Chapter 10 - Adverse action, appeal processes and external review of administrative
procedures
Appeal and review processes
10.1
If, during the course of an inquiry, circumstances come
to light that reflect adversely on the professional conduct of a member, the appointing
authority may decide to take adverse administrative action against that person.
Adverse administrative action is official action that reflects formal
disapproval on a temporary or permanent basis. Conduct or performance which
results in DFDA or civilian court proceedings may also be relied on to support
adverse action.
10.2
Clearly, the punishment for a member facing
administrative action, particularly if it involves a serious warning, removal
from duty or discharge from the force, has serious implications for his or her
career and professional standing. It is important that such a member is
afforded certain rights in order to ensure that his or her interests are
properly protected.
10.3
The appeal and review processes underpin accountability
and are an essential guarantee against injustice. They provide an important
mechanism whereby the findings of one decision-maker are tested by another. In
this way, the process is held up to scrutiny and can be assessed to ensure that
the proceedings were proper and the decision correct. It should provide members
of the ADF with assurances that the process is fair and objective and engender
public confidence in the integrity of the system.
10.4
Australia's
military justice system recognises the right of an individual to complain about
a decision. It provides a number of avenues for a member to lodge an appeal or
seek a review of a decision. For instance, where adverse administrative action
is proposed, there are safeguards in place to ensure that people in the ADF
receive procedural fairness through the notice to show cause process. Also,
under the redress of grievance provisions, a member has a legally protected
right to make a complaint about any matter affecting his or her service.[652] General Cosgrove
stated that the acid test of the military justice system is 'whether there are
adequate and independent avenues of review and appeal available'.[653]
10.5
This chapter looks at the adequacy of the internal
review and appeal processes available to ADF members including:
-
notice to show cause; and
-
redress of grievance and the CRA as an oversight
body.
10.6
In Australia
the right to ‘due process’ or procedural fairness is not constitutionally
guaranteed. However, at the federal level, the Administrative Decisions
(Judicial Review) Act 1977 (Cth) (ADJR Act), in particular, requires that
administrators observe the principle of natural justice. The Act provides for a
right of review, which is one aspect of procedural fairness.
10.7
As discussed in the previous chapter, there are two
rules that underpin the principles of natural justice:
-
The hearing rule that no person should be
condemned unheard is a well-founded
principle of Australian administrative law. It requires that individuals adversely affected by a decision
must be fully informed of the action against them and allowed a reasonable
opportunity to put their case. The facts, information or other evidence relied
on by the decision-maker must be disclosed to the person facing adverse action.
-
The no bias rule requires the decision-maker to
be neutral. He or she must act impartially, honestly and without prejudice, and
be above suspicion that he or she has an interest in the outcome of the matter
or has prejudged it.
10.8
There is also growing recognition that certain rules of
evidence in administrative decision making must be observed. Notably, that a
decision must be based upon evidence that logically proves the case.
Notice to show cause
10.9
The ADF recognises that for members to be able to
defend their position adequately, they must be fully informed about the reasons
underpinning the decision to take adverse administrative action. They must also
be provided with all the evidence supporting the decision, and be allowed the
opportunity to reply to the findings. This is commonly provided for in the
notice to show cause processes used in the ADF.[654] Thus, an individual whose conduct
has been found to be of an unacceptable standard and is facing adverse
administrative action would be issued formally with such a notice. It allows
him or her the opportunity to test the evidence supporting the notice,
challenge the decision-maker's findings and refute the argument for the adverse
administrative action.
