affirmation.

Penalty:
5 penalty units or imprisonment for 3 months.

(2A)

A person is guilty of an offence if the person:

(a)

appears before a General Court of Inquiry; and

(b)

is called upon by the President of the Court to be sworn or to make an affirmation; and

(c)

fails to be sworn or to make an affirmation.

Penalty:
5 penalty units or imprisonment for 3 months.

(2B)

An offence against subregulation (2A) is an offence of strict liability.

Note
For strict liability , see section 6.1 of the Criminal Code .

(2C)

It is a defence to a prosecution for an offence against subregulation (2) or (2A) if the person has a reasonable excuse for refusing or failing to be sworn or to make an affirmation.

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

(3)

A person is guilty of an offence if:

(a)

the person appears as a witness before a General Court of Inquiry; and

(b)

the person refuses to answer a question relevant to the inquiry put to that person by:

(i)

a member of the Court or, if the Court is constituted by one person, by that person; or

(ii)

a legal practitioner appointed to assist the Court; or

(iii)

a person who may examine a witness under regulation 55; and

(c)

the President of the Court requires the person to answer the question.

Penalty:
5 penalty units or imprisonment for 3 months.

(3A)

A person is guilty of an offence if:

(a)

the person appears as a witness before a General Court of Inquiry; and

(b)

the person fails to answer a question relevant to the inquiry put to that person by:

(i)

a member of the Court or, if the Court is constituted by one person, by that person; or

(ii)

a legal practitioner appointed to assist the Court; or

(iii)

a person who may examine a witness under regulation 55; and

(c)

the President of the Court requires the person to answer the question.

Penalty:
5 penalty units or imprisonment for 3 months.

(3B)

An offence against subregulation (3A) is an offence of strict liability.

Note
For strict liability , see section 6.1 of the Criminal Code .

(3C)

It is a defence to a prosecution for an offence against subregulation (3) or (3A) if the person has a reasonable excuse for refusing or failing to answer the question.

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

(4)

A person is guilty of an offence if:

(a)

the person appears as a witness before a General Court of Inquiry; and

(b)

the person has been served with a summons to produce a document or article; and

(c)

the document or article:

(i)

is in the custody or control of that person; and

(ii)

is relevant to the inquiry; and

(d)

the person refuses to produce that document or article.

Penalty:
5 penalty units or imprisonment for 3 months.

(4A)

A person is guilty of an offence if:

(a)

the person appears as a witness before a General Court of Inquiry; and

(b)

the person has been served with a summons to produce a document or article; and

(c)

the document or article is:

(i)

in the custody or control of that person; and

(ii)

relevant to the inquiry; and

(d)

the person fails to produce that document or article.

Penalty:
5 penalty units or imprisonment for 3 months.

(4B)

An offence against subregulation (4A) is an offence of strict liability.

Note
For strict liability , see section 6.1 of the Criminal Code .

(4C)

It is a defence to a prosecution for an offence against subregulation (4) or (4A) if the person has a reasonable excuse for refusing or failing to produce the document or article.

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

[3] Subregulation 14 (6)

omit

subregulation (3)

insert

subregulation (3C)

[4] Subregulation 14 (7)

omit

subregulation (4)

insert

subregulation (4C)

[5] Subregulations 32 (1), (2), (3) and (4)

substitute

(1)

A person is guilty of an offence if:

(a)

the person is served with a summons to appear before a Board of Inquiry; and

(b)

a reasonable amount for the costs of the person's conveyance to appear before the Board has been tendered to the person; and

(c)

the person fails to appear and report at the time and place specified in the summons.

Penalty:
5 penalty units or imprisonment for 3 months.

(1AA)

A person is guilty of an offence if:

(a)

the person is served with a summons to appear before a Board of Inquiry; and

(b)

a reasonable amount for the costs of the person's conveyance to appear before the Board has been tendered to the person; and

(c)

the person fails to appear and report from day to day.

Penalty:
5 penalty units or imprisonment for 3 months.

(1A)

An offence against subregulation (1) or (1AA) is an offence of strict liability.

Note
For strict liability , see section 6.1 of the Criminal Code .

(1B)

It is a defence to a prosecution for an offence against subregulation (1) or (1AA) if:

(a)

the person has been excused by the President of the Board from appearing and reporting at the time and place specified in the summons or from day to day; or

(b)

the person has a reasonable excuse for failing to so appear and report.

