Chapter 4
Administrative system
4.1
The administrative system is the second component of the military
justice system. It is concerned with non-DFDA matters, such as boards of
inquiry (BOI), CDF commissions of inquiry, administrative investigations,
redress of grievance (ROG) and complaint handling, adverse administrative
action and review of command decisions.
4.2
The disciplinary and administrative components of the military justice
system are 'essential to maintaining a disciplined and operationally effective
military force'.[1]
The systems, however, are quite distinct and separate. The administrative
system has a different legislative source and serves a different purpose from
the disciplinary system.[2]
Whereas the discipline system is largely informed and controlled by the rules
and principles of the criminal law, the administrative system is 'subject to
administrative law principles, especially the fundamental principles comprising
natural justice, also called procedural fairness.[3]
Delays in the redress of grievance
system
4.3
In its 2005 report, the committee identified delays and other
organisational failures that frustrated the timely completion of an
investigation in resolving grievances as a major problem. To tackle these
problems, the references committee recommended that all complaints lodged with
a commanding officer and being investigated within the chain of command be
referred to the proposed Australian Defence Force Administrative Review Board
(ADFARB) if the matter was not resolved 60 days from lodgement.[4]
4.4
The government did not accept the committee's recommendation. It
proposed instead to reform and streamline the complaints and redress of
grievance management system. The Fairness and Resolution Branch was established
on 30 January 2006 as the central management body outside the normal line
management. This initiative combined a number of former separate units within
the department. In effect, it re-structured, renamed and brought together the
Complaint Resolution Agency, the Defence Equity Organisation and the
Directorate of Alternative Dispute Resolution and Conflict Management.[5]
The new system allows Defence 'to streamline the complaints and redress of
grievance system in line with the recommendations of the 2004 joint Defence
Force Ombudsman and CDF redress of grievance system review'.[6]
The Fairness and Resolution Branch now has responsibility for addressing the
problem of delays and other operational failings in the administrative system.
4.5
Early in the implementation period, the committee was encouraged by the
results from the restructuring. In June 2006, the Defence Force Ombudsman
informed the committee that there had been a substantial improvement in the
processing of complaints, notably a reduction in the time for handling ROGs and
in the number of complaints about delay that flow through to his office.[7]
He explained:
Our experience a year ago was that it was common for matters to
have been within the Complaint Resolution Agency, or within the redress of
grievance process, for six or nine months and sometimes longer before it came
to our office.[8]
4.6
Professor McMillan attributed the better and faster handling of
grievances to sounder structural coordination by the merger of the different
branches.[9]
He was of the view that the reduction in processing time was a positive
improvement in the way that matters were handled within Defence and that it
represented a more professional approach to handling complaints.[10]
4.7
He also noted that in the past his office sometimes experienced
difficulty in having its requests to Defence receive priority but that the
process in investigations was 'proceeding much more efficiently in discussion
with the Defence department.[11]
Overall, he observed 'a general improvement in responsiveness of the Defence
portfolio to our requests'.[12]
The positive results have enabled the Office of the Defence Force Ombudsman to
reduce their number of open cases and brought about a 'much more efficient
dispatch of complaints about the defence portfolio'.[13]
4.8
At that time, he suggested that to avoid any slippage in quality it was
'necessary to implement quality assurance processes and regular monitoring and
auditing of the way complaints handling and investigation are undertaken'.[14]
4.9
The complaints handing system has continued to undergo further reforms.
The ADF's June 2008 progress report noted that substantial work had been
completed in reforming and streamlining the complaints and redress of grievance
system. The CDF explained:
...The Defence Force regulations took effect last month and now
provide an updated process for members of the ADF to submit complaints
regarding certain matters relating to their service. The amendments introduce
time frames relating to the process for submission on, inquiry into, and
referral to a higher authority of redresses of grievance. I believe the revised
arrangements will substantially improve ADF complaint handling processes.[15]
4.10
As an indication of this improvement, the Defence Force Ombudsman
received 252 approaches and complaints from serving and former members of the
ADF in 2006–2007 compared to 303 in the previous year. It drew attention to:
- greater timeliness in the way Defence handles complaints from
serving members;
- the positive effect that recent quality assurance mechanisms have
had on the ADF's redress of grievance process; and
- Defence's willingness to involve the Ombudsman's office in ADF
training courses and seminars.[16]
Referral to service chief—delays
4.11
The committee notes the success that the 90-day time limit for
addressing a redress of grievance at the unit level is having minimising delays.