10.10
Irrespective of rank or position, or whether a member
is giving or receiving orders, the principles of natural justice should apply
to protect members from an arbitrary and unfair decision. The Defence
submission explained:
...if the appointing authority accepts the facts and
recommendations, but before a decision on the matter is made, any proposed
adverse administrative action against a member must be preceded by a notice to
show cause process. This affords the member natural justice before a final
decision is made on the issue and means that the member will have the right to
respond to a proposed adverse decision, and the alleged facts being relied
upon. This is also the opportunity to seek a review of any decisions made.[655]
10.11
The Defence Manual ADFP 06.1.3 sets down the steps to
be followed when a notice to show cause or similar form of notification is
issued. They are consistent with, and are intended to promote, the principles
of procedural fairness. The notice must be in writing and contain:
-
the proposed adverse decision;
-
a statement of the facts, information, or other
evidence to be relied on in making the decision;
-
an invitation to the member to respond within a
specified time (the law does not fix a specific time but requires that the
member be given a 'reasonable opportunity to do so').[656]
10.12
There can be no doubt about the requirement to provide
all relevant material to the member. The Manual elaborates on this matter:
A member is entitled to know the substance of the case against
them and sufficient facts giving rise to the action, so that the member has a
reasonable opportunity to respond to the proposed action. The notice should
precisely and clearly summarise the matters alleged or other information about
the misconduct or poor performance of the member.[657]
10.13
It stresses that there is 'a general legal obligation
on the part of decision-makers to take positive steps to ensure that all
relevant information is disclosed to the member'.[658] The Manual goes further:
A copy of all relevant medical reports, witness statements or
police reports, DFDA or civilian conviction certificates, inquiry officer
reports or training reports should be attached to the notice so they may be
considered by the member. [659]
10.14
An article in the Defence Forces newspaper reinforced
this point:
If the proposed action affects the member's rights, interests or
expectations such as their pay entitlements or reputation, no matter what rank
or position they hold, the member must be given an opportunity as to why the
proposed action should not be taken. This is a requirement of procedural
fairness, also known as 'natural justice'.
Once the member has had the opportunity to respond, the
commander must decide what form of adverse administrative action should be
imposed, if any. This professional decision must be fair, open, lawful and be
based on the rights of the member and the merits of the case without bias.[660]
10.15
The Defence (Personnel) Regulations set down the
requirements where an officer's service may be terminated. The regulations also
observe the principles of natural justice.[661]
10.16
Once the member has responded to the notice to show
cause, the original decision must be reviewed and a judgement made about
whether or not to proceed with the adverse administrative action.[662]
Redress of Grievance (ROG)
10.17
The administrative system also provides for an ADF
member to make a complaint about administrative procedures or decisions through
the redress of grievance process. It is a formal procedure available only to a
member of the ADF, allowing complaints to be investigated and reviewed and for
wrongs to be corrected where necessary. It is accepted as a legitimate and
important means of ensuring that decisions affecting members' rights, working
conditions and careers are made fairly, impartially and according to law.[663]
10.18
The redress of grievance should be considered to be a
last resort.[664] As noted in previous
chapters, the ADF prefers that, in the first instance, complaints should be
resolved at the lowest level possible through normal command channels and
administrative arrangements. Thus, if there were a complaint about the actions
of another person, the chain of command would normally deal with it. Indeed, at
the initial stage of lodging a complaint, the complainant must submit their
complaint to the commanding officer.
10.19
Where the complaint cannot be resolved within the chain
of command, members may initiate a complaint by lodging a Redress of Grievance
(ROG) or complaint to the Inspector-General of the Australian Defence Force
(IGADF). The role of the IGADF is discussed in the following chapter.
10.20
The CO is required to acknowledge receipt of an ROG in
writing, investigate the complaint, decide whether the member has grounds for
complaint and resolve the matter if it is within his or her authority. He or
she is to inform the complainant in writing of the results. On receiving an
ROG, the unit is required to advise the Complaint Resolution Agency (CRA) so that
it is aware of who submitted the ROG, the subject matter and the date the
grievance was lodged.[665]
10.21
The CRA is responsible for the present ADF's ROG
system.[666] It was established in 1997
as part of the Defence Personnel executive to ensure 'independence in the
investigation, review and handling of complaints made by members under the
redress of grievance procedures'.
10.22
Under Defence Force Regulations, if a member is not
satisfied with the decision of a commanding officer on a complaint, the member
may refer the complaint to the Chief of the relevant Service or in some cases
to the Vice Chief of the Defence Force. An officer not satisfied with the
result may refer the matter to the CDF.[667]
The effectiveness and fairness of the notice to show cause and the ROG
processes
10.23
The report has presented a solid body of evidence that
supports the contention that there are deficiencies in investigating officer
inquiries and Boards of Inquiry (see chapters 8, 9 and 12). The committee now
turns to establish whether these or other problems find their way into the
appeal or review processes. Indeed, it seeks to put the ADF's administrative
system to General Cosgrove's
acid test of whether there are adequate and independent avenues of review and appeal
available to members (see para. 10.4).
