Chapter 12 - Boards of inquiry
12.1
The matters considered by a Board of Inquiry (BOI) are
generally of a more serious or complex nature than those examined by Routine or
Investigating Officer inquiries. They are most appropriate where an incident
involves multiple deaths and injury of personnel, where there has been a death
or serious injury involving complex matters, where there has been a serious or
systemic breakdown of Service discipline or morale or where damage, loss or
malfunction of a major Defence asset has occurred.[768]
12.2
The composition of, and procedures for, BOIs reflect
their importance. Apart from the obligation to observe the rules and
regulations set down for Routine and Investigating Officer inquiries, they must
meet additional requirements and give greater attention to the principles of
natural justice. For example, a BOI is conducted under the authority of Part
III of the Defence Regulations and it:
-
places stricter requirements on the appointment
of the members of the Board—there must be at least two members one of whom must
be an officer and one is to be appointed President;[769]
-
gives greater recognition to providing legal
assistance to BOI members and to members likely to be affected by the BOI—for
example a person deemed likely to be affected by the inquiry including a
deceased member is to be provided with legal representation;
-
accords a more prominent role for legal
practitioners in the proceedings notably the role and function of Counsel
Assisting and the legal representatives of potentially affected persons (PAP);
-
requires proceedings to be tape recorded and a
full transcript of evidence to be prepared;
-
strengthens the right to defend oneself by
requiring PAPs to be given the opportunity to be present during hearings and by
allowing their legal representatives to question witnesses;
-
allows for evidence to be taken under oath or
affirmation—where the appointing authority considers that a person may be
affected by the inquiry;[770]
-
provides for public hearings as a matter of
policy, particularly those involving major accidents which may attract strong
and legitimate public interest—where the appointing authority has given such a
direction; and
-
imposes more stringent reporting obligations.
12.3
Consistent with other administrative inquiries, the
purpose of a BOI is 'to determine the facts and circumstances surrounding an
incident or situation so that an informed decision may be taken about the
action required including, where appropriate, action to avoid a recurrence'.[771] The Defence Force Manual repeats in
a number of places that a BOI is not empowered to make specific findings
apportioning blame.[772]
12.4
The committee received evidence regarding a number of
BOIs including the most recent inquiries into Army Exercise Big Wall, the loss
of Leading Seaman Gurr, the death of Corporal Jason
Sturgess, Exercise Everest 2001, and the
accident aboard HMAS Westralia. This
chapter examines the concerns raised in submissions about the BOI process. It
looks first at a recent management audit of BOIs before considering matters
raised in submissions.
Recent management audit of BOIs
12.5
Acumen Alliance,
commissioned by the Defence Legal Service (TDLS), recently undertook a
management audit of BOIs. It was to 'identify, assess and validate the
practices and processes which facilitate efficient and effective BOIs'.
Overall, it concluded that the BOI process is 'generally sound and serves the
purpose for which it was created.' However, it also raised issues with regard
to appointments of board members, the monitoring of, and guidance and support
given to, BIOs.[773]
12.6
In summary, Acumen Alliance made a number of
recommendations that TDLS instruct or provide further guidance on matters such
as:
-
alternative applications of the administrative
inquiry options;
-
the skills and experience appointees need to act
efficiently and effectively;
-
drafting and amending Terms of Reference;
-
PAPs and how they can appear and what type of
appearance is advisable; and
-
reducing risk by selecting the appropriate Board
format or combination of formats.
12.7
It also recommended that TDLS take certain action
including:
-
review the policy with regard to progress
reports and monitoring;
-
provide data in relation to any costs borne by
them for each BOI to the appointing authority;
-
examine alternative remuneration structures to
determine more appropriate ways of recompensing Reserve Legal Officers;
-
establish a process to manage and monitor Board
performance; and
-
develop a briefing program for appointing
authorities and their staff and a second program for those appointed to the
Inquiry to be given prior to any involvement with a BOI.
12.8
The above list of recommendations made by Acumen
Alliance is not exhaustive but indicates the emphasis it placed on improving
the education and training of personnel involved in a BOI and ensuring that
TDLS takes an active part in monitoring particular aspects of a BOI. The committee
agrees with the main thrust of these recommendations but draws attention to a
number of matters raised in submissions to this inquiry that the audit did not
address.
12.9
Even though a BOI offers greater assurances that an
investigation will be thorough and well resourced, a number of witnesses
believed that there were major flaws in the particular BOI in which they were
involved. In the main, evidence presented to the committee concentrated on the
same types of issues that were raised with regard to the Investigating Officer
inquiry and the ROG. The committee notes that there is a clear pattern to
concerns and defects in the ADF justice processes at all levels as raised with
the committee.
12.10
The following section looks at the factors behind a
decision to appoint a BOI and then examines particular aspects of the BOI
processes including:
-
communication with those involved in the BOI;
-
the independence and objectivity of the inquiry;
-
the competence of the investigating officer and
the role of experts; and
-
the timeliness of the process.
Decision to conduct a BOI
12.11
Following a Quick Assessment, the appointing authority
has the discretion to recommend the type of inquiry appropriate to the matters
under consideration. In deciding to establish a BOI, an appointing authority
will take account of the significance attached to the incident to be
investigated.
12.12
Mrs Janice
McNess, whose son was killed in an aircraft
accident, was critical of the RAAF's failure to conduct a Board of Inquiry
(BOI). She maintained that the decision was a major injustice in the
investigation into the deaths of her son and his navigator, Mark Cairns-Cowan.
In her view:
Without it there could be no legal aspects to the inquiry, no
sworn statements, no subpoenaed squadron members or witnesses and no
opportunity for questions to be asked—only the more informal procedure of an
accident investigation dependent on the goodwill of people to come forward with
relevant information. This immediately downgraded the importance of the lost
crew and took from them the chance for justice to be done and, importantly, to
be seen to be done. In the years since the accident we have learnt from the families
of other accident victims that boards of inquiry do not always provide the
answers, but at least they do increase the chances of a fair outcome.[774]
12.13
She argued that as a consequence of not having a BOI:
...we were left with unanswered questions, no possible redress and
an unsatisfactory finding of 'probable loss of situational awareness', with too
little emphasis on lack of currency, poor crewing, poor choice of exercise for
a largely uncurrent Squadron, and too much emphasis on pilot fault—a point that
remains unprovable.[775]
12.14
On the basis of the guidance now offered in the
Administrative Inquiries Manual, and on a general appreciation of the serious
nature of the incident, it would seem that Mrs
McNess had strong grounds for her complaint.
The accident, which occurred in 1993, involved the crash of an F-111C and
claimed the lives of two serving personnel.
12.15
In 1998, the Defence Force Ombudsman found a case where
one incident was investigated by a BOI while a very similar complaint was
investigated by an investigating officer with significantly lesser powers. In
her report, she suggested that this raised a question about the inconsistency
in assessing how serious incidents should be treated. She suggested that the
ADF consider whether the Defence instructions needed amendment by way of
offering more specific guidance which might minimise the problem.[776]
12.16
The Defence Administrative Inquiries Manual now offers
such guidance (see following table).
