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.