Procedural fairness—access to all relevant material and the consideration
of all the evidence
10.24
There can be no doubt about the requirement to provide
a person facing proposed adverse action with all the material that was taken
into account when deciding that such action was appropriate. The ADF highlights
this important requirement in its instruction manuals and in internal
publications (see paras. 10.12–16). Yet a number of witnesses assert strongly
that they were not provided with all relevant documentation. One witness stated
categorically that 'no evidence, statements or other documents containing
evidence were attached or disclosed...in the Notice to Show Cause Why a Censure
Should Not Be Imposed.'[668] A pilot
presented with an unsuitability report argued that his career as a pilot ended
without the opportunity to sight the case against him. He submitted:
I was not given access to the evidence used to support the
decision or given a chance to respond before the decision was made. I was not
told of this decision until...over two weeks after the decision was made.[669]
10.25
As a further complication, he argued that crucial
documents indicating serious flaws in the process leading to the unsuitability
report were not considered. In his mind, the failure to 'disclose favourable
evidence constituted a significant and clear breach of procedural fairness'.[670]
10.26
In an almost identical situation, another officer found
that, on the purported grounds of unsuitability, he received 'no warning or
opportunity to understand, rebut or correct the deficiencies' that were alleged
in his performance before his removal was effected.[671]
10.27
Indeed, a number of witnesses had to battle to gain
access to material vital to building their defence. One member submitted that
an important document:
...was only disclosed after I took legal action. If I had not done
so I would never have received the document or even been certain of its
existence. I have had to spend over $10 000 dollars to ensure full disclosure.[672]
10.28
Not only did some members experience difficulty in
obtaining relevant material, but some also suggested that they did not get a
fair hearing. One witness explained that he had not once been interviewed or
questioned throughout the five years and seven months of processing his
grievance.[673] He believed that there
was a strong predisposition of the relevant officers not to investigate the
complaints. He summed up his experiences:
The unresponsive, superficial, tardy and inefficient treatment
of myself and my formal complaints in the redress system was not expected given
the high standard of administration demanded in other areas of Defence. The
poor treatment I received was sustained over a period of more than five years.[674]
10.29
Another member, who was not consulted during the
investigation process, found that his review had relied on evidence used to
support the original administrative action such as past psychological tests. He
argued:
I was denied natural justice in that I was not informed of the
content of the report, I was not provided with the evidence used to support the
case, and I was not given the opportunity to prepare and present a case in my
own defence.[675]
10.30
An independent review of one case found that the member
was given no effective opportunity, as required by the relevant Defence
Instruction, to present reasons why he should not be removed from his command.[676]
10.31
The committee believes that there can be no excuse for
denying members the most basic of rights to know the evidence supporting the
decision or proposal to take adverse action against them. On this most
fundamental principle, the ROG process falls short.
Conflicts of interest and the independence of the investigators and
decision-makers
10.32
As noted earlier, a member must lodge their redress of
grievance with the CO. A situation often develops where the grievance is
submitted to the person who is at the very centre of the complaint. This means
that ultimately the CO could be in the position of reviewing his or her own
decision. For example, the CRA explained that a report about unacceptable
behaviour would be investigated and the CO would make a decision as to whether
or not the behaviour was unacceptable. It explained that, if the behaviour was
unacceptable:
...the CO would make a decision about what action should be taken...By
the time it gets to a redress, if that original complainant wants to submit a
redress of grievance, it would be about the decision made by the CO. If the
complainant felt that the action taken by the CO was inadequate or
inappropriate that would be the subject of the redress. When we are talking
about a respondent, there is not really a respondent in terms of the redress
other than the CO because it is the CO’s decision, action or perhaps failure to
act.[677]
10.33
Mr Neil
James, Australian Defence Association,
underlined the likelihood of a conflict of interest occurring under the current
review of decision process. He told the committee:
Unfortunately, under the administrative provisions a senior
officer proceeds administratively against a member and is also the person who
hears the member’s answer. If the senior officer is involved in the
circumstances, there is obviously a conflict of interest. Most lawyers will
tell you...that, in most cases, the person being proceeded against has to be very
careful about going to the senior officer in question and saying, ‘Sir or
Ma’am, I think you should disqualify yourself because of a possible conflict of
interest,’ because if they say, ‘I have no conflict of interest,’ they are then
likely to be even more biased against the person being proceeded against.[678]
10.34
Another witness stated:
The CO who raises the report controls which documents are
disclosed to the member. The same CO also responds to the members rebuttal.
