2 erosion of command?...2 erosion of command?2.1 the failure by individuals in the command structure...

2 Erosion of command?

2.1 The failure by individuals in the command structure outlined in Parts One and Two of this report contributed to the problems on the March- May 2009 Asian deployment of HMAS Success. That failure might, however, reflect a more general breakdown in respect for rank and command, accompanied by reluctance on the part of those in command to exercise that command. Have the many reforms connected with military decision making in the last 10 to 15 years over-reached their mark? Has the pendulum swung too far towards individual rights? Even if the pendulum has not in fact swung too far, do those in command think it has, and are they consequently 'gun-shy' about taking action to maintain discipline? Has the 'civi~ianisation'~ of the military gone too far and happened too fast?

2.2 That is a matter of opinion. The examination of the series of topics that follows demonstrates that the traditional role of command has been impinged on in various respects in recent times. None of the impingements has been revolutionary, but the combined effect is significant. To an extent, the changes reflect trends in civilian society that cannot be ignored by the military. Appendix D provides an outline of some of the developments in the last 15 years or so. The amount of external scrutiny and the volume of externally prompted change must have been challenging for senior command and confusing for those lower down the chain. Some loss of morale by line commanders would not be surprising. But that is not acceptable in a military force. If implemented, some of my recommendations might help restore that loss of morale without turning back the clock.

What is command?

2.3 Command of the Defence Force and the arms of the Defence Force is dealt with in s. 9 of the Defence Act 1903:

9 Command of Defence Force and arms of Defence Force

(1) The Governor-General may appomt an officer of an arm of the Defence Force lo be Cnlef of tne Defence Force and

(a) may appoint an officer of the Navy to be Chief of Navy:

(b) may appoint an officer of the Army to be Chief of Army; and

- - --

M Groves, 'The civilianisation of Australian militaly law'. (2005) 28 UNSWLJ 364.

HMAS Success Commission of Inquiry

(c) may appoint an officer of the Air Force to be Chief of Air Force.

(2) Subject to section 8, the Chief of the Defence Force shall command the Defence Force, and the service chief of an arm of the Defence Force shall, under the Chief of the Defence Force, commandthe arm of the Defence Force of which he is service chief

(3) It is a function of the Chief of the Defence Force to advise the Minister, in such manner as the Minister directs, on matters relating to the command by the Chief of the Defence Force of the Defence Force, and it is a function of the service chief of an arm of the Defence Force to advise the Minister. in such manner as the Minister directs, on matters relating to the command by the service chief of the arm of the Defence Force of which he is the service chief.

(4) Subsection (2) has effect subject to section 68 of the Constitution. [emphasis added]

2.4 Section 9A of the Act provides as follows (so far as is relevant):

9A Administration of Defence Force

(1) Subject to section 8, the Secretaly and the Chief of the Defence Force shall jointly have the administration of the Defence Force except with respect to:

(a) matters falling within the command of the Defence Force by the Chief of the Defence Force or the commandof an arm of the Defence Force by the service chief of that arm of the Defence Force; or

(b) any other matter specified by the Minister

(2) Instructions issued by or with the authority of the Secretary and the Chief of the Defence Force in pursuance of the powers vested in them jointly by virtue of subsection (1) shall be known as Defence Instructions (General).

(3) The powers vested in the Secretary and the Chief of the Defence Force bv virtue of subsection (1) extend to authorizing a sekice chief of an arm oithe Defence Force to administer-, in accordance with that authority, maners relating to tnat arm of the Defence Force, and instruct ons or orders issued or made by or with the authority of a service chief in relation to the administration of an arm of the Defence Force shall be known as:

(a) in the case of the Navy-Defence Instructions (Navy)

[emphasis added]

Part Three: Further Recommendations

2.5 Section 8 of the Act is as follows:

8 Powers of the Minister in relation to Defence Force

The Minister shall nave the general control and administration of the Defence Force. and the Dowers vested in the Chief of the Defence Force, the Chief of Navy, the Chief of Army and the Chief of Air Force by virtue of section 9, and the powers vested jointly in the Secretary and the Chief of the Defence Force by virtue of section 9A, shall be exercised subject to and in accordance with any directions of the Minister.

2.6 Pursuant to ss. 9(2) and 9A(3) of the Defence Act, on 28 November 2001 the Chief of the Navy issued Defence Instruction (Navy) ADMlN 30-1, Command; it is supported by DI(N) ADMlN 30-3, Instructions to the Commanding Officer, issued on 12 November 2002. The main provisions relating to the definition of 'Command' are contained in DI(N) ADMlN 30-1:

SECTION ?-DEFINITIONS OF COMMAND

Command in the Australian Defence Force

3. Australian Defence Force (ADF) doctrine defines command as:

'the authority which a commander in the military Service lawfully exercises oversubordinates by virtue of rank or assignment. Command includes the authorify and responsrb~lit~ for effecbvely usrng avallable resources and for planning the em~loyment of, organislnq, direct~ng, coordinating and~controlling military forces for the accomolishment of assianed missions. It also includes r&ponsibilify for health, welfare, morale and discipline of assigned personnel '

Command in the Royal Australian Navy

4. Every member of the Navy, commissioned or non commissioned has the potential to exercise wmmand by virtue of either the rank they hold or the nature of the appointment they fill. The nature and scope of authority varies frbm appointment to appointment and increases with rank. Authority derived from an appointment is specific in nature. and is related to the responsibilities of a particular posting. Authority due to rank is accorded to each member of the RAN based on their status within the rank structure of the ADF and based on the level of responsibility appointed to particular positions within the organisation. The more senior officers in roles requiring them to exercise their wmmand authority over large numbers of people are customarily called 'Commanders' but, strictly speaking, the term can be applied


to any member of the Navy exercising military authority over his or her subordinates.