Table 7.1—Selecting the Most Appropriate Type
of Inquiry
|
ROUTINE
INQUIRY |
INVESTIGATING
OFFICER |
BOARD OF
INQUIRY |
GENERAL
COURT OF INQUIRY |
PHYSICAL
FACTORS |
Number of witnesses |
Small numbers |
Best suited to small
numbers |
Any number |
Any number |
Commence inquiry |
Very speedy |
Speedy |
Slower |
Slow |
Length of inquiry |
Short |
Relatively short |
May be lengthy |
May be lengthy |
Complexity |
Simple issues |
Moderately complex |
Complex issues |
Complex issues |
Ease of logistics |
Easy |
Relatively easy |
More difficult |
More difficult |
Appointed by |
CO |
CO or higher |
Delegated Appointment
Authority |
Minister |
GRAVITY
FACTORS |
Multiple deaths and injury
of personnel |
Not to be used |
Not appropriate |
Appropriate |
Appropriate |
Deaths or serious injury of
personnel |
Not to be used |
May be used when facts are
not complex, when member not on duty or when it arises from a Motor Vehicle
Accident on duty but there are no suspicious circumstances |
All other occasions |
Appropriate |
Sexual offences (see Paragraph 4.4) |
No. see DI(G) PERS 35-3 |
No. see DI(G) PERS 35-3 |
No. see DI(G) PERS 35-3 |
No. see DI(G) PERS 35-3 |
Offences against the DFDA
or civil criminal law |
No, refer to Service police
or civil police |
No, refer to Service police
or civil police |
No, refer to Service police
or civil police |
No |
Serious or systemic
breakdown of Service discipline or morale |
Not appropriate |
Not appropriate |
Appropriate |
May be appropriate if most
senior officer involved |
Damage, loss or malfunction
of major defence assets |
Not appropriate |
May be used when facts are
not complex |
Appropriate |
May be appropriate |
Where a damages claim
against the Commonwealth is likely |
Yes, if very minor and
matter is simple |
Yes |
Major loss or damage only |
Major loss or damage only |
Loss or damage to defence
property |
Yes, if matter is simple |
Yes |
Major loss or damage only |
Major loss or damage only |
Motor vehicle accident not
involving death or serious injury |
Yes |
Yes |
Exceptional complexity only |
Not appropriate |
Redress of Grievance |
Yes |
Only where matter is
serious and complex |
Yes, where matter is very
serious and extremely complex |
No |
Complaint of harassment or
discrimination |
Yes |
Yes, if matter is serious
and complex |
Yes, if matter is very
serious and extremely complex |
No |
Were there any
international ramifications? |
Not appropriate |
Not appropriate |
Yes, but it may have to be
a Combined Board of Inquiry |
No |
Potential for media
scrutiny |
Yes, but only in unusual
circumstances |
Yes, but only in unusual
circumstances |
Yes |
Yes |
LEGAL AND
OTHER FACTORS |
Can Australian Defence
Force witnesses be compelled to attend to give evidence? |
Yes |
Yes |
Yes |
Yes |
Can civilian witnesses by
compelled to attend to give evidence? |
No |
No |
Yes |
Yes |
Is evidence taken on oath
or affirmation? |
No |
No |
No, but may be if any
person is likely to be affected by injury |
Yes |
Can witnesses claim the
privilege against self-incrimination? |
Yes |
Yes |
No |
No |
Can witnesses refuse to
answer questions if they have a reasonable excuse? |
Yes |
Yes |
Yes, but not on grounds of
incrimination |
Yes, but not on grounds of
incrimination |
Penalties specified in the
Defence (Inquiry) Regulations can be applied to witnesses who refuse to
appear or answer questions? |
No |
Yes |
Yes |
Yes |
May affected persons be
legally represented? |
No (but they may seek legal
advice prior to being interviewed) |
No (Note: this is at the discretion of the Investigating Officer but
is not usual). |
Yes |
Yes |
Will a transcript be
required? |
No |
No |
Yes |
Yes |
Is the inquiry to be held
in public? |
No |
No |
Yes, as a matter of policy,
unless otherwise directed by the Appointing Authority (inquiries involving
major accidents normally should be open). |
Yes |
Is a report of the inquiry
required? |
Yes |
Yes |
Yes |
Yes |
Annex E to Chapter 2,
Australian Defence Force Publication, Administration Series, Administrative Inquiries Manual, 15 May 2000.
12.17
A number of witnesses also expressed concern about
the determination by the appointing authority on whether to hold a BOI. A witness,
who lost a relative in an accident, was asked whether she would like an
investigation rather than a BOI. She told the committee that:
Basically, an investigation seemed to have a lot more
advantages, so I agreed to go ahead with it, until I received an anonymous
phone call a few weeks later and someone explained to me the whole process...I
was so misinformed in a lot of areas. [777]
12.18
A BOI was held into this matter.
12.19
In his issues paper, Mr
Michael Griffin
referred to the policy applying to decisions regarding the selection of the
type of investigation following an incident. He stated:
Annex E to chapter 2 of the Manual indicates that a Court or
Board of Inquiry (BOI) is appropriate for death and serious injury. It
indicates that an investigating officer (IO) may be used in the case of a single
death or serious injury 'when the facts are not complex, when the member is not
on duty or when it arises from a Motor vehicle accident but there are no
suspicious or unusual circumstances'. The annex notes that an IO is not
appropriate for 'serious systemic breakdown of Service discipline or morale'
but a BOI is.
12.20
He noted that despite this policy background, it was
decided not to hold a BOI into the following recent serious incidents:
-
major systemic problems involving brutality and
harassment in at least two training schools,
-
several suicides including the presence of
disturbing ethnic undertones and systemic breakdown of morale,
-
two cadet incidents involving female minors,
-
major equity problems in a training unit,
-
major drug problems in a unit, and
-
major systemic morale and security problems.
12.21
He concluded that:
These various incidents amounted to some twenty separate matters
which Defence elected to inquire into by appointing an investigating officer
rather than by holding a public BOI in which evidence would be given under oath
in public and be available for testing under cross-examination. By contrast the
evidence given to the investigating officers was not on oath and not given in
public, nor was it tested by cross-examination.[778]
12.22
Clearly, the more rigorous procedures required of a BOI
offer members and their relatives a greater sense of certainty that the inquiry
will be an impartial and well resourced investigation and that the interests of
any potentially affected person will be appropriately safeguarded. It is
important that appointing authorities adhere closely to the stated policies
governing the appointment of an administrative inquiry. In a number of cases
this clearly has not happened. Again the problem does not appear to be with the
guidance offered in the Defence Manuals but with the failure to observe it. The
problem is with enforcing adherence to stated policy.
12.23
Despite the standing of a BOI, there is always the
option to choose an inquiry with a higher status for incidents of even greater
significance. Mr David
Richards, a barrister and solicitor, was of
the view that the BOI established to inquire into the accident on HMAS Westralia should have been elevated to a
general court of inquiry. He stated:
...a general board of inquiry would have been constituted to
include a civilian Federal Court judge. The fact that there was a civilian
judge presiding over a general board of inquiry would have given the public
confidence. It would also have given members of the ADF and the families of the
deceased, if you are talking about the Westralia, confidence that it was
conducted independently. My submission continually talks about perceived
independence. I am not suggesting that in many cases, even cases before this inquiry,
there has not been independence, but perceived independence in a criminal
justice system is as important as independence. To answer your question, a
general inquiry would have had perceived independence.[779]
12.24
The committee agrees with his observation.
12.25
In its audit of BOIs, Acumen Alliance found that, while
ADF policy gives commanders flexibility in selecting an administrative inquiry
format or combination of formats suitable to the incident, commanders and legal
officers do not appear to utilise this flexibility. It recommended that TDLS
further instruct Commanders and legal officers in alternative applications of
the administrative inquiry options. Instruction could entail a 'combination of
training, briefing sessions and communication'.[780]
Committee
view
12.26
The committee supports this recommendation. As noted
above, however, the committee is more concerned with enforcing policy. It fears
that while education may offer some improvement, it is not the complete answer.
Again, it would appear that an independent body would have the objectivity and
foresight to assess correctly the need to appoint a BOI or a General Court of
Inquiry and make such a recommendation notwithstanding possible pressure from
the relevant Service to down grade an inquiry to a lower level. This conclusion
supports the recommendation for the establishment of the ADFARB as the
appointing authority for serious incidents.