This allows the CO to significantly control information that is presented to
future decision makers. [679]
10.35
In this witness's view, the protections supposedly
in-built in the ROG process can be easily circumvented.[680] He stated further:
A CO is able to influence what information and documents are
released to the decision maker. In a military environment if any conflict that
exists in information presented by a commander and subordinate the commanders
assertions will be accepted as truth.[681]
10.36
In noting that the Redress of Grievance Defence
Instructions dictate that any ROG goes to the CO even if the complaint is
against the CO, a witness argued:
This situation is flawed as 99% of the time the CO will not
admit that he/she has made a mistake and so the resolution process has been
delayed by up to a month by a step that is unlikely to succeed.
The situation is also flawed because the CO can choose not to
inform his /her immediate superior that a ROG has been submitted against
him/her.[682]
10.37
He suggested that the ROG process needs to be amended
to allow a member to go to the next person in the chain of command or to an
independent civilian agency.[683]
10.38
In support of this general argument, a member who
attempted to have administrative action properly investigated through a ROG
accepted that the chain of command is a critical feature of the military but
was of the view:
As such subordinates will always be inclined to agree with those
more senior than them. Members of the military will never be able to properly
investigate other members of the military. I strongly believe that the intensely
hierarchical nature and relatively small size of the services makes it
impossible for each one to investigate itself.[684]
10.39
A number of specific cases were reported to the
committee where an inappropriate person was responsible for the ROG. In one
particular case, and against the advice of the CRA, a person who was named in
the ROG took carriage of the process.[685]
Another member also alleged serious failings in her ROG process including
missing or falsified documents, delays, not being consulted or interviewed and
the willingness of investigators to accept unquestioningly the word of a senior
officer. She was of the view that the first step to right any wrong must begin
with 'minds which are open to the fact that just because it is in writing from
a senior officer, it may not necessarily be true'. She concluded:
All the recommendations regarding procedures, and even
implementation of them, cannot ensure that those who are charged with
responsibility will be open minded, honest, skilled in investigation,
demonstrate integrity and most importantly, have the courage to pursue the
truth.[686]
10.40
This criticism was not confined to the investigation
officer. One member identified conflicts of interest that go beyond the actual
investigation. He had no substantial complaints about the investigating
officers and the investigation following his ROG, but with the role of the
appointing officer in overturning important findings. He explained:
Two very experienced investigating officers listened to hours of
evidence and considered their findings carefully, only to have all their
findings that were in my favour overturned by the Appointing Officer, whilst
the same individual endorsed all their conclusions that protected either the
office of the Chief of the Air Force or the Commonwealth's interests.[687]
10.41
The member believed that the appointing officer should
not have been selected because he was the immediate supervisor and the ROG
'directly implicated him in failing to fulfil certain due process functions'.[688] He could not understand why the appointing
officer did not withdraw immediately upon commencing his review of the
investigating officer's report once he realised that he was implicated in the
report.[689] He asked, 'if we can have
two civilian investigating officers, who were both military reserve officers,
then why can't we have an Independent Reviewing or appointing officer drawn
also from the military reserve?'[690]
He concluded that, had a 'truly independent appointing officer been nominated,
then much of the perception of irregularity would have been avoided'.[691]
10.42
As noted on a number of occasions in this report, the
need to observe due process is spelt out clearly and unambiguously in numerous
Defence manuals. Yet, the adherence to the rules underpinning procedural
fairness is not always observed and the safeguards built into the military
justice system are not always sufficiently robust to offer the necessary
protection to members. Indeed, the lack of independence of the investigator and
the decision-maker appears to be one of the most corrosive influences
undermining the application of the principles of natural justice and one of the
most commonly cited concerns.
10.43
Closely tied to this matter of conflict of interest
coming out of the chain of command structure is often the lack of support and,
in some cases, blatant opposition to a member submitting a redress of
grievance. One member recounted how a fist was put into his face by the administrative
officer who asked why he was pursuing a ROG.[692]
Assistance when preparing a complaint
10.44
Equal bargaining positions is an essential guarantee of
the right to defend oneself against adverse allegations. It means that those
answering the allegations are in a procedurally equal position to the party
making the allegation and, are in an equal position to defend their interests.
