Footnotes

[1] Weiss v US (1994) 510 US 1.

[2] R v Genereux (1992) 88 DLR 110.

[3] Grieves v United Kingdom (57067/00) [2003] ECHR 683 (16 December 2003).

[4] See the Dutch, Turkish and Romanian cases cited by the European Court of Human Rights in Cooper v United Kingdom (48843/99) [2003] ECHR 681 (16 December 2003).

[5] R v Tyler; ex parte Foley (1993-1994) 181 CLR 18.

[6] Re Tracey; ex parte Ryan (1989) 166 CLR 518; Re Nolan; ex parte Young (1991); R v Tyler op. cit.

[7] General P. Cosgrove, Submission P16, para. 2.83.

[8] Proof Committee Hansard, 1 March 2004, p. 13.

[9] Submission P16.

[10] Submission P16, para. 2.13.

[11] Committee Hansard, op. cit, p. 10.

[12] Burchett, op.cit, paras 191–192.

[13] JSCFADT, Rough Justice Report para. 3.47.

[14] Committee Hansard, op.cit., p. 32.

[15] Burchett, op. cit, p.138.

[16] Committee Hansard, op. cit, p. 67.

[17] ibid., p. 56.

[18] Burchett, op. cit., para. 230.

[19] Submission P16, p. 101.

[20] ADF Senate Taskforce responses to questions on notice 29 April 2004; also Colonel Hevey 'They will inevitably involve either physical violence or fraud', FADT, p. 65.

[21] Committee Hansard, 1 March 2004, p. 67.

[22] Committee Hansard, 21 June 2004, p. 37.

[23] Re Aird et al; ex part Alpert B60 of 2003, High Court Transcripts.

[24] Grieve, op. cit; Morris v United Kingdom (38784/97) ECHR 2002-I at para. 71; Cooper v United Kingdom (48843/99) [2003] ECHR 681 at para. 98.

[25] Abadee, op. cit., paras 2.9–2.10.

[26] See the JAG’s suggestion of a military bench of the Federal Magistrates Court, Committee Hansard, 21 June 2004, p. 37.

[27] The likely effect of having two or more permanent JA/DFM given the proportion of trials done by the JAA/CJA in recent years.

[28] Abadee, op. cit., para. 2.11.

[29] Submission P39.

[30] Re Tracey, op. cit. at 545; General Cosgrove, op. cit., para. 2.1–2.9.

[31] Abadee, op. cit., para. 2.37.

[32] Committee Hansard, 2 August 2004 , p. 53.

[33] ibid.

[34] Submission P16, para. 2.58.

[35] Professor John McMillan, Submission P28.

[36] Ms Harris, Committee Hansard, 2 August 2004, p. 21.

[37] Defence, Supplementary submission, para. 3.2.

[38] CDF, Committee Hansard, 1 March 2004, p. 9.

[39] Supplementary Defence submission, para. 2.24.

[40] The Defence Legal Service BOI Management Audit, October 2003, 1.3.

[41] Committee Hansard, 21 June 2004, p. 38.

[42] Acumen Alliance, The Defence Legal Service: Board of Inquiry Management Audit, October 2003.

[43] Defence, Supplementary submission, para. 3.7.

[44] Harris, Committee Hansard, 2 August 2004, p. 37.

[45] NSW Administrative Decisions Tribunal, VCAT, Social Security Appeals Tribunal etc.

[46] Committee Hansard, 9 June 2004, p. 9.

[47] Defence Force Ombudsman, Submission P28.

[48] Harris, Committee Hansard, op. cit., p. 24.

[49] Committee Hansard, 9 June 2004, p. 18.

[50] Defence, Supplementary submission, para. 2.86.

[51] Mr. Earley, Committee Hansard, 5 August 2004, p. 86 et seq.

[52] Standards Australia, Australian Standard AS 8004–2003, paras 2.4.3 and 2.4.4.

[53] General Peter Cosgrove, Chief of Defence Force, Submission P16, pp. 5–6.

[54] ibid., p. 1.

[55] ibid., p. 1.

[56] ibid., p. 2.

[57] ibid., p. 2.

[58] ibid., p. 2.

[59] General Peter Cosgrove, Chief of Defence Force, Submission P16F.

[60] Major General Justice Roberts-Smith, Judge Advocate General ADF, Committee Hansard, 21 June, p. 43.

[61] Committee Hansard, 9 June 2004, p. 20.

[62] General Peter Cosgrove, Submission P16.

[63] General Peter Cosgrove, Submission P16.

[64] A GCM comprises a President, who is not below the rank of Colonel, and not less than four other members. An RCM comprises a President who is not below the rank of Lieutenant Colonel, and not less than two other members.

[65] As at the publishing date of this report, no such legislation had been introduced into Parliament.

[66] General Peter Cosgrove, Chief of Defence Force, Submission P16, p. 19.

[67] s. 151 DFDA (1982).

[68] s. 152 DFDA (1982).

[69] s. 153 DFDA (1982).

[70] s. 155 DFDA (1982).

[71] s. 20(1) Defence Force Discipline Appeals Act 1955.

[72] s. 20(1) Defence Force Discipline Appeals Act 1955.

[73] s. 52(1) Defence Force Discipline Appeals Act 1955.

[74] DI(G) ADMIN 61-1, para. 16.

[75] DI(G) ADMIN 61-1, para. 33.

[76] ADF Publication 06.1.3.

[77] ADF Publication 06.1.4.

[78] ADF Publication 06.1.4, para. 1.10.

[79] ADF Publication 06.1.4, para. 1.11.

[80] ADF Publication 06.1.4, para. 1.21.

[81] ADF Publication 06.1.4, para. 6.4.

[82] ADF Publication 06.1.4, para. 7.4.

[83] ADF Publication 06.1.4, para. 7.7.a.

[84] General Peter Cosgrove, Chief of Defence Force Submission P16, p. 24.

[85] ADF Publication 06.1.4, para. 8.9.

[86] GEN Peter Cosgrove, Chief of Defence Force Submission P16, p. 24.

[87] Administrative Inquiries Manual, para. 5.39.

[88] Administrative Inquiries Manual, para. 5.40.

[89] DI(G) PERS 35-6 Annex D, paras 1-8.

[90] General Peter Cosgrove, Chief of Defence Force, Submission P16, p. 27.

[91] DI(G) PERS 35-6, para. 2.

[92] ADF Publication 06.1.3.

[93] DI(G) PERS 34-1, para. 1.

[94] DI(G) PERS 34-1, para. 1.

[95] DI(G) PERS 34-1, para. 3.

[96] DI(G) PERS 34-1, para. 6.

[97] DI(G) PERS 34-1, para. 7.

[98] DI(G) ADMIN 61-1, para. 17.

[99] Prof John McMillan, Defence Force Ombudsman, Submission P28, p. 2. (Note: the DFO is not empowered to investigate any action taken under the auspices of the Discipline system.)

[100] Professor John McMillan, Defence Force Ombudsman, Submission P28, p. 2.

[101] General Peter Cosgrove, Chief of Defence Force, Submission P16F, pp. 34-35.

[102] Annex A to DI(G) PERS 34-1.

[103] Discipline Law Manual ADFP 201, para. 1.14.

[104] General Peter Cosgrove, Chief of Defence Force Submission P16, paras. 2.2–2.4.

[105] DI(G) ADMIN 45–2, para. 10.

[106] DI(G) PERS 45–1.

[107] Such as treason, manslaughter, and certain sexual offences. For more detail see DI(G) PERS 45–2, para. 4.

[108] ibid., para. 21.

[109] ibid., para. 26.

[110] Commonwealth Ombudsman, Own Motion Investigation into how the Australian Defence Force Responds to Allegations of Serious Incidents and Offences, January 1998.

[111] ibid., see pars 5.3–5.10 for military police and paras 5.11–5.17 for administrative investigating officers.

[112] ibid., paras 5.27–5.32.

[113] ibid., paras 5.41–5.47.

[114] ibid., paras 6.13 and 6.33. The Ombudsman noted at para. 6.34, that there was 'some monitoring of investigations undertaken by Army and the investigation of complaints of unacceptable sexual behaviour'.

[115] ibid., paras 5.54–5.56.

[116] Joint Standing Committee on Foreign Affairs, Defence and Trade, Military Justice Procedures in the ADF, June 1999, p. ix.

[117] ibid., pp. 101–103.

[118] ibid., pp. 150–152.

[119] Joint Standing Committee on Foreign Affairs, Defence and Trade, Rough Justice? An Investigation into Allegations of Brutality in the Army's Parachute Battalion, April 2001, p. 2.

[120] ibid., p. 40.

[121] ibid., p. 27.

[122] ibid., p. 41.

[123] ibid., p. 42.

[124] ibid., pp. 42–44.

[125] ibid., p. 61.

[126] ibid., p. 61.

[127] ibid., pp. 44–5.

[128] ibid., p. 19.

[129] J.C.S. Burchett, Report of an Inquiry into Military Justice in the Australian Defence Force, July 2001. p. 116.

[130] ibid., p. 19.

[131] ibid., p. 19.

[132] ibid., p. 19.

[133] TOR (2)(d).

[134] Discussion in this chapter will be limited to the disciplinary investigation. Other aspects of the SAS Soldier's case will be discussed in other chapters of this report.

[135] Lieutenant General Peter Leahy, Chief of Army, 'Defence Media Release: Transcript Media Briefing', 16 April 2003.

[136] Colonel Fogerty, Director of Personnel Operations, Army, 'Defence Media Release: Transcript Media Briefing', 16 April 2003.

[137] Lieutenant General Peter Leahy, Chief of Army, 'Defence Media Release: Transcript Media Briefing', 16 April 2003.

[138] On 23 September 2003, General Cosgrove instructed the IGADF to commission an independent report into the conduct of the SAS soldiers matter. The report shall be herein referred to as the IGADF-Commissioned Report. In its entirety the report comprised three documents. Part A was dated 31 October 2003, Part B dated 28 November 2003, and Part C was dated 20 January 2004.

[139] General Peter Cosgrove, Chief of Defence Force, Submission P16, p. 78.

[140] IGADF Commissioned Report: Part A, (Confidential Document) p. 37. This document was provided to the committee in confidence and has not been made public.

[141] In Camera Committee Hansard, 1 March 2003, p. 4.

[142] General Peter Cosgrove, Chief of Defence Force, Submission P16, p. 74.

[143] Mr Geoff Lewis, Submission P55, and Confidential Submissions C4, and C37.

[144] Confidential Submission C4, p. 17.

[145] Confidential Submission C4, p. 17.

[146] In Camera Committee Hansard, 5 August 2004, pp. 11–14.

[147] Lieutenant General Peter Leahy, Chief of Army, 'Defence Media Release: Transcript Media Briefing', 16 April 2003.

[148] Confidential Submission C4, p. 22.

[149] IGADF—Commissioned Report: Part A, p. 31. (Confidential document).

[150] IGADF—Commissioned Report: Part A, p. 33. (Confidential document).

[151] General Peter Cosgrove, Chief of Defence Force, Submission P16, p. 79.

