Commonwealth Consolidated Regulations

DEFENCE (INQUIRY) REGULATIONS 1985 - REG 74

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

                (a)    appears as a witness before an Inquiry 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 Inquiry 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 Inquiry 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 Inquiry 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 .

      (3A)   A person appearing as a witness before an Inquiry Officer or an inquiry assistant is not excused from answering a question, when required to do so, on the ground that the answer to the question may tend to incriminate that person, except where the answer to the question:

                (a)    may tend to incriminate that person in respect of an offence with which that person has been charged; and

               (b)    the charge has not been finally dealt with by a court or otherwise disposed of.

Note    At 30 June 2006, subsection 124  (2C) of the Defence Act 1903 provided: 'A statement or disclosure made by a witness in the course of giving evidence before a court of inquiry, a board of inquiry, an inquiry officer or an inquiry assistant is not admissible in evidence against that witness in:

(a)   any civil or criminal proceedings in any federal court or court of a State or Territory; or

(b)   proceedings before a service tribunal;

otherwise than in proceedings by way of a prosecution for giving false testimony at the hearing before the court of inquiry, the board of inquiry, the inquiry officer or the inquiry assistant.'

         (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.