2 October 2019
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Karen
Elphick
Law and Bills Digest Section
Introduction
The Minister for Defence and the Chief of the Defence Force
(CDF) have broad powers, incidental to their statutory functions under the Defence Act 1903
(Defence Act), to inquire into any matter concerning the Defence Force. The
framework for these general administrative inquiries was significantly
overhauled in 2018 after more than a decade of intense scrutiny and review.[1]
General administrative inquiries are very valuable to Australian
Defence Force (ADF) commanders. Their purpose
is to determine the facts and circumstances surrounding an incident or
situation and assist commanders in making decisions about further action.[2]
They are not intended to be an external or public accountability mechanism.[3]
This paper sets out the four different methods of conducting
a general administrative inquiry into ‘a matter concerning the Defence Force’.
The first two methods are internal inquiries used by, and subject to, the
ordinary chain of command. The last two methods are independent inquiries
external to the ordinary chain of command.
- A Commission
of Inquiry (COI) conducted under the Defence (Inquiry)
Regulations 2018 (2018 DI Regs).
- An Inquiry
Officer Inquiry (IO Inquiry) conducted under the 2018 DI Regs.
- An inquiry
conducted by the Inspector-General ADF (IGADF) at the direction of the
Minister or the CDF under section 110C of the Defence Act and the Inspector-General of
the Australian Defence Force Regulation 2016 (2016 IGADF Reg) (a directed
IGADF inquiry).
- An inquiry
conducted by an Assistant IGADF who is a judicial officer at the direction
of the Minister or the CDF under section 110C of the Defence Act and
Division 4A of Part 4 of the 2016 IGADF Reg (a directed IGADF Division 4A inquiry).
Common attributes
Inquiries under both Regulations are designed to establish
facts and make recommendations. In legal terms, they are administrative inquiries
and may not investigate criminal conduct. If an inquiry uncovers conduct
which may be criminal, that conduct is referred to an investigating authority.[4]
Jurisdiction for investigating offences by ADF members can
be complex. The ADF investigating authority for military and criminal offences
is the ADF Investigative Service (ADFIS) within the Joint Military Police Unit. In
some circumstances, criminal conduct may instead be referred to the Australian
Federal Police (AFP).
Inquiries may be conducted in or outside Australia.[5]
This is useful when an incident occurs overseas, and particularly if it occurs
in an operational area or on a ship. An IO who is qualified to safely enter an
operational area or ship can be appointed and sent immediately to the relevant
location to collect evidence and witness statements.
Some ADF administrative inquiry reports which have been made
public can be found on the Department of Defence (Defence) website page ‘Inquiry Reports’.
2018 DI Regs—Internal
inquiries subject to ordinary chain of command
The purpose
of these inquiries is to facilitate the making of decisions relating to the ADF.
The 2018 DI Regs prescribed new forms of general administrative inquiries,
reducing the previous system of five separate types of ADF administrative
inquiry to just two flexible methods of inquiry:
- a COI,
which would usually be used for higher level matters that are particularly
complex and/or sensitive
- an IO
Inquiry, which is used in the ordinary course of ADF management for lower
level or urgent matters.
Inquiries conducted under the 2018
DI Regs are firmly under the control of the appointing authority, who can
prescribe procedure and give directions. Reports are rendered to the
appointing authority, and the Minister controls the release of reports,
evidence, findings and recommendations of those inquiries.
Further instructions to Defence
personnel on the conduct of internal inquiries are contained in the Defence Administrative
Inquiries Manual. This manual is not registered as a notifiable
instrument in the Federal Register of Legislation and is not available on the
public Department of Defence website. As of the end of June 2019, an updated
edition incorporating the 2017 revised legislative framework was not available
to the public.
1. Commissions of Inquiry
A COI can be directed
to inquire into any matter concerning the Defence Force. The broad
legislative scope is limited to specific matters for investigation by the
instrument of appointment. A COI inquiry is firmly under the control of
the appointing authority, who can prescribe the inquiry’s procedure and give
directions. Reports are rendered to the appointing authority, and the
Minister controls the release of reports, evidence, findings and
recommendations of those inquiries.
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COI are governed by Part 2 of the 2018
DI Regs. A COI
consists of at least a President and may have additional members. It can be
appointed
by:
- the Minister
- the CDF or
- the CDF and the Secretary of the Department of Defence acting
jointly.
The power to appoint a COI can also be delegated
to ADF officers holding senior rank not below naval commodore or equivalent
(one star grade).