In the case of a notice to show cause or an ROG, the person having to answer
the notice or appeal against a decision is pitted against the considerable
resources of the ADF as well as the authority, status and influence of senior
officers who often are defending their own decision. One witness observed that:
...the 'weight of coercive legislation and organisation can be
brought to bear on any individual soldier who must face it with his personal
resources of resolve, time, money and strength'. [693]
10.45
It is therefore critical that the fundamental
principles of procedural fairness are observed. A member may request assistance
when preparing a complaint. Defence instructions advise that 'unless this
assistance is of a legal nature, the CO will nominate a suitably qualified
member from within the unit to provide assistance to the complainant'.[694] Defence instructions further direct
that:
Requests for legal assistance are to be made through the legal
office that supports the member's unit and are subject to the reasonable
availability of a legal officer. The type and duration of legal assistance to
be provided to a member must be approved by the legal office that supports the
unit, in accordance with current policies and directions from The Defence Legal
Service. The role of a legal officer appointed to assist the member in the
preparation of a ROG is to provide specialist advice concerning the grounds for
complaint. The legal officer is not to conduct an inquiry or investigation into
the complaint, or negotiations on behalf of the member, without authorisation
from the legal office, which will only be given in exceptional and complex
cases.[695]
10.46
One witness, however, criticised the Defence Legal
Service (TDLS) for being out of touch with current developments in military
justice:
The traditional approach to investigations taken by TDLS refuses
to acknowledge that the most vexed area in Defence today are administrative
inquiries into personnel and operational matters. TDLS's approach is out of the
ark; it does not reflect community standards and expectations as to how members
under investigation should be treated, and it does not adequately accommodate
administrative law requirements.[696]
10.47
The responsibility for mounting a defence in a ROG
rests solely with the aggrieved member. A member who chooses to obtain legal
assistance from a civilian lawyer in preparing or pursuing a ROG is liable for
any costs incurred.[697] Defence
instructions stress that:
The onus is on the member to ensure that all evidence in support
of the complaint is presented to the CRA. It is not the role of the CRA to act
as an advocate for the member and the case officer will not normally seek
additional evidence solely for the purpose of strengthening the member's case.[698]
10.48
Keeping in mind the difficulties that a member may have
in producing relevant documentation as shown in the previous section as well as
the potential conflicts of interest inherent in the command structure of the
Forces, the ADF has an obligation to ensure that a member is not unfairly handicapped
in defending his right to a fair hearing. It must ensure that a member has
available to him or her adequate resources to answer the case against them
including appropriate legal advice. The committee has noted the criticism
levelled at TDLS for its failure to grasp the importance of making adequate
legal advice available to ensure that investigations are fair and proper.
Competence of investigators
10.49
The quality of investigations was discussed at length
in the previous chapter. The criticism
was directed at matters such as deficiencies in evidence gathering and
analysis, failure to observe natural justice principles, bias in the processes
and lack of objectivity. Such shortcomings were also evident in the
investigations undertaken under the notice to show cause and the redress of
grievance. In particular, evidence suggested that these processes did not
provide a genuine review function with some investigators relying uncritically
on the findings of previous investigations or reluctant to change earlier
decisions.[699]
10.50
With regard to the ROG process, the training of CRA
personnel was also found wanting. One witness maintained that 'the personnel
who are charged with making important decisions about peoples' lives appear to
be ill qualified to do so.' She
suggested that it 'should be mandated that as part of the ROG process, an
independent legal practitioner reviews each case, in its entirety'.[700] In the view of another witness, the
CRA is 'unable to always provide fair impartial investigations'.[701] Another believed that Defence
authorities 'appear to have provided inadequate resources to the redress system
which could, if properly managed, be a valuable asset than a "running
sore"'.[702]
10.51
This evidence again highlights the need for the
adequate training of investigators.
Delays
10.52
Delay and other organisational failures that frustrate
the timely completion of an investigation described in the previous chapters
similarly plague the review and appeal processes. The Defence Force Ombudsman
noted the time taken to deal with a complaint. He stated:
Some matters that come to us already have quite an
administrative history insofar as the internal investigation and the redress of
grievances are concerned. The redress of grievance process can be time
consuming and multilayered. There can be delay in our investigation and in
getting responses from the department. Delay is the problem.[703]
10.53
One witness stated simply that, in her case, 'the time
taken to progress a redress through a commanding officer and then the Complaint
Resolution Agency (CRA) is measured in years, not weeks or months'.[704] She attributed the delays to a
chronic shortage of personnel in CRA to investigate redresses, the failure to
take redress of grievances seriously and the lack of incentive for units to
participate in the process in an expedient manner.[705] Unnecessary hold-ups can start with
the lodgement of a redress of grievance. One witness claimed that the ROG had
been lost while another discovered that his ROG had not been sent to the CAF as
previously advised by his former CO.[706]
One former member stated:
I have long been heavily patronised and stonewalled in my quest
to achieve this Redress of Grievance.[707]
10.54
Another ADF member explained that he had submitted his
claim for defective administration on 8
August 2002 but had received no acknowledgement from the Delegate.