[152] In-Camera Committee Hansard, 1 March 2004, p. 2.

[153] Lieutenant General Peter Leahy, Chief of Army 'Defence Media Release: Transcript Media Briefing', 16 April 2003.

[154] Question taken on notice, Estimates Hansard, 5 November 2003, p. 71.

[155] Department of Defence, Answer to Question on Notice, 5 November 2003.

[156] In Camera Committee Hansard, 5 August 2004, pp. 6–7.

[157] Department of Defence, Answer to Question on Notice, 5 August 2004.

[158] Lieutenant General Peter Leahy, Chief of Army, Estimates Hansard, 18 February 2004, p. 77.

[159] Lieutenant General Peter Leahy, Chief of Army, Committee Hansard, 1 March 2004, pp. 38–39.

[160] Mr Nigel Southam, Submission P19 and Committee Hansard, 9 June 2004.

[161] Mr Geoff Lewis, Submission P55, pp. 2–4.

[162] Lieutenant Commander Brian Sankey, Submission P4, p. 6.

[163] ibid.

[164] Mr Nigel Southam, Committee Hansard, 9 June 2004, p. 72.

[165] ibid., p. 73.

[166] ibid., p. 73.

[167] General Peter Cosgrove, Chief of Defence Force, and Lieutenant General Peter Leahy, Chief of Army, Estimates Hansard, 18 February 2004, p. 54.

[168] General Peter Cosgrove, Chief of Defence, Estimates Hansard, 18 February 2004, p. 54.

[169] General Peter Cosgrove, Chief of Defence, Submission P16, p. 73.

[170] Lieutenant General Leahy, Chief of Army, Correspondence dated 29 November 2004.

[171] Ernst & Young, Review of Military Police Battalion Investigation Capability, p. 5.

[172] ibid.

[173] ibid.

[174] ibid., pp. 21, 34.

[175] ibid., p. 17.

[176] ibid., p. 37.

[177] ibid.

[178] ibid., p. 5.

[179] ibid., p. 27.

[180] ibid., pp. 20–21.

[181] ibid., p. 28.

[182] ibid., p. 6.

[183] ibid., p. 5.

[184] ibid., p. 49.

[185] ibid.

[186] ibid.

[187] Colonel Gary Hevey, Director of Military Prosecutions, Committee Hansard, 2 August 2004, p. 51.

[188] ibid.

[189] ibid., p. 52.

[190] Committee Hansard, 10 August 2004, p. 8.

[191] Discipline Law Manual ADFP 201 Volume 1, para. 1.18.

[192] Department of Defence, Answers to Questions on Notice, 10 August 2004.

[193] Foreign Affairs, Defence and Trade Legislation Committee Estimates Hansard 31 May 2005, pp. 69–70.

[194] Lieutenant Commander Brian Sankey, Submission P4.

[195] Lieutenant Commander Brian Sankey, Submission P4.

[196] In Camera Committee Hansard, 1 March 2004, p. 2.

[197] IGADF-Commissioned Report: Part A, p. 63.

[198] ibid.

[199] Mr Griffin was engaged by the committee in a consultative capacity to provide expert legal analysis of the evidence before this inquiry. He provided a paper, titled Senate Inquiry into the Effectiveness of the Military Justice System, to the committee. The paper is herein referred to as Issues Paper.

[200] Michael Griffin, Issues Paper, para. 28.

[201] ibid., p. 27.

[202] ibid.

[203] ibid.

[204] ibid., para. 28.

[205] Ernst & Young, Review of Military Police Battalion Investigation Capability, p. 7.

[206] ibid., pp. 59–68.

[207] ibid., p. 49.

[208] More information about the MPCC is available from http://www.mpcc-cppm.gc.ca/

[209] The Rt Hon Justice Antonio Lamer The First Independent Review of by the Right Honourable Antonio Lamer P.C., C.C., C.D., of the Provisions of Bill C-25, An Act to Amend the National Defence Act and to make the Consequential Amendments to Other Acts as required under Section 96 of Statutes of Canada 1988, c.35, September 2003, p. 2.

[210] ibid., p. 2.

[211] General Peter Cosgrove, Chief of Defence Force, Submission P16, p. 74.

[212] Mr Geoff Lewis, Submission P55.

[213] Mr Geoff Earley, Inspector General Australian Defence Force, Committee Hansard, 5 August 2004, pp. 87–8.

[214] Mr Geoff Earley, Inspector General Australian Defence Force, Committee Hansard, 5 August 2004, pp. 87–8.

[215] Lieutenant General Peter Leahy, Chief of Army, Correspondence dated 29 November 2004.

[216] Lieutenant General Peter Leahy, Chief of Army, Correspondence dated 29 November 2004.

[217] Lieutenant General Peter Leahy, Chief of Army, Correspondence dated 29 November 2004.

[218] DI(G) PERS 45–4, para. 2. See also ADFP201 Volume 1, Discipline Law Manual, para. 4.2.

[219] DI(G) PERS 45–4, para. 1.

[220] DI(G) PERS 45–4, para. 8.

[221] DI(G) PERS 45–4.

[222] Confidential Submission C4; Committee Hansard, 1 March 2004; and IGADF—Commissioned Report.

[223] Confidential Submission C4; General Peter Cosgrove, Chief of Defence Force, Submission P16, p. 79.

[224] IGADF—Commissioned Report.

[225] Hoffman v Chief of Army [2004] FCAFC 148.

[226] Michael Griffin, Issues Paper para. 21.

[227] Confidential Submission C10, p. 10. Quoted with the permission of Mr and Mrs Hoffman.

[228] Abadee Report, pp. 151–2.

[229] ibid., p. 154.

[230] JSCFADT 1999 Report, p. 135.

[231] Burchett Report, p. 137.

[232] Government Response to ROUGH JUSTICE? An Investigation into Allegations of Brutality in the Army's Parachute Battalion, March 2002, p. 3.

[233] ibid., p. 3.

[234] General Peter Cosgrove, Chief of Defence Force Committee Hansard, 1 March 2004, p. 12.

[235] Foreign Affairs, Defence and Trade References Committee, Inquiry into the Effectiveness of Australia's Military Justice System, Reference Term (3).

[236] DI(G) PERS 45-6, para. 2.

[237] DI(G) PERS 45-6, para. 6.

[238] Colonel Gary Hevey, Director of Military Prosecutions, Committee Hansard, 2 August 2004, p. 56.

[239] The Hon Danna Vale MP, 'Media Release', 30 June 2003.

[240] General Peter Cosgrove, Chief of the Defence Force, Submission P16, p.18.

[241] Air Commodore Simon Harvey, Director General Defence Legal Service, Committee Hansard, 1 March 2004, p. 55.

[242] Colonel Gary Hevey, Director of Military Prosecutions, Committee Hansard, 2 August 2004, p. 47.

[243] Colonel Gary Hevey, Director of Military Prosecutions, Committee Hansard, 2 August 2004, pp. 46–47.

[244] Colonel Gary Hevey, Director of Military Prosecutions, Committee Hansard, 2 August 2004, p. 57.

[245] In Camera Committee Hansard, 1 March 2004, p. 5.

[246] FADT Legislation Committee Estimates Hansard 31 May 2005, p. 70.

[247] Colonel Gary Hevey, Director of Military Prosecutions, Committee Hansard, 2 August 2003, p. 49.

[248] Colonel Gary Hevey, Director of Military Prosecutions, Committee Hansard, 1 March 2004, p. 56.

[249] Colonel Gary Hevey, Director of Military Prosecutions, Committee Hansard, 1 March 2004, p. 48.

[250] Colonel Gary Hevey, Director of Military Prosecutions, Committee Hansard, 1 March 2003, p. 63.

[251] Air Commodore Simon Harvey, Director General The Defence Legal Service, Committee Hansard , 6 August 2004, p. 12.

[252] Russell Vance v Air Marshall Errol John McCormack in his capacity as Chief of Air Force and the Commonwealth [2004] ACTSC 78 (2 September 2004).

[253] Colonel Gary Hevey, Director of Military Prosecutions, Committee Hansard, 1 March 2003, p. 63.

[254] Colonel Gary Hevey, Director of Military Prosecutions, Committee Hansard, 2 August 2003, p. 47.

[255] Colonel Gary Hevey, Director of Military Prosecutions, Committee Hansard, 1 March 2003, p. 48.

[256] Colonel Gary Hevey, Director of Military Prosecutions, Committee Hansard, 2 August 2004, p. 62. The occupant also is not entitled to leave or superannuation.

[257] Colonel Gary Hevey, Director of Military Prosecutions, Committee Hansard, 1 March 2003, p. 62.

[258] General Peter Cosgrove, Chief of Defence Force, Submission P16, p. 14.

[259] Discipline Law Manual ADFP 201, Vol 1, para. 7.45.

[260] ibid. para. 8.57.

[261] Air Commodore Simon Harvey, Director-General Defence Legal Service, and Colonel Ian Westwood, Chief Judge Advocate Committee Hansard, 6 August 2004, p. 12.

[262] Russell Vance v Air Marshall Errol John McCormack in his capacity as Chief of Air Force and the Commonwealth [2004] ACTSC 78 (2 September 2004).

[263] Vance v Chief of Air Force, paras 42–43.

[264] Vance v Chief of Air Force, para. 83.

[265] Vance v Chief of Air Force, para. 70.

[266] Vance v Chief of Air Force, paras 77–79. Emphasis added.

[267] Vance v Chief of Air Force, para. 93.

[268] Committee Hansard 6 August 2004, pp. 10–25.

[269] Committee Hansard 6 August 2004, p. 23.

[270] Committee Hansard, 6 August 2004, p. 24.

[271] The information for this section is drawn from Director of Defence Counsel Services Manual (No publication date specified), p. 4. Available from: http://www.forces.gc.ca/jag/military_justice/ddcs/publications/manual/complete_e.pdf unless otherwise specified.

[272] Director of Defence Counsel Services Manual (No publication date specified), section 1–4 and 3–4. Available from: http://www.forces.gc.ca/jag/military_justice/ddcs/publications/manual/complete_e.pdf

[273] In Australia, Defence Force personnel may only elect a court martial/DFM trial after the Summary Authority has heard the evidence adduced by the prosecution and determined that it supports the charge. After the Summary Authority has awarded a conviction, personnel may also elect to be punished by a court martial or DFM. (s131 DFDA).

[274] Quoted in The Rt Hon Justice Antonio Lamer, The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D., of the Provisions and operation of Bill C-2, pp. 15–16.

[275] The Rt Hon Justice Antonio Lamer, The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D., of the Provisions and operation of Bill C-2, p. 14.

[276] General Peter Cosgrove, Chief of Defence Force, Submission P16F, p. 1.

[277] Re Colonel Aird; Ex parte Alpert [2004] HCA 44 (9 September 2004).

[278] Major General Justice L.W. Roberts-Smith, Submission P27, p. 1.

[279] Major General Hon Justice Roberts-Smith, Judge Advocate General, Submission P27, p. 2.

[280] International Convention on Civil and Political Rights Article 14(1).

[281] Major General Hon Justice Roberts-Smith, Judge Advocate General, Submission P27, p. 3.