The appointing authority may also appoint COI
assistants and legal
practitioners to assist the COI.
Powers and
procedure
The appointing authority may give
directions about how the inquiry is to be conducted; however, evidence must
be given
on oath or affirmation and hearings must be held in private
unless the appointing authority specifically directs otherwise. Section 16 also
specifies certain other requirements:
(2) A Commission:
(a) must conduct its
inquiry fairly, economically, quickly and informally; and
(b) must comply with the
rules of procedural fairness; and
(c) is not bound by the
rules of evidence, legal forms or technicalities; and
(d) may
inform itself on any matter relevant to its inquiry in such manner as the
President of the Commission thinks fit.
The President of a COI has significant powers of compulsion reinforced
by the offences in Division 5 of Part 2 the 2018 DI Regs. The President may,
by notice in writing, require
a person to appear, to give information or to produce
a document or thing. It is an offence under sections 29–35 to, among other
things: fail
to appear, refuse
or fail to answer questions, fail
to produce a document or thing, give
false evidence, commit
contempt, or take
reprisals. The powers of compulsion and offences are not limited to ADF members.
Each offence carries a maximum penalty of 20 penalty units (currently
$4,200).
Self-incrimination
is not a sufficient ground for refusal to give evidence unless an individual is
concurrently facing related charges; however, evidence given cannot be used in
civil or criminal proceedings, or proceedings before a service tribunal,
against the person who gave it.
Report of
COI to appointing authority
Once the President is satisfied that all relevant
information has been obtained, he or she must
prepare a report setting out the findings and any recommendations arising
from the findings of the COI. Dissenting reports from other members are
permitted. The President must give
the report, and the records of the COI, to the appointing authority.
Disclosure
of COI reports and evidence
The President may give a written direction prohibiting
disclosure of certain information or documents (commonly called a suppression
order) and it is an offence
to disclose that information. It is also an offence for an ADF member or
Commonwealth employee, who obtains COI information, records or reports in the
course of their duties, to disclose
that material without permission (note that they have legislative
permission to use and disclose material in
the course of their duties).
The Minister
may nevertheless use, copy or disclose any part of the COI report or COI
records or authorise
in writing a Commonwealth employee or ADF member to do so, including
material subject to a suppression order under subsection 25(1).
COI reports and records are exempt
from disclosure under the Freedom of Information
Act 1982.
2. Inquiry Officer
Inquiry
An Inquiry Officer (IO) can be directed
to inquire into any matter concerning the Defence Force. The broad
legislative scope is limited to specific matters for investigation by the
instrument of appointment. An IO Inquiry is firmly under the control of
the appointing authority, who can prescribe the inquiry’s procedure and give
directions. Reports are rendered to the appointing authority, and the
Minister controls the release of reports, evidence, findings and
recommendations of those inquiries.
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Unlike a COI, an IO may only
make findings, not recommendations, unless they are specifically
authorised to do so in the instrument of appointment. IO Inquiries are governed
by Part 3 of the 2018 DI Regs.
An IO may be appointed
by the CDF, but this power may also be delegated
to an ADF officer holding a rank not below naval lieutenant or equivalent
(O3 grade). The appointing authority may also appoint
IO assistants.
Powers and
procedure
The appointing authority may give
directions about how the inquiry is to be conducted; outside those
directions the IO may inform himself or herself on any relevant matters in
any manner he or she thinks fit. IO Inquiries are designed to be quick and
informal. The IO must ensure inquiries:
Unlike a COI, evidence
must not be taken on oath or affirmation.
An IO only has powers of compulsion
over ADF members; they may be ordered to attend and give evidence or
produce a document or thing. It is an offence under sections 61–65 to, among
other things, fail
to comply with an order to appear, refuse
or fail to answer a question, give
false evidence, commit
contempt or take
reprisals. Each offence carries a maximum penalty of 20 penalty units
(currently $4,200).
Self-incrimination
is not a sufficient ground for refusal to give evidence unless an individual is
concurrently facing related charges; however, evidence given cannot be used in
civil or criminal proceedings, or proceedings before a service tribunal,
against the person who gave it.
Report of IO
to CDF
Once the IO is satisfied that all relevant information has
been obtained, the IO
must prepare a report setting out the findings and any recommendations (if
authorised to make recommendations by the CDF) and give the IO report, and copies
of any IO records, to the CDF.
