Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007 Coronial and...

Defence presentation to Asia-Pacific Coroners Society Conference Hobart

Tasmania 2007

Coronial and related issues in the Australian Defence Force (ADF)

Defence presentation for Asia-Pacific Coroners Society ConferenceHobart Tasmania 31 October 2007

Overview of Defence policy on ADF deaths since WWII and Defence – Coronial interactions since 2001

Lieutenant Colonel Rosemary Landy


Tasmania 2007

History

• WWI, WWII and other conflicts, casualties buried overseas in Commonwealth War Graves

• 309 casualties of Korean War

• Few ADF deaths on operations since Vietnam

Defence presentation for Asia-Pacific Coroners Society Conference - Hobart Tasmania 31 October 2007


Tasmania 2007

100

100000

Deaths

Boer W ar W W I W W II Korea Vietnam Peacekeeping/Gulf W ars

War

Army Navy Air Force TOTAL

ADF deaths*

* Sourced from National Archives 2007

Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007


Tasmania 2007

Afghanistan Iraq


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ADF’s current activities

approx pers

• Operation Catalyst – Iraq 1575

• Operation Astute – Timor-Leste 1100

• Operation Slipper – Afghanistan 970

• Operation Resolute – Australia’s offshore maritime areas 450

• Operation Anode – Solomon Islands 140

• Operation Mazurka – Sinai Peninsula, Egypt 25

• Operation Azure – Sudan 15

• Operation Paladin – Middle East 12

• Operation Tower – Timor Leste 4

• ADF support to the United Nations Office in Timor Leste (UNOTIL)

• Recent Past Operations: Operation Sumatra Assist | Operation Pakistan Assist | Operation Cranberry | Operation Relex 2 | Operation Celesta | Operation Ramp ADF support to Tonga | ADF support to Australian citizens in Fiji



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Now

• Increased operational tempo since 1990’s• Duty of care by ADF• Intense media scrutiny• Changing public expectations• Political interest



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ADF legislation

• Defence Act 1903• Naval Defence Act 1910• Air Force Act 1923• Defence Force Regulations Part IV• Defence (Certification of Death) Regulation



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ADF policy

• Defence policy re deaths ▼since WWII

– ? Changing social attitudes, casualties not acceptable

– By 1990’s, nothing applicable to all three Services

• Nothing of the scope to cope with today’s scenarios

– HMAS Westralia 1998, Bali bombings

– ? Terrorism on home soil, multiple locations throughout the world



Tasmania 2007

ADF issues

• Media and political attention

– Private Kovco’s death and repatriation

– Funeral for Trooper Pearce (? Sergeant Locke)

• Attended by PM, Minister, CDF, Leader of Opposition

• Defence has constant changeover of personnel, most have no experience of handling deceased



Tasmania 2007



Overview of Defence Instruction (General) Personnel 20-6Deaths within and outside Australia of Australian Defence

PersonnelWing Commander Jim Lewis

Directorate Military Personnel Policy


Tasmania 2007

ADF management of fatalities

• Defence policy re deaths ▼since WWII

– ? Changing social attitudes, casualties not acceptable

– By 2000, no appropriate policy

• Now – Defence Instruction – Deaths within and outside Australia of Australian Defence personnel



Tasmania 2007

Defence Instruction (General) Personnel 20-6 – Deaths within and outside Australia of Australian Defence personnel.


•Applies to Navy, Army, Air Force, and applicable to Defence Public Servants and Defence Civilians

•Issued by or with the authority of the Secretary and CDF•Always applicable to Defence members,• May be applicable to Defence employees and external service providers

•Enforceable instructions intended as long-term (three or more years duration) policies


Tasmania 2007

ADF issues


• Size and diversity of Defence • Posting cycle

• Perishable corporate knowledge• The need for written instructions

• Our Death Policy


Tasmania 2007



Overview of new ADF DVI capability/DNA repository for ADF personnel

Commodore Robyn Walker Director-General Strategic Health Policy and Plans


Tasmania 2007


Tasmania 2007

Background

• Busiest operational period for many years• Risk to our people is very real particularly in

MEAO• Involvement with Bali I, Sumatra and potential for

mass casualties led to a review of our DVI capabilities


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DNA Repository

• Visual identification is not reliable• Dental material may not be recovered • Fingerprints – not collected by the ADF and may

not be possible post incineration • DNA- antemortem• DNA repositories exist in the US and UK Defence

Forces


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DNA Repository – ADF experience