Note
A defendant bears an evidential burden in relation to the matters mentioned in subregulation (1B) (see section 13.3 of the Criminal Code ).

(2)

A person is guilty of an offence if the person:

(a)

appears before a Board of Inquiry; and

(b)

is called upon by the President of the Board to be sworn or to make an affirmation; and

(c)

refuses to be sworn or to make an affirmation.

Penalty:
5 penalty units or imprisonment for 3 months.

(2A)

A person is guilty of an offence if the person:

(a)

appears before a Board of Inquiry; and

(b)

is called upon by the President of the Board to be sworn or to make an affirmation; and

(c)

fails to be sworn or to make an affirmation.

Penalty:
5 penalty units or imprisonment for 3 months.

(2B)

An offence against subregulation (2A) is an offence of strict liability.

Note
For strict liability , see section 6.1 of the Criminal Code .

(2C)

It is a defence to a prosecution for an offence against subregulation (2) or (2A) if the person has a reasonable excuse for refusing or failing to be sworn or to make an affirmation.

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

(3)

A person is guilty of an offence if:

(a)

the person appears as a witness before a Board of Inquiry; and

(b)

the person refuses to answer a question relevant to the inquiry put to that person by:

(i)

a member of the Board; or

(ii)

a legal practitioner appointed to assist the Board; or

(iii)

a person who may examine a witness under regulation 55; and

(c)

the President of the Board requires the person to answer the question.

Penalty:
5 penalty units or imprisonment for 3 months.

(3A) A person is guilty of an offence if:

(a)

the person appears as a witness before a Board of Inquiry; and

(b)

the person fails to answer a question relevant to the inquiry put to that person by:

(i)

a member of the Board; or

(ii)

a legal practitioner appointed to assist the Board; or

(iii)

a person who may examine a witness under regulation 55; and

(c)

the President of the Board requires the person to answer the question.

Penalty:
5 penalty units or imprisonment for 3 months.

(3B)

An offence against subregulation (3A) is an offence of strict liability.

Note
For strict liability , see section 6.1 of the Criminal Code .

(3C)

It is a defence to a prosecution for an offence against subregulation (3) or (3A) if the person has a reasonable excuse for refusing or failing to answer the question.

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

(4)

A person is guilty of an offence if:

(a)

the person appears as a witness before a Board of Inquiry; and

(b)

the person has been served with a summons to produce a document or article; and

(c)

the document or article:

(i)

is in the custody or control of that person; and

(ii)

is relevant to the inquiry; and

(d) the person refuses to produce that document or article.

Penalty:
5 penalty units or imprisonment for 3 months.

(4A)

A person is guilty of an offence if:

(a)

the person appears as a witness before a Board of Inquiry; and

(b)

the person has been served with a summons to produce a document or article; and

(c)

the document or article is:

(i)

in the custody or control of that person; and

(ii)

relevant to the inquiry; and

(d)

the person fails to produce that document or article.

Penalty:
5 penalty units or imprisonment for 3 months.

(4B)

An offence against subregulation (4A) is an offence of strict liability.

Note
For strict liability , see section 6.1 of the Criminal Code .

(4C)

It is a defence to a prosecution for an offence against subregulation (4) or (4A) if the person has a reasonable excuse for refusing or failing to produce the document or article.

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

[6] Subregulation 32 (6)

omit

subregulation (3)

insert

subregulation (3C)

[7] Subregulation 32 (7)

omit

subregulation (4)

insert

subregulation (4C)

[8] Regulation 56

substitute

56 False evidence

A person is guilty of an offence if the person gives false evidence before a Court of Inquiry.

Penalty:
5 penalty units or imprisonment for 3 months.

[9] Subregulation 57 (1)

substitute

(1)

A person is guilty of an offence if the person:

(a)

insults or disturbs a Court of Inquiry; or

(b)

interrupts the proceedings of a Court of Inquiry; or

(c)

uses any insulting language towards a Court of Inquiry; or

(d)

by writing or speech uses words that are false and defamatory of a Court of Inquiry; or

(e)

is in contempt of a Court of Inquiry.

Penalty:
5 penalty units or imprisonment for 3 months.