Disclosure
of IO reports and records
An ADF member or Commonwealth employee has legislative
permission to use and disclose information, records and reports from an IO
Inquiry in
the course of their duties. It is an offence for an ADF member or
Commonwealth employee to otherwise
copy or disclose that material without authorisation.
However, the
Minister may use, copy or disclose any part of the IO Inquiry report or
records for any purpose, or authorise
in writing a Commonwealth employee or ADF member to do so.
IO reports and records are exempt
from disclosure under the Freedom of
Information Act 1982.
Some IO Inquiry reports which have been made public can be
found on the Defence website page ‘Inquiry Reports’.
2016 IGADF Regs—Independent
inquiries by IGADF outside ordinary chain of command
The office of the IGADF
The Minister, after considering any recommendation made by
the CDF, appoints
the IGADF to full-time statutory office for five
years (the IGADF may be reappointed). It is mandatory that the IGADF have experience
in military justice issues and an understanding of their relevance to the
role of the Defence Force. The purpose
of the IGADF is to:
... provide the Chief of the Defence Force with:
(a) a
mechanism for internal audit and review of the military justice system
independent of the ordinary chain of command; and
(b) an
avenue, independent of the ordinary chain of command, by which failures and
flaws in the military justice system can be exposed and examined so that the
cause of any injustice (whether systemic or otherwise) may be remedied.
The IGADF may appoint
an Assistant IGADF to help
the IGADF on an ongoing basis carry out his or her functions. The IGADF
also has a staff of ADF and Australian Public Service (APS) officers and is
able to engage consultants. The IGADF and staff are protected
from civil proceedings in relation to performance of their duties. The
IGADF must provide an annual
report on his or her operations to the Minister for presentation to
Parliament.
The IGADF may
conduct an inquiry:
- on his or her own initiative
- at the request of an individual or
- at
the direction of the Minister or the CDF.
The IGADF may only conduct inquiries at his or her own
initiative, or at the request of an individual, into certain matters specified
in the Defence
Act or in the 2016
IGADF Regs. However, under the Defence Act, the Minister or the CDF may
direct the IGADF to inquire into or investigate any matter concerning the
Defence Force.[6]
This paper only describes this latter type of inquiry done by the IGADF at
the direction of the Minister or the CDF.
The direction is given to the IGADF; it is for the IGADF to
decide whether to personally conduct, or appoint
another person to conduct, the inquiry. The IGADF may:
- personally conduct a directed inquiry with
or without the assistance of an inquiry officer or an Assistant
IGADF who is not a judicial officer (A-IG) (a directed IGADF inquiry)
or
- appoint an Assistant IGADF who is a judicial officer (JO-IG)
to independently
conduct the directed inquiry under
Part 4, Division 4A of the 2016 IGADF Reg (a directed Division 4A
inquiry).
Division 4A inquiries are designed
to be used for investigation of sensitive, grave and complex issues. They
may be used, at
the discretion of the IGADF, for directed inquiries or other IGADF
inquiries.
The IGADF Inquiry
into Rumours of Possible Breaches of the Laws of Armed Conflict by Members of
the Australian Defence Force (ADF) in Afghanistan, between 2005 and
2016 (the Brereton Inquiry) is a Division 4A inquiry being conducted by
Major General Justice Paul Brereton, a NSW Court of Appeal judge and Army
Reserve infantry officer.
3. Directed IGADF Inquiries
A directed IGADF inquiry is not subject to ordinary ADF
command or ministerial control, however, inquiry officers and A-IG are subject
to the direction and control of the IGADF when conducting their
inquiries. Inquiry reports are made to the IGADF who must give a report
to the person who directed the inquiry. Public release of the report is
controlled by CDF or the Minister, whoever directed the inquiry.
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Key provisions
for the conduct of IGADF inquiries, including reporting obligations, are
found in Part 4 of the 2016 IGADF Reg. The IGADF is permitted to take
part personally in a directed IGADF inquiry. The IGADF
may also appoint an inquiry officer or an A-IG to conduct the inquiry. This
power of appointment may be delegated
to an officer holding a rank not below the naval rank of captain or equivalent
(O6 grade).
An inquiry officer is appointed
to inquire into a particular matter. The inquiry officer must inquire
into the matters directed and report to the IGADF. An inquiry officer must
conduct their inquiry in private and may only make recommendations
if authorised in writing to do so.
The IGADF may also appoint
an A-IG on an ongoing basis to help the IGADF with his or her functions.