While recognising the improvement that this measure has had in expediting the
handling of complaints, the Defence Force Ombudsman did note, however, that
there was no 90-day time limit imposed for referrals to the Service Chiefs. Information
available to the Ombudsman's office indicated that such referrals were taking about
6 months before the matter is then allocated to a case officer within complaints
resolution. He explained:
Then, of course, it can take several weeks more for the complaint
officer to investigate and prepare a report for the service chief and then for
the service chief to address it. Admittedly, it is more important in many ways
to have the resources and effort focused at the primary stage and to ensure
that the time lines are met at the primary stage. But the fact that there are
such strict time limits being met there and then, if there is an appeal to a
service chief that it is taking so long...[17]
4.12
He stated further:
Given that an important principle in the design of the system is
that there should be a 90-day turnaround at the primary stage, one would like a
similar time limit at the appeal stage. In many ways, that could be a shorter
period because the basic investigation has already been done and so the issues
have been clarified.[18]
Committee view
4.13
The committee recognises the efforts of the ADF to improve its ROG
process. It especially notes the success achieved in reducing the time taken to
process these grievances. It draws attention, however, to the potential for
delay where a grievance is referred to a service chief. The committee believes
that a timeframe imposed on this stage of a ROG would be desirable.
Recommendation 5
4.14
The committee recommends that a specific time limit, for example 90 days,
be imposed on referrals of ROGs to the service chiefs.
Reporting of complaints
4.15
The importance of having a mechanism that allows ADF members to make a
complaint with confidence in the integrity and fairness of the process is
central to an effective and fair administrative system. The Defence Force
Ombudsman noted that from an institutional viewpoint, individual complaints are
'a valuable resource for highlighting problems and improving and reforming
administrative systems'.[19]
He stated:
Regular high-volume complaint handling provides a constant
message to everybody in the system that dealing with problems is core
business—that it is not a sign of malfunction or that people have issues. The
underlying principle of the redress of grievance system is that the absolute
devotion and loyalty expected of defence members has to be matched by a system
that formally allows them to lodge a grievance and have it redressed. In many
ways, the redress of grievance system is more integral to defence culture than
is often thought to be the case. The idea that people can lodge a complaint by
a formal process is a necessary feature of a system that otherwise demands
complete loyalty in all other circumstances.[20]
4.16
In 2005, the committee highlighted its concern about the tendency of ADF
members to baulk at reporting improper conduct or to lodge a legitimate
complaint. The committee's 2005 report devoted a chapter to impediments to
reporting wrongdoing or making a complaint in the ADF.
4.17
It its view, there was an anti-reporting ethic in some areas of the ADF.
It argued that 'a fundamental change in the ADF mindset must be achieved to
overcome the stigma attached to lodging a complaint'. Indeed, the committee
recognised that this reluctance to complain was part of an entrenched culture
within the ADF that, if allowed to continue, had the potential to frustrate the
efforts of the ADF to reform its military justice system. It contended that the
failure to report wrongdoing meant that responsible commanders were not well
placed to detect and correct wrongdoing and hence unsafe practices or
inappropriate conduct continued unchecked. The committee was particularly
concerned about the reporting of wrongdoing in ADF's training establishments. It
found:
The very fact that two young soldiers at Singleton were not
prepared to pursue their right to make a complaint about cruel and abusive
treatment, and that the wrongdoing came to light only through the determined
efforts of their parents, speaks volumes about the inadequacies of the
administrative system. They were not alone in their experiences. This failure
to expose such abuse means the system stumbles at its most elementary stage—the
reporting of wrongdoing.[21]
4.18
In his recent 2007 report on the management of unacceptable behaviour,
the Ombudsman referred to ADF personnel and their disinclination to make a
complaint. According to his findings:
Almost two thirds of members responding to the survey advised
that they would feel comfortable lodging a complaint of unacceptable behaviour.