[282] Committee Hansard, 21 June 2004, p. 37.

[283] Major General Justice Roberts-Smith, Judge Advocate General, Submission P27, p. 4.

[284] ibid., p. 5.

[285] ibid.

[286] ibid.

[287] ibid.

[288] ibid.

[289] ibid.

[290] ibid.; Committee Hansard, 21 June 2004, p. 39.

[291] Major General Justice Roberts-Smith, Submission P27, p. 5.

[292] ibid.

[293] ibid.

[294] ibid., pp. 5–6; Committee Hansard, 21 June 2004, p. 37.

[295] Committee Hansard, 21 June 2004, p. 40.

[296] Major General Justice Roberts-Smith Submission P27, pp. 5–6.

[297] Committee Hansard, 21 June 2004, p. 37.

[298] Major General Justice Roberts-Smith, Submission P27, pp. 5–6.

[299] ibid., p. 6.

[300] ibid.

[301] Submission P38, p. 13.

[302] ibid.

[303] ibid., pp. 17–19.

[304] ibid., p. 24.

[305] ibid.

[306] David Richards, Submission P38, p. 29.

[307] United States v Thomas (1986) 22 M.J. 388, 399 and Eugene Fidell, 'A World Wide Perspective on Change in Military Justice' The Air Force Law Review, vol 48 (2000), pp. 195–209, quoted in Mr David Richards, Submission P38, p. 84.

[308] David Richards, Submission P38, p. 84.

[309] Findlay v United Kingdom (1997) 24 E.H.R.R.221; Hembury v. Chief of the General Staff (1998) 155 A.L.R 514, as referred to in David Richards, Submission P38, pp. 84–88.

[310] David Richards, Submission P38, pp. 92–94.

[311] ibid., p. 77.

[312] ibid., p. 79.

[313] Committee Hansard, 9 June 2004, p. 35.

[314] David Richards, Submission P38, pp. 95–96.

[315] For further detail on the suggested amendments to the current system, see David Richards, Submission P38, pp. 95–100.

[316] Committee Hansard, 9 June 2004, pp. 37, 46.

[317] Committee Hansard, 9 June 2004, p. 48.

[318] Michael Griffin, Issues Paper.

[319] Michael Griffin, Issues Paper, para. 34.

[320] ibid, para. 35.

[321] ibid., paras 36–37.

[322] ibid., para. 38.

[323] ibid., para. 48.

[324] ibid., para. 39.

[325] ibid., paras 43–45.

[326] ibid., para. 46.

[327] ibid., para. 48.

[328] ibid., para. 51.

[329] Colonel Ian Westwood, Tabled Documents 142, 143, & 144, 6 August 2004.

[330] Tabled Document 143, 6 August 2004.

[331] Michael Griffin, Issues Paper, para. 54.

[332] Re Colonel Aird; Ex parte Alpert [2004] HCA 44 (9 September 2004).

[333] Sir Robert Garran, Commentaries on the Constitution of Australia, Digital Text, University of Sydney Library, available from http://setis.library.usyd.edu.au/ozlit/pdf/fed0014.pdf

[334] Re Tracey; Ex parte Ryan (1989) 166 CLR 518; Re Nolan; Ex parte Young (1991) 172 CLR 460; Re Tyler; Ex parte Foley (1994) 181 CLR 18.

[335] Re Tracey; Ex parte Ryan (1989) 166 CLR 518; Re Nolan; Ex parte Young (1991) 172 CLR 460 ; Re Tyler; Ex parte Foley (1994) 181 CLR 18.

[336] Ex parte Alpert—Re Aird & Ors [2004] HCA Trans 42 (3 March 2004). Gleeson CJ, Kirby, McHugh and Gummow JJ all raised Chapter III issues in the course of hearing arguments from the prosecutor and respondents.

[337] Kirby J, Re Colonel Aird; Ex parte Alpert [2004] HCA 44 (9 September 2004) at para. 151.

[338] Kirby J, Re Colonel Aird; Ex parte Alpert [2004] HCA 44 (9 September 2004) at para. 113.

[339] Kirby J, Re Colonel Aird; Ex parte Alpert [2004] HCA 44 (9 September 2004) at paras 137‑138.

[340] Kirby J, Re Colonel Aird; Ex parte Alpert [2004] HCA 44 (9 September 2004) at para. 145.

[341] Eugene R.Fidell, 'A World-Wide Perspective on Change in Military Justice', in The Air Force Law Review, vol 48 (2000), pp. 195–209.

[342] [1992] 1 S.C.R 259.

[343] For a detailed discussion on the rationale in the Gnreux decision, see Jerry S.T.Pitzul and John C.Maguire, 'A Perspective on Canada's Code of Service Discipline' in Eugene R.Fidell and Dwight H.Sullivan, Evolving Military Justice, Naval Institute Press (Annapolis, 2002), pp. 233–245.

[344] ibid., p. 240.

[345] The Rt Hon Justice Antonio Lamer, The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D., of the Provisions and operation of Bill C-25.

[346] ibid., p. 2.

[347] ibid., p. 26.

[348] ibid., p. 21.

[349] 19972 Eur. Ct. H.R. 263.

[350] Ann Lyon, 'After Findlay: A consideration of some aspects of the military justice system' in Eugene R.Fidell and Dwight H.Sullivan, Evolving Military Justice, Naval Institute Press (Annapolis, 2002), p. 221.

[351] For a detailed discussion on the reforms to the British court martial structures, see Ann Lyon, 'After Findlay: A consideration of some aspects of the military justice system' in Eugene R.Fidell and Dwight H.Sullivan, Evolving Military Justice, Naval Institute Press (Annapolis, 2002), p. 221; and G.R.Rubin, 'United Kingdom Military Law: Autonomy, Civilianisation, Juridification' in The Modern Law Review, vol. 65, no. 1 (January 2002), pp. 36–57.

[352] [2003] ECHR 683 (16 December 2003).

[353] [2003] ECHR 683 (16 December 2003), para. 69.

[354] [2003] ECHR 683 (16 December 2003), para. 89.

[355] British Ministry of Defence Memorandum: Tri-Service Armed Forces Bill, p. 8.

[356] British Ministry of Defence Memorandum: Tri-Service Armed Forces Bill, p. 5.

[357] Fredric I. Lederer and Barbara Hundley Zeliff 'Needed: An Independent Military Judiciary. A proposal to Amend the Uniform Code of Military Justice', p. 28.

[358] Fredric I. Lederer and Barbara Hundley Zeliff 'Needed: An Independent Military Judiciary. A proposal to Amend the Uniform Code of Military Justice', p. 39.

[359] Fredric I. Lederer and Barbara Hundley Zeliff 'Needed: An Independent Military Judiciary. A proposal to Amend the Uniform Code of Military Justice', p. 56.

[360] Quoted in Fredric I. Lederer and Barbara Hundley Zeliff 'Needed: An Independent Military Judiciary. A proposal to Amend the Uniform Code of Military Justice', p. 29.

[361] Eugene R. Fidell 'Going on Fifty: Evolution and Devolution in Military Justice' in Eugene R.Fidell and Dwight H.Sullivan, Evolving Military Justice, Naval Institute Press (Annapolis, 2002), p. 23.

[362] Major General Justice Roberts-Smith, Judge Advocate General, Submission P27, p. 6.

[363] Major General Justice Roberts-Smith, Judge Advocate General, Submission P27, p. 6.

[364] General Peter Cosgrove, Chief of Defence Force, Submission P16F.

[365] Committee Hansard, 9 June 2004, p. 20.

[366] Committee Hansard, 21 June, pp. 43–44.

[367] Committee Hansard, 21 June 2004, p. 36.

[368] Committee Hansard, 1 March 2004, pp. 4–5. See also definition found in Defence Instructions (General) ADMIN 61-1, Inspector-General of the Australian Defence Force—role functions and responsibilities, para. 10 (b).

[369] Air Commodore Harvey, Committee Hansard, 1 March 2004, p. 54.

[370] Department of Defence, Submission P16, p. 22 and Submission P16F, p. 3.

[371] Committee Hansard, 1 March 2004, pp. 5–6.

[372] Committee Hansard, 1 March 2004, pp. 5–6. See also Department of Defence, Submission P16, p. 10.

[373] Department of Defence, Submission P16, p. 46.

[374] See Noni Cadd, Helen Marks et al, 'Dealing with Conflict within the Military: An Evolving Model for Managing Conflict and Promoting Good Working Relationships Among Defence Employees', Australasian Dispute Resolution Journal, 2002, p. 146.

[375] Submission P16, p. 46.

[376] Committee Hansard, 2 August 2004, p. 31.

[377] See for example Resolving Issues, Equity and Diversity, http://www.defence.gov.au/equity/resolvingissues.htm (23 December 2004).

[378] Australian National Audit Office, Redress of Grievances in the Australian Defence Force, 1999 http://www.anao.gov.au/WebSite.nsf/Publications/4A245AE90015F69B4A256904001... p. 5 of 39. It should also be noted that in 1998, the Ombudsman found that: 'Despite the encouragement to ADF members to report incidents to their chain of command or to support services (who can then assist them in reporting the matter through the correct channels), my examination of a number of incidents involving sexual offences, harassment and/or discrimination indicates that victims do not, in the first instance, report the matter through official channels.' Commonwealth Ombudsman, Own Motion investigation into how the Australian Defence Force responds to allegations of serious incidents and offences. Review of Practices and Procedures, January 1998, para 8.65.

[379] Directorate of Strategic Personnel Planning and Research, DSPPR Research Note 5/2000, A Survey of Experiences of Unacceptable Behaviour in the Australian Defence Force, February 2001, pp. 5–8.

[380] Directorate of Strategic Personnel Planning and Research, DSPPR Research Note 5/2000, A Survey of Experiences of Unacceptable Behaviour in the Australian Defence Force, February 2001, p. v.

[381] Directorate of Strategic Personnel Planning and Research, DSPPR Research Note 5/2000, A Survey of Experiences of Unacceptable Behaviour in the Australian Defence Force, February 2001, p. 24.

[382] Media accounts of the allegations can be found in 'Bastardisation: Moore denies intervening', the Canberra Times, 17 August 2000; 'Losing Faith in "Old Faithful"', the Courier-Mail, 17 August 2000; 'Cosgrove's legal error draws fire, the Age, 17 August 2000.

[383] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence (Inquiry) Regulations 1985, p. 51.

[384] See explanation of the military justice stand-down period in Media Release, The Hon. Danna Vale, MP, Minister Assisting the Minister for Defence, 'Government Response to the Report on 'Rough Justice? An Investigation into Allegations of Brutality in the Army's Parachute Battalion', No. MIN 203221/02, 22 March 2002.

[385] Joint Standing Committee on Foreign Affairs, Defence and Trade, Rough Justice? An Investigation into Allegations of Brutality in the Army's Parachute Battalion, April 2001, p. 21.

[386] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence (Inquiry) Regulations 1985, p. 6.

[387] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence (Inquiry) Regulations 1985, pp. 7 and 57.

[388] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence (Inquiry) Regulations 1985, p. 55.