The effectiveness and fairness of BOIs
Procedural fairness
12.27
The Defence Inquiries Manual makes clear that certain
procedures must be followed to ensure that the principles of procedural
fairness are observed during a BOI. It advises that:
-
where the President of a BOI considers that any
evidence given before the Board may affect a person who was not present or
represented before the Board when the evidence was given, the President may forward a copy of the relevant
evidence to the person (emphasis added);[781]
-
where the President has forwarded a copy of the
relevant evidence to a person who may be affected by evidence, the President should inform the person that they have
a right to apply to appear before the Board and to submit any written statement
(emphasis added);[782]
-
affected persons must be given the opportunity
to be present during the Board hearings;[783]
-
the Board cannot make adverse findings against a
person who has not been given the opportunity to be heard;[784]
-
a member who comes before the Board late in the
proceedings may require an adjournment to familiarise themselves with all the
evidence that has already been given;[785]
-
the Board will be required, at the conclusion of
the evidence to give notice to any individual against whom it is contemplated
that adverse findings may be made.[786]
12.28
Matters of procedural fairness were a significant issue
in investigating officer inquiries and in the ROG process, and underlined the
importance of having sure and definite procedures in place for all
administrative inquiries.
12.29
As an added precaution to safeguard the interests of
PAPs, the committee recommends that advice in the Inquiries Manual be reworded
to convey certainty that affected persons will be afforded their rights.
Recommendation 31
12.30 The committee recommends that the language used in
paragraphs 7.56 of the Defence (Inquiry) Manual be amended so that the action
becomes mandatory.
12.31
The effect is that the President must forward a copy of
the relevant evidence to a PAP and must inform that person that they have a
right to apply to appear before the Board and to submit a written statement.
This amendment would make the advice consistent with the prescriptive language
used in paragraphs 7.49 and 7.52. It removes any uncertainty about the
responsibilities of the appointing authority or the President and makes sure
that anyone likely to be adversely affected by the inquiry is to be provided
with the appropriate safeguards to protect their interests.
Recommendation 32
12.32 Similarly, the committee recommends that the wording of
paragraph 7.49 be rephrased to reflect the requirement that a member who comes
before the Board late in the proceedings will be allowed a reasonable
opportunity to familiarise themselves with the evidence that has already been
given.
12.33
One matter mentioned with regard to procedural fairness
that attracted strong comment was the right to legal representation.
Right to legal representation
12.34
During the course of a BOI, evidence may be presented
that reflects adversely on individuals. Procedural fairness dictates that
people who are the subject of adverse comment should have the right to refute
any such allegations. This does not appear to have been the case in the BOI
into the fire aboard HMAS Westralia.
A member who gave evidence to this BOI was only later to discover during the
Coroner's inquest that Counsel assisting the BOI during his address behind
closed doors had cast doubt on the conduct of this member and on the veracity
of the member's evidence. The member told the committee:
On discovering the BOI's view on my evidence, I cannot begin to
tell you the negative effect this has had on myself and my family. After 21
years of devoted service and giving my all to the Navy, I'm now left feeling
betrayed, humiliated and degraded, especially since I was not given the
opportunity to defend myself.[787]
12.35
Given the serious nature of the matters under investigation
by a BOI, natural justice would require that members likely to be affected by a
BOI should have the right to legal representation. Judging by the comment by
Air Commodore Harvey, the ADF's understanding, however, is that the
representation of individual people is not an issue. He told the committee that
at the time of engaging Acumen Alliance to conduct the audit:
Our experience of recent boards of inquiry at that stage was
that there was an extensive process to allow for people to be represented before
boards of inquiry if they were affected people.[788]
12.36
Evidence before the committee counters this
observation. The BOI inquiring into the Westralia
incident gave rise to complaints that deceased members had no legal
representation. Mr Pelly,
whose daughter died aboard the ship, was concerned about the lack of due care
and attention given to the needs of family members during a BOI. He was
particularly concerned about the lack of representation for those who died in
the accident. He told the committee:
There was nobody there who bothered to defend the four dead
seamen. There were statements made, and I still believe that some of them were
derogatory; one, in particular, towards my daughter. In a normal legal sense,
had there been somebody there to protect my daughter’s interest, I am sure that
that would have been fixed up at that board of inquiry. I believe that the Navy
did not think it was in its best interest to defend her.[789]
12.37
He explained further:
This [BOI] is the area where I began to fight, when I noticed
the way that my daughter had been maligned at the board of inquiry. It was not
done openly. To me, it was bloody underhanded. From the way I read the
information in the board of inquiry, an observer would have got the impression
that (a) my daughter had disobeyed a lawful command and gone into the engine
room and (b) had panicked and contributed to her own demise. Both of those
things were completely wrong. I had gut feelings about them because I knew my
daughter and her character very well and it completely went against her
character, so I started to investigate those things. It took me five years to
finally get somebody to admit—and it was during the coroner’s inquiry—that my
daughter was ordered into the engine room.[790]
12.38
The coroner inquiring into the four deaths on board
HMAS Westralia also observed:
The families of the deceased were not represented before the
Board of Inquiry and over an extended period of time they have raised concerns
in relation to the circumstances surrounding the deaths. Initially it was the
view of the families that an inquest was not the desired means of airing
outstanding issues and that a public inquiry or Royal Commission would provide
a more suitable forum.[791]
12.39
Defence regulations and the Defence Inquiries Manual
now provide for the legal representation of deceased members. They advise that
legal representation is provided to protect the interests and reputation of a
member or deceased member during the inquiry.[792]
The Manual states:
As a matter of policy, a person deemed to be likely to be
affected by the inquiry including a deceased member is to be provided with
legal representation by a Service legal officer at Commonwealth expense.
12.40
According to the Manual, this arrangement should be
authorised by the appointing authority prior to the commencement of the
inquiry, or the President where the inquiry has commenced. This guidance is
based on subregulation 33(3) of the Defence (Inquiry) Regulations. The wording
of this regulation, however, does not necessarily convey the meaning that the
right to legal representation for a deceased member is guaranteed but rather is
conditional on the President authorising that person to appear.
12.41
The regulation reads:
(1) Where
the President of a Board of Inquiry considers that a person may be affected by
the inquiry conducted by the Board, the President may authorize that person to appear before the Board.
(2) Subject
to subregulation (3), a person authorized to appear before a Board of Inquiry
may appoint another person to represent the first-mentioned person for the
purposes of the inquiry and the person appointed is authorized to appear before
the Board.
(3) A
person authorized to appear before a Board of Inquiry shall not appoint a legal
practitioner to represent that person for the purposes of the inquiry except
with the approval of:
a. where
the inquiry has commenced—the President; or
b. in
any other case—the appointing authority (emphasis added).
12.42
Air Commodore Harvey
indicated that Defence are in the process of amending regulation 33 to enshrine
the right of representation.[793] During
an Estimates hearing on 31 May 2005,
the Senate Foreign Affairs, Defence and Trade legislation Committee
asked about progress on the redrafting of the regulation. Air Commodore Harvey
replied that he was not in a position to answer the question and would get back
to the committee with a response.
12.43
To indicate its approval of the proposed amendment to
regulation 33, the committee puts on the record a recommendation to that
effect.
Recommendation 33
12.44 The committee recommends that the wording of Defence
(Inquiry) Regulation 33 be amended to ensure that a person who may be affected
by an inquiry conducted by a Board of Inquiry will be authorized to
appear before the Board and will have the right to appoint a legal
practitioner to represent them.
12.45
Further that a regulation be promulgated by the ADF
that a person who has died as a result of an incident under investigation by a
BOI will be entitled to legal representation.
Preconceived notions about a BOI
12.46
Much
dissatisfaction with an inquiry can stem from notions that may take hold before
an inquiry is even established and which in large part derive from the manner
in which the initial incident was managed. Ms Joan Gurr's experiences with the Navy following the loss of her son Cameron, from HMAS Darwin,
provides an example of the sensitivity required in such situations.