However, almost half did not consider that the complaint process was fair and
transparent. Reservations expressed about using the system included possible
repercussions such as adverse effects on promotion, peer pressure, being
considered a ‘dobber’ or other adverse treatment.[22]
4.19
He explained further:
...there is probably a popular view that, in a disciplined,
uniform force, having to complain is a sign of failure or weakness. And yet, as
I say, the redress of grievance system historically was regarded as an
essential and critical part of Defence values and Defence principles. If people
are being told to follow orders and directions that can lead to their death or
injury, then an essential corollary is that they should be able to formally
lodge a grievance and have it investigated. My impression is that that
philosophy is probably not known as widely as it should be in relation to the
Defence redress of grievance system, so there is work to be done both in and
outside Defence in promoting that philosophy about complaint handling.[23]
4.20
The committee notes the Ombudsman's suggestion that Defence may wish to
consider additional research into the reasons for a significant proportion of
ADF members surveyed not feeling confident 'to make a complaint about
unacceptable behaviour, and identify whether there are particular barriers to making
a complaint'.[24]
4.21
The ADF's June 2008 progress report recognised that fear of reprisal by
respondents is 'common to many complainants'. It stated that Defence has
introduced a training course for commanders, supervisors and managers which
includes information on providing support to all parties to a complaint.[25]
Committee view
4.22
The committee notes the Ombudsman's suggestion that Defence could
benefit from inquiring into why a significant proportion of ADF members surveyed
do not feel confident making a complaint about unacceptable behaviour, and
whether there are barriers to lodging a complaint. The committee believes that
this proposal is very sensible and would provide the ADF with a better
understanding of the reasons for the reluctance to report unacceptable
behaviour. The training programs mentioned by the CDF may then be better
targeted to address the causes.
4.23
Compelling evidence is already available, however, indicating that one
of the primary factors discouraging ADF members from reporting wrongdoing stems
from elements within the ADF culture that tolerate bullying and harassment and
other forms of victimisation of those who are perceived to be weak or who report
wrongdoing.
Learning culture in the ADF
4.24
In November 2005, the CDF appointed a team of three to investigate the
culture of ADF schools and training establishments. They were to determine
whether the culture was 'inappropriate, in particular, whether a culture of
harassment and bullying exists; and in general, whether irregularities against
established policies and processes of administration occur'.[26]
The inquiry team reported in July 2006. In recording its findings, the team
'did not find evidence of a culture that supports bullying or harassment'. Even
so, it went on to state that 'there is still some way to go before the
underlying culture will firmly oppose harassment and bullying, and firmly
support explicit policies on such issues as Equity and Diversity'.[27]
4.25
The committee was struck by the similarity in language and use of
phrases in the recent audit report and in the investigators' reports into the suicide
deaths of Private Jeremy Williams and Gunner John Satatas, cited in its 2005
report. For example, the report into the death of Private Williams found no
evidence to support the view that a culture of brutality, bullying and
standover tactics existed at the School of Infantry. It noted that there seemed
to be 'isolated incidents from differing individuals that highlighted
inappropriate behaviour by individuals rather than a culture'. It wrote of
'negative reinforcement' and 'disparaging and negative comments' but found that
'a culture of denigration is not proved'.[28]
4.26
Concerned that some of the recent findings were reminiscent of those from
earlier investigations into the suicides of young soldiers such as Private Williams
and Gunner Satatas, the committee sought additional information from Defence.
For instance, the committee was concerned about statements recorded by the team
such as:
One trainee said: ‘People become victims because they let the
team down.’ Another said: ‘There needs to be a change of culture where
we can ask for help with a discipline problem. Now I feel I have failed my job
if I ask for help.’ Those who were not contributing to the team tended to
be isolated and ignored (with the risk of being bullied), rather than being
assisted and supported by their peers, or their peers seeking assistance. The
culture seems to encourage trainees to be negatively judgmental about their
peers as demonstrated by the frequency of terms such as ‘chitters’,
‘malingerers’, ‘marginals’, ‘jack’, ‘gobbing off’ and ‘bludgers’.[29]
4.27
To assist the committee understand the context and significance of these
views, Defence explained that the inquiry team in the ADF's learning culture had
advised that its findings were based:
...on its assessment of all the evidence it gathered from visits,
focus groups, surveys and documentation. The majority of responses to survey
questions and in focus group discussions were positive, but there were
significant exceptions that demonstrated there is still some way to go to
manage the risk of bullying and harassment by developing a culture that firmly
opposes such behaviour and supports explicit policies on equity and diversity.[30]
4.28
Specifically, the committee also sought information from Defence on the
inquiry team's 'strong impression' that 'the level of direct bullying of those
perceived to be performing poorly by trainers or trainees is generally low now,
given the rules on inappropriate behaviour, but other forms of more subtle
abuse are not uncommon'. The committee sought clarification on the meaning of
the term 'subtle abuse'. The inquiry team, through Defence, explained that in
its report it had drawn attention to practices such as the tendency to isolate
those who are perceived to be performing poorly or not contributing sufficiently
to the team'. It noted:
This can become a form of abuse, particularly if the trainee
concerned perceives that his or her peers have collectively taken such a
stance, particularly if derogatory terms are used towards the individuals
concerned.[31]
4.29
This report coupled with the committee's findings in 2005 underline the
need for the ADF to take a firm stand against 'isolated incidents' and to be
mindful that they may signify a deeper problem. It is crucial that incidents of
inappropriate behaviour are reported without fear of reprisal, investigated
thoroughly and remedied quickly: otherwise, the potential for such practices to
take root in ADF culture is great.
