Chapter 2


Chapter 2

HMAS Success—inquiry processes

Media reports

2.1        In early July 2009, a number of Australian media outlets reported on an incident alleged to have occurred on board HMAS Success. This followed a story televised by Channel Seven on 3 July that several male sailors had 'been counselled and sent home after a ledger surfaced recording bets on how many of their fellow crew members they could sleep with'.[1]

2.2        On 5 July, a number of reports suggested that a Defence spokesperson had confirmed that 'an unnamed number of sailors on HMAS Success were returned to Australia from Singapore in May' and that a formal investigation was under way. Most reports continued to refer to the betting book—'the Ledger'.[2] The ABC news reported that Chief of Navy, Vice Admiral Russ Crane, said that the alleged behaviours were being investigated and 'do not align with Navy values'. He was quoted:

Once these allegations were made known, Navy acted immediately by removing those sailors allegedly involved in the matter from the ship and referring the matter to the independent Australian Defence Force Investigative Service (ADFIS) for action.

Navy stands by its values and signature behaviours and will act swiftly and decisively to address allegations of unacceptable behaviour.[3]

2.3        According to the news report, Vice Admiral Crane said that the Navy was prepared to discipline staff after the results of the inquiry were made clear. He said:

Navy is awaiting the results of the ADFIS investigation and will act as quickly as possible to address appropriate findings and recommendations particularly should disciplinary or administrative action be warranted.[4]

2.4        The story was still running on 8 July, when the Australian introduced an article with the headline 'Sex bets will cost recruits'.[5]

Committee involvement—Estimates, 21 October 2009

2.5        The committee did not become involved in the matter until 21 October 2009, when a participating member of the legislation committee raised it during an Estimates hearing. During that hearing, Air Chief Marshal Angus Houston, Chief of the Defence Force (CDF), and Vice Admiral Crane assured the committee that, should the Senate conduct an inquiry into these matters, it would receive 'full cooperation'.[6] The Minister gave a similar undertaking but indicated:

...there is a 'but' here, and I hope you would acknowledge the 'but'—I would be mindful of any other processes that were taking place.[7]

2.6        On 26 November 2009, the Senate referred matters relating to incidents that occurred on board HMAS Success and subsequent events to the committee for inquiry and report. As noted in the introduction, the committee called for submissions through an advertisement in the Australian as well as writing to relevant ADF personnel inviting them to make submissions.

2.7        As a starting point for this report, the committee provides a timeline indicating the sequence of relevant events on board HMAS Success. It is based primarily on Vice Admiral Crane's evidence given during estimates on 21 October 2009:

  • 21 April 2009—an incident occurred on HMAS Success;
  • commanding officer (CO) HMAS Success initiated an internal investigation into equity and diversity issues on board;
  • the investigation raised matters relating to inappropriate behaviour by members of the ship's company;
  • the CO requested external assistance to address these matters and to provide an accurate assessment of the culture of equity and diversity on HMAS Success;
  • 4–9 May—an equity and diversity health check was conducted on board HMAS Success which suggested that an administrative inquiry was warranted;
  • 10 May—four personnel landed in Singapore for return to Australia (other evidence suggest they were landed on 9 May 2009);
  • 13 May—a quick assessment commenced;
  • 15 May—a fleet headquarters' administrative inquiry into inappropriate behaviour commenced (Inquiry Officer Inquiry);
  • 20 August—the Inquiry Officer Inquiry was completed.[8]

2.8        As at 21 October, the following actions had been, or were being, undertaken:

Administrative action

  • the inquiry officer had provided personnel potentially affected by the inquiry with a 'Notification of proposed inquiry findings'; (the inquiry officer would then complete his report and include information from the potentially affected personnel);[9]
  • the inquiry initiating officer was considering action in response to the inquiry officer's recommendations (Vice Admiral Crane informed the legislation committee that he had not seen the report which was still under consideration by the initiating officer)—the initiating officer would then need to provide the full report to potentially affected people who would have an opportunity to respond to any allegations that may be contained within the report;[10] (subsequent advice indicates that a legal review of this inquiry was completed on 2 September but in February 2010 the inquiry was set aside due to bias).