12.47
The
Navy advised the committee that the Chief of Staff, Maritime Command, had
maintained regular personal contact with Ms Gurr since the loss of her son. She was provided with every support. Indeed,
Ms Gurr expressed to the committee her appreciation for the level of contact
with the Navy, the assistance of the Defence Community Organisation and the
fact that during the search for Cameron
the Navy 'left nothing to chance'.[794]
12.48
Navy made
arrangements for Ms Gurr and a close friend to travel to Christmas Island and then on to HMAS Darwin during the search for her son. This allowed
her to meet her son’s shipmates and to be briefed personally on the conduct and
scale of the search operation. She was also provided with updates of progress
on the search operation and was notified about any media statements to be
issued or interviews to be conducted.[795]
Provision was also made for Ms Gurr to attend part of the BOI at Commonwealth expense.[796]
12.49
A
Critical Incident Stress Management team consisting of a Navy psychologist and
peer support member was sent to the ship while the search was still underway to
work with Leading Seaman Gurr's shipmates. The team provided several group
debriefings and sessions for individuals as required. The Critical Incident
Stress Management team advised HMAS Darwin members at that time that they could obtain further follow-up support
through the psychology section if they required it.[797]
12.50
The support and assistance offered to Ms
Gurr following the disappearance of her son was in stark contrast to that
experienced by the families of those who died in the fire in HMAS Westralia. Where Ms
Gurr was very appreciative of the support
she received from the Navy in terms of assistance from the DFO and the offer to
attend the BOI hearings, the families of those who died in HMAS Westralia describe a very different
experience. As noted previously in this report, one of the most important
considerations for next of kin is to be kept informed of all developments in an
investigation.
Communication and the provision of
information
12.51
Some witnesses believed that the ADF's focus during
BOIs can be too narrow: that it does not always appreciate that, while establishing
the cause of an accident is important, family members have another set of more
personal questions they need answered. The committee noted many examples where
bereaved families simply wanted to know the circumstances surrounding the death
of their loved one. For example, despite the care and attention given to Ms
Gurr following the loss of her son, she was
unhappy with the thrust of the inquiry. For her:
...it is the personal issues that involved Cam.
They are the answers that I needed. That is why I believe that, in my
submission, I have been misunderstood as far as not being informed goes,
because I needed to know the answers to the questions about the doona jacket. I
need to know about the email that came from one of the other ships that was
being queried. The personal things—I needed answers and I did not get them.[798]
12.52
The relative of a member killed in an accident informed
the committee that she felt she had 'to continuously fight for information'.
She explained that she was informed about the extent of injuries and cause of
death by the funeral director on the way to the funeral. She stated:
I feel pity and sorrow for other families who have had to endure
a board of inquiry. I am sure that most would have had no military background
or experience. The whole process would have been extremely daunting, not to
mention being a strain while trying to deal with the grief of the loss of a
loved one.[799]
12.53
The failure to involve families in the investigative
process can also have serious, long-term administrative consequences for the
ADF. Some witnesses interpreted the lack of information in a more sinister
light. The JSCFADT's 1999 report into military justice procedures in the ADF
noted this tendency. It observed:
When relevant information is not forthcoming, it is
understandable that next of kin perceive the process as a 'cover up', and an
example of the ADF closing ranks to protect itself, or senior officers, from
criticism.[800]
12.54
Evidence to this committee leads to the same
conclusion. A number of submitters, who felt excluded from the inquiry
processes into the accident on HMAS Westralia,
consequently formed the view that there had been a white-wash to protect senior
officers. Mr Kevin
Herridge, who was a serving crew member in
the Westralia at the time of the fire
stated:
I know that some witness and family members of the deceased felt
intimidated by the fact that the BOI was a high profile Naval inquiry being
held in a isolated Military establishment with little or no means for the
general public to attend, therefore one could argue that the Navy or indeed
Defence force for that matter was trying to keep it 'In House.'[801]
12.55
The father of a deceased crew member told the
committee:
....a panel of five was hurriedly bought together to hold an
inquiry into the events of the day. Three out of the five were naval personnel
so the results they would come up with would show the Navy to be almost
blameless.[802]
12.56
This distrust of the ADF resulted in some family
members campaigning for an investigation to be reopened or to have other avenues
of investigation taken up, such as the Coronial Inquest.[803]
Indeed, in response to their
dissatisfaction with the conduct and outcome of the BOI, the families of those
who died in the fire approached the WA coroner to hold an Inquest. The coroner
reported on 19 December 2003.
12.57
The evidence indicating a lack of trust and confidence
on the part of those who have experienced a military inquiry or investigation
was of particular concern to the committee. Indeed, a dominant thread running
through this report is concerned with the perceived and real lack of
transparency and accountability in the way the ADF conducts an inquiry or
investigation.
Conflicts of interest and the
independence of the inquiry
12.58
A number of witnesses were troubled by the conflicts of
interest that can emerge in routine and investigating officer inquiries. At
times the relationships between the appointing authority, investigating officer
and the complainant or the person subject of the inquiry clearly compromised
the integrity of the process.
12.59
This type of potential conflict did not draw
significant comment with regard to BOIs, though Mr
Earley told the committee that:
I have written to the relevant people about counsel assisting
boards of inquiry not being drawn, wherever that is possible, from the commands
that are appointing the board of inquiry—in other words, the command legal
officer normally should not be the counsel assisting in a board of inquiry involving
that command because his job is to advise the commander. [804]
12.60
The committee endorses this suggestion. Furthermore, it
is of the view that a strict standard of impartiality must apply to all members
of a BOI who should have no personal interest in the incident under
investigation. The requirement to produce a written statement of independence
should apply to Board members (see for example recommendations 28 and 29(c)).
12.61
The main criticism levelled at the independence and
impartiality of BOIs was in the broader context where the reputation or public
standing of the Service was at stake. For example, Mrs
Yvonne Sturgess
felt that the investigation into the death of her son, Corporal
Jason Sturgess,
in a motor vehicle accident had serious flaws, particularly the lack of
consideration given to the state of the Armoured Personnel Carrier (APC). She
was of the view that the ADF 'is incapable of objectively investigating itself'
and stated her belief that the problem could be addressed by:
...the ADF having non-combat related deaths investigated by an
independent and adequately resourced and funded authority with the powers to
allow it unrestricted access to records, facilities and personnel. Also normal
operations such as maintenance of equipment and compliance with procedures
should be open to regular audits and investigations by a suitably qualified and
independent authority or company engaged by and reporting to parliament not the
ADF.[805]
12.62
Mr Jonathan
Ford, an uncle of Corporal Sturgess,
was also of the view that ADF members operate under pressures that may cloud
their objectivity and supported the proposal for an independent body to
investigate such accidents. He stated:
Because of the cultural reasons, even if you are professional
enough to put it aside and think that nothing you have said will be taken in a
blame culture and it will not affect your career, it has to have an underlying
effect. Regardless of what the media might think, people—certainly our
family—would have greater faith if there had been either a ministerial inquiry
or supervision by a ministerial inquiry or the parliament itself. At least then
there is an honest, objective appraisal of the whole accident. That is why we
really welcome this inquiry.[806]
12.63
To Ms Gurr's
way of thinking, the investigation into the loss of her son was intended to
limit as much as possible any damage to Navy's reputation. She observed:
As laymen it is difficult to grasp the legal complexities of
such investigations and the frustration that people have, when it appears that
nothing is resolved for the person or his/her family with the concentration of
the investigation appearing to have more focus absolving the Defence Department
of any blame.[807]
12.64
The highly publicised BOI into the fire aboard HMAS Westralia, drew criticism for its lack
of objectivity. Mr Pelly
in particular was forthright in expressing his views about bias in the BOI. He
told the committee:
When we [and Mr Brian
Smith] received the BOI report on 17 December 1998, we both knew
instinctively that something was wrong. The report was more interested in
reducing damage and embarrassment for the Navy than in giving an accurate assessment
of what happened on 5 May 1998.