4.30
In 2005, to address a number of problems such as fear of reprisal for
reporting wrongdoing, the committee recommended that the government establish
an independent Australian Defence Force Administrative Review Board (ADFARB).
Under certain circumstances, it would, inter alia, receive reports and
complaints directly from ADF members, for example, if the person making the
submission felt he or she would be victimised in some way for making the
report.
4.31
As noted earlier in this chapter, the government rejected the committee's
recommendation and decided to restructure the system with the Fairness and
Resolution Branch assuming responsibility for address organisational failures
in the administrative system. Under this revised system, all complaints must be
registered with the agency, which has the authority to take over the management
of all cases unresolved by commanders 90 days after lodgement. The government
also indicated that improved training of commanding officers and investigating
officers would resolve some of the problems identified with the management of
complaints. It noted further:
For those ADF personnel who, for whatever reason, do not wish to
use the chain of command, there will remain two alternative avenues of
complaint—IGADF and the Defence Force Ombudsman.[32]
4.32
It should be noted that the CDF has given his commitment to ensure that Australia's
military justice system is underpinned by values that promote 'productive and
constructive' behaviour. Soon after becoming CDF in 2005, Air Chief Marshal Angus
Houston informed the committee:
During my tenure as CDF I will invest a great deal of personal
effort to ensure that our values are at the heart of the way we do our business
in Defence and, most importantly, that we are emphasising values based leadership
at all levels. There have been some instances where our people have not been
treated very well. I have made it very clear that I expect everybody in Defence
to be treated with respect and to get a fair go. That is the Australian way and
that is the Australian Defence Force way. I expect to see that right across the
three services and right across the whole defence organisation.[33]
4.33
In 2008, the CDF informed the committee that implementation of 46 of the
47 agreed recommendations from the Inquiry into the learning culture in ADF
schools and training establishments 'was progressing satisfactorily'. He noted
the following milestones:
- defining the optimal learning culture (now pending incorporation
into Australian Defence Doctrine);
- defining the difference between tough training from bullying and
providing principles for the conduct of tough training;
- rules for the development of codes of conduct across ADF
training;
- aligning the ADF fraternisation policy, within ADF training, with
contemporary standards; and
- the development of principles for the conduct of focus groups
that promote open and honest communication while preserving command authority
and discipline and ensuring accountability.[34]
4.34
He noted:
The implementation plan builds on several initiatives already underway.
As part of the process of continuous improvement it is expected to influence changes
to ADF training well after achievement of the last of its endorsed milestones.
Good progress has been made to date and this progress is being reported to me
quarterly, with achievements contained in a specific section of the Defence
annual report.[35]
4.35
The committee notes the measures taken to improve the Defence's learning
culture such as developing policies, codes of conduct and training programs.
The committee commends such measures but believes that their success in
promoting a fair and effective system needs to be assessed regularly. Indeed,
on a number of occasions the committee has expressed its concern that to
achieve lasting change in the military justice system, a 'major shift' is
required in the attitudes of ADF personnel. The committee understands that
reform will take time and persistence and that the ADF faces a significant
challenge.
Measuring changes in attitude
4.36
The committee sought information on the 'performance indicators' used to
monitor changes in attitudes and behaviour. The CDF cited the Defence attitude
survey as a way of benchmarking the attitudes of Defence personnel. He said:
Through that we can pick up how people are travelling and how
their morale is. There are other mechanisms also available to us, but most of
those are what I would call qualitative assessments by commanders...whether we
have specific benchmarks against cultural change as a consequence of this
report, no we do not. But I do think we have got a number of other mechanisms
out there whereby we can measure how things are going.
I think it is more a question of using the learning culture
report to change the way we do our training—the way we do the basic training
and the training of NCOs and commanders—to emphasise the importance of
establishing the right culture through the organisation. All three services
have done that very effectively. Obviously, it is something that takes time and
we are proceeding pretty well at this stage.[36]
4.37
In its 2005 report and subsequent reports on the implementation of
reforms to the military justice system, the committee voiced strong concerns
that if the culture within the ADF is not addressed, it may well undermine any
reforms.