Disciplinary action

  • under the Defence Force Discipline Act (DFDA), the Australian Defence Force Investigative Service (ADFIS) was conducting an investigation of elements of the allegations;
  • a number of associated ADFIS [investigations] into alleged disciplinary offences on HMAS Success had been undertaken; and
  • no charges under the DFDA had at that stage been laid.[11]

2.9        According to the Vice Admiral, once all ADFIS investigations were completed, any briefs of evidence would be provided to the relevant authorities for consideration and, if appropriate, action under the DFDA would be initiated.[12]

Other investigations

2.10      On 21 October, Vice Admiral Crane also advised the committee that he was aware of allegations put to him by a committee member that:

  • when the three petty officers, one of whom is a chief, were removed from the ship, the ship’s company were instructed by the coxswain in a loud voice, as were other senior officers on board, ‘Do not to look at these men; turn your backs on these men,’ as they were marched off the ship in humiliation; and
  • when the three sailors were tabled in the captain’s cabin they were told to shut up and were given a document that said, ‘Certain allegations have come to my attention’...they were given half an hour to pack their bags and get off the ship in the manner described above.[13]

2.11      Vice Admiral Crane said that he had become aware of these allegations 'perhaps six to eight weeks after the incident' and had taken action to 'ascertain the veracity' of the allegations.[14] He said:

I commissioned, through the fleet command, a second inquiry to inquire into the treatment of those personnel who were landed, how they were landed and their ongoing treatment. That is an inquiry that is being run separate to the current inquiry into the alleged incidents. That inquiry is ongoing. It is due to deliver its report to the commissioning officer of the inquiry this week.[15]

2.12      In a written answer to a question taken on notice, Defence stated that this second inquiry conducted into complaints by three individuals into their removal from HMAS Success on 9 May 2009, commenced on 25 September 2009.[16] Later advice shows that the report was completed on 23 October and the legal review finalised on 11 November.

2.13      Vice Admiral Crane also noted that he had that morning (21 October) become aware of an allegation that the lawyer for the defendants had had his requests for information ignored.[17] He told the committee that his initial advice was that 'there was a professional discussion between the legal officer representing these individuals and the fleet legal officer on a professional basis, but I have asked for some more detail in relation to that to satisfy myself that there has not been anything inappropriate occurring'.[18]

2.14      On 26 October, Vice Admiral Crane issued a document—the Facts on HMAS Success—in response to an article by a journalist, Mr Andrew Bolt. In this publication the Vice Admiral stated that the administrative and disciplinary investigations into the issues associated with HMAS Success were yet to hand down their findings, but that the allegations being investigated 'continue to cause Navy serious concern.'[19]

2.15      At this stage, the committee was aware of a number of relevant investigations or reviews—the initial equity and diversity health check, a number of investigations by ADFIS, an Investigating Officer Inquiry into allegations that came to light in the health check, a separate administrative inquiry into the circumstances of landing the three sailors in Singapore and another separate inquiry into the treatment received by the lawyer representing the three sailors.

First private briefing—3 February 2009

2.16      The committee did not receive a submission from Defence. The CDF, however, offered to provide a private briefing for committee members. It was held on 3 February 2009. The Chair of the committee started proceedings by noting that while the committee was grateful to Defence for the briefing, the meeting would not, of itself, alter the committee's course of action in relation to the inquiry including its normal procedures such as holding public hearings.

2.17      CDF explained that he looked forward to assisting the committee and answering any questions senators may have. He reiterated that Defence was fully supportive of the committee's inquiry and would afford every assistance. He emphasised that his first priority was the health and welfare of the men and women of the services and their families and that it was his responsibility to protect them. He was very concerned about the potential to compromise the privacy rights and reputation of ADF members.

2.18      At the time, CDF explained that there were numerous individuals who were subject to investigation and many witnesses involved in the various inquiries. He informed the committee that many of the issues addressed by the committee's terms of reference were the focus of ongoing defence inquiries. Moreover, that the investigations of these events would have ongoing repercussions for personnel on board HMAS Success and their families.