The appointment is not confined to any particular matter or length of time. An A-IG
may be directed orally or in writing to
conduct inquiries and must provide their report to the IGADF. They may be
authorised orally or in writing to make recommendations.
An inquiry
assistant may be appointed to assist in the conduct of, and the collection
of evidence for, any IGADF inquiry. Any evidence collected by the assistant
must be given to the person conducting the inquiry.
There are a number of offences contained in the 2016 IGADF
Reg. All carry a maximum fine of 10 penalty units (currently $2,100). This
does not align with the penalty for equivalent offences under the 2018 DI Regs
which all carry maximum fines of 20 penalty units.
Powers and procedure
Inquiry officers and A-IG are subject
to the direction and control of the IGADF when conducting their inquiries,
including whether inquiries are conducted in public
or private. However, in other respects they are free to determine their
procedure and are not
bound by the rules of evidence. An inquiry may be conducted within
or outside Australia.
The IGADF may, with at least 14 days written notice, require
a person to give information, produce a document or thing, or appear before
an inquiry to answer questions. These powers of compulsion may only be
exercised by an inquiry officer or A-IG if the IGADF authorises
them in writing to do so.
Failure
to comply with the notice is an offence. There are also offences in the 2016
IGADF Reg for contempt
and taking
reprisals. Contempt means conduct insulting the person conducting the
inquiry; conduct disturbing or interrupting the inquiry; and conduct that
would, if the inquiry were a court of record, constitute a contempt of that
court. Persons attending inquiries to answer questions may
have legal assistance.
Self-incrimination
is not a sufficient ground for refusal to give evidence unless an individual is
concurrently facing related charges; however, evidence given cannot be used in
civil or criminal proceedings, or proceedings before a service tribunal,
against the person who gave it.
Report of inquiry officer or A-IG
Once the inquiry officer or A-IG is satisfied that all
relevant information has been obtained, the inquiry officer or A-IG must prepare
a report setting out the findings and, if authorised, any recommendations
and give the report, and copies of any records, to the IGADF. The IGADF may direct
further inquiry by the inquiry officer or A-IG take place.
Once the IGADF is satisfied, he or she must
make a record of the findings and include with the record any documents or
transcripts of evidence collected by the inquiry. Then the IGADF
must make a report about the inquiry, including any findings or
recommendations that the IGADF thinks appropriate, to the person who directed
the inquiry. It is clear the IGADF is intended to exercise independent judgment
and make whatever report the IGADF thinks fit. The IGADF is not required to
hand up the entire report of the inquiry officer or A-IG.
A directed
IGADF inquiry is complete when the IGADF has given the Minister or CDF a
report including any findings or recommendations.
Disclosure of reports, evidence and
information to other persons
The IGADF may give directions
restricting disclosure of evidence, information and documents in certain
circumstances (a suppression order). Contravening such a direction is an
offence.
The person who directed the IGADF conduct the inquiry, that
is, the Minister or CDF, may
publicly release all or part of the IGADF report. The IGADF does not have
power independently to release this kind of report.
4. Directed IGADF Division 4A Inquiries
An Assistant IGADF who is a judicial officer,
conducting a Division 4A inquiry, has almost complete freedom in the conduct
of their inquiry. This includes freedom
from direction by the IGADF. He or she may also independently release
his or her reports, evidence, findings and recommendations.
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In October 2018, amendments to the
2016 IGADF Reg introduced the concept of an Assistant IGADF who is a
judicial officer (JO-AIG) and prescribed a new kind of inquiry in Division
4A of Part 4 of the 2016 IGADF Reg. Division 4A includes the unusual provision
that ‘This Division has effect despite any other provision of this instrument’
indicating that JO-AIG have their own separate rules for conducting inquiries.
A JO-AIG has more extensive powers and more independence
than any other form of Defence administrative inquiry; in fact, their powers
and independence are comparable to a Royal Commission.
A JO-AIG is appointed only to conduct a specific inquiry
into a matter as directed by the IGADF; they are not
permitted to assist the IGADF with his or her functions more generally.
Independence
The IGADF
must not take part personally in a Division 4A inquiry. The IGADF must
not give directions about the conduct of the inquiry, or vary
or add to the terms of the inquiry.
The JO-AIG may independently decide to publicly release his
or her report; the CDF must be consulted but does not control that decision.
A JO-AIG has the same immunity
and protection as a Justice of the High Court and is not subject to the
chain of command.