Committee view
4.38
The committee believes that the effective monitoring of attitudes in the
ADF is critical to the success of the implementation of reforms to Australia's
military justice system. The recent inquiry into the learning culture of the
ADF underlines the need for another independent and comprehensive review at
some time in the near future. Such a review is particularly important to ensure
that the recommendations made in the 2006 review of the learning culture in the
ADF have been implemented and to determine whether additional measures need to
be taken.
Recommendation 6
4.39
The committee recommends that the ADF commission an independent review
of the learning culture in the ADF, along similar lines as the investigation
conducted in 2006. The main purpose of the inquiry would be to assess whether
the recommendations contained in the 2006 report have been effectively implemented
and whether additional measures need to be taken to improve the learning
culture in the ADF. This review should take place within five years and the
report on its findings should be made public.
4.40
In the mean time, Defence's Attitude Survey is one way that the ADF, the
government and the parliament can keep track of developments in the attitudes
of ADF members. The committee suggests, however, that if the ADF and the
parliament are to rely on such surveys to benchmark developments in the
military justice system, the surveys would need to provide a greater level of
detail and critical analysis than that provided in the recent publication 2006
Defence Attitude Survey, Summary of Results.
4.41
The committee suggests that the published findings of Defence's attitude
survey not merely report on the statistics collated but provide robust analysis
and commentary on these indicators and what they mean for the effectiveness of Australia's
military justice system.
Recommendation 7
4.42
The committee recommends that the findings of Defence's attitude survey
contain a greater level of detail and analysis than that provided in the most
recent publication
Investigating complaints
4.43
Encouraging ADF members to report unacceptable behaviour is an important
first step but ADF members must also have confidence in the competence of those
investigating complaints and the fairness of the process. It should be noted
that administrative investigations tend to be routine inquiries conducted at
the unit level and not by members of the ADFIS.
4.44
In its inquiry in 2005, the committee underlined the central importance
of the inquiry process to the overall effectiveness of the administrative
system. It recognised that any shortcomings or failings during the early stage of
an inquiry have the potential to set an administrative proceeding on a long and
troubled course that could drag through the system for years. The integrity of
the inquiry process and its ability to protect the fundamental rights of those
involved in the process are crucial to its credibility and its effectiveness. The
Burchett Report observed that:
...if an investigation is conducted carelessly or incompetently,
so as to miss the real point, or if it is conducted in such a manner that,
although its actual conclusions are realistic, the persons most concerned are
left with a feeling that they have not been treated fairly, no decision
dependent upon the investigation is likely to be received with general
satisfaction...the person it is important to convince that all arguments have
been fairly and fully considered is the party who loses.[37]
4.45
During the 2005 inquiry, the Defence Force Ombudsman also underlined the
importance of getting the investigation right from the beginning. He made the
observation that 'if the initial handling, investigation or whatever of a
complaint is defective then it establishes a bad platform which is reflected at
every subsequent stage of the process...'[38]
Mr Neil James, Executive Director, Australian Defence Association, strongly
endorsed this view. In his words, 'an ounce of prevention is worth a pound of
cure'.[39]
4.46
In 2005 the committee found, however, that there were serious flaws in the
investigation stage of an administrative inquiry. It described a system where:
There were alarming lapses in procedural fairness: failure to
inform members about allegations made about them, failure to provide all
relevant information supporting an allegation, and breaches of confidentiality.
Indeed, the committee heard numerous accounts of members suffering unnecessary
hardships due to violations of their fundamental rights.
Poorly trained and on occasion incompetent investigating
officers further undermined the effectiveness of administrative investigations.