5. In the RAN, the definition of command provided in ADF doctrine is aiven an extended interoretation to recoanise that of the different 'branches' of the ~ a v ~ (Seaman, sipply, Engineering. Medical and Dental). Command of ships. submarines and aircraft can only be exercised by those possessing the specialist qualifications to do so. In the RAN context, command is:

'The authority exercised by aN members of the Naval Forces by viftue of their relative ranks and seniority over their subordinates regardless of branch:

Commanding Officer exercising command

6. The CO, that is the officer appointed in command of a ship, submarine, naval establishment, naval air squadron, clearance divina team. Naw Headoualters fNHQ)- ~asmanialsouih ~ust~alial~ueensland or oiher nbn comm~ssioned naval or AOF Lnlt as descr~bed in paragraph 32, has authority over all officers and sailors borne irrespective of rank and seniority in matters concerning the activities and oDerations of the command. CO halsl responsibility for the maintenance of good order and disci~line and must ensure that militaw iustice is a ~ ~ l i e d in accdrdance with the Defence Force ~ i i c i ~ l i n e ~ c t '1'982 (DFDA).

7. A CO will exercise leadership and management and ensure utilisation of hislher command for a specific purpose. The extent of command to be exercised is specified in directives issued by those appointed as CO, and generally derives from the legaistatus of their rank and the appointment they hold. Command is exercised within the parameters of the Naw's organisation ...

The remainder of the Instruction need not be set out in full, although some parts of it, under the general heading of 'Command philosophy', are worth noting:

Accountability

13. The definitions in section 1 make it clear that there is a strong sense of individual res~onsibility and acwuntabilitv inherent in the notion of command. In the military sense, the Commander is where 'the buck stops'. It is the Commander who must be prepared to lead, to make decisions, encourage, mentor. enforce discioline. direct. control and care for those under his or her command and be accountable for their actions.

Part Three: Further Rewrnrnendations

Leadership

17. Ch expects all of Navy's personnel in wmmand positions to ~erform In an exemplary manner being mindful at all times of Navy's values of honou;, honesty, courage, integrity and loyalty, and to be committed to achieving Navy's mission through teamwork, leadership, accountability, learning and innovation, performance and professionalism. Of the many attributes expected of a good Commander, the principal attribute 1s tnat of leadership Leadership has many defnlllons but for Navy 11 IS the sometimes tangible. sometimes intangible set of things that inspire beople, motivate them and convinces them to act both individually and as a member of a team in the pursuit of a goal or objective.

2.7 In Bromet v Oddie [2002] FCA 1148, Finn J said the following:

40 Secondly, in The Commonwealth v Welsh [I947 HCA14; (1947) 74 CLR 245 at 268. Dixon J observed:

'in considering the meaning and effect of the Air Force Regulations their purpose cannot be neglected, namely to provrde rules to govem one of the armed forces of the Crown The relatron lo the Crown of members of the armed forces 1s no new subject; the rules of the common law define it. The regulations are not to be read in disregard of those rules and of the long tradition to which they have contributed.'

41 In Marks v The Commonwealth [I9641 HCA 45; (1964) 11 1 CLR 549 at 573 Windeyer J commented of this that while the remarks were directed at statutory regulations they were equally applicable to the Act itself. It goes without saying in my view that they apply as of course to Defence Instructions made under s 9A of the Act.

42 Thirdly, it is not open to doubt that the power of command given by s 9 of the Act to (inter alia) the CDF and the CAS had its origins in constitutional arrangements acknowledged by the common law: see The Commonwealth v Quince [I9441 HCA I ; (1944) 68 CLR 227 at 254-255. A clear correlative of it is the obligation of a member of the Defence Force to obey lawful orders given by a superior: ibid; for the analogous position in relation to police and public servants see Anderson v Sullivan (1997) 78 FCR 380 [I9971 FCA 1008 and McManus v Scott-Charfton (1996) 70 FCR 16; [I9961 FCA 1820. It is an offence under s.27(1) of the Defence Force Discipline Act 1982 for a member of the Defence Force to disobev a lawful wmmand.


Finn J held that the suspension of a Flight Lieutenant from flying duties in that case was done pursuant to command, rather than pursuant to the instrument dealing with personnel.

2.8 On appeal to the Full Court (Bromet v Oddie [2003] FCAFC 213) Dowsett J referred to the distinction between command and administration in s. 9A of the Defence Act and the requirement that Defence Instructions relate to the latter. He pointed out the apparent anomaly in the Air Force Instruction equivalent to DI(N) ADMIN 30-3, dealing with the exercise of command, saying that such instruction was descriptive, not prescriptive ((951). He later said (at para [110]):

The Squadron commander was respons~ble for the effective ~tillzatton of Squadron resources and for lralnlng of Sq~adron personnel. It &not be seriously suggested thaithe A/r Force should continue to expend resources on training a person who, it believes, will not be able successfully to complete such training. If a commandina officer resDonsible for resources and trainina concludes th; a trainee will not benefit from the - expenditure of such resources on further training, then the officer should bring that matter to the attention of his or her own superiors and/or those responsible for postings and career planning such as the DPO. This duty is part of the command function, not a duty conferred by DI(AF) PERS 4-19. In my view, that instruction merely regulates the way in which a commander should perform this aspect of the command function.

The suspension was held to be a valid exercise of the command f~nc t ion .~

2.9 In summary, the historical and statutory distinction between command and administration of the Defence Force is fundamental but might have been obscured in recent years.