12.65
He stated that the BOI was 'nothing more than a farce'
and, in his opinion, 'was not run as an open investigation; it was run as a
partially open attempt to reduce the impact of any embarrassment to the Navy'.[808]
12.66
In rejecting such views, Vice Admiral Chris
Ritchie stated:
It is my personal belief that the Westralia board of inquiry was an independent, public and open
fact-finding process, particularly in light of the fact that there were two
civilian experts on the board. Contrary to the unfounded allegations of some
that the inquiry was an internal Navy whitewash, rigged to make predetermined
findings, the board in fact judged Navy’s actions by objective civilian
standards. It identified the problems and recommended reforms in a way that met
Navy’s immediate needs, as well as satisfying the external probity standards of
the Western Australian coroner.[809]
12.67
Indeed, the committee notes that the coroner praised
the work of the Board and its achievements in promptly identifying a wide range
of important safety issues. In brief, the coroner found that the BOI report
'contained an excellent analysis of safety issues'.[810] While Navy's clear priority was to
identify any systemic failures and prevent any recurrence of the problem,
others involved in the inquiry had broader expectations of the process.
12.68
The coroner, in particular, reminded the Navy about the
seriousness and extent of its duty of care obligations. He censured the Navy
for its 'gross lack of supervision':
In my view the navy has a responsibility for the safety of
personnel working on its ships irrespective of any outsourcing arrangements.
...
The fact that no one in the navy had any knowledge of which type
of hoses had been contracted for even after they were installed demonstrated a
gross lack of supervision of the contract.
...
In my view if the navy is to demonstrate genuine commitment for
the safety of its personnel it should ensure that there is some supervision of
new parts being installed on its ships. The commonwealth was the purchaser of
the hoses and could certainly have checked to ensure that it got what it paid
for and that certification and safety issues were adequately addressed.
...while there may be considerable benefits, including safety
benefits, associated with outsourcing to competent and skilled organisations,
particularly when the navy's competencies in specific fields of knowledge may
be limited, that does not mean that there should be no navy supervision.[811]
12.69
Even though senior Navy officers quoted from the
coroner's report to support the Board's findings and to uphold the integrity of
the process, the coroner's words are a salutary reminder of the important role
an independent authority can have in looking objectively at evidence surrounding
an incident. The committee has already discussed the blind spots that committed
and dedicated ADF people can develop toward failings in the Forces. With clear
vision, the coroner was well placed to identify, and speak freely about,
shortcomings in the Service.
12.70
An independent inquiry into the loss of Leading Seaman
Gurr may have removed the suspicion from the minds of some people that those
responsible for the circumstances leading to the disappearance of the sailor
had escaped blame. In this case, where excess drinking was found to have been a
contributing factor, those charged over the incident were the sailors Gurr had
been drinking with—not the senior officers duty bound to ensure the safety and
well-being of those under their command. Ms
Gurr told the committee:
...I knew from the word go that any punishment that was dished out
would be for the guys breaking the rules who were in the stern the night my son
disappeared. That is fair enough, but, as I said, they were doing what they
were doing because they were getting away with it and they knew they were going
to get away with it. If we need to take a look at anybody we need to take a
look up the chain, because somebody needs to make sure the rules are enforced
on these younger people.[812]
12.71
The committee is left with the same view that the BIO
into the death of Leading Seaman Gurr needed to address the larger question
about the accountability of the higher echelons in the chain of command. Junior
offices may flout the rules but superiors are ultimately responsible for the
conduct of those under their command. In the committee's view, the
responsibilities of those in the chain of command warranted the closest
scrutiny by a detached and objective body.
12.72
The following observation by Ms
Gurr sends a strong message about the
possible limited value of a Service investigating itself:
You can make rules and you can keep changing those rules, but
you have to enforce them. You have to make sure they are enforced. My feeling
is that, five months, 12 months or two years down the track, all the new rules
will be in place and all the new signs will be put up, again nobody will be
making sure that they are policed.[813]
12.73
It may be the case that an independent body able to focus
on areas that the ADF may prefer to avoid is better placed to highlight or
expose deficiencies in the Services. In this way, it may also be more effective
in having a stronger and longer term influence on changing poor work practices.
It certainly would speak with authority on matters such as the responsibility
of senior officers to ensure that those under their command abide by the rules
and behave appropriately.
12.74
Justice Roberts-Smith
acknowledged that one of the problems of BOIs is the 'lack of perception of
independence' but, at the same time, recognised the advantages in the inquiry
'being directed and scoped by officers of suitable military experience'. At
first he suggested that 'were a properly independent military justiciary to be
established, a DFM nominated by the JAG could be appointed to preside at a
BOI'.[814] On reflection and after
discussions with former Chief Justice Lamer, he was of the view that this
course should be the exception. He made a clear distinction between
administrative and judicial procedures, arguing that serving judicial officers
should not be on a BOI.[815]
12.75
The committee cannot stress strongly enough the
importance of having an investigating body above any suspicion of partiality.
Evidence to this committee shows that the credibility of an inquiry comes under
immediate challenge as soon as there is any hint of a lack of independence.
This evidence supports the committee's recommendation for an independent
authority to be responsible for the appointment of members to a BOI type of
inquiry.
The competence and conduct of BOIs
12.76
The report has already considered and identified
concerns with the level of competence of those conducting administrative
inquiries. It has noted that the composition and procedures of a BOI reflect
its importance and that higher standards are expected of board members. The
following section looks at the gathering, presentation and testing of evidence.
12.77
The BOI into the accident on HMAS Westralia drew heavy criticism for the way the investigation was
conducted. The committee is not in a position to re-examine the evidence
presented at the hearings. It can nevertheless draw attention to areas of
concern.
12.78
One ADF member questioned the quality of the basic
investigative procedures such as those taken to secure the accident scene on
board the Westralia.[816] The competence and judgement of the
initial investigating team also came under question for the manner in which it
obtained witness statements. Indeed, the initial investigation of the site of
an accident or incident has been identified by other witnesses as a major concern
for inquiries concerned with suicides. One member contended that the ADF does
not possess the expertise or experience for engaging in this type of forensic
inquiry and suggested that 'Defence Force personnel should be trained in the
correct procedures for handling and preserving crime scenes...'[817] This matter about the competence of
investigations was discussed in chapters 8 and 9. The Westralia experience supports
the committee's recommendation that, in terms of forensic evidence,
preliminary investigations into sudden deaths and serious accidents should be
in the hands of the relevant police force or the AFP.
12.79
The committee now turns to the hearing process of a BOI
to consider whether the level of experience and training of board members is
equal to the difficult task of conducting such inquiries. It also looks at
whether their performances meet public expectations.
12.80
Both families of the deceased and witnesses in the Westralia BOI
felt aggrieved by many aspects of the conduct of the inquiry. The committee has
already mentioned complaints about the failure to provide legal representation,
difficulties in obtaining relevant information and the apparent lack of
independence of the investigators. For Mr
Lyndon Pelly,
whose daughter died in the Westralia
fire, the inquiry also lacked thoroughness:
Post BOI and during the coroner's inquest, new evidence was
revealed and inspections and testing of this evidence was carried out.
One such piece of evidence was a high pressure fuel line with a
hole in it, found to be loose and removed from the engine after the BOI, then
kept hidden in a cabin on the ship.
From there, this possibly important piece of evidence was handed
over to a contractor (ADI) and kept under lock and key for four years. Numerous
attempts were made by the families' legal representatives to locate this piece
of evidence through the navy without success.