The committee found that missing or misplaced documentation, poor record
keeping, the withholding of information, lack of support in processing a
complaint and investigating officers who lack the necessary skills, experience
or training to conduct a competent inquiry, contributed to unnecessary delays
and distress. Many of those subject to allegations have endured long periods of
uncertainty and anxiety.[40]
4.47
One of the most corrosive influences undermining the principles of
natural justice and one of the most commonly cited concerns stemmed from conflicts
of interest and the lack of independence of the investigator and the
decision-maker. Many witnesses to the 2005 inquiry called for an independent
adjudicator so that a neutral and unbiased investigation could take place free
from contamination by self-interest or third party influence.[41]
4.48
As noted earlier, the Fairness and Resolution Branch is now the central
management body responsible for overseeing the management of complaints in the
ADF. The Acting Director of the branch, Ms Diane Harris, told the committee in
June 2006 that the branch had the capacity to look at a complaint when it is
submitted and to determine whether the best process is being used to resolve
the matter. She explained:
For example, if that complaint is around what might be a very
difficult workplace relationship, it may well be that an alternative dispute
resolution process is better suited to it. So we are in a position as a branch to
go back to a CO right in the early stages and say, ‘Well, yes, this is a formal
complaint but have you considered this as an alternative approach,’ and so they
can use that instead. If it does not succeed, of course the individual still
has the formal complaint on the books and it can then be proceeded with as a
formal complaint, but sometimes that is not the best way to get the outcome
that the individual wants.[42]
We also have an enhanced advisory role. As of 1 July it will be
mandated that all COs, on receiving a complaint, have five days to do their
quick assessment to determine what their course of action is going to be and
then to submit all of that to the Fairness and Resolution Branch where it will
be reviewed. We will have our legal officer look at it, we will have an
experienced case officer look at it and we will then provide advice to the CO
in terms of the approach that has been proposed.[43]
We would expect that in most cases that approach will be fairly
sound, but in some cases it will not be. We might go back, for example, and
say: ‘You have nominated Lieutenant Smith to be the inquiry officer. In this
case we believe the issues are too complex for a junior officer. We recommend
that you appoint a more senior officer to do it.’ We might also, for example,
say: ‘This is a very complex issue. It will be quite involved.’ So we might
recommend a different inquiry officer altogether and we may put forward to the
CO the name of somebody else from outside the unit who might be able to be the
inquiry officer for the purposes of that complaint.[44]
4.49
As early as June 2006, the Defence Force Ombudsman, Professor John McMillan,
noticed an improvement in the operation of the system. He welcomed the
requirement for the central unit to be notified when a complaint or redress of grievance
is first lodged. According to the Ombudsman, the unit then takes a quick look
at the complaint and can give 'guidance and direction to the unit level
commander who will be investigating it'. In his view this early management of
complaints is 'important and is improving the result'.[45]
4.50
In June 2007, an Ombudsman's report confirmed the earlier positive impressions
about the operation of the system:
...Defence currently provides an effective complaint-management
mechanism that ADF members can readily access. We observed that ADF members
consider there have been improvements in the complaint-handling process in
recent years and that members have a reasonable level of confidence in the
complaints system.[46]
Committee view
4.51
The committee recognises that the restructuring of the ROG process under
the direction of the Fairness and Resolution Branch was a definite improvement.
While early indications are promising, the system will require continuing
surveillance and adequate staffing.
Managing complaints of unacceptable behaviour
4.52
Although in his 2007 report, the Ombudsman acknowledged a much improved
complaint-handling system, he nonetheless made 15 recommendations intended to
enhance ADF's administrative system. They were based on suggestions made by members
of the ADF and related to recordkeeping, training, reporting, data collection,
the role of inquiry officers and equity advisers, and quality assurance. In the
view of the Ombudsman, further consideration of these recommendations would:
...improve support to, and accountability of, those involved in
making, managing and responding to complaints of unacceptable behaviour. They
will also further integrate Defence values of equity and diversity into
cultures across the ADF.[47]
4.53
Defence agreed to all the recommendations. A number of matters contained
in the report, however, have been of continuing concern to the committee since
its major report on Australia's military justice system in June 2005 including
fear of reprisal and recordkeeping. The committee has already discussed fear of
reprisal.
Recordkeeping
4.54
On a number of occasions the committee has
expressed concern about poor recordkeeping in the ADF and its implications for
the military justice system. In its 2005 report, the committee found that:
Missing or misplaced documentation, poor record keeping,
recourse to the Freedom of Information legislation, conflicts of interest, lack
of support in processing a complaint, investigating officers who lack the
necessary skills, experience or training to conduct a competent inquiry all
contribute to unnecessary delays.[48]
4.55
The Ombudsman in his June 2007 report on the management of unacceptable
behaviour also referred to deficiencies in ADF recordkeeping. He noted the
possibility that deficient recordkeeping may be 'indicative of record-keeping
standards more generally in the ADF, rather than being limited to the
management and investigation of complaints of unacceptable behaviour'.[49]
4.56
He noted that he had raised concerns about the quality of records of
conversation with the FRB (Fairness and Resolution Branch) on previous
occasions during the investigation of complaints from members of the ADF. In
his view:
Inadequate record keeping not only has the potential to
adversely affect decisions made by the commander/manager on resolution of the
complaint but can hamper the resolution of complaints which are pursued through
the review process in the Instruction, the ROG process, legal proceedings, or
an Ombudsman or HREOC [Human Rights and Equal Opportunity Commission]
investigation.[50]
4.57
In response to the Ombudsman's recommendations relating to
recordkeeping, the CDF explained that the IGADF undertakes monthly audits of
selected units to assess the quality of quick assessments, inquiries and recordkeeping
in incidents of complaints of unacceptable behaviour.