[389] ibid., p. 63.

[390] ibid.

[391] ibid., p. 162.

[392] Submission P6, p. 1.

[393] Submission P6, p. 1.

[394] Submission P21, p. 1. Scott left the Army in January 2004. See also Mr and Mrs Hayward, Submission P66.

[395] Submission P21, p. 1.

[396] Submission P21, p. 5.

[397] Submission P6, p. 2.

[398] Mr and Mrs Williams, Submission P17, p. 2.

[399] Submission P17, p. 1.

[400] Committee Hansard, 28 April 2004, p. 37.

[401] Submission P17, pp. 2–3.

[402] Executive Summary, Investigating officer's Report into the Death of 8299931 PTE Jeremy Paul Williams formerly RAINF Initial Employment Trainee School of Infantry, Singleton on 2 February 2003, pp. 3, 4.

[403] Annex A, Appointing Officer's Decisions and Action Plan Investigation into the Death of 8299931 PTE J.P.Williams, February 2003, pp. 35–6. This document was provided to the committee and is classified as Staff-in-Confidence. The committee has taken great care to ensure that the privacy of any persons referred to in the report has been respected.

[404] Annex A, Appointing Officer's Decisions and Action Plan Investigation into the Death of 8299931 PTE J.P.Williams, February 2003, p. 36.

[405] Annex A, Appointing Officer's Decisions and Action Plan Investigation into the Death of 8299931 PTE J.P.Williams, February 2003, p. 53.

[406] Annex A, Appointing Officer's Decisions and Action Plan Investigation into the Death of 8299931 PTE J.P.Williams, February 2003, p. 37.

[407] Executive Summary, Investigating officer's Report into the Death of 8299931 PTE Jeremy Paul Williams formerly RAINF Initial Employment Trainee School of Infantry, Singleton, on 2 February 2003, p. 7.

[408] Appointing Officer's Decision Document—Investigation into the Death of 8299931 Private J.P.Williams, February 2003, 29 July 2003. He made a number of recommendations.

[409] Investigating Officer's Report into the Death of 8237572 Gunner John Konstantinos Satatas, Former RAA Soldier A Battery 4 Field Regiment, Holsworthy, New South Wales on 14 April 2003, pp. 22, 23.

[410] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence force, under the Defence (Inquiry) Regulations 1985, pp. 9, 75.

[411] Ms Avril Andrew, Submission P21; Confidential Submission C19; Confidential Submission C28.

[412] Apart from the abuses at SOI, other notable inquiries that exposed unsafe or dangerous practices involve those inquiring into the accident that led to the death of Jason Sturgess (poor vehicle maintenance), the incident that led to the death of Seaman Gurr (consuming alcohol against rules) and the F-111 (Fuel Tank) Deseal/Reseal and Spray Seal Programs. See Chapter 12.

[413] Correspondence, the Chair, Senate Foreign Affairs, Defence and Trade References Committee to the Minister for Defence, 2 December 2004.

[414] Correspondence, Senator the Hon Robert Hill to the Chair, Senate Foreign Affairs, Defence and Trade References Committee, 22 December 2004.

[415] Senate Foreign Affairs, Defence and Trade Legislation Committee, Hansard , 31 May 2005, p. 70.

[416] Committee Hansard, 1 March 2004, p. 33.

[417] Defence Instructions (General), PERS 45–5, Defence Whistleblower Scheme. See also Defence Instructions (General), PERS 35–3, Management and Reporting of Unacceptable Behaviour, para. 43.

[418] Committee Hansard, 1 March 2004, p. 92.

[419] Submission P54, p. 1.

[420] Submission P61, p. 4. His experiences go back to the late 1970s but nonetheless highlights the problems that are created with reporting wrongdoing within the chain of command.

[421] Confidential Submission C43, paras 22 and 23. Also Submissions C29 and C51.

[422] Paras 2.20–2.22.

[423] Ms Avril Andrew provides examples of this type of behaviour. Submission P21. Also Confidential Submission C19. The author of confidential Submission C35 was a soldier who recalls a time when he was suffering from a leg injury but was forced to endure long periods of standing on parade, being subjected to oral abuse and told to 'harden up'.

[424] Confidential Submission C19.

[425] Confidential Submission C30, p. 8.

[426] Committee Hansard, 28 April 2004, pp. 59–60.

[427] Committee Hansard, 28 April 2004, pp. 59–60.

[428] Confidential Submission C7, p. 1.

[429] Public Concern at Work, OECD Labour/Management Programme, http:www.pcaw.co.uk/policy_pub/oecdreport.html (14 September 2001).

[430] See for example, Mr Satatas, Committee Hansard, 28 April 2004, p. 6 and Peter Gerrey, Submission P7.

[431] Submission P28, p. [3].

[432] Submission P52, p. 1.

[433] ibid., p. 1.

[434] Confidential Submission C28. The author of Confidential Submission C29 stated that those in his chain of command were indifferent to his allegations.

[435] Submission P6, p. 1.

[436] Committee Hansard, 28 April 2004, p. 5.

[437] Committee Hansard, 28 April 2004, pp. 35–8.

[438] Committee Hansard, 28 April 2004, p. 60.

[439] Committee Hansard, 28 April 2004, p. 41.

[440] Submission P61, p. 4.

[441] Regulation 80, Defence Force Regulations 1952.

[442] See for example, Ms Avril Andrew, Submission P21, p. 5; Ms Jayne Fitzpatrick, Submission P35; Confidential Submission C42, p. 4; Ms Knight, Submission P18, p. 2 Mr Southam claims that he was mistreated after he submitted a redress of grievance making allegations of mistreatment, Submission P19, p. 4. Although Mr Lloyd Richards' account of racism, harassment, intimidation and lack of support goes back to 1988, it provides an insight into the type of activity that can be tolerated in certain pockets of the Defence Force. Submission P36.

[443] Submission P35, p. 2.

[444] In camera Committee Hansard, 29 April 2004, p. 2. Confidential Submission C7, p. 1.

[445] Confidential Submission C19.

[446] Confidential Submission C19A, p. 2.

[447] Committee Hansard, 28 April 2004, p. 60.

[448] See Paul Toohey, 'The Fugitive', The Bulletin, 23 March 2004 and Cameron Stewart, 'Shot Down', The Weekend Australian Magazine, 10-11 July 2004, pp. 22-27.

[449] Cameron Stewart, 'Shot Down', The Weekend Australian Magazine, 10-11 July 2004, p. 26.

[450] Senate Foreign Affairs, Defence and Trade Legislation Committee, Additional Estimates 2003‑2004, Committee Hansard, 18 February 2003, p. 92.

[451] Senate Foreign Affairs, Defence and Trade Legislation Committee, Additional Estimates 2003‑2004, Committee Hansard, 5 November 2003, p. 128.

[452] Senate Foreign Affairs, Defence and Trade Legislation Committee, Additional Estimates 2003‑2004, Committee Hansard, 5 November 2003, p. 138.

[453] Senate Foreign Affairs, Defence and Trade Legislation Committee, Additional Estimates 2003–2004, Committee Hansard, 5 November 2003, pp. 128–9.

[454] There are two suggestions as to the reason for this assault. First, that LAC Moore had become known as an informant, or second, that it was over a girl that both Moore and one of his attackers had been seeing. See for example, Paul Toohey, 'The Fugitive', The Bulletin, 23 March 2004. See also Senate Foreign Affairs, Defence and Trade Legislation Committee, Committee Hansard, Estimates, 5 November 2003, p. 141.

[455] Submission P42, p. 3. See also Ms Jayne Fitzpatrick, Submission P35 and Confidential Submissions C25, C25A, C40, C40A, C42 and C56.

[456] Confidential Submissions C25, C40, C51 and C59.

[457] Confidential Submission C40A.

[458] Confidential Submission C57. Also Confidential Submissions C8, C9, C16, C25, C26, C33, C43.

[459] Confidential Submission C57. Also Confidential Submissions C8, C9, C16, C25, C26, C33, C43.

[460] Confidential Submission C33.

[461] Confidential Submission C57.

[462] See for example, Ms Jayne Fitzpatrick, Submission P35. Confidential Submission C35 stated that he did not report incidents straight away 'because I did not know I could. I was confused about how the military worked with things like this'.

[463] In camera Committee Hansard, 29 April 2004, p. 20.

[464] In camera Committee Hansard, 29 April 2004, p. 9.

[465] Confidential Submission C35.

[466] Confidential Submission C19.

[467] Confidential Submission C19A.

[468] See para 7.19.

[469] See Ms Marlene Delzoppo, Submission P1, p. 2; Ms Jayne Fitzpatrick, Submission P35; Confidential Submission C29.

[470] In camera Committee Hansard, 21 April 2004, p. 3.

[471] Submission P3, p. 1. Also Committee Hansard, 28 April 2004, pp. 20–21.

[472] In camera Committee Hansard, 9 June 2004, p. 9. Also Confidential Submission C19 which gives an account of a soldier who alleges he was subjected to bullying and sought a transfer.

[473] Committee Hansard, 28 April 2004, pp. 60–61.

[474] Committee Hansard, 28 April 2004, p. 28.

[475] Submission P12, p. 2.

[476] Defence Instructions (General) ADMIN 61-1, Inspector-General of the Australian Defence Force – role functions and responsibilities, para. 9. It reads: '...attention is drawn to the distinction between the respective responsibilities of the IGADF and the Inspector-General Defence (IGD). In short, the IGADF is responsible for matters relating to the administration of Military Justice and IGD is responsible for matters relating to fraud, lack of probity, ethics and management audit. IGD is also responsible for the management of the Defence Whistleblower Scheme. Matters reported to the Defence Whistleblower Scheme concerning the administration of Military Justice will normally be referred to the IGADF.'

[477] Defence Instructions (General), Defence Whistleblower Scheme, paras 8, 12 and 13.

[478] Department of Defence, submission to the Senate Finance and Public Administration Committee's inquiry into the Public Interest Disclosure Bill (2000 [2002]), dated 4 October 2001.

[479] Defence Instructions (General), PERS 45–5, Defence Whistleblower Scheme, para. 39.

[480] Committee Hansard, 28 April 2004, p. 21.

[481] Confidential Submission C56.

[482] Defence Instructions (General), PERS 45–5, Defence Whistleblower Scheme, para. 34.

[483] Senate Foreign Affairs, Defence and Trade Legislation Committee, Committee Hansard, Estimates, 18 February 2004, p. 91.

[484] Senate Foreign Affairs, Defence and Trade Legislation Committee, Committee Hansard, Estimates, 5 November 2003, p. 142.

[485] Senate Foreign Affairs, Defence and Trade Legislation Committee, Committee Hansard, Estimates, 18 February 2004, p. 91.

[486] Confidential Submission C61.

[487] Confidential Submission C37.

[488] Defence Instructions (General), Defence Whistleblower Scheme, par 13 and Annex A, Guidance on the Reporting of Suspected Misconduct, para. 6.

[489] Media Release, the Hon. Danna Vale, MP, Minister Assisting the Minister for Defence, Government Response to the Report on Rough Justice? An Investigation into Allegations of Brutality in the Army's Parachute Battalion, No. MIN 203221/02, 22 March 2002.