This evidence was finally given up only after the holder (ADI)
was challenged by Mr Collaery
during the Coroner's inquiry to produce it.[818]
12.81
A crew member, who was in the engine room at the time
of the fire, also felt that important evidence had been discounted. The BOI had
requested that he read from a notepad in which he had written, at the time of
the fire, the names of those still in the engine room. The crew member told the
committee that he was not required to tender the notepad as evidence but that
counsel assisting the BOI, in his closing submission, suggested that the
notepad was 'supposedly never found or tendered as evidence'.[819]
12.82
Whatever the reason behind the confusion about the
status of the notepad, the crew member saw it in light of Navy's attempt to
protect its image. He told the committee:
It was possible that list, made within seconds of the fireball
going up, contained the names of four people which would later be found
dead...whereas it had already been widely reported in the Australian media that
the captain had ordered the engine room to be sealed and the CO2 drench
to be discharged.[820]
12.83
His interpretation again reinforces the notion that the
BOI into the accident on the Westralia
was compromised by its lack of independence.
12.84
In returning to the matter of the competence of board
members, a relative of a member killed in an accident that had been
investigated by a BOI, believed that such boards were appropriate but that
appointed members should be better trained in how to conduct such inquiries.[821]
12.85
It should be noted that the Defence Force Manual
recommends that the appointing authority should appoint a Service legal
officer, to be known as 'the Counsel assisting the inquiry', to assist the BOI.
Counsel assists the Board 'by identifying the issues, questioning and
presenting the evidence, advising on questions of law and procedure, which will
enable the Board to concentrate on considering and weighing the evidence
presented to the inquiry'.[822]
12.86
Even so, senior ADF members informed the committee that
they were aware of the importance of having adequately trained investigators
and that measures are in place to improve training, including for members of BOIs.
Air Commodore Harvey
told the committee:
The training that is provided to people who are non-legal
officers is probably better addressed by other people, but I do know from
experience and can tell the committee that there is extensive training provided
as part of the promotion courses and initial training courses and, more importantly,
in relation to pre-command courses. We have invested a fair bit of time in
recent years and months in developing and improving the training that is
provided to commanding officers—and, in the case of Navy, executive
officers—before they take over their command. These courses have components
which consist of presentations by members of my administrative law staff, who
go through and provide them with details about how to conduct inquiries and
about administrative action in general. Although it is not formalised, there is
a standing practice that anyone who is appointed to a board or as an
investigating officer is able to, and regularly does, seek advice from legal
officers. I think one of the recommendations from the Acumen Alliance review is
that this process be formalised. We have accepted that recommendation and we
are working towards implementing it.[823]
12.87
Clearly, for the ADF, the training of investigators and
board members is a high priority and one that it takes seriously. The
committee, however, is not convinced that extra courses and the provision of
legal advice will suffice. In light of the failings of previous undertakings to
improve the training of investigators, the committee has already expressed its
strong doubts about the likely success of the new initiatives (see paras
8.86–8.94). To provide greater certainty that BOI members have the appropriate
skills and experience necessary to conduct a proper inquiry and have the
standing to engender confidence in the proceedings, the committee believes that
new arrangements must be introduced for the selection and appointment of such
members.
Access to expert advice
12.88
While the evidence before this committee raised certain
concerns about the professionalism and training of investigating officers, a
particular emphasis with BOIs was on the importance of having expert advice
available. A BOI is intended to investigate serious or complex matters and is
expected to have the necessary resources and expertise available to inquire
into and consider the matters under investigation.
12.89
Considering the significance and complexity of the
matters under investigation, expert assistance may be helpful at the early
stage of drafting the terms of reference. One witness involved in a number of
BOIs told the committee:
As a climber and trekker of 29 years experience, it was apparent
to me that by utilising a Subject Matter Expert (SME) during the conduct of a
Quick Assessment would have significantly assisted Counsel in identifying key
issues and developed a focussed TOR. The British
Army, which runs a significantly larger Overseas Adventurous Training program
than Australia, deploys a Legal Officer and SME to the incident site of an
accident to conduct the Quick Assessment, a practice borne out of previous
experience with BOI.[824]
12.90
He recommended that a subject matter expert be brought
in to assist with the conduct of a Quick Assessment.[825] The committee endorses the view that
Appointing Authorities must consider calling in relevant independent experts to
assist in drafting terms of reference.
12.91
Some people with experiences of a BOI certainly
appreciated the value of having relevant experts available to advise the Board
during the inquiry. The type of expertise, however, extends beyond legal
practice. One witness suggested that, where inquiries investigate matters that
are not familiar to Board members and counsel, a subject matter expert needs to
be engaged in order to assist the inquiry process.[826] He told the committee:
Often, practices in technical areas can be counter-intuitive to
the layman. There is a risk that the layman's perceptions may lead into areas
of inquiry that ultimately may be fruitless and wasteful of time and effort.
This is particularly so in trekking and mountaineering at high-altitude and Big
Wall climbing. These activities are foreign to most Australians whose opinion
may be shaped by sensationalist and shallow media reporting as well as popular
culture.
...
SMEs can also 'educate' the Board on technical matters to assist
with their understanding of relevant issues.[827]
12.92
He recommended that 'for inquiries into issues and
activities of a technical nature that is unfamiliar to the Board, an SME should
be engaged to assist and advise the Board.'[828]
12.93
The committee notes that despite the criticism levelled
against the BOI into the fire on HMAS Westralia,
the coroner concluded that the report contained 'an excellent analysis of
safety issues'.[829] The committee
acknowledges that the ADF is aware of the advantages in having relevant experts
on a BOI. Lieutenant General Leahy
stated:
In the administrative sense, there have been examples where we
have sought the assistance of very highly qualified people, and I am thinking
now of the Royal Australian Air Force reseal and deseal incident, where the
president of the board was a civilian reservist lawyer who brought his particular
skills to that board. I know of other examples from other courts of inquiry
where we sought the assistance of independent authorities—people with
particular skills. In inquiries that Army has conducted...we do not just pop out
a recommendation and accept it; they are then considered in detail. For the
case of the SAS soldier, they were considered in detail by eminent reservists,
both as QC, SC, as practising Crown prosecutors and others. I think that brings
a sense of impartiality, transparency and objectivity.[830]
12.94
The committee recognises the importance of having
independent experts to assist an inquiry and believes that it would be remiss
of any appointing authority to fail to acknowledge the need to provide for
relevant expert assistance. It endorses the recommendation that an SME be
engaged to assist and advise Board members for inquiries into matters of a
technical nature unfamiliar to the Board.
Delays
12.95
The ADF has procedures in place to minimise delays
during a BOI. Before completing the terms of reference for a BOI, the
appointing authority is to ensure that the scope of an inquiry is determined,
that the terms of reference are appropriate and a time line is set.[831] This exercise should indicate the
anticipated schedule for the inquiry and the resources required to conduct it.
12.96
To prevent unnecessary or unexpected delays during the
course of a BOI, the Defence Force Manual states that the appointing authority
is to monitor the progress of the BOI. This is to ensure that the BOI is not
distracted by issues beyond the terms of reference or by taking evidence in
connection with matters not strictly relevant to the inquiry.[832] It directs that:
The Board of Inquiry may inquire into any matter relevant to the
Terms of Reference and may visit any place necessary for the conduct of the
inquiry. If a line of inquiry is not relevant to the Terms of Reference, then
there is no power to pursue it. The inquiry must remain focused on the terms of
reference that have been authorised by the Appointing Authority.[833]
12.97
Furthermore, the President is responsible for ensuring
that lines of questioning are relevant to the Terms of Reference and it is his
or her duty to identify issues that are strictly relevant to the inquiry which
are to be pursued to resolution.[834]
12.98
The ADF recognises that protracted BOIs are a major
problem and some senior officers openly expressed their concern about the time
taken to complete BOIs.[835] Colonel
Ian Westwood,
Chief Judge Advocate, identified one of the major difficulties in exercising
judgment and discipline when conducting a BOI:
The judgment as to how far an inquiry should legitimately go is
very much harder when you are dealing with administrative matters and looking
at not just whether an event occurred, to a requisite standard of proof, but
why it occurred. You will appreciate that that inquiry is rather like throwing
a stone into a pond. The ripples will go out to the edge of the pond and they
will then proceed up the various tributaries that feed it. At some point a
judgment has to be exercised as to where you stop, but it is a very difficult
judgment to exercise.[836]
12.99
The BOIs into the two climbing accidents are clear
examples of where unnecessary delays occurred. One witness involved in the
inquiries observed that the 'stop-start' nature of the inquiries was 'totally
unsatisfactory from the perspective of a PAP'.[837] He explained further:
Individuals who are potentially identified for adverse comment
suffer a significant amount of stress, irrespective of whether they are
faultless or there is blame or criticism made. The prolonged nature of the
Inquiry process isolates individuals who have no moral or psychological support
for a process that can take years.[838]
12.100
His views had the support of four other PAPs. He goes
on to state that the period of uncertainty and lack of support continues long
after the BOI concludes. Report writing, legal review, appointing authority
deliberation, administrative action, redress of grievance procedure can add to
the delay which means that the process may close years after the initial
inquiry. For example the Everest BOI Report was released in May 2003, two years
after the accident.