2.19      Given the sensitive nature of the terms of reference, one of his major concerns was how best to protect the privacy of personnel involved. He, therefore, asked the committee to give urgent consideration to deferring its inquiry until all Defence administrative processes and inquiries had been resolved. Given the number of inquiries that were taking place and any possible appeal processes, CDF suggested that it would be difficult to set a time but that the process may be long.[20] In this context, he explained that people have the right to avail themselves of processes and of the need to ensure that their rights are not compromised. He emphasised that the need for a fair and just process was imperative.

2.20      The committee indicated that it would consider the request to delay its proceedings. It also acknowledged the concerns raised by the CDF about the importance of protecting the privacy of those caught up in events on board HMAS Success. The Chair then noted that the committee had the right to take evidence in camera and that that evidence would be kept private. He reiterated that the committee would be prudent and such evidence would not enter the public domain, unless the committee decided otherwise. The committee agreed that all involved should receive natural justice.

2.21      The Chief of Navy informed the committee about inquiries that had been, and were currently being, conducted. Committee members, however, were unsure about the exact number and nature of the inquiries that had resulted from the initial incident on HMAS Success. The Chair requested that Defence provide the committee with a list of all inquires that had been conducted and their current status.[21]

2.22      Following this briefing, the committee wrote to the Minister making clear that it was prepared to wait until April before beginning the formal process of taking oral evidence. It informed the Minister:

In the meantime, the committee is expecting to receive from the Chief of Navy a list of all inquiries that have been, or are being, conducted into any matter flowing from the incident that prompted the initial Equity and Diversity Health Check.[22]

Investigating Officer's Inquiry found to be flawed

2.23      On 11 February 2010, CDF announced that he had directed that 'a fresh inquiry into a range of matters arising from equity and diversity issues on board HMAS Success be conducted'. He stated that he had taken this decision following legal advice that the initial administrative inquiry was flawed due to bias. He explained:

The flaws were identified during a review of a Redress of Grievance raised by a sailor involved in the initial inquiry. I am very disappointed that the inquiry was flawed; however, it is imperative that serious matters such as this are dealt with thoroughly.[23]

2.24      Subsequently, CDF explained to the committee that, following the decision to set aside the Inquiry Officer's report due to bias, no administrative action against the three sailors had taken place. Chief of Navy noted further that on 11 February the three sailors were reinstated and offered an opportunity to return to HMAS Success or to take up an alternative posting.[24]

Second private briefing—23 February 2010

2.25      On 23 February, the committee met again with CDF, Chief of Navy and Head of Defence Legal in a private meeting. The Chief of Navy provided the committee with a table detailing the administrative inquiries that had been completed or were still under way. This table, reproduced on the following page, indicates that the initial equity and diversity inquiry generated ten subsequent ones.

2.26      It should be noted that this table does not record the inquiries conducted under the DFDA by ADFIS. As noted earlier, Vice Admiral Crane indicated that ADFIS was undertaking a number of inquiries (see paragraphs 2.3, 2.7–2.8). Nor does it include the newly established CDF's Commission of Inquiry (see below).

Establishment of CDF's Commission of Inquiry

2.27      During this second briefing, CDF noted that the initial inquiry had been set aside and that he had established a Commission of Inquiry which he was sure would produce a credible result. He told the committee that the former Federal Court and NSW Court of Appeal Judge, the Hon Roger Gyles AO QC, had been appointed to conduct the independent inquiry. Mr Douglas Campbell SC from the Queensland Bar had been appointed as the Counsel Assisting. According to the CDF, Mr Campbell had been in the Army reserves but was not currently active. Mr Gyles was yet to appoint other legal officers to his team. CDF advised the committee that there would be no naval involvement in the legal team.[25]

2.28      The CDF also noted that Defence had consulted with Mr Gyles in relation to the appropriate type of inquiry and was advised that a Commission of Inquiry would be most appropriate. CDF pointed out that Commissions of Inquiry are usually established when there had been a death in the ADF but that he intended to use them more frequently in addressing other matters. He noted that the Commission of Inquiry process arose from a recommendation in the Senate report into military justice in 2005.

