Joint Standing Committee on Foreign Affairs, Defence and Trade

Completed Inquiry: Military Justice in the Australian Defence Force

List of Recommendations

Chapter 3: Military Inquiries

Recommendation 1

The Committee recommends that, during peacetime, the convening of a General Court of Inquiry by the Minister of Defence should be mandatory for all inquiries into matters involving the accidental death of an ADF member participating in an ADF activity.

Recommendation 2

The Committee recommends that the Minister of Defence continue to have the discretion to convene a General Court of Inquiry in cases of major capital loss.

Recommendation 3

The Committee recommends that the ADF develop policy to involve the coroner from the outset of inquiries involving any fatality.

Recommendation 4

The Committee recommends that the ADF facilitate the involvement of the coroner in the initial stages of an inquiry into an incident involving death, through the provision, as required, of a liaison officer to the coroner.

Recommendation 5

The Committee recommends that the Australian Government ensure that State legislation does not preclude state coroners from investigating coronial deaths of military personnel and civilians involved in military enterprises or on military land or property.

Recommendation 6

The Committee recommends that a coroner investigating the death of an ADF member, should be encouraged to determine whether or not any potential criminal liability exists and, where appropriate, to attribute degrees of responsibility for the incident in his or her findings.

Recommendation 7

The Committee recommends that the practice of including specialist civilian personnel on BOIs be continued, with specialist qualifications being the basis for appointment.

Recommendation 8

The Committee recommends that in order to provide a reasonable degree of independence, Investigating Officers for military inquiries should be appointed from outside the chain of command of the individual(s) or element immediately under investigation and should not be personally acquainted with any of the parties involved in the incident.

Recommendation 9

The Committee recommends that the ADF provide more extensive guidance to commanders regarding when to invoke the various levels of investigation.

Recommendation 10

The Committee recommends that a legal review of the TOR be conducted prior to the commencement of an inquiry. Where possible for Investigating Officer inquiries and in all cases for BOIs, the review should be conducted by legal officers outside the chain of command of the Appointing Authority.

Recommendation 11

The Committee recommends that the Australian Government ensure that an Investigating Officer or Board of Inquiry is empowered, by the D(I)R, to make recommendations flowing from findings germane to the Terms of Reference.

Recommendation 12

The Committee recommends that the ADF amend guidance on the conduct of military inquiries to ensure that Investigating Officers and BOI are always:

1. prohibited from finding that a specific offence has been committed, but
2. empowered to find that sufficient grounds exist for a matter, or matters to be the subject of a DFDA investigation and to recommend the referral of that matter for DFDA action.

Recommendation 13

The Committee recommends that the ADF complete the development of and issue, as soon as possible, a manual providing comprehensive guidance on the conduct of military inquiries under D(I)R.

Recommendation 14

The Committee recommends that the President of a BOI have the responsibility to ensure that lines of questioning are relevant to the TOR and do not include unnecessary personal questions or pursue personal theories.

Recommendation 15

The Committee recommends that the Australian Government ensure that legislation

1. does not provide a privilege against self incrimination for witnesses to an inquiry conducted by an Investigating Officer; but
2. does provide that any statement or disclosure made to an Investigating Officer by a witness should not be admissible as evidence in civil or criminal proceedings against that witness.

Recommendation 16

The Committee recommends that the ADF amend guidance on the drafting of TOR to ensure that investigating bodies are not empowered to make specific findings apportioning blame.

Recommendation 17

The Committee recommends that where the case before a BOI is serious and of legitimate public interest, that BOI should be open to the public, with the option to take certain evidence in camera.

Recommendation 18

The Committee recommends that members of the ADF should be promptly informed of any complaint or allegation against them where any action under D(I)R is to be taken as a result. The only exception to this right to be informed should be where an individual is suspected of committing an offence and where forewarning may result in the destruction of evidence.

Recommendation 19

The Committee recommends that a report which is critical of a member should not be made to an Appointing Authority without the member having been afforded an opportunity to appear before the inquiry and to make any submissions (either orally or in writing) as he or she sees fit.