Military discipline

2.10 It has always been recognised that a special system of discipline is a necessarv element in the command of a militarv force. The Defence Force ~iscipline Legislation Board of Review, ;haired by the Hon. Xavier Connor QC, said in its report:

The changes mentioned in the preceding paragraph, however, have not in any way affected the traditional posltlon of members of

' Some relevant history concerning the command of military forces is to be found in the judgment of Logan J in Millar v Bomholt (2009) 257 ALR 263. See also M Jones. 'Judicial review of administrative action against members of the ~ustralian Defence Force: can a wamor win in court? (2005) 13 AJAdminL 8, particularly at 11-22; D Horner, Towards a Philosophy ofAustralian Command, Strategic and Defence Studies Centre. Australian National University, Canberra, 2002.

8 Part Three: Further Recommendations

the Defence Force who, unlike the general body of Australian citizens, are required to live and work under a system of command which demands obedience, to accept a reg mented way of life, to stand ready to defeno Australia's interests, to unoertake tasks which could involve high risk and extreme demands, and to observe a code of discipline which subjects them to laws, regulations and rules over and above those which are imposed by the civil law. In other words. members of the Defence Force remain in a distinctive empl'oyment category and the special nature of their employment sets them apart from all other Australian c i t i~ens.~

Along the same lines, in White v Director o f Military Prosecutions (2007) 231 CLR 570; (2007) HCA 29 Callinan J said at [233]:

There can be no doubt, to use the introductory language of s 51, that the 'order and oood aovernment' of the forces reauired to defend the ~omm&weaih depend upon the establishment and ma ntenance of a relatively strlct system of disc~pllne At the heart of thls s the cruc~al and lndubltable understand~nq that personnel must operate in circumstances of grave danger ihwhich reliance upon one another and instantaneous obedience of orders are essential.,The implication of this is that inevitably some discipline may have a more summary complexion, may attract somewhat more harsh penalties than, and may encompass conduct of different kinds from those found in civil life.

2.11 The cornerstone of the military discipline system is the Defence Force Discipline Act 1982 and legislative instruments cognate with it, as outlined in ADFP 06.1 . l , Discipline Law Manual. The system is modelled on civilian criminal justice, even though, to a significant extent, it deals with disciplinary offences rather than criminal offences.

Investigation

2.12 That makes investigation of even a minor matter a difficult task. A member of the Defence Force cannot be compelled to answer questions or incriminate himself or herself, and proof must be proof beyond reasonable doubt. There are other statutory constraints akin to those applying to civilian criminal investigation. These constraints are such that the level of knowledge and competence required when investigating and preparing for prosecution will often be beyond the skills of those available in smaller units. On HMAS Success, the competing workload of the Coxswain was a factor in the failures that have been remarked upon, as was the comparative lack of training the

"efence Force Discipline Legislation Board of Review. Reporf. X Connor QC, Chair. Department d Defence. Canberra, 1989, paragraph 3.02.

HMAS Success Commissian of Inquiry

Coxswain had received as an investigator. Indeed, the Australian Defence Force lnvestigative Service itself struggled.=

2.13 The constraints on investigation are set out in Part VI of the Defence Force Discipline Act. An examination of the merits of the applicability of such a regime to purely disciplinary offences is beyond the scope of this report. The effect of s. 101 B does, however, call for some comment. The section reads as follows:

1018 Investigating officer may question persons

(1) Where an investigating officer who is investigating a service offence believes that a person (including a person be1 eved by the nvest gatcng officer to have commitled the servlce offence) may be able to furnish information that may assistthe investigating officer in his or her investigation of the service offence, the investigating officer may, subject to this Part, ask the person questions relevant to his or her investigation of the service offence.

(2) A person who is asked a question by an investiaatina officer under subsection (1) is not requirgd to tonswer the question.

2.14 It is a curious provision. Subsection lOlB(1) appears to be unnecessary: anybody can ask anybody else a question without any permission. There is certainly nothing to prevent a person in command of another in the military asking that person questions, and, generally speaking, refusing to answer questions will be in breach of an order. It could be that this is the explanation for the inclusion of s. lOlB(2). But the latter subsection poses a significant barrier to investigations and creates a corresponding interference with effective discipline. It is difficult to see a rationale for affording someone not believed to have committed an offence a statutory right to silence. Even in the case of a suspect, it is difficult to see why a blanket right to silence should be given, rather than the ability to claim the privilege against self- incrimination. As far as that privilege is concerned, it is not self-evident that it does apply to serving Defence Force personnel in relation to service offences. It is a common law privilege, and the history of military law is quite distinct from that of common law.

2.15 There is also an uneasy relationship between s. 101 B and investigations and inquiries into incidents and events that are a normal part of command and where questions must be answered-including

"A Routine Inquiry report on the performance of the Australian Defene Force Investigative Service in relation to alleged offences committed by Australian Defence Force members of HMAS Success4 April 2009 to 28 August 2009'. 1 Apdl2010.


questions in what are called 'Routine Inquiries' (possibly subject to refusal on the basis of self-incrimination).

2.16 1 cannot see any rationale for s. 101 B of the Defence Force Discipline Act. I recommend that the substance and form of the section be reconsidered.

2.17 Investigation of alleged service offences is dealt with in ADFP 06.1.1, Discipline Law Manual, Volume 3, Chapter 4. paragraphs 4.74 and following and in Annex A to Chapter 4. Paragraph 24 of Annex A is as follows:

Procedural fairness. Procedural fairness must be afforded throughout an nvest gallon to tndiv~duals affected by the Invest aatron. Provtdlna ~rocedural fa~rness oenefits both the investigator as well asthe person under investigation. Affording procedural fairness requires the investigating officer to:

a. provide people with a reasonable opportunity to put forward their case;

b. hear all parties and consider all submissions;

c. make reasonable inquiries or investigations before making a decision;

d. act fairly and without bias; and

e. conduct the investigation without undue delay.