4.58
The committee notes, however, that the Ombudsman's concern goes beyond
recordkeeping relating to the handling of a complaint to recordkeeping more
generally in the ADF. In this regard, the committee has received complaints,
for example, from former ADF members about medical documents that the ADF could
not locate, or would find too difficult to discover among metres of
documentation. According to some members, ADF's inability to produce
documentation hampers the initial claim process but more particularly any
appeal process that the member pursues, for example, in the Administrative
Appeals Tribunal. In this way, poor recordkeeping may adversely affect the
ability of complainants to press their claims thus denying them natural justice.
The committee notes a recent finding by Justice Crispin in Vance v Air
Marshall McCormack:
It is inescapable that the defendants have already had almost
five and a half years to find the documents relevant to the retirement of a
single officer. An earlier generation of military officers waged the First
World War in substantially less time. No plaintiff should be forced to endure
such an extraordinary delay in the litigation of his or her claim due to the
sustained default of a defendant...[51]
Committee view
4.59
The committee is of the view that, as part of the IGADF's monthly
auditing, the IGADF also take account of any difficulties experienced by a
complainant because of missing or incomplete documentation. Furthermore, the committee
suggests that in analysing and reporting on the matters referred to the Office
of the IGADF, the IGADF note whether poor recordkeeping has been cited by the
complainant as an impediment or frustration in pursuing redress.
4.60
Along similar lines, the committee suggests that the Defence Force
Ombudsman also take particular note of, and report on, the complaints he
receives from members of the ADF that relate to difficulties complainants may
have experienced in pursuing their claims because of poor recordkeeping. These
matters would include unnecessary delays or costs because the ADF could not
locate documents.
CDF commissions of inquiry (COIs)
4.61
In its 2005 report on Australia's military justice system, the committee
raised concerns about administrative inquiries into grave and complex matters
such as sudden death or serious accidents. At that time, it could not stress
strongly enough the importance of having investigating authorities 'above any
suspicion of partiality'. It recommended that all notifiable incidents
including suicide, accidental death or serious injury be referred to its
proposed Australian Defence Force Administrative Review Board (ADFARB) for
investigation or inquiry. Although the government agreed that there was a need
to demonstrate that ADF inquiries into serious incidents were independent and
impartial, it rejected the recommendation to establish such a review board.
Instead, it undertook to establish Chief of Defence Force Commissions of
Inquiry (COIs) to meet the objectives of independence and impartiality.[52]
4.62
The Defence Legislation Amendment Act 2006 allows the Governor-General to
make regulations in relation to the appointment, procedures and powers of CDF
commissions of inquiry. Regulations enabling the appointment of COIs were
passed by the Federal Executive on 21 June 2007 and commenced on 26 June 2007.
Role of COIs
4.63
The CDF made clear that COIs are intended to inform internal military
decisions. They:
...determine the facts and circumstances surrounding an incident
so an informed decision can be made regarding how and, if possible, why an
incident occurred, to help avoid a similar occurrence in the future. This is
vital for the safety and reputation of our people and the maintenance of our
capability. So far, these new arrangements have worked very well.[53]
4.64
He explained further:
COIs are not carried out with the intention of meeting the
requirements of any other organisation or person outside of Defence. Defence is
nevertheless committed to supporting the families of deceased ADF members
throughout the COI process and beyond.[54]
4.65
Captain Willee, who has been appointed to the CDF's panel of
presidential members for the conduct of CIOs, also explained the importance of
Defence inquiring into serious incidents:
...one has to go back to the fundamental reason for inquiries—that
is, that defence and most disciplined forces, such as fire brigades and police services,
need to get to the answer to the problem as quickly as they possibly can,
whether it be a blown gasket on an engine in an engine room or a rifle that
consistently misfires, to establish a cure so that it does not happen again. In
that sense it is sometimes seen that that need brings about a lack of
impartiality. [55]
4.66
He acknowledged, however, that these inquiries:
...will never deal with the fundamental difficulty...that is, the
grief which afflicts those whose loved ones have been taken from them in
whatever way and the constant theme that runs through all those sorts of
inquiries that something more can be done or that something has not been done properly.
We can only address that in the best possible way and as sympathetically as
possible, but it will never resolve or assuage the initial grief, the
bitterness and the concern that often arises from that that not everything has
been discovered.[56]
4.67
The committee recognises the importance of Defence inquiring into
mishaps or accidents in the ADF causing serious or fatal injuries. It is also
aware of the importance of such inquiries being removed from undue influence,
especially from command, and being conducted by competent investigators.