He submitted official hasteners in March and September 2003 and received three
written assurances of completion dates, none of which were met. He then stated
that, in March 2004, he wrote to the Minister for Defence and, on his
hastening, received a 'rapid, non-analytical and flippant response from the
Delegate denying any claim'.[708]
10.55
Delays can cause particular hardship for those waiting
for a decision on proposed adverse administrative action. Difficulties can
arise between the period that adverse action is proposed and the findings of an
investigation following a redress of grievance. One witness stressed the fact
that members 'suffer detriment from the day the action is raised'. She
explained:
In some cases they can be removed from their duties after being
informed that action will take place. It may actually take weeks even months
before the action is officially raised and then take many months for the
process to take place.[709]
10.56
In one case a soldier, implicated in the use of illicit
drugs, was issued with a notice of termination. He made a submission noting a
number of major flaws in the investigation. While waiting for the redress of
grievance process to be completed, he had been subject to adverse administrative
action including denial of Christmas and holiday leave, removal of living-off
base privileges resulting in financial loss and restriction of active duty. Of
most concern to his parents, however, was the physical and emotional isolation
experienced by their son:
Our son and other members who continue to appeal their
termination remain in a holding platoon and are denied the opportunity to
undertake normal duties. In effect this means that for however long this appeal
process continues (maybe several years), these young men are sitting idle and
are being denied the opportunity to actively participate in army life and their
chosen career.[710]
10.57
Overall, the evidence received by the committee
suggests that the ROG process in particular is riddled with deficiencies.
Indeed, one former member remarked that his 'sustained attempt to obtain a
redress has generated further grievances'.[711]
The experiences of a high ranking officer with 35 years distinguished service highlighted
just some of the problems with the ROG. He told the committee:
I contend that I was the victim of non-adherence to due process...
intimidation tantamount to harassment...unjustified constraint on my employment
in my career profession and permanent damage to my reputation and employment
prospects.[712]
10.58
This view was supported by an even more damning
assessment of the ROG from another high ranking officer who submitted that his
case:
...chronicles a sombre litany of abuse, covering a spectrum of
lies, deceit, abrogation of duty, abuse of power, denial of natural justice,
failure to follow due process, and finally gross defective administration.[713]
10.59
The extreme difficulties endured by these two
individuals both of star rank, men with a thorough knowledge and understanding
of the military justice system and with the tenacity to pursue a ROG regardless
of the frustrations and troubles, can only emphasise the ordeal that young ADF
members might confront in seeking redress. The committee has no doubts that the
avenues for review and appeal available to ADF members not only fail to deliver
a fair and proper process but can also create unnecessary hardship for those
who pursue this course of action.
10.60
The evidence presented in this chapter shows clearly
that the problems evident in the investigating officer inquiries and Boards of
Inquiry flow into the review processes—conflicts of interest, lapses in
procedural fairness, poorly conducted investigations and delays. In other
words, the evidence given in relation to the review and appeal processes builds
on that applying to other administrative inquiries.
10.61
The committee acknowledges that much of the evidence
presented in this chapter is drawn from confidential submissions which have not
been made public let alone provided to Defence for comment. It should be noted
that the committee would have preferred all evidence presented to it during
this inquiry to be made freely available for public debate. This lack of
openness has severely limited the ability of the committee to test the veracity
of this evidence. The committee accepts this limitation. It notes, however,
that this confidential material builds on a solid body of evidence presented in
the previous chapters that has clearly identified failings in the
administrative system.