In my respectful opinion the paragraph is not the law and is not good policy. Many investigations will be thwarted if there is such an obligation. Natural justice will be afforded when and if a charge is laid or possibly some administrative sanction is proposed. In either event, procedures are laid down whereby natural justice is afforded. This is another example of the concepts of public administrative law being wrongly introduced into areas of the command of the Defence Force where they are not suitable.

2.18 1 recommend that paragraph 24 be omitted from Annex A to Chapter 4 in Volume 3 of ADFP 06.1.1.

Prosecution

2.19 The original Defence Force Discipline Act provided that the prosecution of offences was governed by the rules relating to civilian criminal prosecutions-even in the case of prosecution before summary authorities. This is surprising since the report of the 1973 Working


party7, which was the primary influence on reform of Defence discipline, included the following:

... The basic reason for the introduction of a two tier summary system is our reluctance to extend the features of a criminal trial to minor breaches of discipline which should not be classified as crimes and which in an industrial setting would be regarded merely as management problems. A distinction has therefore been drawn between a summary trial and a summary disposal. The only punishments which will be available to commanding officers and their delegates under the summary disposal system will be the minor punishments of restriction of privileges, stoppage of leave, extra duties and reprimands and in addition a fine of not exceeding 3 days' pay.'

Provision for summary disposal was not included in the Act.

2.20 A similar view was expressed by the Connor Board of Review in its 1989 report. Paragraphs 3.05 to 3.08 of the report were as follows:

3.05 Service discipline may have to deal with anything from murder to wearing dirty boots on parade. Part of service discipline covers offences which contain much the same elements of criminality as are dealt with in civil courts. Examples are offences involving violence or dishonesty. For the most part, however, service discipline. part cdlarly as administered by sLmmav autnorities, has 10 do with matters which do not contain any element of criminality and which would not constitute an 'offence' under civil law. These include absence without leave, behaviour prejudicial to discipline, disobedience and negligent performance of duty. Many of them, it may be noted in passing, are of quite a minor nature and probably in more than 90% of these the facts are not in dispute. The range of punishments available to service tribunals is also wider than in civilian life. Stoppage of leave, extra duties, extra drill, detention and reduction in rank are all peculiar to the services.

3.06 In the services, tradition and training alike combine to emphasise the notion of instant obedience which distinguishes an efficient armed force from a rabble and which is the basis of the team work, which enables members of the Defence Force to rely on other members for the mutual advantage of all.

3.07 The notion of instant obedience is not without its place in civil life, for example in police and fire brigade services. but in general it is stressed in tne amled iervices in a way qute different from civilian life In the process 11 is

' Defence Force Disciplinary Code. Second drafi with report of the 1973 Working Party ' ibid.. page vi.


inevitable that, in order to achieve a higher standard of obedience in the services, disc~pl nary measures mLst be taken which would ordinarily beout of place in civil life. As we have said, such measures have nothing to do with criminality. In the services, punishment is directed towards the disdpline and training of the defence member as well as towards the traditional objects of punishment in the civil criminal system. Moreover, a summary authority operates within a service unit which has something of the character of a large, closely knit family while a civil court operates in the community at large and tends to be seen as remote and impersonal.

3.08 In these circumstances the Board considers it quite inappropriate that minor breaches of discipline should be equated with 'offences' and dealt with by elaborate legal procedures and finally entered on a membets conduct record in a way which may permanently stain the member's character both in service and civil life.

Paragraphs 4.05 to 4.07 of the report were as follows:

4.05 The entire system was described to us as being unduly wmplex, cumbersome and slow. Because of the time taken to deal with a case, an accused person wuld well go through 3,4 or more days of mental anguish and on the day be awarded only 2 days extra duties or given a reprimand. The point was made to us that many non- commissioned officers regard it as better personnel management to have swift justice through the use of unofficial punishments than to go through the ponderous procedures of the Act.

4.06 It is said that many non-commissioned officers are reluctant to become involved in prosecutions both by reason of the time involved in preparation for the hearing and the difficulties experienced in understanding the elaborate processes which must be followed. Consequently many noncommissioned officers do not bring charges in cases in which they should. One view put to us was that this failure to take appropriate disciplinary action has resulted in a decline in the standard of discipline. There seems to be no doubt that in many establishments what the Board has termed a 'subculture' of disciplinary procedures has grown up which involves administering punishments without recourse to the formal procedures of the Act. We were told, both by offenders and those in command, that under the present svstem those who commit minor breaches prefer unofficial punishments because these do not go on official conduct records. The subculture of disciolinarv procedures is sometimes justified on the basis ihat t i e award of extra duties is by way of extra training and is therefore not punishment, but often it is difficult to


understand how the extra duties awarded can be said to be extra training relevant to the disciplinary breach. In the opinion of the Board this subculture exists, to a greater or lesser extent, in almost all units visited.

4.07 The Board is firmly of the view that in the case of infringements which are purely disciplinary and which are neither serious nor of a criminal nature it is essential that a system be established which will enable such infringements to be dealt with speedily and without undue formality.but which, at the same time, will adequately protect defence members from unfair treatment. A speedy, informal system would assist in avoiding the waste of resources involved in the present process. It would also have considerable advantages for the offender, as it would avoid the trauma of a drawn out process and the stigma involved in a 'criminal' conviction entered on the offender's record.