12.101
Another witness told the committee that the length of
time that the BOI took has to be considered. She told the committee that there
was a lot of confusion with the BOI in which she was involved:
...due to the fact that it stopped and started. Certain personnel
were removed from the original panel and were replaced. There were rumours
going around about cover-ups for certain personnel who were selected for the
board. All this is yet to be investigated...[839]
12.102
At the other extreme, the BOI into the fire on HMAS Westralia, has drawn strong criticism
for being held too quickly. It was convened soon after the accident occurred. A
number of people attributed the haste in conducting the BOI to Navy's desire to
demonstrate decisiveness. One member observed that the 'quick formation of the
BOI was to show that the Navy or Defence did not want to be seen as
"dragging its feet"'.[840]
This statement also reflects the pressures exerted by the potential conflicts
of interest created when a Service investigates itself.
12.103
It should be noted that there will be rumour and innuendo
surrounding a major incident but effective, transparent and inclusive processes
would limit the opportunities for such speculation to gain ground.
12.104
The BOI into the Westralia
was convened at HMAS Stirling
and began hearings within a few days of the fire. A number of submitters
construed the quick convening of the BOI at a location that was difficult for
the public to access as an attempt by Navy to protect its interests and those
of senior Navy personnel. The taking of statements from those involved in the
fire at the same time the funerals for the deceased were occurring further
reinforced this perception. Mr Kevin
Herridge, a serving a crew member in the Westralia at the time of the fire, told
the committee:
....it [the BOI] may have been a little premature given the fact
that the funerals hadn't taken place and that the families and potential
witnesses were still suffering from grief and shock. We can all appreciate the
need to get the evidence whilst it is still fresh in people's minds but some people
just wouldn't have been up to it.
Three days later, the day of the memorial service I was required
to give my statement, this happened shortly after the service had finished and
everyone was paying their respects to families and alike while I was detailed
off to the administration building to formally give my statement to the
lawyers. The timing of this was as you can imagine not the best. I was still
suffering from shock and disbelief that this accident had actually happened and
I was understandably still confused, in a state of distress trying to come to
grips with the death of personnel in my charge. The interview lasted about six
hours or so and was very disturbing.
Looking back now at the time of giving my statement I was
probably not fit to do so. It wasn't until several days later when things
started to sink in and become clearer that I started to remember more things
that should have been included in my statement, this meant that I had to amend
my original statement to correct the sequence of events.[841]
12.105
The coroner found that the hearings were too close to
the events for there 'to have been any realistic expectation that the families
could have had sufficient composure to be able to approach the relevant issues
in a reasonably analytical manner so as to be able to identify the issues of
importance to them'.[842] He was of the
view that some witnesses would still have been struggling with the shock of the
horrific accident and grief at the loss of life which may have caused them to
block out certain events from their memories. He concluded:
While I have great respect for the work of the Board of Inquiry
and its achievements in promptly identifying a wide range of important safety
issues, the Board of Inquiry was not ideally placed to determine issues of credibility
in this context.[843]
12.106
Vice Admiral Ritchie
stated, however:
Whilst I appreciate the families’ concerns, and I certainly
share their grief, Navy’s duty at the time was to identify the causes as
quickly as possible and to prevent recurrence. I was reassured of the soundness
of that inquiry process by the coroner’s endorsements of our safety analysis.[844]
12.107
In establishing the BOI, the need to make the ship safe
and to prevent any further accidents as well as to meet the broader political
concerns of the Navy and the Australian public dominated Navy's concerns. With
the benefit of hindsight, the committee suggests that Navy may have lost sight
of those closely involved in the fire and probably the ones most in need of its
attention. Clearly, there are lessons to be learned about the need to balance
the immediate safety and political concerns of the day with the duty of care to
those affected by the accident. It is the committee's view that persons removed
from these immediate pressures would be better placed to take a more sober and
thoroughly considered approach to the initial investigation, the appointment of
a BOI and the drawing up of the initial terms of reference.
12.108
In addressing the more specific problem of delays, the
committee notes the importance that an independent oversight body would have in
monitoring the progress of an inquiry and ensuring that, in consultation with
Board members, reasonable progress is made.
Reprisals or interference with
witnesses
12.109
The committee heard evidence suggesting that some members
feared reprisals for reporting wrongdoing and for giving evidence before
investigating officer inquiries. This type of behaviour was not mentioned with
regard to BOIs. Yet, some witnesses involved in the BOI into the accident on
the Westralia questioned the advice
they received before giving evidence before the board. Ms
Munday, who was on board the Westralia at the time of the fire, felt
that she had come under influence to suppress the truth. She told the
committee:
In May last year I made a statement to the coroner of Western
Australia, who was holding a coronial inquest into
the four deaths on HMAS Westralia. I
gave evidence that we were pressured by naval hierarchy to mislead the board of
inquiry. From the statements made by one of the senior personnel, we were told
that, if the civilian lawyers—the contractors—asked us that if we had worked on
fuel systems on HMAS Westralia we
should say no, because we were not qualified to do so, which was not correct.
Also we were told that if we were asked whether we used certain tools, such as
shifting spanners, on any systems, we should say no that we had not used those
either, which was incorrect. [845]
12.110
The coroner, however, found her evidence 'vague and
unspecific'. He concluded:
There is no evidence in the accounts of Lieutenant Commander
Crouch, Warrant Officer Bottomley or any of the other navy personnel who were
called at the inquest which would support the suggestion that any pressure was
applied to witnesses in relation to the evidence which they [Ms
Munday and Ms Justice] gave at the Board of
Inquiry.[846]
12.111
The coroner could find no grounds for suspecting that
witnesses were pressured or influenced with regard to the evidence they were to
give before the Board. Ms Munday's
interpretation of what occurred, however, is a timely reminder to all ADF
personnel of the care that needs to be taken when giving advice either formally
or informally to potential witnesses.
Conclusion
12.112 BOIs
inquire into serious and complex matters, often where the death of an ADF
member is involved. In some cases they involve highly technical matters and may
have severe political implications. Public expectations of a BOI are generally
high and the next of kin look to the board to answer questions that sometimes
cannot be answered. The demands placed on a BOI are heavy.
12.113 The
committee notes that a recent audit of BOIs by Acumen Alliance made a number of
recommendations to improve the system. While agreeing that they are sensible
and designed to improve the inquiry process, the committee believes that they
do not address the central issue—the potential for perceptions of a lack of
independence which can have the effect of undermining the integrity of
proceedings.
12.114 Mr
Michael Griffin,
in an issues paper prepared for the committee, put forward a proposal that
addresses, in particular, this independence aspect of investigations and
inquiries into major accidents. He suggested that the responsibility for the
investigation of such incidents be conferred on the proposed statutorily
independent ADFARB. He noted that his proposal covers matters that would
typically be the notifiable incidents which all ADF units are currently
required to report to higher command, such as death, serious injury, loss of
major equipment and matters likely to attract media interest, whether they
occur inside or outside of Australia.