[490] Committee Hansard, 1 March 2004, pp. 35–6.

[491] Submission P35, p. 4.

[492] Submission P35, p. 2.

[493] Department of Defence, http://www.defence.gov.au/mjs/st/mjs/organisations.cfm (23 February 2005).

[494] Standards Australia, Australian Standard AS 8004–2003, paras 2.4.3 and 2.4.4.

[495] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence(Inquiry) Regulations 1985, p. 28.

[496] Committee Hansard, 9 June 2004, pp. 1–4.

[497] Submission P16, p. 24.

[498] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, para 2.3.

[499] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, para 2.1.

[500] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, paras 1.12 and 2.4.

[501] Committee Hansard, 1 March 2004, p. 41.

[502] Committee Hansard, 5 August 2004, p. 100.

[503] Confidential Submission C25C, Enclosure to IGADF submission.

[504] Confidential Submission C39, Attachment.

[505] Submission P16, pp. 24-5 and Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, para. 1.1–1.22.

[506] Submission P16, pp. 24-5.

[507] Defence (Inquiry) Regulations, regulation 69 and 70A.

[508] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, para. 4.1.

[509] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, para. 4.1.

[510] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, paras 4.28.

[511] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, paras 4.35 and 4.43.

[512] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, para. 4.38–4.41.

[513] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, para. 4.44.

[514] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, para. 5.3.

[515] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, paras 6.3–6.4.

[516] Committee Hansard, 5 August 2004, p. 21.

[517] Committee Hansard, 5 August 2004, p. 21.

[518] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence (Inquiry) Regulations 1985, p. 116.

[519] Committee Hansard, 9 June 2004, p. 10.

[520] Committee Hansard, 9 June 2004, p. 32.

[521] Administrative Inquiries Manual, ANNEX C to Chapter 6, para. 19. Their evidence is not to be taken on oath. Annex E to chapter 6, para. 4.

[522] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence (Inquiry) Regulations 1985, p. 27.

[523] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence (Inquiry) Regulations 1985, p. 38.

[524] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, para. 1.37.

[525] ibid.

[526] ibid., para. 6.34.

[527] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, Annex F to chapter 6, para 8.

[528] See for example Ms Jayne Fitzpatrick, P35, p.1.

[529] Confidential Submission C15; Confidential Submission C37; Confidential Submission C39, p. 1.

[530] Confidential Submission C39, p. 1.

[531] In camera Committee Hansard, 10 June 2004, p. 85.

[532] In camera Committee Hansard, 10 June 2004, p. 82.

[533] Confidential Submission C37, para. 21.

[534] Committee Hansard, 28 April 2004, pp. 35–8.

[535] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence(Inquiry) Regulations 1985, p. 15.

[536] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence(Inquiry) Regulations 1985, p. 105.

[537] Defence Instructions (General) PERS 34-1, Redress of Grievance-Tri-Service procedures, Annex E, para. 11.

[538] Confidential Submission C1.

[539] See for example, Ms Jayne Fitzpatrick, Submission P35.

[540] Confidential Submission C1.

[541] In camera Committee Transcript, 29 April 2004, p. 20. Confidential Submission C1.

[542] Confidential Submission C25, para. 12.

[543] Commonwealth Ombudsman, Own motion investigation into how the Australian Defence Force responds to allegations of serious incidents and offences: Review of Practices and Procedures, report of the Commonwealth Defence Force Ombudsman pursuant to section 35A of the Ombudsman Act 1976, paras 8.54–8.56.

[544] Confidential Submissions C15, C37 and C39.

[545] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, para. 5.10. This advice is offered more than once in the Manual, for example para. 1.24(b) reads, 'Personnel selected to participate in an inquiry must be free, to the maximum extent feasible, from any suggestion of bias or conflict of interest involving any issue or witness. Where practicable, an inquiry should be conducted by personnel who are not in the immediate chain of command of the personnel under inquiry. However, a member of a unit in the direct chain of command of the appointing authority may be selected provided they have no direct or indirect involvement in the matters under inquiry and are not likely to be involved in the implementation of the recommendations.'

[546] ibid., para. 5.10 and footnote 4 on p. 5–2 of the manual.

[547] ibid., para. 6.36.

[548] ibid., para. 5.11.

[549] ibid., para. 1.15.

[550] Committee Hansard, 5 August 2004, p. 8.

[551] ibid.

[552] ibid., p. 26.

[553] ibid., p. 26.

[554] Confidential Submission C43.

[555] Confidential Submission C8, p. 2.

[556] Confidential Submission C43, para. 3.

[557] In camera Committee Hansard, 29 April 2004, p. 4.

[558] For example, Confidential Submissions C25A and C29.

[559] Submission P19, pp. 3, 4.

[560] Committee Hansard, 9 June 2004, p. 69.

[561] Submission P19, p. 4.

[562] Committee Hansard, 9 June 2004, p. 664.

[563] Confidential Submission C51.

[564] Confidential Submission C39, Attachment.

[565] Submissions P35 and P3.

[566] ibid.

[567] Submission P11, p. 2.

[568] Submission P11, p. 2. See also Michael Pembroke Prowse, Submission P12, p. 3.

[569] Submission P11, p. 2.

[570] See also Mrs Satatas, Committee Hansard, 28 April 2004, pp. 1–3; Mr David Richards, Committee Hansard, 9 June 2004, p. 35.

[571] See also Ms Screaton, Submission P31, pp. 1, 3 and 4. She refers to her husband's redress of grievance dealing with the events that took place on board HMAS Kanimbla in regards to the Anthrax Vaccination program. In her view the process of her husband's redress of grievance system was seriously flawed and the system 'should not be held within the Defence force but held by an independent body that way the outcomes will be true and final'. Ms Jayne Fitzpatrick Submission P35; Submission P38, p. 39; and Confidential Submission C50.

[572] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence(Inquiry) Regulations 1985, p. 117.

[573] Government Response to the Report on Military Justice Procedures in the Australian Defence Force, pp. [11–12].

[574] In camera Committee Hansard, 10 June 2004, p. 31.

[575] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual Foreword, para. 2.

[576] Committee Hansard, 5 August 2004, p. 15.

[577] Committee Hansard, 1 March 2004, p. 44.

[578] See for example, Ms Jayne Fitzpatrick, Submission P35, p. 3 and confidential attachment to Submission P40.

[579] Commonwealth Ombudsman, Own motion investigation into how the Australian Defence Force responds to allegations of serious incidents and offences: Review of Practices and Procedures, Report of the Commonwealth Defence Force Ombudsman pursuant to section 35A of the Ombudsman Act 1976, January 1998, paras 37 and 5.54.

[580] In her report, the Ombudsman noted that the ADF had formed a team, known as the Ombudsman Implementation Team which had developed 'a comprehensive draft manual intended for release in 1998 which incorporated many of the recommendations. Commonwealth Ombudsman, Own motion investigation into how the Australian Defence Force responds to allegations of serious incidents and offences: Review of Practices and Procedures, Report of the Commonwealth Defence Force Ombudsman pursuant to section 35A of the Ombudsman Act 1976, January 1998, statement following para 61.

[581] Committee Hansard, 9 June 2004, pp. 1–4; Submission P28, p. [3].

[582] Submission P28, p. [3].

[583] Mr Geoff Lewis, Submission P55, pp. 3–4 and Confidential Submission C37, para. 15.

[584] Confidential Submission C39. See also Submission P9A, p. 2.

[585] Committee Hansard, 22 April 2004, pp. 4–5.

[586] Committee Hansard, 22 April 2004, p. 5.

[587] Committee Hansard, 5 August 2004, p. 99.

[588] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence (Inquiry) Regulations 1985, p. 118.

[589] Committee Hansard, 5 August 2004, p. 99.

[590] Committee Hansard, 5 August 2004, p. 100.

[591] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, Annex E to Chapter 6, para. 2.

[592] Committee Hansard, 22 April 2004, p. 13.

[593] ibid., p. 13.

[594] Committee Hansard, 22 April 2004, pp. 2–3.

[595] Committee Hansard, 22 April 2004, pp. 2–3.

[596] Submission P25, p. 2.

[597] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, para. 6.16.

[598] See Mrs Satatas, described the process as very slow and that a long time elapsed before an investigation was started, Committee Hansard, 28 April 2004, p. 12. Unnecessary delays also cited in Confidential Submissions C2, C8; C29 and C37.

[599] Submission P42.

[600] Committee Hansard, 1 March 2004, pp. 29–30.

[601] Submission P41, p. 1.

[602] Submission P19, p. 4.

[603] Submission P61, p. 4.

[604] Confidential Submission C43.

[605] In camera Committee Transcript, 10 June 2004, p. 96.

[606] In camera Committee Hansard, 10 June 2004, p. 82.

[607] Confidential Submissions C29, C43, para. 5 and C50. See also Submission 61, p. 2. in which Mr David Down stated that he declined to give evidence in a case against a Chief Coxswain who was alleged to have molested a junior sailor because 'of the shame of the other incidents [he had also claimed to have been assaulted] and my fear and anxiety of the consequences'.

[608] Confidential Submission C1, p. 1.

[609] Confidential Submission C1, p. 1 and Attachment—Formal Complaint, October 2001.

[610] ibid.

[611] Confidential Submission C2, pp. 2–3.

[612] Confidential Submission C36.

[613] Confidential Submission C1.

[614] Committee Hansard, 21 April 2004, pp. 4–6.

[615] Committee Hansard, 1 March 2004, p. 84.

[616] Confidential Submission C12, p. 3. Confidential Submission C16 makes a similar point.

[617] In camera Committee Hansard, 10 June 2004, p. 2.

[618] Submission P9A, p. 3.

[619] Submission P9A, p. 2.

[620] In camera Committee Hansard, 9 June 2004, pp. 4, 7.

[621] Submission P64, p. 5.

[622] Submission P9A, p. 2.

[623] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence (Inquiry) Regulations 1985, p. 105.

[624] Committee Hansard, 1 March 2004, pp. 32–3.

[625] Australian Defence Force, Administrative Series, Administrative Inquiries Manual, Australian Defence Force Publication 2002 (ADFP 202), paras 1.45–1.46.

[626] Submission P17, p. 4.

[627] Submission P17, p. 9.

[628] Committee Hansard, 1 March 2004, pp. 29–30.

[629] Committee Hansard, 1 March 2004, pp. 29–30. See also Submission P61, p. 4.

[630] Janice McNess, Committee Hansard, 28 April 2004, pp. 62–4.

[631] Committee Hansard, 1 March 2004, pp. 72–3.

[632] For example see Mrs Palmer, Committee Hansard, 1 March 2004, p. 75, who felt that there was 'not much of a military investigation with evidence discarded'. Mrs McNess, Committee Hansard, 28 April 2004, pp. 62–4.

[633] Mrs Palmer, Committee Hansard, 1 March 2004, p. 91.

[634] Committee Hansard, 28 April 2004, p. 58.

[635] Submission P17, p. 8.