Recommendation 20

The Committee recommends that a member against whom action is to be taken should have access to any evidence relied upon in making a decision or taking any action which affects them except where the release of evidence given by another witness may, if disclosed, constitute a threat to the safety of that witness.

Recommendation 21

The Committee recommends that members who may be adversely affected as a result of the investigating body's report on an inquiry should be afforded access to that report within the provisions of the Privacy Act.

Recommendation 22

The Committee recommends that when witnesses are informed regarding their status and the outcome of the inquiry in relation to matters relevant to them, they should also be informed as to their rights of review.

Recommendation 23

The Committee recommends guidance on confidentiality and privacy be included in the proposed manual providing comprehensive guidance on the conduct of military inquiries under D(I)R .

Recommendation 24

The Committee recommends that the next of kin, or other immediate relatives, of an ADF member whose death is the subject of an inquiry, should always be permitted to attend that inquiry regardless of whether the inquiry is conducted in private or is open to the public. Exclusion of these next of kin, or other immediate relatives from the inquiry should only be on a temporary basis, from those sections of the inquiry dealing with matters of national security.

Recommendation 25

The Committee recommends that next of kin or other immediate relatives of personnel killed in military incidents should, within the provisions of the Privacy Act and relevant security considerations, be provided with a copy of the inquiry report and advice on all actions taken as a result of the inquiry. Where a recommendation from the inquiry report is not implemented, next of kin should be provided with the reasons underpinning the decision not to adopt that recommendation.

Recommendation 26

The Committee recommends that next of kin or other immediate relatives of personnel killed in military incidents should be warned prior to the release of information to the press regarding the inquiry.

Recommendation 27

The Committee recommends that the Australian Government ensure that legislation provides a right to Service legal representation, at Commonwealth expense, for any member of the ADF who is likely to be affected by a BOI.

Recommendation 28

The Committee recommends that where a deceased member of the ADF is likely to be affected by an inquiry, the next of kin or other immediate relative should be afforded the option to have the interests of the deceased member represented, at Commonwealth expense, by Service legal counsel.

Recommendation 29

The Committee recommends that the appointment of a Counsel Assisting to a BOI should be strongly recommended in guidance to Appointing Authorities.

Recommendation 30

The Committee recommends that the ADF establish processes to ensure that counselling services are available, if required, to witnesses to a military inquiry and to next of kin and close relatives of ADF members killed in the incident that is the subject of the inquiry.

Recommendation 31

The Committee recommends that all correspondence between the Appointing Authority and the investigating body should be in writing and should be disclosed to all legal representatives.

Recommendation 32

The Committee recommends that the ADF should issue guidance to Appointing Authorities regarding their duties in monitoring a military inquiry.

Recommendation 33

The Committee recommends that, to protect the independence of the process, guidance should be provided to Appointing Authorities warning against any direct involvement with the conduct of the inquiry.

Recommendation 34

The Committee recommends that, within the limitations of privacy and secrecy, and at the conclusion of all resultant disciplinary and administrative action, the ADF publicly account for its actions and decisions in discharging the recommendations of a BOI.

Recommendation 35

The Committee recommends that, following the conduct of a General Court of Inquiry, within the limitations of privacy and secrecy, and at the conclusion of all resultant disciplinary and administrative action, the Minister of Defence should table in the Parliament:

1. the inquiry report;
2. the recommendations of the investigating body;
3. details of action taken to adopt those recommendations; and
4. where a recommendation is rejected, the reasons for that action.

Recommendation 36

The Committee recommends that informal investigations should be more appropriately referred to as preliminary inquiries.

Recommendation 37

The Committee recommends that the ADF should issue guidance for the conduct of preliminary inquiries to be used to assist in determining the best course of action for dealing with an incident.

Recommendation 38

The Committee recommends that the ADF should issue guidance to ensure that the requirements for procedural fairness are satisfied in the conduct of preliminary inquiries.