2.29      According to CDF, Mr Gyles had indicated his desire to conduct the inquiry in the public arena as much as possible. CDF noted, however, that he would like the details of the alleged types of behaviour to be kept confidential to protect the individuals but that such decisions would remain with Mr Gyles.


Serial Number

Activity

Started or Submitted

Report Completed

Legal Review Completed

Outcome

Actions taken

Remarks

1

E&D Health Check conducted into complaints of unacceptable behaviour in HMAS Success

4-May-09

9-May-09

N/A

CO Success submits Intended Course of Action to FHQ in relation to issues on board Success

    

2

Quick Assessment into improper conduct by certain members of HMAS Success

13-May-09

13-May-09

N/A

unacceptable behaviours determined

Chief Combat Support Group appointed an Inquiry Officer(see Serial 3)

  

3

Inquiry Officer Inquiry into the facts and circumstances surrounding allegations of Equity and Diversity issues in HMAS Success

15-May-09

20-Aug-09

2-Sep-09

Commander Surface Force accepted 37 Findings and agreed 7 of the 8 Recommendations (with one referred for advice)

  

Further legal advice re this administrative inquiry concluded that the inquiry was fundamentally flawed due to bias.  Commander Surface Force has made a decision to set the administrative inquiry aside.

4

Routine Inquiry Officer Inquiry into the formal complaint by xxxxxxx  from HMAS Success

25-Sep-09

23-Oct-09

11-Nov-09

Commodore Support accepted 19 Findings and adopted 5 of the 10 Recommendations

  

Commodore Support has found that the senior sailors' removal from Success and aspects of their subsequent administration were flawed.  He can no longer rely on findings 7 and 12 from this inquiry, but the remainder of this inquiry is extant.

5

Inspector General Australian Defence Force Inquiry Issues relating to the provision of Legal Advice by xxxxxxx to members (not related to Success)

10-Nov-09

15-Dec-09

N/A

No inappropriate conduct by xxxxxxx for matters within the Inquiry

No Further Action

  

6

Inquiry Officer Inquiry into allegations by xxxxxxx of inappropriate Command influence

25-Nov-09

15-Feb-10

_

CN initiated Inquiry Officer Inquiry

  

Awaiting legal review and CN consideration

7

xxxxxxx Redress of Grievance seeking, among other things, that the IO and RI Officer Inquiries be set aside

30-Nov-09

_

_

Redress Upheld

Sailor informed 11 Feb 10.  No Further Action

  

8

xxxxxxx Redresses of Grievance seeking, among other things, that the IO and RI Officer Inquiries be set aside

14-Dec-09

_

_

Redress Upheld

Sailors informed 11 Feb 10.  No Further Action

  

9

Quick Assessment  into allegations made by xxxxxxx that Command improperly influenced one of the Senior Sailors to not provide a submission to the Senate Inquiry

27-Jan-10

27-Jan-10

N/A

Recommendation no further inquiry

No Further Action

  

10

xxxxxxx Redress of Grievance regarding the E&D Health Check

1-Feb-10

_

_

Linked with conclusions at serial 11

No Further Action

  

11

Quick Assessment into xxxxxxx Redress of Grievance regarding the E&D Health Check

3-Feb-10

8-Feb-10

N/A

QA concluded that the allegation of unprofessional behaviour is unsubstantiated

No Further Action

  

Regarding the inquiry process, CDF explained that the Commission of Inquiry would involve a formal inquiry with legal representation, witnesses and formal hearings and testimonies. The sailors would have legal representation through the ADF Directorate of Defence Counsel Services. Mr Gyles also suggested to the CDF that he would like to complete gathering evidence by 15 April 2010 in order to finalise the report by 30 June 2010.[26]

Terms of reference

2.30      CDF informed the committee that the terms of reference for the inquiry were not yet completed but, once finalised, would be forwarded to the committee.

2.31      Committee members discussed with CDF the possible terms of reference, including whether the matter dealing with the alleged interference in the work of the Defence lawyer for the three sailors would be included. A number of members expressed their view that this matter was 'absolutely crucial' to the Commission of Inquiry.