[636] Submission P7, p. 5. In full, he told the committee that between 1991 and 2000 he:

'conducted workplace inspections in military establishments for both the Navy and Comcare. When required, by Comcare, I conducted or reviewed ADF Inquiries into workplace accidents in New South Wales that had resulted in fatalities or serious personal injuries. The ADF and Comcare had an agreement whereby the ADF would conduct their internal inquiries and/or investigations following a serious injury or a fatality at an ADF workplace. A Comcare investigator would then review these inquiries and/or investigations'. Submission 7, p. 3.

[637] Submission P7, p. 2.

[638] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, para. 1.15.

[639] Committee Hansard, 28 April 2004, pp. 62–4.

[640] Mr Neil James, Committee Hansard, 9 June 2004, p. 31.

[641] Submission P64.

[642] Submission P64, p. 5.

[643] Committee Hansard, 5 August 2004, p. 18.

[644] Committee Hansard, 5 August 2004, pp. 18 and 74.

[645] Committee Hansard, 5 August 2004, p. 18.

[646] Confidential Submission C1, Attachment—Chronological Order of events, pp. 10 and 13 and Confidential Submission C61.

[647] Submission P6, p. 2. He stated: 'Senior staff at SOI assured us that they had fixed the problem they even went as far as to invite me down to inspect the changes they had made...this was backed up by the investigation report covering letter that claimed that the reports recommendations had been implemented. We accepted their word in the firm belief that Orders and Instructions contained in reports are to be acted upon... however it has since been admitted by the army that the recommendations had not [been] implemented.'

[648] Submission P6, p. 2.

[649] Committee Hansard, 1 March 2004, p. 34. See letter to Mr and Mrs Williams reproduced in Committee Hansard, 28 April 2004, pp. 56–7.

[650] Committee Hansard, 1 March 2004, pp. 28–9.

[651] Committee Hansard, 5 August 2004, p. 99.

[652] See for example, General Cosgrove, Committee Hansard, 1 March 2004, p. 9.

[653] Committee Hansard, 6 August 2004, pp. 40–3.

[654] Committee Hansard, 1 March 2004, p. 7.

[655] Submission P16, para. 2.67.

[656] ADFP 06.1.3, paras 2.6 and 2.24.

[657] ADFP 06.1.3, para. 2.13.

[658] ADFP 06.1.3, para. 2.16.

[659] ADFP 06.1.3, para. 2.20.

[660] 'Decisions, decisions', Army, the Soldiers' Newspaper, 8 April 2004.

[661] Defence (Personnel) Regulations 2002, Sub regulation 85(2). It reads: The officer is to be given a termination notice that: states the proposal to terminate the officer's services; states the reason for the termination; sets out particulars of the facts and circumstances relating to the reason for terminating the service that 'is sufficient to allow the officer to prepare a statement of reasons why the service should not be terminated; invites the officer to provide a written statement of reasons why the service should not be terminated; and specifies a period of at least 28 days after the date of the notice as the period in which the officer may give the statement of reasons.

[662] Legal advice, See Ms Harris, Committee Hansard, 2 August 2004, p. 40.

[663] Department of Defence, Submission P16, p. 30 and CRA, Committee Hansard, 2 August 2004, p. 24.

[664] Committee Hansard, 2 August 2004, p. 34.

[665] Committee Hansard, 2 August 2004, p. 24.

[666] Department of Defence, Submission P16, p. 45.

[667] Regulations 76 and 79, Defence Force Regulations 1952.

[668] Confidential Submission C15, p. [6].

[669] Confidential Submission C9.

[670] Confidential Submission C9A, p. 3.

[671] Confidential Submission C38.

[672] Confidential Submission C9, p. 13.

[673] Confidential Submission C14, para. 7.3.

[674] Confidential Submission C14, paras 4.1 and 7.2.

[675] Confidential Submission C59.

[676] Attachment 'Review of Defence Actions Related to a Claim for Administrative by...', Confidential Submission C24.

[677] Committee Hansard, 2 August 2004, p. 39.

[678] Committee Hansard, 9 June 2004, pp. 25–6. See also Mr Allen Warren, Submission P5B, p. 3.

[679] Confidential Submission C9.

[680] Confidential Submission C9.

[681] Confidential Submission C9, p. 14.

[682] Confidential Submission C43.

[683] Confidential Submission C43, para 26.

[684] Confidential Submission C8, p. 2.

[685] Confidential Submission C39.

[686] Confidential Submission C13, p. 6.

[687] Confidential Submission C24, p. 12.

[688] ibid.

[689] Confidential Submission C24A, Addendum 1, Attachment 14, p. 16.

[690] Confidential Submission C24, p. 12.

[691] Confidential Submission C24, p. 12.

[692] Confidential Submission C18, p. 2.

[693] Confidential Submission C40A.

[694] Defence Instructions (General) PERS 34-1, Redress of Grievance-Tri-Service procedures, Annex B, para. 5.

[695] Defence Instructions (General) PERS 34-1, Redress of Grievance-Tri-Service procedures, Annex B, para. 6.

[696] Confidential Submission C49, para. 16.

[697] Defence Instructions (General) PERS 34-1, Redress of Grievance-Tri-Service procedures, Annex B para. 7.

[698] Defence Instructions (General) PERS 34-1, Redress of Grievance-Tri-Service procedures, Annex B, para. 12. Note this sentence is in bold. See para 9.20 in this chapter for some background on the CRA.

[699] Confidential Submission C14, p. 3.

[700] Confidential Submission C8, p. 3. Also confidential Submission C9, p. 15.

[701] Confidential Submission C9, p. 15.

[702] Confidential Submission C14, para. 7.3.

[703] Committee Hansard, 9 June 2004, pp. 1–4.

[704] Confidential Submission C8, p. 2. Similar complaints were raised by a number of members.

[705] Confidential Submission C8. Confidential Submission C15 was concerned with the delay in processing the Notice to Show Cause.

[706] Confidential Submission C56 and Confidential Submission C57.

[707] Confidential Submission C51, p. 2.

[708] Confidential Submission C62, p. 2.

[709] Confidential Submission C8.

[710] Confidential Submission C6.

[711] Confidential Submission C14, p. 2.

[712] Confidential Submission C62, p. 3.

[713] Confidential Submission C24.

[714] Confidential Submission C37, Foreword.

[715] Confidential Submission C9, p. 14.

[716] Submission P16, p. 45.

[717] Committee Hansard, 1 March 2004, p. 9.

[718] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence (Inquiry) Regulations 1985, p. 39. The Burchett Report envisaged a Military Inspector General who, among his or her other functions, would provide an avenue for complaints of unacceptable behaviour, including victimisation, abuse of authority, and avoidance of due process where chain of command considerations discourage recourse to normal avenues of complaint. He or she would also have the authority 'to take action as may be necessary to investigate such complaints, or refer them to an appropriate authority for investigation, including the military police, civil police, Service or departmental commanders or authorities'. Following any referral, the IGADF would receive it and, if necessary, report to the CDF on the response of the authority to whom the matter was referred.

[719] Committee Hansard, 1 March 2004, pp. 57–9.

[720] Committee Hansard, 1 March 2004, pp. 30–1.

[721] Committee Hansard, 1 March 2004, p. 9.

[722] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence (Inquiry) Regulations 1985, p. 165.

[723] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence (Inquiry) Regulations 1985, p. 166.

[724] Defence Instructions (General) ADMIN 61-1, Inspector-General of the Australian Defence Force – role functions and responsibilities, para. 6.

[725] Defence Instructions (General) ADMIN 61-1, Inspector-General of the Australian Defence Force – role functions and responsibilities, para. 8.

[726] Committee Hansard, 5 August 2004, p. 88.

[727] Committee Hansard, 1 March 2004, pp. 57–9.

[728] Defence Instructions (General), Inspector-General of the Australian Defence Force—role, functions and responsibilities, para. 34.

[729] Committee Hansard, 5 August 2004, p. 87.

[730] Senate Foreign Affairs, Defence and Trade Legislation Committee, Hansard, 31 May 2005, pp. 69–70.

[731] Committee Hansard, 1 March 2004, p. 7.

[732] Defence Instructions (General) ADMIN 61-1, Inspector-General of the Australian Defence Force—role functions and responsibilities, para. 17.

[733] Defence Instructions (General) ADMIN 61-1, Inspector-General of the Australian Defence Force—role functions and responsibilities, para. 19. This list is based on that given in the manual. The manual notes that the list is illustrative and not exhaustive.

[734] Defence Instructions (General) ADMIN 61-1, Inspector-General of the Australian Defence Force—role functions and responsibilities, para. 36.

[735] Defence Instructions (General) ADMIN 61-1, Inspector-General of the Australian Defence Force – role functions and responsibilities, para. 39.

[736] Committee Hansard, 1 March 2004, pp. 57–9.

[737] Confidential Submission C8, pp. 3–4.

[738] Confidential Submission C8, p. 4.

[739] Confidential Submission C57.

[740] Defence Instructions (General) ADMIN 61-1, Inspector-General of the Australian Defence Force – role functions and responsibilities, para. 11. It states 'The IGADF will provide an avenue by which any failure of Military Justice may be examined and exposed, but not so as to supplant the existing processes of review by the provision of individual remedies, but in order to make sure that review and remedy are available and that systemic causes of injustice (if they arise) are eliminated.'

[741] Committee Hansard, 5 August 2004, p. 98.

[742] Defence Instructions (General) ADMIN 61–1, Inspector-General of the Australian Defence Force—role, functions and responsibilities, para. 50.

[743] Committee Hansard, 5 August 2004, p. 86.

[744] Committee Hansard, 5 August 2004, p. 99.

[745] Committee Hansard, 1 March 2004, p. 9.

[746] Committee Hansard, 1 March 2004, p. 7.

[747] Administrative Review Council, Report to the Attorney-General, Defence Force Ombudsman, Canberra 1981, p. 5.

[748] Second reading speech, Mr Willis, House Hansard, 26 May 1983, p. 1021.

[749] See second reading speech, Mr Willis, House Hansard, 26 May 1983, p. 1021.

[750] ibid.

[751] Committee Hansard, 9 June 2004, p. 9.

[752] Committee Hansard, 9 June 2004, pp. 1–4.

[753] Committee Hansard, 9 June 2004, p. 15.

[754] Committee Hansard, 9 June 2004, p. 16.

[755] Committee Hansard, 9 June 2004, pp. 1–4.

[756] ibid.

[757] Chapter 5, Defence, Commonwealth Ombudsman Annual Report, 2003–04.

[758] Confidential Submission C8.

[759] Confidential Submission C43.

[760] Confidential Submission C57.

[761] Chapter 5, Defence, Commonwealth Ombudsman Annual Report 2003–04.

[762] A Joint Report by the Department of Defence and the Office of the Commonwealth Ombudsman, Review of the ADF Redress of Grievance System 2004, dated 27 January 2005 but not made public until April 2005, Executive Summary.

[763] Confidential Submission C9.