2.21 The Board of Review recommended that a number of identified minor infringements not be classified as service offences under the Defence Force Discipline Act and that discipline officers not be service tribunals. Consequently, none of the many evidentiary and procedural provisions of the Act, the Regulations and the Rules would apply to discipline officers dealing with minor breaches.' In paragraph 4.19 the board said:

We have wavered somewhat about the requirement that the member can be dealt with by a discipline officer only if such member acknowledges the breach. We realise that members may on occasions wish to dispute that there has been a breach but nonetheless wish to be dealt with by a discipline officer. The rule we propose will prevent them from doing so. In the end we concluded that discipline officers should not be required to resolve disputed questions of fact, a process which might involve the examination of witnesses and lengthy hearings.

2.22 The board recommended that decisions of discipline officers not be subject to appeal and that there not be any individual review of such decisions. At that stage a tendency was noted for alternative punishments to be awarded in lieu of facing the difficulties of prosecution. The board's report ultimately led to the introduction of the discipline officer's jurisdiction comprising Part IXA of the Defence Force Discipline Act, which came into effect in 1995.

2.23 The Board of Review also commented unfavourably on the requirement that the rules of evidence apply to proceedings before a service tribunal as if they were criminal proceedings (paragraphs 4.03, 4.04 and 10.19). That matter was taken up by the 2008 amendment to the Act that introduced s. 146A, which relieves a summary authority of being bound

Paragraph 4.13.


by the rules of evidence. The amending Act also widened the scope of the discipline officer's jurisdiction to some extent.

2.24 The question of avoidance of disciplinary processes was also examined in the Burchett report.1° The emphasis of that report in this respect was on illegal punishments being rendered to avoid the constraints of prosecution. The inquiry found that the discipline officer scheme was at that time not well known or well understood.

2.25 The discipline officer scheme was used on the March-May 2009 Asian deployment of HMAS Success, and there were some summary authority hearings. Nonetheless, it is likely that the culture of avoiding Defence Force Discipline Act action because of the complexities involved still operates, particularly at the non-commissioned level. This could in part explain the lack of appropriate disciplinary action.

2.26 The discipline officer scheme and the freeing of summary authorities from complying with the rules of evidence are steps in the right direction. The disengagement of minor discipline matters from the criminal paradigm is, however, by no means complete. In my view, that process would be much assisted if the discipline officer scheme were to apply when the alleged offender does not admit to the charge but does opt for a hearing by a discipline officer. The Connor review wavered on this point in1989.

The time has come for reconsideration. The factual matters that might have to be decided by the discipline officer are likely to be practical questions quite amenable to decision by someone with current practical knowledge, without the constraints of a formal trial. That system would best approximate on-the-spot discipline for minor matters, which was traditional in the military and has much to commend it. The need for the alleged offender to opt for the procedure is an ample protection of rights.

2.28 1 recommend that the discipline officer jurisdiction be extended to cases where the member elects that option but does not admit to the charge.

Redress of grievance

2.29 The obligation of a member of the Defence Force to obey lawful orders given by a superior officer, and to comply with a lawful general order, is crucial to the operation of command of a disciplined service. A correlative of that is that, if a member of the Defence Force considers

J Burchett QC, Inquiry into Military Justice in the Australian Defence Force, Department of Defence, Canberra, 2001.


that a decision, act or omission in relation to the member's service is adverse or detrimental to him or her and the adverse or detrimental effect of that decision, act or omission is capable of being redressed by (inter alia) a member of the Defence Force, the member may make a complaint under Part XV of the Defence Force Regulations 1952. The provisions of Part XV are supported by Defence Instruction (General) PERS 34-1, Redress of Grievance-Tri-service Procedures, issued on 8 September 201 0 (being amendment number 3), giving guidance for members submitting a redress of grievance and outlining the inquiry and administrative requirements for the management of ROGs.

2.30 1 need not give any general account of the operation of Part 15 and DI(G) PERS 34-1. They are self-explanatory, and the topic has been much scrutinised in recent years." The application of the ROG system was recently revised following a joint report by the Department of Defence and the Office of the Commonwealth Ombudsman, entitled Review of the Australian Defence Force Redress of Grievance 2004. The history of the right to a redress of grievance was sketched by Logan J in Millar v Bornholt (2009) 257 ALR 263; [2009] FCA 637, particularly at [lo-291. His Honour said (at [25]):

The existence of a right of redress, of a right to have the complaint referred to the highest levels of command and of the obligation of an officer promptly to deal with the complaint either when initially made or on referral serve to temper the arbitrary, uncaring, ignorant or unjust exercise of authority within the Army. They are of fundamental importance to command and control and discipline within the Army. They ameliorate the duty of those in the Army to obey the lawful commands of their superiors under pain of prosecution and, if convicted, sentencing for mutiny. Under the Mutiny Acts, the latter offence was a capital crime. Though that penalty does not attend the offence of mutiny in Australian military law, the maximum punishment for the offence is serious enough- imprisonment either for 10 years or for life, depending on the circumstances in which it is committed: see s 20 Defence Force Discipline Act 1982 (Ct h).