• RAAF Institute of Aviation Medicine• Black Hawk Board of Inquiry• Current legislation• Voluntary vs Compulsory


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Interim Voluntary Repository

• Obtain consent• Blood spot on Whatman’s FTA paper• Tamper proof envelope• Central storage facility• Recorded in medical records and personnel

records (PMKEYS)• Operational preparation, annual health assessment,

time of entry• No analysis until time of death


Tasmania 2007

Required Actions

• Identify and procure/establish a central storage facility

• Develop detailed policy regrading collection, storage, retrieval and destruction of samples

• Develop a detailed implementation and communication strategy

• Seek legislative change to allow the compulsory collection of blood


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Where are we at?

• RFT for a commercial storage service released but only one tender submitted– Requirement for storage facility to require

National Association of Testing Authorities Accreditation (NATA)

• Tender has been re-released


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ADF Forensic Identification Capability

• Primary mission is the recovery and identification of the remains of ADF personnel who die on duty whilst overseas

• Scope exists under DACC to assist in any domestic identification operation

• At this stage the capability of mounting a formal DVI operation from within the ADF does not exist


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Immediate capability

• Each core ADF forensic identification team consists of one forensic pathologist and two forensic odontologists

• Force prepared and ready for deployment• Equipment issues


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Medium to long term capability

• The ADF should develop a DVI capability to enable a response to intermediate incidents (incidents involving 5-20 fatalities)

• Service police investigators and service police to be trained

• Close liaison with the AFP to access this training continuum and a secondment program

• Workforce planning to recruit and train the forensic health specialists required

• Equipment issues• Operational zone coordination• Large incidents (greater than 20 fatalities) – will need

assistance


Tasmania 2007


Tasmania 2007



Defence legislation with implications for coronersMr Greg Styman

Deputy Defence General Counsel


Tasmania 2007

AUSTRALIAN DEFENCE FORCE INQUIRIES & ADMINISTRATIVE ARRANGEMENTS FOR DEFENCE

MEMBER DEATHS


Tasmania 2007

WHAT IS AN ADF INQUIRY?

• ADF Inquiries are: – administrative not discipline processes– designed to support the command and control of the

ADF– internal to the ADF– held to determine the facts and circumstances

surrounding an incident or situation– not to investigate civilian criminal offences or

offences under the Defence Force Discipline Act 1982


Tasmania 2007

LEGAL BASIS FOR ADF INQUIRIES

• ADF Inquiries are:– Authorised by the Defence Act 1903 s124(2A)

AND S124(2c) and appointed and conducted under the Defence (Inquiry) Regulations 1985 (D(I)R)

– appointed by the Chief of the Defence Force (CDF), CDF and the Secretary of Defence, Service Chiefs, or Commanding Officers -depending on the type of Inquiry

– governed by the Terms of Reference drafted by the Appointing Authority, which determines the scope of an Inquiry


Tasmania 2007

D(I)R - TYPES OF INQUIRIES

• General Courts of Inquiry• Combined Boards of Inquiry• Boards of Inquiry (BOIs)• Chief of Defence Force Commissions of Inquiry

(CDFCOIs)• Inquiry Officer Inquiries (IOIs)

The purpose of these inquiries is to determine the facts and circumstances surrounding an incident to allow Defence to find out what happened and why, and if possible, to prevent a recurrence.

The most common inquiries are IOIs, BOIs and CDFCOIs


Tasmania 2007

BOARDS OF INQUIRY

APPOINTMENTA BOI may be appointed by:• CDF and the Secretary of Defence, acting concurrently, to

inquire into “matters concerning the administration of the Defence Force” (reg.23(1)(a))

• CDF, to inquire into “matters concerning the Defence Force” (reg.23(1)(b))

• Service Chiefs, to inquire into matters concerning their respective service (reg. 23(1)(c))

• A delegate of CDF or a Service Chief (reg. 24)The Terms of Reference determine the scope of an Inquiry


Tasmania 2007

BOARDS OF INQUIRY

CONDUCT• A Board is made up of two or more persons who

can be ADF or civilians (reg. 26)• The President of a BOI can summon civilians and

ADF members to appear at an inquiry to give evidence (reg.30)

• BOIs are not conducted in public unless directed to by the Appointing Authority (reg. 29(1)&(2))

• There is no set inquiry format (reg. 28)• Evidence is not given on oath or affirmation

(reg.31(1))