Powers and procedure
A JO-AIG who is appointed by the IGADF to conduct an
inquiry:
The JO-AIG is authorised
to use the powers of compulsion in sections 22 and 23 to require, by notice in
writing, a person to appear, to give information or to produce a document or
thing. A JO-AIG does not need to be authorised by the IGADF to use those
powers.
The offences in the 2016 IGADF Reg
for failure
to comply with a notice, contempt
and taking
reprisals apply for Division 4A proceedings. Contempt means conduct
insulting the person conducting the inquiry; conduct disturbing or interrupting
the inquiry; and conduct that would, if the inquiry were a court of record,
constitute a contempt of that court. Persons attending inquiries to answer
questions may
have legal assistance.
Self-incrimination
is not a sufficient ground for refusal to give evidence unless an individual is
concurrently facing related charges; however, evidence given cannot be used in
civil or criminal proceedings, or proceedings before a service tribunal,
against the person who gave it.
Report of findings
The JO-AIG must
prepare a report if satisfied that all relevant information has been
obtained. The report
must be given to the IGADF as soon as practicable and must set out the
findings and make any appropriate recommendations. It must be accompanied by
transcripts of evidence and convey control of things produced to the inquiry.
If the IGADF was directed to carry out the inquiry by the
Minister or CDF, the
IGADF must give the JO-AIG’s full
original report and accompanying documents to the Minister or CDF as the
case may be. The IGADF does not exercise any independent control over the
report of the JO-AIG. The IGADF
must not direct the JO-AIG to inquire further or to prepare a further
report.
Disclosure of reports, evidence and
information to other persons
If the IGADF was directed to carry out the inquiry by the
Minister or CDF, that person may
publicly release all or part of the JO-AIG report given to them. The
IGADF may publicly release the report, but must not do so without first
consulting the JO-AIG.
In directed inquiries conducted under Division 4A, the IGADF
does not have power to release the findings or report to individuals and to the
public; instead the JO-AIG exercises that discretion. The JO-AIG
may independently inform the following persons of the JO-AIGs findings
or give them a copy of the report, including:
- the Minister
- the CDF
- a service chief
- an employee of the Department
- a member of the ADF
- a person who is affected by a submission or the inquiry or
- any other person.
The JO-AIG may
redact information from the copy of the report given to a person if that information
would be inappropriate due to:
- considerations of privacy
- the person’s responsibilities
-
the person’s interest in the matter or
- the information being classified or relating to national
security.
The JO-AIG is not required to consult any other person
before releasing a copy of the report or findings to any individual. If the JO-AIG
gives a person a report, the JO-AIG may, after
consultation with CDF, publicly release all or part of the report
(including a redacted version of the report).
[1].
Commonwealth Defence Force Ombudsman, Own
motion investigation into how the Australian Defence Force responds to
allegations of serious incidents and offences: review of practices and procedures,
Canberra, 1998. Parliamentary Joint Standing Committee on Foreign Affairs,
Defence and Trade, Military
justice procedures in the Australian Defence Force, Parl. Paper 89,
Canberra, June 1999; JCS Burchett, Report
of an inquiry into military justice in the Australian Defence Force ,
Department of Defence, Canberra, 2001; Senate Foreign Affairs, Defence and
Trade References Committee, The
effectiveness of Australia’s military justice system, Parl. Paper 134,
Canberra, 2005. ADF, Re-thinking
systems of inquiry, investigation, review and audit in Defence, Summary
of agreed reforms 2014, Stage B report, 1 August 2012.
[2].
Replacement
Explanatory Statement, Defence (Inquiry) Regulations 2018, p. 1. See also A
D’Amico, Defence General Counsel, Administrative
inquiries manual, Department of Defence, Canberra, June 2017 at p.
[1.1]–[1.4]. Note that this edition of the Administrative Inquiries Manual does
not incorporate significant legislative changes enacted in 2018 and is
currently of limited utility. Neither this edition nor an updated edition were
available online at the time of writing.
[3].
J Bannister, ‘Military administrative law system’ in R Creyke, D Stephens and
P Sutherland, Military law in Australia, Federation Press, Sydney, 2019,
pp. 87–105, at p. 92.
[4].
D’Amico, Administrative
inquiries manual, op. cit., [4.7]–[4.9].
[5].
2016 IGADF Reg, section 18; 2018 DI Regs, sections 17 and 52.
[6].
Defence Act 1903, section 110C(1)(f).
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