2.32      Another member suggested that Mr Gyles should take account of the original Senate committee report into military justice, in particular the recommendation to establish an independent administrative unit within the ADF to address administrative issues. He was also concerned about another initiative coming out of the committee's military justice report dealing with the role of the IGADF in conducting military justice audit checks. He suggested that the role, activities and processes of the IGADF's audits could be examined.

2.33      The terms of reference were provided to the committee on 5 March 2010.[27]

History of criticism of administrative inquiries

2.34      As noted earlier, the committee believes that it is extremely important for the Commission of Inquiry to place its consideration of the administrative process involving incidents on board HMAS Success in a broader context that provides the necessary background for understanding the ADF's administrative system. The committee does so to highlight the importance of ensuring that any future changes to the ADF's inquiry system would make a lasting difference. Indeed, the number of inquiries flowing from the initial report on events on board HMAS Success and the recent announcement of the flawed Investigating Officer Inquiry are reminiscent of findings made years ago. The Commonwealth Ombudsman sounded the alarm twice about problems plaguing the ADF's administrative inquiry system. The committee raised similar concerns in 2005.

Ombudsman 1998

2.35      In 1998 the Commonwealth Ombudsman found a number of commonly occurring problems in ADF investigations, particularly administrative investigations of personnel-related issues. They included:

  • inadequate planning of investigations;
  • failure to interview all relevant witnesses and assumptions made about the credibility of witnesses interviewed;
  • pursuit of irrelevant questioning techniques and failure to put contradictory evidence to witnesses for a response;
  • failure to record evidence properly, and possibly, preparation of witnesses and unauthorised questioning of witnesses;
  • failure to analyse evidence objectively, and to weigh evidence appropriately, thereby leading to flaws in the way conclusions were drawn and findings made; and
  • inadequate record keeping.[28]

Ombudsman 2004

2.36      Six years later, the Defence Force Ombudsman was again highly critical of the poor standard of administrative investigations. He informed the committee that his office had seen instances in which investigations had been undertaken by people with inadequate training and, in some cases, the investigation was not as professional as it should have been.[29] He noted in particular the following deficiencies which, he said, in large measure reflected the poor training and lack of experience and expertise in investigations. Many of these had been identified six years earlier:

  • investigations of serious allegations being carried out by officers with apparently inadequate training in investigations and approaches inappropriate for the allegations being investigated;
  • an investigation being thorough but conclusions and recommendations not being drawn together logically from the evidence for the decision-maker;
  • an investigation taking an inordinate length of time with changes in investigation officer and failure to address the substance of the complaint;
  • investigations resulting in recommendations which appear never to have been considered by anyone with the appropriate authority;
  • an investigation where the members of the public are questioned with little apparent thought for the potential consequences; and
  • investigations which have taken so long it renders any outcome favourable to the member virtually meaningless.[30]

Foreign Affairs, Defence and Trade Committee 2005

2.37      In its 2005 report on the effectiveness of Australia's military justice system, the committee also found that there were serious flaws in the investigation stage of administrative inquiries. The recurrent themes in the committee's report were lack of independence and impartiality, delay, failure to apply policy and poor quality decision making. It described a system where:

There were alarming lapses in procedural fairness: failure to inform members about allegations made about them, failure to provide all relevant information supporting an allegation, and breaches of confidentiality. Indeed, the committee heard numerous accounts of members suffering unnecessary hardships due to violations of their fundamental rights.

Poorly trained and on occasion incompetent investigating officers further undermined the effectiveness of administrative investigations. The committee found that missing or misplaced documentation, poor record keeping, the withholding of information, lack of support in processing a complaint and investigating officers who lack the necessary skills, experience or training to conduct a competent inquiry, contributed to unnecessary delays and distress. Many of those subject to allegations have endured long periods of uncertainty and anxiety.[31]

2.38      One of the most corrosive influences undermining the principles of natural justice and one of the most commonly cited concerns stemmed from conflicts of interest and the lack of independence of the investigator and the decision maker. Many witnesses in the 2005 inquiry called for an independent adjudicator so that a neutral and unbiased investigation could take place free from contamination by self-interest or third-party influence.[32]

2.39      At that time, the committee found that any shortcomings or failings during an administrative inquiry had the potential to set the proceedings on a long and troubled course that could drag through the system for years. The committee made a number of recommendations to amend the Administrative Inquiries Manual to enhance transparency and accountability.[33] The government agreed to a number of these changes which have been implemented.