10.62
The committee decided not to make the submissions
public for a number of reasons. Firstly, in many cases the evidence reflected
adversely on named individuals and the committee wanted to respect people's
rights to privacy. Secondly, some submitters requested that the circumstances
of their particular case be kept confidential because they feared some form of
reprisal. Thirdly, a number of the cases had not been resolved, and the
committee deemed it inappropriate to discuss openly cases still under
consideration or subject to negotiation. Finally, some people did not wish to
bring the ADF into disrepute by publicly airing their grievances. One serving
member stated:
I remain a dedicated, loyal and long serving officer. It
therefore gives me absolutely no pleasure or gratification to make this
submission which is likely to be perceived by many within the Australian
Defence Force (ADF) as inappropriate and in conflict with the nature of my
employment and long established military protocols. For over 27 years I have
been inculcated with the need to remain apolitical and render unqualified
service to the Government of Australia and its citizens. Accordingly, I
considered it inappropriate for me to be a member of a political party, make
public comment on Government policy, openly discuss military affairs, or be a
member of any association which holds or promotes a political agenda—until now.[714]
10.63
Having taken this significant step in lodging a
submission with the committee, he was not prepared to go any further and
requested that the committee treat his submission as confidential and for it be
withheld from public scrutiny. In this chapter, the committee has also cited
the case of two highly ranked ADF officers who, according to their evidence,
have endured extreme difficulties in pursuing their case, including intimidation,
denial of natural justice, and damage to career and reputation. Despite this
treatment, they, too, did not to want to sully the public standing of the ADF
and its members by making their complaints public. The evidence provided by
these three officers is compelling and reinforces each other's conclusion that
the ROG system is seriously flawed. Their evidence is also consistent with, and
further validates the evidence from members and former members presented in
this chapter which was highly critical of the ROG process.
10.64
A number of suggestions were put forward by witnesses
that specifically address the problems identified with the appeal and review
process. They include:
-
the use of sworn statements in the raising of
administrative action which would help ensure that claims made by the CO are
truthful and accurate;
-
the requirement to make a sworn statement that
all relevant evidence has been disclosed which would reduce the likelihood that
documents are not disclosed to the member;
-
the automatic legal review of adverse
administrative decision which would be independent and binding and could
eliminate delays in reaching an outcome; and
-
priority given to administrative decisions
affecting a member's livelihood.[715]
10.65
The committee sees merit in such suggestions but, in
light of the range and seriousness of the deficiencies in the current system,
believes that a comprehensive restructuring is required.
Recent initiatives and the role of the Complaints Resolution Agency (CRA)
10.66
According to the Department of Defence, the CRA has
taken steps to improve the operation of the administrative system. It has taken
on the role of monitoring unit-level redress of grievance investigations to
reduce delays. According to the CRA it:
...is proactive in offering advice to unit commanders on how to
deal with complaints, and is also consulted regularly by unit staff who may be
unsure of the process and its requirements.[716]
10.67
Indeed, General Cosgrove
was of the view that 'significant progress continues to be made to improve the
openness and external scrutiny of the administrative system, including
inquiries.'[717] He regards the current
system of internal checks and balances, of review and counter review, of appeal
and counter appeal as 'extraordinarily resilient.'
10.68
The committee is mindful of the assurances given by the
ADF of the recent steps taken to improve the internal review and appeal
process. Even so, it is aware that the experiences of many participants in the
inquiry run contrary to the official view as presented by General
Cosgrove. There can be no doubt based on the
evidence before this committee that the internal review and appeal processes
manifest the same deep seated flaws as those evident in the investigating
officer and BOI investigations. They include cases where there were:
-
serious failings to adhere to the fair hearing
rule in that:
-
members were not informed that adverse action
was being taken;
-
members were not provided with all material
relevant to the decision taken to impose adverse action including documentation
that would assist them in building their defence—some members had to battle to
gain access to relevant material;
-
members were not provided with an effective
opportunity to present a case;
-
failures by the reviewing body to consider all
relevant evidence;
-
conflicts of interest involving the reviewing
authority that cast serious doubt on the objectivity and independence of the
proceedings, particularly where an individual was reviewing his or her own
decision;
-
inadequacies in the training and experience of
those responsible for investigating a grievance or overseeing the ROG;
-
delays in processing complaints; and
-
improper tactics used to dissuade members from
proceeding with their grievance including conduct intended to frustrate the
process.
10.69
The committee accepts that, on paper, there is 'a
system of internal checks and balances, of review and counter review'. The
overall lack of rigour to adhere to the rules, regulations and written
guidelines, the inadequate training of investigators, the potential conflicts
of interest and the inordinate delays in the system rob it of its very
integrity. The committee believes that measures must be taken to build greater
confidence in the system and most importantly to combat the perception that the
system is corrupted by its lack of independence.
10.70
Before discussing proposals to address these
shortcomings, the report examines the roles of the IGADF and the Defence Force
Ombudsman in the following chapter.
Navigation: Previous Page | Contents | Next Page