[10] Subregulation 62 (7)

substitute

(7)

A person is guilty of an offence if the person contravenes a direction given by the President of a Court of Inquiry under subregulation (1).

Penalty:
5 penalty units or imprisonment for 3 months.

(7A)

An offence against subregulation (7) is an offence of strict liability.

Note
For strict liability , see section 6.1 of the Criminal Code .

(7B)

It is a defence to a prosecution for an offence against subregulation (7) if the person has a reasonable excuse for contravening the direction.

Note
A defendant bears an evidential burden in relation to the matter mentioned in subregulation (7B) (see section 13.3 of the Criminal Code ).

[11] Subregulation 63 (2)

substitute

(2)

A person to whom this regulation applies is guilty of an offence if:

(a)

the person either:

(i)

discloses to a person, or makes available to the public generally, information contained in the records or report of a Court of Inquiry; or

(ii)

copies a document, or part of a document, forming part of the records or report of a Court of Inquiry; or

(iii)

discloses to a person, or makes available to the public generally, a document, part of a document, or a copy of all or part of a document, forming part of the records or report of a Court of Inquiry; and

(b)

the information or document referred to in paragraph (a) came to the knowledge, or into the possession, of the person in the course of his or her employment.

Penalty:
5 penalty units or imprisonment for 3 months.

(2A)

It is defence to a prosecution for an offence against subregulation (2) if the person is acting in the performance of the duties of his or her office.

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

[12] Regulation 74

substitute

74 Duty to answer questions

(1)

A member of the Defence Force is guilty of an offence if the member:

(a)

appears as a witness before an Investigating Officer or inquiry assistant; and

(b)

refuses to answer a question that is relevant to the inquiry and that has been put to the member by an Investigating Officer or inquiry assistant.

Penalty:
5 penalty units or imprisonment for 3 months.

(2)

A member of the Defence Force is guilty of an offence if the member:

(a)

appears as a witness before an Investigating Officer or inquiry assistant; and

(b) fails to answer a question that is relevant to the inquiry and that has been put to the member by an Investigating Officer or inquiry assistant.

Penalty:
5 penalty units or imprisonment for 3 months.

(3)

An offence against subregulation (2) is an offence of strict liability.

Note
For strict liability , see section 6.1 of the Criminal Code .

(4)

It is a defence to a prosecution for an offence against subregulation (1) or (2) if the person has a reasonable excuse for refusing or failing to answer the question.

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

(5)

Without limiting the circumstances that may constitute a reasonable excuse for the purposes of subregulation (4), a member has a reasonable excuse for refusing or failing to answer a question if the member considers, on reasonable grounds, that answering the question may:

(a)

disclose a secret process of manufacture; or

(b)

be prejudicial to the defence of the Commonwealth.

[13] Regulation 74A

substitute

74A Duty to produce document or article

(1)

A member of the Defence Force is guilty of an offence if:

(a)

the member appears as a witness before an Investigating Officer or an inquiry assistant; and

(b) the member is ordered by the Investigating Officer or inquiry assistant to produce a document or an article that:

(i)

is in the custody or control of the member; and

(ii)

is relevant to the inquiry; and

(c)

the member refuses to produce the document or article.

Penalty:
5 penalty units or imprisonment for 3 months.

(2)

A member of the Defence Force is guilty of an offence if:

(a)

the member appears as a witness before an Investigating Officer or an inquiry assistant; and

(b)

the member is ordered by the Investigating Officer or inquiry assistant to produce a document or an article that:

(i)

is in the custody or control of the member; and

(ii)

is relevant to the inquiry; and

(c)

the member fails to produce the document or article.

Penalty:
5 penalty units or imprisonment for 3 months.

(3)

An offence against subregulation (2) is an offence of strict liability.

Note
For strict liability , see section 6.1 of the Criminal Code .

(4)

It is a defence to a prosecution for an offence against subregulation (1) or (2) if the person has a reasonable excuse for refusing or failing to produce the document or article.

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

(5)

Without limiting the circumstances that may constitute a reasonable excuse for the purposes of subregulation (4), a member has a reasonable excuse for refusing or failing to produce a document or article if the member considers, on reasonable grounds, that producing the document or article may:

(a)

disclose a secret process of manufacture; or

(b)

be prejudicial to the defence of the Commonwealth.