4.68
To address this problem of perceived partiality, the Defence (Inquiry)
Regulations stipulate that the president of a COI must be a civilian with
judicial experience and he or she must not be a permanent or reserve member of
the ADF. Captain Willee stated:
I would hope that those inquiries that have been conducted to
date, which have been studied by those who are concerned, would have already
helped to dispel any notions of lack of impartiality. As we go forward, we will
continue to improve the transparency and openness of the proceedings so that
people can be assured.
It is certainly not a case of the Defence Force investigating
itself. The act requires that those who are appointed as presidential members
to conduct those inquiries not be members of the ADF. Some ill-informed people
might think that, because we have been members, that would have imbued in us a
love of the service to such an extent that we would continue to want to curry
favour with the force.[57]
4.69
It should be noted that a CDF commission of inquiry has the power to
make recommendations arising from its findings. The CDF must also, at the end
of the financial year, prepare a report to be included in the Department's
annual report on the operation of the regulations governing the commissions.[58]
This requirement provides an opportunity for the parliament to examine the ADF
on the conduct and effectiveness of CDF commissions of inquiry.
4.70
Under the regulations, a commission of inquiry must not conduct an
inquiry in public.[59]
The CDF, however, may direct that a commission of inquiry conduct all or part
of an inquiry in public. The committee understands that in some circumstances
an inquiry or part of an inquiry should not be held in public. The regulations
allow for the president of a commission under certain circumstances to direct
that the inquiry conduct all or part of its proceedings in private. In the
interests of transparency and accountability, the committee can see advantages
in requiring commissions of inquiry to be conducted in public but allowing the
president, as he or she now has, the power to determine to hear the inquiry or
parts of it in private.
Committee view
4.71
The committee recognises that the introduction of CIOs presided over by
a civilian with judicial experience has in some way removed the perception of
Defence inquiring into itself. It would like to see the regulations governing
the operation of the commissions changed to provide greater transparency such
as the presumption that commissions will be conducted in public. Furthermore,
where proceedings are to be private, the committee suggests that the
regulations require the president to make a statement outlining the reasons for
this decision (see recommendation 11 paragraph 5.57).
4.72
It accepts, as noted by Captain Willee, that such commissions cannot
address the 'grief which afflicts those whose loved ones have been taken from
them'.
Arrangements with coroners
4.73
Since its first report in June 2005, the committee has been trying to
get a clearer understanding of the arrangements for coronial inquiries relating
to a death in service. In June 2008, the CDF informed the committee that
Defence has protocols in place with the state coroners of Victoria, Queensland
and Tasmania and anticipated that eventually agreements would be reached with
the ACT, Northern Territory and New South Wales.[60]
4.74
The most recent published reports by ADF investigating officers make
observations with regard to the involvement of a coroner. In January 2008, the
investigation into the death of Sergeant Matthew Locke in Afghanistan
recommended that State Coroners be informed of the need to conduct post-mortems
following combat death incidents. The inquiry into the death of Trooper David Pearce,
who also died while serving in Afghanistan, noted that an autopsy was not
conducted by the Queensland coroner. The investigating officer stated further,
'Whilst I consider an autopsy to not be necessary in this case, I am unaware
why such a decision was made'.[61]
4.75
In response to questions about formulating protocols for the relevant
state or territory coroner to hold an inquest into an ADF sudden or unexplained
death, Air Vice Marshal Austin, Defence Health Services Division, explained:
It is fair to say that we do not, in fact, have formal written
agreements in place with the two states that you have mentioned [South
Australia and Western Australia]. However, what we have done is improve the
personal relationships that exist and nominate ADF liaison people with those
jurisdictions. We believe that the relationship has been greatly enhanced as a
consequence of that, and certainly there has been no evidence that, in any of
the jurisdictions, we are now having the problems that we had experienced in the
past.[62]
4.76
The committee is not impressed with the progress made by Defence in
developing protocols with all state and territory coroners for the inquiry into
the sudden or unexplained death of an ADF person. It understands that the
function and responsibilities of coroners are governed by their respective
legislation and in no way should their independence be compromised. Even so,
the committee remains unconvinced that the arrangements between Defence and
state coroners are sufficiently robust to ensure that the rights of the all deceased
and next-of-kin are appropriately protected.
4.77
Because of the confusion surrounding the relationship between the ADF
and state and territory coroners, the committee believes that the newly
appointed review team could consider this matter. The committee's main concern
is with ensuring that the rights of the deceased and the next-of-kin are the
same as those of civilians and are fully protected.
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