Tasmania 2007

BOARDS OF INQUIRY

WITNESSES• Civilians and CDF members can be compelled to

attend and give evidence (reg.32)• Witnesses cannot claim privilege against self-

incrimination (reg.32(5))• Defence Act 1903 s124(2C) provides witnesses

with immunity from prosecution in civil or criminal courts for evidence they give to an inquiry, except in the case of false testimony


Tasmania 2007

BOARDS OF INQUIRY

REPORTS

• A BOI provides a report to the Appointing Authority setting out the findings and recommendations (reg. 36)

• The Appointing Authority will decide what action should be taken on the agreed findings and recommendations and appropriate implementation


Tasmania 2007

CDFCOIs

APPOINTMENT

• A CDFCOI is appointed by CDF (reg. 108)• It is mandatory in the event of a “death or suicide of a

member of the Defence Force that appear to have arisen out of, or in the course of, the member’s service” (reg. 109)

• The Minister may, however, direct that in specific circumstances a CDFCOI is not required (reg.109(2))

The Terms of Reference determine the scope of an Inquiry


Tasmania 2007

CDFCOI

CONDUCT

• The President of a CDFCOI must be a civilian with judicial experience (reg.112(2))

• CDFCOIs are conducted in private unless the Appointing Authority directs that it is to be public (reg.117(1)&(2))

• There is no set inquiry format (reg. 115)• CDFCOIs are not bound by the rules of evidence (reg.50)• The President can obtain information on any matter relevant to the

inquiry in any manner the President thinks fit (reg. 116)• The president can summon ADF members or civilians to given

evidence at the inquiry (reg. 118)• Evidence is not taken on oath or affirmation (reg. 119(1))


Tasmania 2007

CDFCOI

WITNESSES• Civilians and Defence members can be compelled to attend

and give evidence (reg.120)

• Statements given by witnesses during a CDFCOI are not admissible against the witness in any civil or criminal proceedings in any Federal, State or Territory court (reg.120(17))

• Defence Act 1903 s124(2C) provides witnesses with immunity from prosecution in civil or criminal courts for evidence they give to an inquiry, except in the case of false testimony


Tasmania 2007

CDFCOI

REPORTING

• At the conclusion of the CDFCOI a report containing findings and recommendations is provided to CDF (reg. 123)

• CDF receives the report & may decide whether or not to accept the recommendations and what further action is required


Tasmania 2007

INQUIRY OFFICER INQUIRIES

APPOINTMENT

• Inquiry Officers may be appointed to “inquire into a matter concerning a part of the Defence Force” (reg. 69(1))

• They can be appointed by a commanding officer, an officer with the powers of a formation commander under the Australian Military Regulations 1927, or a superior officer, provided that the matter being inquired into is under the “command or control of the officer” (reg. 70A(1))

• An Inquiry Officer can be an ADF member, and APS employee or a civilian (reg.70)

The Terms of Reference determine the scope of the Inquiry


Tasmania 2007

INQUIRY OFFICERS INQUIRY

CONDUCT

• Evidence is not taken on oath or affirmation (reg. 73)

• The inquiry is not conducted in public (reg. 72)• There is no set inquiry format (reg. 71)


Tasmania 2007


WITNESSES• ADF members can be compelled to attend and

give evidence (reg.74 and 74A). Civilians cannot be compelled

• Witnesses cannot claim privilege against self-incrimination (reg.74(3A))

• Defence Act 1903 s124(2C) provides witnesses with immunity from prosecution in civil or criminal courts for evidence they give to an inquiry, except in the case of false testimony


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REPORTING

• On completion of the inquiry, the Inquiry Officer must provide the Appointing Authority with a report containing findings and any recommendations from the findings (reg. 75)


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DISCLOSURE OF D(I)R INQUIRY RECORDS OR REPORTS

• The President of an Inquiry may give directions relating to evidence given during an Inquiry, such as suppression orders (reg. 62(1)&(2))

• Records or reports of an Inquiry may not be disclosed without Ministerial approval (reg. 63(1)&(3))

• It is a defence to prosecution if the person who discloses a record or report is “acting in the performance of the duties of his or her office” (reg. 63(2A))

• No action can be taken against the publication of “a fair and accurate account of all or part of the proceedings” of an inquiry that is held in public (reg.64(2))


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INTERACTION BETWEEN ADF AND CIVILIAN INQUIRIES

• An ADF inquiry does not preclude and does not interfere with a Coronial or other civilian inquiry such as Comcare, HREOC, and police investigations.