He explained further:
The chairperson of the ADFARB would be empowered to decide on
the manner and means of inquiring into the cause of such incidents. The legal
aspects of the relationship with the State and Territory civil authorities
could be settled by overriding Commonwealth legislation or by the putative
Memorandum of Understanding (MOU) with the States/Territory Coroners.
The ADFARB legislation would include matters which the
chairperson would take into consideration in determining the manner of inquiry.
This might involve consultation with the relevant Ministers, State and Federal,
the CDF and Service Chiefs, various civilian authorities and the families and
next of kin of ADF members involved. The Minister of Defence would retain
absolute authority to appoint a Court of Inquiry...should he deem such to be
necessary. The chairperson would determine the appropriate vehicle for the
inquiry and, subject to security considerations, publish written reasons for
the choice of inquiry vehicle.
If satisfied that an investigation would suffice, the
chairperson could select a suitably qualified person from the panel of
investigators or from the civilian community. CDF would have the right to
nominate a suitably qualified military officer to assist the investigator. The
investigator could also come from or be assisted by the ADFARB staff from the
ROG area with relevant expertise and experience.
If the chairperson decided that a more formal inquiry process
was required, akin to the present Boards of Inquiry, then the chairperson could
refer the matter to a military division of the Administrative Appeals Tribunal
(AAT). The AAT is a Federal merits review tribunal which has a President who is
a Federal Court Judge, several Presidential members who are Federal or Family
Court judges, Deputy Presidential members both full and part time who are very
senior lawyers and a large number of full and part time members who include
several retired senior military officers of one and two star rank.
The AAT has very considerable administrative law expertise and
regularly deals with Defence related matters in Veterans Affairs, Military
Compensation Scheme, Comcare and Security issues, in its various divisions. It
has offices and conducts public hearings in all major cities and can utilise
Commonwealth facilities in other places. Its large number of experienced
administrative review members are appointed by the Governor-General on fixed
terms of appointment. There are sufficient part time members to cope with any
surge capacity required for occasional military inquiries.
The cost effect of utilising this existing Federal agency and
its state of the art infrastructure would be minimal in contrast to
establishing a new agency or continuing with ad hoc BOI. The reputation of the
AAT is impeccable and this would be of great importance for perceptions of
independence. The members allocated to the military inquiry would be chosen by
the AAT President in consultation with the ADFARB chairperson. CDF would have
the right to nominate a suitably qualified military officer to sit as a member
of the inquiry tribunal. The ADFARB chairperson would appoint the counsel
assisting the inquiry from his standing panel of counsel or from the civilian bar.
Potentially affected ADF personnel (PAP) would continue to have legal
representation at Commonwealth expense, the counsel representing being
nominated by the Chief of Defence Trial Counsel.
The AAT has the existing skills, resources, experience and independence
to provide an efficient and effective external inquiry process for Defence
matters at no additional cost and it could be established in this role almost
immediately.
12.115
The results and findings of any AAT inquiry or other
investigation undertaken by reference from the ADFARB would be provided to the
chairperson, the CDF and any PAPs. Certain restrictions, based on national
security or public interest grounds, as set down in the Act may apply to the
release of particular parts of a report to PAPs. Based on the findings of the
AAT inquiry, the chairperson would then determine the further disposition of
the matter and provide CDF and the minister with his or her findings and
recommendations. CDF would be required to provide written reasons for declining
to accept any recommendations made by ADFARB. The chairperson would publish an
annual report of all matters dealt with by ADFARB, including matters referred
to CDF and responses to them.[847]
Committee
view
12.116
The committee understands that the proposal to create a
military division of the AAT to undertake investigations into serious incidents
in the ADF widens the jurisdiction of the AAT. It is a body that reviews, on
the merits, a broad range of administrative decisions made by the Australian
Government. Since its establishment in the mid 1970s, the AAT's areas of
jurisdiction have grown and now include social security, veterans'
entitlements, Commonwealth employees' compensation, taxation, migration,
freedom of information, corporations, insurance, securities regulation and
compensation for land acquisition'. The divisional structures of the Tribunal
have been adjusted to accommodate these changes.[848] The committee envisages the proposed
military division of the AAT as a further extension of the AAT's jurisdiction.
As noted by Michael Griffin,
the new division would draw on the Tribunal's 'existing skills, resources,
experience and independence to provide an efficient and effective external
inquiry process for Defence matters'.
12.117
The committee considers that the AAT is well placed to
assume the responsibility for undertaking inquiries into incidents in the ADF
involving serious and complex matters for the following reasons:
- the AAT is an
independent body that reviews a broad range of administrative
decisions—members are appointed by the Governor-General for a fixed term;
- the AAT is not a
court and cannot exercise judicial power—consistent with the principles
underpinning administration inquiries in the military justice system, a
board, constituted under the military division of the AAT, would present
its findings and make recommendations but would not determine guilt or
innocence or impose a penalty;
- AAT decisions are
based in findings on material questions of fact—when giving reasons for
its decision the Tribunal shall 'include its findings on material
questions of fact and a reference to the evidence or other material on
which those findings were based'.[849]
- the AAT's procedures
allow for flexibility, for example the Tribunal 'is not bound by the rules
of evidence and can inform itself in any manner it considers appropriate'[850]—the absence of formality and
the technical requirements of the rules, however, do 'not displace due
process, natural justice or procedural fairness';[851]
- the AAT prefers to
conduct open hearings[852] but has
the authority, where it is satisfied that for confidentiality reasons
restrictions should operate, to direct, inter alia, that a hearing or part
of a hearing shall take place in private or give directions prohibiting or
restricting the publication of evidence given before the Tribunal;[853]
- AAT members have
expertise in areas such as 'accountancy, actuarial work, administration,
aviation, engineering, environment, insurance, law, medicine, military
affairs, social welfare, taxation and valuation' and members are assigned
to the relevant Division according to their area of expertise.[854]
- the AAT'S process
allows for the involvement of experts in the subject under consideration
and recognises that 'experts contribute substantially to the quality of
decisions';[855]
- sittings of the
Tribunal are held from time to time as required and may sit at any place
in Australia or in an external Territory;[856] and
- a party to a
proceeding before the Tribunal may appeal to the Federal Court of
Australia, on a question of law, from any decision of the Tribunal in that
proceeding.
12.118
Generally, the Tribunal is required to provide a copy
of its decision to each party to the proceeding. For reasons of transparency,
the committee anticipates that a similar provision would apply to the Military
Division of the AAT which would provide a copy of its findings to the chair of
the ADFARB, the CDF as well as PAPs. It accepts that an additional provision
may need to be inserted in the AAT Act to allow certain restrictions to apply
to the release of parts of the report on grounds of national security or public
interest. The Act has been amended along such lines to accommodate the special
requirements of the Security Appeals Division.
12.119
The committee believes that the Government must take
firm and decisive measures to enhance the independence of the current BOI
process and therefore supports Mr Griffin's
proposal.
Recommendation 34
12.120 The committee recommends that:
-
all notifiable incidents including suicide,
accidental death or serious injury be referred to the ADFARB for
investigation/inquiry;
-
the Chairperson of the ADFARB be empowered to
decide on the manner and means of inquiring into the cause of such incidents
(the Minister for Defence would retain absolute authority to appoint a Court of
Inquiry should he or she deem such to be necessary);
-
the Chairperson of the ADFARB be required to
give written reasons for the choice of inquiry vehicle;
-
the Government establish a military division of the
AAT to inquire into major incidents referred by the ADFARB for investigation;
and
-
the CDF be empowered to appoint a Service member
or members to assist any ADFARB investigator or AAT inquiry.
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