Later, at [33], his Honour said:

The reason why the Defence Regulations, like others before them, reserve at least to the rank of Brigadier (or equivalent in the other arms of the Australian Defence Force) the exercise of power in respect of a referred redress complaint arises from the nature of the power and the need to ensure that its exercise conforms with

" Senate Foreign Affairs, Defence and Trade References Committee, The Effectiveness of Australia's Military Justice System, Australian Parliament, Canberra, June 2005; Commonwealth Ombudsman, Australian Defence Force: management of complaints about unacceptable behaviour, Report 0412007, Commonwealth Ombudsman, Canberra, June 2007; L Street & L Fisher, Report of the Independent Review on the Health of the Reformed Military Justice System, January 2009; Inspector General of the Australian Defence Force. Report of a Review of Arrangements for the Management of Complaints and Incidents and Related Jurisdictional Aspects in the Australian Defence Force, 6 September 201 1.


the chain of command within the Army. The system for redress of grievances is not intended to be subversive of the Army's chain of command. Thus the initial complaint is made under reg 75 of the Defence Regulations to a commanding officer, who will, if permanently appointed, invariably hold the rank of Lieutenant Colonel in a major unit or of Major in a minor unit. By reserving the exercise of the power under reg 77 of deciding referred redress complaints at least to an officer of the rank of Brigadier the Governor-General in Council has reserved the exercise of that power to a formation commander rank level, i.e. to a rank the holder of which usually exercises command over a number of major and minor units. In this fashion, the redress system conforms with and buttresses the chain of command within the Army.

And then, at [35]:

Though the occasion for the exercise in this case of the power to review on referral a referred redress of grievance complaint was the exercise of a power to terminate a member's Army service, the ability to seek redress and later referral extends over the entirety of relationships between superior and subordinate within the Army. That has the necessary consequence that underlying circumstances and the nature of the decision under review will necessarily influence the manner and formality of the exercise of power in respect of a referred redress complaint. What does not changeis the nature of the review power. The Chief of Army or a delegate considering the redress complaint on referral is fully empowered to consider afresh and on the merits the subject matter of the complaint, to reach his or her own decision in respect of it and to modify or countermand any decision which has given rise to a complaint which is upheld.

2.31 In Part Two of this report I remarked on the odd situation of ROGs by witnesses who gave evidence to an lnquiry Officer's lnquiry pursuant to Part 6 of the Defence (Inquiry) Regulations 1985 appointed by a Commodore against the findings and conduct of that inquiry being addressed to the Commanding Officer of Success, who was a commander. l2

The use of the ROG procedure in that case was anomalous. It is questionable whether the conduct and findings of the lnquiry Officer's lnquiry were in relation to the member's service or were adverse for or detrimental to those involved in the relevant sense. The senior sailors were simply witnesses, and any criticism made of them in the report would be adverse for or detrimental to them only in the event that some action was taken, or was proposed to be taken, that was adverse for or detrimental to them. The report was not public in any sense.13 The

l2 Part Two. paragraph 2.73. l3 See s. 63 of the Defence (Inquiry) Regulations 1985.

HMAS Success Commission of lnquiry

situation is well illustrated by what happened in the particular cases concerned. Notices to show cause why adverse administrative action should not be taken, based on the inquiry findings, were ultimately issued to each of the senior sailors. No ROG could have been pursued about the issuing of the notices.14 Nonetheless, ROGs were submitted about the findings of the inquiry, thus sidetracking the administrative action. This diverted the correct procedure since the proper time for bringing forward any relevant matter was in the course of showing cause. The purpose of an inquiry under the Defence (Inquiry) Regulations 1985 is to inform command of relevant facts and circumstances. It is not a proceeding against anyone, and for that reason it should not be capable of being the subject of a ROG, absent special circumstances.

2.33 It is also anomalous that an inquiry conducted pursuant to the Defence (Inquiry) Regulations and Administrative Inquiries Manual 06.1.4 should be reviewed by a Commanding Officer who had no role in the inquiry process and who might (as in this case) have very little knowledge of the relevant facts and circumstances. In many cases the Commanding Officer will be the appropriate recipient of a ROG because he or she will have the power to redress the conduct complained of. Where that is not so (as in this case), the complaint should immediately be elevated to the level in the command structure where redress can be granted. In this regard I agree with recommendations 9 and 10 made by the lnspector General of the Australian Defence Force in his 201 1 review.15

2.34 The Appointing Authority is not bound to accept the findings of an inquiry conducted under the Regulations and can, no doubt, scrutinise both the process and the result. It is inappropriate that this be done otherwise than by the Appointor, bearing in mind the legal review that takes place.16 Witnesses and other third parties have a role in reviewing an inquiry only if an adverse decision is taken or threatened. In the present case, consideration of the ROGs effectively interfered with the 'show cause' process and was an abuse of that procedure.

2.35 The exceptions in r. 75(2) of the Defence Force Regulations 1952 include 'a decision, judgment or order made by a civil or criminal court, a service tribunal or the Defence Force Discipline Appeal Tribunal'. It is

l4 Defence Force Regulations 1952, r. 75(2)(b). Inspector General of the Australian Defence Force, Report of a Review of Arrangements for the

Management of Complaints and Incidents and Related Jurisdictional Aspects in the Australian Defence Force, IGADF, Canberra, 6 September 201 1. Recommendation 9: 'The redress of grievance regulations and Defence Instruction (General) PERS 34-1 should be amended to mandate that where it is clear that a Commanding Officer does not have the authority to resolve a grievance or where the circumstances of paragraph 17 of the Defence Instruction apply, the Commanding Office must refer the grievance without further inquiry to the relevant Service Chief. Recommendation 10: 'Consideration should be given to clarifying the circumstances in which a commanding officer may refer a grievance to an authority who has power to resolve the grievance where that authority is not the Service Chief. l6 ADFP 06.1.4, paragraph 6.77.


unlikely that it would be contemplated that any court of inquiry under the Defence (Inquiry) Regulations could be challenged in the way the Wark lnquiry Officer's lnquiry was challenged, and the same might be said of inquiries by the lnspector General of the Australian Defence Force. There is no reason in principle for distinguishing between the various kinds of inquiries under the Regulations for exceptions to the ROG process.

2.36 1 recommend that there be a further exception in Regulation 75(2) of the Defence Force Regulations 1952 for 'the conduct or report of any inquiry under the Defence (Inquiry) Regulations 1985'.