Recommendation 39

The Committee agreed that the ADF should include detailed guidance on the issue of secret investigations under D(I)R in the proposed manual providing comprehensive guidance on the conduct of military inquiries under D(I)R .

Recommendation 40

The Committee recommends that:

1. guidelines should be established to ensure that members making knowingly false, malicious or vexatious accusations against other members are held accountable and that suitable action is taken against them;
2. members making accusations should be made aware of guidelines regarding the accountability of members making knowingly false, malicious or vexatious accusations;
3. action taken against members making knowingly false, malicious or vexatious accusations should be taken as transparently as possible, to ensure that justice is seen to be done; and
4. where an accusation is found to be false, malicious or vexatious, action should be taken, as transparently as possible, to put right any detriment to the member who was falsely accused.

Recommendation 41

The Committee recommends that the ADF ensure that an adequate level of training is provided to officers required to conduct an investigation under D(I)R.

Recommendation 42

The Committee recommends that the ADF provide comprehensive guidance to Investigating Officers regarding the conduct of investigations under D(I)R.

Recommendation 43

The Committee recommends that the ADF provide clear guidance to Appointing Authorities regarding the level of training or experience required of officers selected to conduct investigations under D(I)R.

Recommendation 44

The Committee recommended that the ADF examine the feasibility of capturing the cost of the military justice system.

Recommendation 45

The Committee recommended that the ADF provide a single annual report on the operation of the military justice system to the Minister of Defence and that the Minister table the report in the Parliament. The report should address the operation of the DFDA, the military inquiry system and the administrative action system.

Chapter 4: Military Discipline

Recommendation 46

The Committee recommends that, after the proposed post-Abadee arrangements have been in operation for three years, the issue of institutional independence in relation to prosecution in Courts Martial and DFM trials be reviewed.

Recommendation 4

The Committee recommends that consideration should be given to reviewing current arrangements to allow the ADF to deal with all cases involving straightforward acts of indecency without requiring the consent of the Director of Public Prosecutions.

Recommendation 48

The Committee recommends that the ADF ensure that existing guidelines on the right to privacy are adhered to in the conduct of DFDA action.

Recommendation 49

The Committee recommends that the ADF undertake a formal training needs analysis with respect to the use and implementation of the DFDA as a basis for the development and introduction of appropriate education and training courses.

Recommendation 50

The Committee recommends that the ADF consider the introduction of structured continuation training for Defence Force Magistrates and Judge Advocates on the DFDA.

Recommendation 51

The Committee recommends that, as part of a comprehensive public disclosure of the matter of AAT, the Meecham report, a comprehensive report on the matter of AAT and any relevant documents relating to AAT should be tabled in the Parliament.

Recommendation 52

The Committee recommends that the report on the operation of the DFDA should be tabled in a more timely manner.

Chapter 5: Administrative Action

Recommendation 53

The Committee recommends that where professional failure involves negligence of a criminal nature, subject to the weight and probity of evidence being sufficient, criminal proceedings should be instituted.

Recommendation 54

The Committee recommends that the ADF prepare and issue guidelines regarding the use of the administrative action rather than the disciplinary process for cases of professional failure.

Recommendation 55

The Committee recommends that the ADF review current procedural arrangements to ensure organisational separationbetween the initiating officer and the decision-maker for all administrative action involving the termination of a member's service with the ADF.

Recommendation 56

The Committee recommends that the ADF consider the implementation of a revised framework for administrative censure and formal warning that:

1. makes the process applicable to all members of the ADF; and
2. incorporates a separation between the roles of initiating officer and decision-maker.

Recommendation 57

The Committee recommends that the ADF prepare and issue revised policy for the imposition of administrative censure and formal warning.

Recommendation 58

The Committee recommends that where a member affected by administrative censure makes a statement in extenuation/rebuttal, that statement should form part of the censure document and be taken into account during deliberations when the censure is considered.

Recommendation 59

The Committee recommends that the ADF incorporate specific guidance in the revised policy covering administrative censure and formal warning which requires that an individual affected by a censure or formal warning to be advised of his or her rights of appeal.