• A Coroner has the discretion to include any findings of an ADF inquiry into their final report on an incident


Tasmania 2007

DEFENCE FORCE REGULATIONS 1952 AND

THE DEFENCE (CERTIFICATION OF DEATHS) REGULATIONS 1953

• An examination of the capacity for Commissioned Officers to give directions for the disposal of a body and to issue a certificate of death


Tasmania 2007

Defence Force RegulationsPart VI

• Defence Force Regulations Part VI sets out the requirements of the disposal of dead bodies of members of ADF.– A Commissioned officer may give directions as

to the disposal of dead bodies, subject to Ministerial Direction (Reg 27)

– An ADF Medical Officer may (Reg 29):• Perform a post-mortem; and

• May sign a certificate of death.


Tasmania 2007

Regulation 27 – Ministerial Direction

• Ministerial Direction of 5 May 2004, signed by the Minister Assisting the Minister for Defence, Mal Brough.

• Expressly limits a Commissioned Officer’s authority to issue a direction to periods of armed conflict or where the death occurs outside Australia.

• Must consider whether it is possible/ appropriate to comply with State and Territory Coronial laws.

• Mandates that the direction will be in writing .


Tasmania 2007

Defence (Certification of Deaths) Regulations 1953

• A Certificate of Death:

– The Minister may authorise a person to issue such certificates (Reg 6);

– May be issued by a competent authority where a member of the ADF has died, or is missing and is presumed to have died (Reg 7);

– Once issued is prima facie evidence of death (Reg 9).


Tasmania 2007



Current status of the Military Justice System in the ADFRear Admiral Mark Bonser

Head Military Justice Implementation Team


Tasmania 2007

ADF Military Justice System

•Discipline – Defence Force Discipline Act•Administration – Inquiries/Adverse Administrative Action/Redress and

Complaint


Tasmania 2007

The Senate Report

• Bipartisan

• Numerous Previous Reviews and Inquiries

• Common Criticisms

• Wholesale Review


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Report Recommendations

• 40 Recommendations

• Disciplinary Investigations

• Prosecutions and Defence Legal Services

• Disciplinary Tribunals

• Administrative Reviews of Complaints

• Administrative Inquiries


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Premise of Senate Report Recommendations

• All recommendations are based on the premise that the prosecution, defence and

adjudication functions should be conducted completely independent of Defence


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A Separate Military Justice System

• Discipline, Efficiency and Morale

• Operational Effectiveness

• Speed and Severity

• In Australia and Overseas

• In Peace and War

• A Stand Alone Code


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Preferred Premise

• Ensure the right balance between maintaining effective discipline and

protecting individuals and their rights


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Disciplinary Investigations

• Timeliness, Quality and Independence of Service Police Investigations

• ADF Provost Martial• Tri-Service Police Unit

• Civilian Secondments

• Enhanced Training

• Professional Standards

• Inspector General ADF Oversight


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Prosecutions and Defence Counsel Services

• Timeliness, Quality and Independence of Prosecutions

• Director of Military Prosecutions• Statutory Appointment

• One Star Officer• Permanent Staff

• Director Defence Counsel Services• Line Position outside Services• National vice Regional Service


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Disciplinary Tribunals

• Timeliness, Independence and Impartiality• Perceived Independence of Trial and Review

Processes• Chapter III of the Constitution – Limitations

• Permanent Australian Military Court• Security of Tenure

• Statutory Appointments• Security of Remuneration

• Registrar• Military Judge or Judge and Military Jury

• Appeals to DFDAT


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Administrative Review of Complaints

• Not Independent of Chain of Command• Potential and Real Conflicts of Interest

• ADFARB Limitations• Streamline Complaint Mechanism - CRA

• Internal and External Review and Oversight• Single Register

• Transparency and Timeliness• Primary Responsibility with Unit Commanders


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Administrative Inquiries

• Perceived Lack of Independence

• AAT/ADFARB Limitations

• CDF Commission of Inquiry• Suicide and Deaths in Service

• Civilian with Judicial Experience Presiding


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Implementation

• Two year period until end 2007

• Key Initiatives• Australian Military Court

• CDF Commission of Inquiry• Tri-Service Investigation Unit

• Streamlined Complaints and ROG System

• 23 Recommendations Complete

• Effective Administration


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Military Justice System

The means to an end…Operational Effectiveness.


Tasmania 2007

Questions?


Contact details

– [email protected]





Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007 Coronial and...

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