2.37 Another anomalous use of the ROG procedure was outlined in Part Two of this report-the lodging of a joint formal complaint by the senior sailors on 15 July 2009 and what followed.'' The initial complaint made on 15 July 2009 to CMDR Clarke was, in substance, a ROG complaint within Part 15 of the Defence Force Regulations 1952, and it should have been dealt with as such or not at all. The response was to constitute a Routine lnquiry into the complaint, although an lnquiry Officer's lnquiry had been recommended. Either would have been a suitable method of dealing with the complaint pursuant to Part 15 of the Regulations. If the complaint had been treated as a ROG, there could not have been a second complaint in relation to the result of the complaint by reason of the exception in r. 75(2)(a). In this case, however, the further complaint made later in 2009 was processed as if it were an initial ROG complaint. This was, again, an abuse of the process. After all, the ROG procedure has two levels of internal review built in.

2.38 1 recommend that DI(G) PERS 34-1 be revised to ensure that complaints that are in substance complaints within Part XV of the Defence Force Regulations 1952 be processed as such.

2.39 As noted in Part Two of this report, in addition to the formal complaint of 15 July 2009 and the subsequent ROGs, the senior sailors, through their naval lawyer, sought to use the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Freedom of Information Act 1982 (Cth). Representations were also made to a parliamentarian. Remedies other than ROGs are available in appropriate cases from the Defence Force Ombudsman, pursuant to the Ombudsman Act 1976 (Cth) and DI(G) PERS 34-318, and the Human Rights and Equal Opportunity Commission, pursuant to the Australian Human Rights Commission Act 1986 (Cth) and DI(G) PERS 34-2.19The lnspector General of the

I' Part 2, paragraphs 3.128-3.179. l8 ~ a n a g e m e ~ t and Reporting of Unacceptable Behaviour. lg Complaints of Discrimination and Harassment through the Human Rights and Equal Opportunity Commission.


Australian Defence Force purports to have oversight pursuant to Part Vlll B of the Defence Act 1903 over a variety of administrative processes.

2.40 In the Australian Defence Force there are various internal avenues for complaints and their resolution apart from the ROG procedure. The Defence Equity Advice Line is available seven days a week. The Equity Adviser Network (see DI(G) PERS 35-7) is available for advice, as are chaplains. There is the Defence Whistleblower Scheme (see DI(G) PERS 45-5). The management and reporting of unacceptable behaviour are dealt with by DI(G) PERS 35-3. The management and reporting of sexual offences are dealt with by DI(G) PERS 35-4. The use and management of alternative dispute resolution in Defence are dealt with in DI(G) PERS 34-4. Free legal advice is available (see DI(G) PERS 12-1). In addition, some important decisions affecting members of the Defence Force are governed by a detailed set of rules with their own internal safeguards-particularly the Defence (Personnel) Regulations.

2.41 The ROG procedure was developed at a time when none of these avenues of redress existed: only relatively recently have they been created.

2.42 The ROG procedure remains a catch-all, although it can be suspended while other remedies are pursued. A complainant is not called on to choose between the ROG procedure and the alternatives. It is difficult to see why an aggrieved member should be able to pursue all other remedies and, if unsuccessful, return to the ROG procedure. This is resource intensive and presents an opportunity for 'gaming' the system and for vexation of the target.

2.43 1 recommend that the interplay between the redress of grievance system and alternative avenues for redress be examined and rationalised and that attention be given to dealing with vexatious ROGs.

2.44 A wider question arises: should there be an independent body to supervise the complaint system along the lines recommended in the Senate Foreign Affairs, Defence and Trade References Committee's 2005 report on the effectiveness of Australia's military justice system? A similar question arises in relation to adverse administrative action; it is dealt with later.

Command decisions and administrative law

2.45 On 25 January 2010 the Chief of the Defence Force released Australian Defence Force Publication 06.1.3, Guide to Administrative Decision Making. The publication superseded edition 1 of ADFP 06.1.3, which


was operative during the Success deployment of March-May 2009. It is described in the foreword as a 'doctrine for the guidance of ADF operations ... doctrine is not policy and does not have legal standing, however it provides authoritative and proven guidance, which can be adapted to suit each unique situation'.

2.46 An initial reading of the publication (2nd edition, 25 January 2010) leads one to conclude that the intention was that the guide should apply only to those actions that are described as 'administrative sanctions' in paragraphs 1.10 and I . I I-that is, administrative decisions initiated and/or imposed when the conduct or performance of a member of the Australian Defence Force is below the standard required and is not in the interests of the ADF, leading to official action that reflects formal disapproval on a temporary or permanent basis. Examples of sanctions are given-unsuitability reports, formal warnings, censures, a change of employment category, removal of a security classification or clearance, denial or delaying of promotion or revocation of provisional promotion, removal from an appointment or locality (including removal from command), a reduction in rank, and termination of service. So understood, most operational command decisions would not be affected by ADFP 06.1.3.

2.47 Paragraphs 1.2, 1.6, 1.7, 1.8, 2.1 and 3.1 suggest, however, that all decisions adverse to a member of the Defence Force must comply with the requirements of administrative law and, in particular, the need to afford natural justice or procedural fairness.