[764] Canadian Forces Grievance Board, Performance Report, for the period ending March 31, 2002, pp. 6–8. http://www.tbs-sct.gc.ca/rma/dpr/01-02/CFGB/CFGB0102dpr-PR_e.asp?printable_Tr (17 November 2004)

[765] This list is not exhaustive. See Canadian Forces Grievance Board, Performance Report for the period ending March 31, 2002; Canadian Forces Grievance Board, Annual Report 2003, p. 6; Canadian Forces Grievance Board, Report on Plans and Priorities for the full period 2003–2004, 2005–2006.

[766] The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. of the provisions and operation of Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other acts, as required under section 96 of Statutes of Canada 1998, c.35, September 2003, pp. 93–103.

[767] Michael Griffin, Issues Paper, Senate Inquiry into the Effectiveness of the Military Justice System, para. 89–90.

[768] Australian Defence Forces Publication, Administrative Series, Administrative Inquiries Manual, Annex E to Chapter 2.

[769] Regulation 26, Defence (Inquiry) Regulations 1985.

[770] Regulation 31 (2).

[771] Australian Defence Forces Publication, Administrative Series, Administrative Inquiries Manual, para. 7.3.

[772] Australian Defence Forces Publication, Administrative Series, Administrative Inquiries Manual, para. 7.25.

[773] Acumen Alliance, The Defence Legal Service Board of Inquiry Management Audit, October 20043, para. 1.3.

[774] Committee Hansard, 28 April 2004, pp. 62–4.

[775] Submission P32, p. 1.

[776] Commonwealth Ombudsman, Own motion investigation into how the Australian Defence Force responds to allegations of serious incidents and offences: Review of Practices and Procedures, Report of the Commonwealth Defence Force Ombudsman pursuant to section 35A of the Ombudsman Act 1976, para. 2.56.

[777] Confidential Committee Hansard, 9 June 2004, p. 5.

[778] Michael Griffin, Issues Paper, Senate Inquiry into the Effectiveness of the Military Justice System, paras 73–75.

[779] Committee Hansard, 9 June 2004, p. 40.

[780] Acumen Alliance, The Defence Legal Service, Board of Inquiry Management Audit, October 2003, p. 7.

[781] Australian Defence Force Publication, Administration Series, Administrative Inquiries Manual, para. 7.56. Emphasis added.

[782] ibid., para. 7.56. Emphasis added.

[783] ibid., para. 7.49.

[784] ibid., para. 7.49.

[785] ibid., para. 7.49.

[786] ibid., para. 7.52.

[787] Confidential Submission C11.

[788] Committee Hansard, 10 August 2004, p. 16.

[789] Committee Hansard, 22 April 2004, p. 39.

[790] ibid.

[791] Record of Investigation into Death, Inquest into the deaths of Shaun Damian Smith, Phillip John Carroll; Megan Anne Pelly and Bradley Meek (HMAS Westralia), Western Australia, p. 20.

[792] Australian Defence Force Publication, Administrative Series, Administrative Inquiries Manual, para. 7.18.

[793] Committee Hansard, 10 August 2004, p. 12.

[794] Committee Hansard, 21 April 2004, pp. 52–53.

[795] ADF, Submission P16, p. 68.

[796] Committee Hansard, 21 April 2004, p. 54. In addition, the Navy advised the Committee that the Chief of Staff telephoned her on the anniversary of Acting Leading Seaman Gurr’s disappearance and over the following three days as her distress was very evident. He has also been in regular contact with her in relation to plans for a memorial to be erected on Christmas Island. He accompanied Ms Gurr to Christmas Island for the Gurr Memorial unveiling in Flying Fish Cove on 9 September 2003.

[797] Submission P16, pp. 67–8.

[798] Committee Hansard, 21 April 2004, p. 48.

[799] In camera Committee Hansard, 9 June 2004, p. 3.

[800] Joint Standing Committee on Foreign Affairs Defence and Trade, Military Justice Procedures in the Australian Defence Force, 1999.

[801] Kevin Herridge, Submission P33.

[802] Victor Meek, Submission P26.

[803] See for example, Submissions P51, P3 and P30.

[804] Committee Hansard, 5 August 2004, p. 99.

[805] Submission P14, p. 5. See also Committee Hansard, 22 April 2004, p. 23.

[806] Committee Hansard, 22 April 2004, p. 25.

[807] Submission P2, p. 1. See also Mr Allen Warren, Submission P5A, p. 3.

[808] Committee Hansard, 22 April 2004, p. 38.

[809] Committee Hansard, 1 March 2004, p. 18.

[810] Record of Investigation into Death, Inquest into the deaths of Shaun Damian Smith, Phillip John Carroll; Megan Anne Pelly and Bradley Meek (HMAS Westralia), Western Australia, pp. 15 and 22.

[811] Record of Investigation into Death, Inquest into the deaths of Shaun Damian Smith, Phillip John Carroll; Megan Anne Pelly and Bradley Meek (HMAS Westralia), Western Australia, pp. 114–115.

[812] Committee Hansard, 21 April, 2004, p. 44.

[813] Committee Hansard, 21 April 2004, p. 48.

[814] Submission P27, p. 7.

[815] Committee Hansard, 21 June 2004, pp. 42–3.

[816] Submission P33.

[817] Submission P33.

[818] Lyndon Pelly, Submission P30.

[819] In camera Committee Hansard, 22 April 2004, p. 43.

[820] ibid.

[821] In camera Committee Hansard, 9 June 2004, p. 5.

[822] Australian Defence Forces Publication, Administrative Series, Administrative Inquiries Manual, para. 7.8.

[823] Committee Hansard, 10 August 2004, pp. 1–2.

[824] Confidential Submission C5, p. 2.

[825] Confidential Submission C5, p. 2.

[826] Confidential Submission, C5, p. 3.

[827] ibid.

[828] ibid.

[829] Record of Investigation into Death, Inquest into the deaths of Shaun Damian Smith, Phillip John Carroll; Megan Anne Pelly and Bradley Meek (HMAS Westralia), Western Australia, p. 15.

[830] Committee Hansard, 5 August 2004, pp. 8–10.

[831] Australian Defence Forces Publication, Administrative Series, Administrative Inquiries Manual, para. 7.10.

[832] Australian Defence Forces Publication, Administrative Series, Administrative Inquiries Manual, para. 7.19.

[833] ibid., para. 7.27.

[834] ibid., para. 7.28.

[835] See for example, Air Commodore Harvey, Committee Hansard, 10 August 2004, p. 9.

[836] Committee Hansard, 10 August 2004, p. 11.

[837] Confidential Submission C5, p. 4; Potentially affected person (PAP).

[838] Confidential Submission C5, p. 4.

[839] In camera Committee Hansard, 9 June 2004, p. 12.

[840] Submission P33, p. 1.

[841] Kevin Herridge, Submission P33.

[842] Record of Investigation into Death, Inquest into the deaths of Shaun Damian Smith, Phillip John Carroll; Megan Anne Pelly and Bradley Meek (HMAS Westralia), Western Australia, pp. 23–4.

[843] Record of Investigation into Death, Inquest into the deaths of Shaun Damian Smith, Phillip John Carroll; Megan Anne Pelly and Bradley Meek (HMAS Westralia), Western Australia, p. 22.

[844] Committee Hansard, 1 March 2004, pp. 17–18.

[845] Committee Hansard, 21 April 2004, p. 21.

[846] Record of Investigation into Death, Inquest into the deaths of Shaun Damian Smith, Phillip John Carroll; Megan Anne Pelly and Bradley Meek (HMAS Westralia), Western Australia, p. 106.

[847] Michael Griffin, Issues Paper, Senate Inquiry into the Effectiveness of the Military Justice System, paras 91–98.

[848] The Hon Justice Garry Downes, President of the Administrative Appeals Tribunal, 'Tribunals in Australia: their Roles and Responsibilities', in the Law Reform Commission's journal, Reform, Autumn 2004, and also Administrative Review Council, Overview of the Commonwealth System of Administrative Review, http://www.law.gov.au/agd/www/archome.nsf/AllDocs/7C8BE4EE5BE614C8CA256C... (3 June 2005).

[849] Section 43, Administrative Appeals Tribunal Act 1975.

[850] Administrative Appeals Tribunal, Introduction to the AAT, AAT website, http:www.aat.gov.au/AboutTheAAT/Introduction ToTheAAT.htm (3 June 2005).

[851] The Hon Justice Garry Downes, President of the Administrative Appeals Tribunal, 'Tribunals in Australia: their Roles and Responsibilities', in the Law Reform Commission's journal, Reform, Autumn 2004, p. 4.

[852] Section 35 states that the hearing of a proceeding before the Tribunal shall be in public, Administrative Appeals Tribunal Act 1975.

[853] Section 35—Hearings to be in public except in special circumstances, Administrative Appeals Tribunal Act 1975.

[854] Administrative Appeals Tribunal, Introduction to the AAT, AAT website, http:www.aat.gov.au/AboutTheAAT/Introduction ToTheAAT.htm (3 June 2005). See also Michael Sassella, Senior Member, AAT, 'Reviewing Particular Decisions made by ASIO: the Security Appeals Division of the Administrative Appeals Tribunal', Attorney-General's Department, Security in Government 2002 Conference.

[855] The Hon Justice Garry Downes, President of the Administrative Appeals Tribunal, 'Future Directions ', Speech to the Australian Institute of Administrative Law's Forum, 'Administrative Law: Problem areas—Reflections on practice', Annual Dinner, 4 July 2003.

[856] Administrative Appeals Tribunal Act 1975, section 20A.

[857] See for example ADFP 06.1.3 para. 1.1.

[858] In camera Committee Hansard, 10 June 2004, p. 94.

[859] ADFP 06.1.3, para. 1.11.

[860] Committee Hansard, 5 August 2004, p. 17.

[861] Committee Hansard, 5 August 2004, p. 6.

[862] ADFP 06.1.3, para. 1.9. The Manual further explains that guidance on when DFDA action should be taken or matters referred to the civilian authorities is contained in DI(G) PERS 45–5—Australian Defence Force Prosecution Policy and DI(G) PERS 45–1—Jurisdiction under the Defence Force Discipline Act—Guidance for Military Commanders.

[863] ADFP 06.1.3, para. 1.11.

[864] Committee Hansard, 1 March 2004, pp. 65–6.

[865] Submission P64, p. 5.

[866] Submission P 39, p. 4.

[867] Committee Hansard, 9 June 2004, pp. 44–5 and 48.

[868] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence (Inquiry) Regulations 1985, p. 76.

[869] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence (Inquiry) Regulations 1985, pp. 76–7.

[870] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence (Inquiry) Regulations 1985, p. 17.

[871] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence (Inquiry) Regulations 1985, p. 85.

[872] Report into Military Justice in the Australian Defence Force, conducted by Mr J.C.S.Burchett, QC, An Investigating Officer appointed by the Chief of the Defence Force, under the Defence (Inquiry) Regulations 1985, p. 32.

[873] Ministry of Defence, Memorandum from the Ministry of Defence, 'Tri-Service Armed Forces Bill.

[874] Confidential Submission C26, p. 2.

[875] Committee Hansard, 9 June 2004, pp. 32–4.

[876] ibid.