2.40      The committee also called for the establishment of a statutorily independent review authority, the Australian Defence Force Administrative Review Board (ADFARB), with appropriately qualified and trained staff equipped with the necessary resources to address and resolve administrative matters in the ADF. It believed that this independent body would provide the necessary oversight to ensure that any failure by investigating officers to observe the guidelines set out in the various ADF manuals would be brought to light and corrected. The proposed ADFARB would also assume responsibility for improving the training of investigating officers and for developing a database of administrative inquiries that would register and track grievances, including the findings and recommendations of investigations. It was the committee's view that such a body offered greater assurances that the review process of administrative action would be independent and impartial. It would go a long way towards instilling public confidence in Australia's military justice system.

Response to committee's recommendations

2.41      The government rejected the committee's recommendation to establish the ADFARB. Much of the hope for improvement in the administrative processes was placed in the hands of the Fairness and Resolution Branch and the Inspector General of the Australian Defence Force (IGADF).

The Fairness and Resolution Branch

2.42      In June 2006, the committee was informed that the Fairness and Resolution Branch, established in January 2006, was now the central management body responsible for overseeing the management of complaints in the ADF. The then Acting Director of the branch, Ms Diane Harris, told the committee that the branch had the capacity to look at a complaint when it was submitted and to determine whether the best process was being used to resolve the matter. She explained that the branch had an enhanced advisory role:

As of 1 July it will be mandated that all COs, on receiving a complaint, have five days to do their quick assessment to determine what their course of action is going to be and then to submit all of that to the Fairness and Resolution Branch where it will be reviewed. We will have our legal officer look at it, we will have an experienced case officer look at it and we will then provide advice to the CO in terms of the approach that has been proposed.[34]

We would expect that in most cases that approach will be fairly sound, but in some cases it will not be. We might go back, for example, and say: ‘You have nominated Lieutenant Smith to be the inquiry officer. In this case we believe the issues are too complex for a junior officer. We recommend that you appoint a more senior officer to do it.’ We might also, for example, say: ‘This is a very complex issue. It will be quite involved.’ So we might recommend a different inquiry officer altogether and we may put forward to the CO the name of somebody else from outside the unit who might be able to be the inquiry officer for the purposes of that complaint.[35]

2.43      Ms Harris explained that in the future, with the change to the regulation, the Fairness and Resolution Branch would be empowered to intervene if a decision is made that a complaint is best managed by the Branch rather than at the unit level.[36]

IGADF

2.44      In June 2006, Mr Geoffrey Earley, IGADF, acknowledged that the conduct of administrative inquiries had been criticised in the past in large part because of a lack of suitable training for inquiry officers. He informed the committee that a course to address this shortcoming was now conducted four times a year by his office.[37] He informed the committee that the next stage would be to adopt a similar sort of oversight or audit of some agencies and how they operate, including the Fairness and Resolution Branch in Canberra.

Audit program

2.45      Mr Earley also explained how his office intended to audit the health of the military justice system. He indicated that an audit would examine the unit disciplinary and administrative records for compliance. It would discuss any problems with relevant personnel and conduct focus group discussions across a range of representative rank groups 'to obtain an unattributable impression of how military justice in that particular unit is operating'.[38] He described the conduct of a typical audit:

...the leader will go in...and meet with the commanding officer. We will ask for any questions and explain. There is then a headquarters group with the executive team of the unit. They get a chance to tell us what they do. We get 20 minutes or so to tell them why we are there and what we do. Then the group splits up. There is always a lawyer in each group. One part of the team will go off and look at the disciplinary records. Another part of the audit team will go off and look at the administrative records—and by that I mean the grievances, inquiries, routine inquiries, quick assessments and so on...[39]

...A considerable amount of work is done prior to an audit by interrogating fairness and resolution branch agencies, for example, as to how many complaints have come out of that unit. We talk to...the equity hotline people—about whether there have been any particular problems noted...[40]