[877] Air Commodore McDermott, Committee Hansard, 21 June 2004, p. 45.

[878] ibid., p. 46.

[879] Members of the ADFC that are full members of the ADF or Reserve members of the ADF are subject to the ADF military justice system.

[880] Air Marshal Houston, Committee Hansard, 1 March 2004, p. 48. See also, Air Commodore McDermott, Committee Hansard, 21 June 2004, p. 50.

[881] Committee Hansard, 21 June 2004, p. 45.

[882] See discussion Committee Hansard, 1 March 2004, pp. 48-51.

[883] Defence Instruction (Air Force) AAP 5110.001 Air Training Corps Manual of Management Fourth Edition of 27 November 1994, Chapter 7, paragraph 709 (a).

[884] Defence Instruction (Air Force) AAP 5110.001 Air Training Corps Manual of Management Fourth Edition of 27 November 1994, Chapter 7, paragraph 710 (f).

[885] Defence Instruction (Air Force) AAP 5110.001 Air Training Corps Manual of Management Fourth Edition of 27 November 1994, Chapter 7, paragraph 711.

[886] Susan Campbell, Committee Hansard, 21 April 2004, pp. 4-5, 13, 17.

[887] Susan Campbell, Committee Hansard, 21 April 2004, p. 5.

[888] Inquiry into the Administrative Process and Procedures Surrounding the Suspension of CSGT Eleanore Tibble G1465 – Investigating Officers Report, pp. 17-19.

[889] The Human Rights and Equal Opportunity Commission Report No. 29, Report of an inquiry into complaints by Ms Susan Campbell that the human rights of her daughter were breached by the Commonwealth of Australia under the Convention on the Rights of the Child, p. 29. Emphasis added.

[890] Confidential Submissions, C23 and C23A.

[891] Commonwealth Ombudsman, Report into the investigation of a complaint by a young person (under the age of 18) of an incident involving unacceptable behaviour at a Navy training establishment in mid-1996.

[892] Air Marshal Houston, Committee Hansard, 1 March 2004, p. 51.

[893] Department of Defence, Submission P16, p. 88.

[894] Maria Campbell, Committee Hansard, 21 April 2004, p. 18.

[895] Submission P16, pp. 88-89. (ADF) See also, Air Marshal Houston, Committee Hansard, 1 March 2004, p. 46 and Air Commodore McDermott, Committee Hansard, 21 June 2004, p. 45.

[896] Department of Defence, Submission P16, pp. 88-89. See also, Air Marshal Houston, Committee Hansard, 1 March 2004, p. 46 and Air Commodore McDermott, Committee Hansard, 21 June 2004, p. 45.

[897] Department of Defence, Submission 16, p. 89. See also, Air Marshal Houston, Committee Hansard, 1 March 2004, p. 46.

[898] Air Commodore McDermott, Committee Hansard, 21 June 2004, p. 46.

[899] Whilst Mrs Campbell was provided by the RAAF with a full copy of the Stunden Report, the Committee understands that Mrs Campbell's initial request for that report was through Freedom of Information.

[900] Department of Defence, Submission P16, p. 89. See also, Air Marshal Houston, Committee Hansard, 1 March 2004, p. 46.

[901] The Human Rights and Equal Opportunity Commission Report No. 29, Report of an inquiry into complaints by Ms Susan Campbell that the human rights of her daughter were breached by the Commonwealth of Australia under the Convention on the Rights of the Child, p. 47.

[902] ibid., p. 47.

[903] ibid., p. 47.

[904] See also, Air Commodore McDermott, Committee Hansard, 21 June 2004, pp. 50-51.

[905] Vice Admiral Ritchie, Committee Hansard, 5 August 2004, p. 76.

[906] Vice Admiral Ritchie, Committee Hansard, 5 August 2004, p. 80.

[907] Defence Force Ombudsman, Submission P28, p. 1.

[908] Air Commodore McDermott, Committee Hansard, 21 June 2004, p. 47.

[909] The Hon Fran Bailey MP, Press Release, '$18 million Boost to Cadets', 11 May 2004. See also, Air Commodore McDermott, Committee Hansard, 21 June 2004, p. 56.

[910] Air Commodore McDermott, Committee Hansard, 21 June 2004, p. 54.

[911] Air Commodore McDermott, Committee Hansard, 21 June 2004, p 55.

[912] Air Marshal Houston, Committee Hansard, 5 August 2004, p. 76.

[913] Air Marshal Houston, Committee Hansard, 5 August 2004, p. 77.

[914] In Camera Committee Hansard, 10 June 2004, p. 65.

[915] See chapter 7, paras 7.85–8 and chapter 8, paras 8.109–8.112. Much of this evidence was in camera but see also paras 8.115–8.118.

[916] Confidential Submission C30, and In Camera Committee Hansard, 10 June 2004, p. 66.

[917] See Senate Foreign Affairs Defence and Trade References Committee, Taking Stock, August 2004. See also Committee Hansard, 29 April 2004, p. 6: ‘Anyone who has been in the services will tell you that service personnel will cover up medical and personal problems so as not to affect their careers’ and also p. 19.

[918] See Submission P23. See also the discussion on this matter in chapter 7 in particular the committee's main findings on the reasons for this reluctance in para. 7.64 and the committee's conclusion in paras 7.83–7.88.

[919] Committee Hansard, 21 June 2004, p. 4.

[920] In camera Committee Hansard, 10 June 2004, pp. 66-67.

[921] See also Committee Hansard, 9 June 2004, p. 10.

[922] Submission P28, p. 4.

[923] Submission P52A, p. 2, and see also p. 3 ‘I admit to thoughts ranging from murder to suicide regarding my treatment’; Submission P61, p. 5: ‘Eventually the victims get out by being discharged as unsuitable or dishonourably, due to the [effect] that events have on their personality and performance, or in the extreme by suicide.’

[924] Submission P15, p. 1.

[925] Submission P15, p. 2.

[926] Chapter 8 examined in detailed the flaws in administrative investigations describing in some cases the effects that they have had on individuals. See in particular paras 8.137–8.141.

[927] Submission P63, p. 3.

[928] Submission P47.

[929] See, for example, Committee Hansard, 28 April 2004, pp. 29-30, and Submission P13A, p. 2 which states medical information detailing a beating was not placed on a file See Submission P52, pp. 2–3 which refers to an event not reported but which left long–term effects on one of the witnesses.

[930] See for example statement by Mr Southam: 'These have caused me to be medically discharged as a result of psychological issues, and I have attempted suicide along the way after some three years of trying to find some resolutions in relation to these submissions’, Committee Hansard, 9 June 2004, p. 64; Submission P50, p. 3ff.

[931] Submission P55, p. 4.

[932] See chapter 9 especially paras 9.58–9.61.

[933] See chapter 11, paras 11.49–11.52; 11.73–11.77; 11.97–11.99.

[934] Submission P33, p. 3.

[935] See Submission P41. Also chapter 6, paras 6.131–6.138.

[936] Committee Hansard, 9 June 2004, pp. 3, 13.

[937] Confidential Submission C10, p. 10. Quoted with the permission of Mr and Mrs Hoffman.

[938] Submission P61, p. 5.

[939] Submission P50, p. 5. See also Submission P65, p. 3.

[940] Submission P50, p.11; Submission P53, pp. 3–4.

[941] Submission P49, p. 3. See also Submission P65, p. 5: ‘The next day I faced trial before my Commanding Officer who receives his legal advice from the coxswain, who is also the prosecutor.’

[942] See chapter 3, paras 3.29–3.31.

[943] Submission P33.

[944] Submission P30.

[945] Submission P30.

[946] Submissions P51, P32, and P30.

[947] See chapter 6, para. 6.30.

[948] Annex A, Appointing Officer's Decisions and Action Plan Investigation into the Death of 8299931 PTE J.P.Williams, February 2003, pp. 35–6. This document was provided to the committee and is classified as Staff-in-Confidence. The committee has taken great care to ensure that the privacy of any persons referred to in the report has been respected.

[949] Committee Hansard, 1 March 2004, p. 22.

[950] Committee Hansard, 1 March 2004, pp. 22–3.

[951] Mr Ford indicated during evidence on 22 April that he had worked in the mining, oil and gas industries and had been an Air Force member. He had undertaken safety investigations and audits, and had experience in reporting to statutory authorities. Committee Hansard, 22 April 2004, p. 18.

[952] Committee Hansard, 22 April 2004, p. 26.

[953] Committee Hansard, 22 April 2004, p. 19.

[954] Submission P23, p. 1.

[955] Committee Hansard, 29 April 2004, p. 3.

[956] Committee Hansard, 29 April 2004, pp. 3–6.

[957] Submission P23, p. 1.

[958] Committee Hansard, 29 April 2004, p. 4.

[959] Submission P45, p. 2.

[960] Submission P37, p. 4.

[961] Submission P13, pp. 2–3. Information on Able Seaman Matthew Liddell varies, with the Navy stating that extensive care was provided, including after discharge (Submission 16B, p. 2) and his mother believing that he was not admitted to specialised treatment for PTSD until 16 months after the fire (Submission P13, p.5) as well as not being able to move away from Perth to avoid the memory of the fire.

[962] Submission P13, pp.1–2.

[963] Submission P13, p. 4.

[964] Committee Hansard, 5 August 2004, p. 38.

[965] Submission P18 and Committee Hansard pp. 32–33.

[966] Submission P18.

[967] Submission P3, p. 2.

[968] Committee Hansard, 21 June 2004, p. 21.

[969] Committee Hansard, 21 June 2004, p. 21.

[970] Committee Hansard, 21 June 2004, p. 21.

[971] Committee Hansard, 6 August 2004, p. 39.

[972] Committee Hansard, 21 June 2004, p. 3.

[973] Committee Hansard, 6 August 2004, p. 39.

[974] Committee Hansard, 21 June 2004, p. 4.

[975] Committee Hansard, 21 June 2004, pp. 9, 13. He stated it was 'undersubscribed' and he thought it 'would get used more'.

[976] Committee Hansard, 21 June 2004, p. 3: 'When we set the line up, one of the key things was to provide some anonymity because we have this strong sense that people do not use resources because of the spectre of it affecting their career’.

[977] Committee Hansard, 2 August 2004, p. 2: ‘The [military support] officer is responsible, along with people such as the chaplain, for organising a funeral in the case of a death, assisting with managing the estate and providing a conduit between the member’s unit and the family to ensure information is communicated clearly, accurately and in a timely manner. The DCO also allocates a social worker to the family who, in the early stages, assists the family.’

[978] Committee Hansard, 2 August 2004, p. 1.

[979] Committee Hansard, 2 August 2004, p. 9.

[980] Committee Hansard, 2 August 2004, p. 2.

[981] Committee Hansard, 9 June 2004, p. 56.

[982] Committee Hansard, 9 June 2004, p. 57.

[983] Committee Hansard, 22 April 2004, p. 49.

[984] Submission P2; Committee Hansard, 2 August 2004, p. 12. See also Submission P13, p. 5 which was highly critical of the DCO although more positive about help provided by chaplains.

[985] Submission P32, p. 5.