2.46      Mr Earley also noted that the audit is followed up with a report outlining the outcomes.[41] The report includes any recommendations that the audit team 'might have for improvement, and that goes to the CO of the unit and to other relevant authorities higher up in the chain of command'.[42]

2.47      On 27 November 2009, he informed the Foreign Affairs, Defence and Trade Legislation Committee that an IGADF military justice audit had been conducted on board HMAS Success in May 2006 and was assessed as satisfactory.[43]

Assessment of recent reforms

2.48      The committee has outlined the history of shortcomings in administrative inquiries and the failure to rectify them to amplify the message that any measures taken to improve the administration system must produce lasting effects. The long list of inquiries that flowed from the equity and diversity report on HMAS Success and the final assessment that the initial Investigating Officer Inquiry was biased further highlights the need to repair the system. The recent statement by the CDF that the findings of the flawed inquiry had 'reinforced my concern that aspects of the system need to improve' indicate that systemic problems remain deeply embedded in the ADF's administrative system.[44]

2.49      Despite the 1998 and 2004 Ombudsman's findings and the reform program implemented after the committee's 2005 report, it seems as though Defence has not achieved the much anticipated progress.

2.50      A number of disciplinary inquiries also resulted from the initial equity and diversity health check on board HMAS Success. Although to date the committee has had no cause to question them, it notes that in previous reports it had identified problems with ADFIS and the quality of its investigations.[45] At the moment, however, the committee has no reason to seek to broaden its inquiry to examine inquiries covered under the DFDA. It reserves the right to do so should concerns come to light.

Conclusion— an ounce of prevention

2.51      The committee is most concerned that the recent handling of events on board HMAS Success has damaged the reputation of a number of senior sailors, caused them and their families unnecessary stress and embarrassment, called into question the integrity of the ADF's administrative system and placed a significant drain on the time and resources of ADF personnel, including the ADF's most senior officers. Such a situation should never have developed but unfortunately is not an unfamiliar occurrence. As the committee found in its 2005 report, 'an ounce of prevention is worth a pound of cure'.[46]

2.52      For this reason, the committee raises a number of matters that need to be considered carefully by Defence. They not only duplicate the findings of the Commonwealth Ombudsman in 1988 and again in 2004 and the 2005 committee's report, but add to them. They relate to long standing concerns about the ADF's administrative inquiry processes. In general, they go to issues such as the skills, qualifications and experience of those conducting inquiries or who are asked to review or report on incidents likely to be complex. They also include the standard of inquiries including: basic requirements such as interviewing all relevant witnesses and testing exculpatory evidence; conflicts of interests in the inquiry process; failure to follow due process; the independence and objectivity of an inquiry; undue command influence or interference; and the effectiveness and robustness of the legal review of such inquiries.

2.53      The administrative processes associated with the recent events on HMAS Success raise in particular: the matter of matching appropriately the skills and experience of investigating officers with the seriousness of the complaints; the adequacy of the legal review; conflicts of interest in having the officer who assisted in the equity and diversity health check also engaged as an assistant to the Investigating Officer Inquiry; and the influence of command on the defence lawyer in carrying out his legal responsibilities. There are also issues related to procedural fairness particularly with regard to the information provided to the accused; the opportunities for them to defend allegations; and measures taken to protect privacy.

2.54      From past experience, the committee is familiar with shortcomings in the ADF's administrative inquiry processes and the reforms intended to remedy them. Recent events, however, call into question the success of ADF's reform program implemented after the committee's 2005 report, notably the effectiveness of the Fairness and Resolution Branch and the IGADF in their respective functions to uphold the integrity of the inquiry processes. In this recent case, the committee would like to know why the deficiencies in the HMAS Success inquiries were not picked up much earlier in the process by those charged with the responsibility for the health of the system. The committee suspects that there may have been a series of failures and would like them clearly identified. If these systemic problems are not identified and rectified, then similar damaging failures will continue.

2.55      As noted in the introduction, the committee awaits the findings of the newly appointed Commission of Inquiry and the government's response to those findings, before it decides how it will proceed with its own inquiry.

SENATOR RUSSELL TROOD
CHAIR

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