2.48 Paragraph 2.42 is as follows:

2.42 Not all command or other administrative decisions require procedural fairness as described in this guide. Administrative decisions which do not result in an administrative sanction or which do not involve the exercise of discretion by a decision-maker are not subject to the requirements of procedural fairness. Such decisions include the following:

a. decisions that are trivial, such as refusal of short leave;

b. decisions that are routine, such as mid-year and end of year postings;

c. decisions that grant or award a privilege, such as promotion;

d. decisions that are urgent and involve a genuine and real operational imperative (as distinct from an attempt to avoid mere administrative inconvenience), such as command or operational circumstances requiring priority for reasons of speed, security, safety, efficiency or welfare of personnel;

HMAS Success Commission of lnquily

e. decisions that have no adverse effect on a member's rights or interests: or

f. 'decisions' that are imposed by legislation and, therefore, do not involve the exercise of a discretion by a commander or other decision-maker. [emphasis added]

Paragraphs 2.43 to 2.45 deal with the kind of decision referred to in 2.42(d) and make it clear that there is only temporary relief from the requirements of procedural fairness. I examined in some detail the equivalent provisions in the earlier version of ADFP 06.1.3 when discussing the decision by the Commanding Officer of Success to land the senior sailors on arrival in Singapore (see paragraph 4.281 of Part One of this report). These provisions appear to categorise command decisions as administrative decisions, and the assumption seems to be that any command decision involving the exercise of discretion is subject to the requirements of procedural fairness. That is questionable in law and is at odds with the intention as originally appearing.

2.49 A decision pursuant to a statutory power or duty usually attracts all or some of the requirements of administrative law (Kioa v West (1985) 159 CLR 550). Obligations imposed by the statute-including procedural fairness where that requirement is expressed or implied-need to be complied with. Where powers given by legislative instrument, such as the Defence (Personnel) Regulations 2002, are invoked the expressed or implied requirements of the instrument must be met. This can include an obligation to afford procedural fairness. Formal warnings and censures are dealt with in DI(G) PERS 35-6. To the extent that a decision is made pursuant to command, however, that decision is not a decision made pursuant to statute, and the dictates of administrative law would generally not apply.

2.50 It would be possible to make many operational decisions that might be seen as adverse to an individual but that are simply part of overall command. Removal of a person from active involvement in operations arising out of an incident imperilling the safety of a unit is a potential example. An anomalous result of ADFP 06.1.3, however, is that decisions that in most organisations can be made without administrative law restraints are arguably subject to those restraints in a disciplined service often operating in difficult and dangerous conditions. The strictures of administrative law were not developed in the context of the internal running of a military force, which is substantially based on a history of prerogative and command. Indeed, they were not developed in the context of the internal affairs of organisations.

2.51 Although it is accurate to say that the affording of procedural fairness, and the giving of reasons, should improve decision making and should allay the sense of injustice arising from an arbitrary decision, this comes


at considerable cost. It ties up the time of those in command and affects their ability to act decisively. The need to go through a formal process, with the record keeping involved, is likely to deter the taking of timely administrative action. Furthermore, the redress of grievance procedure affords to a member of the Defence Force rights not normally formalised in other organisations, and it balances the duty to obey a lawful order.

2.52 The question of the extent to which judicial review extends beyond officials exercising statutory power is a vexed one. Australian courts have not embraced the width of the UK courts' approach since Council of Civil Service Unions v Minister for Civil Service [ I 9851 AC 374. Even if they were to, it is far from clear that this would include the review of command decisions made in the Defence Force. A full analysis of the current legal position is beyond the scope of a report such as this. In any event, the matter will be determined only in the courts. It is not obvious why ADFP 06.1.3 (like ADFP 06.1.4, dealing with administrative inquiries) assumes that the obligation to afford natural justice exists in the circumstances outlined. It is one thing to be told by a court that it does: it is another to voluntarily introduce the requirement. I cannot find a clear rationale for the policy, which reverses the long- held position-that is, obey the order and complain later. A brief examination of developments in military justice and administrative decision making in the last 15 or so years (see Appendix D) does not provide a clear answer to the provenance of the emphasis now placed on the requirements of administrative law.

2.53 One 'carve-out' from ADFP 06.1.3 is decisions that have no adverse effect on the member's rights or interests (paragraph 2.42(e)). Many operational decisions would fall into that category. But a member's 'rights or interests' can be given a wide meaning, and there will often be room for debate about whether a decision would have an adverse effect on the member. For example, there was evidence of abusive conduct by a member during meals in the mess on Success. Had that come to the attention of command at the time, exclusion from the mess for a period might have been a suitable decision by a person in command who observed the conduct or was made aware of it shortly after it occurred. It could be argued that that decision would have had an adverse effect on the member's rights or interests. If the provisions of ADFP 06.1.3 were to be applied, in order to avoid bias the matter would have to be dealt with by the Commanding Officer or another superior with no personal knowledge of the facts. A case would be presented, it would be answered, and after a hearing a decision would be made, with reasons and with a written record of every stage.

2.54 Extension of administrative law principles to command decisions that do not impose administrative sanctions is a big step if it is not required by

HMAS Success Commission of Inquiry 23

common law or military law-particularly when taken together with the various avenues for redress of grievance available to a member of the Defence Force. The line between command and administration is blurred. It should also be borne in mind that many decisions are governed by requirements under other instruments, particularly the Defence (Personnel) Regulations 2002, which, being based on statutory instruments, can require compliance with administrative law principles.

2.55 There is a similar question about Chapter 3 of ADFP 06.1.3, dealing with the nature of decision making. The chapter offers a good exposition of decision making pursuant to a statutory discretion where the Administrative Decisions (Judicial Review) Act 1977, or similar common law principles would apply. Even if those principles did apply to command decisions, this guidance could lead to a misapprehension about the proper basis on which administrative action can take place. It might be thought that there is some onus to justify a decision by reference to evidence and a logical reasoning process. Many operational and management decisions can be based on material well short of evidence and the application of intuition based on experience, rather than reasoned judicial-type decision making. A military commander is not to be equated with an administrative tribunal.

2.56 The Success deployment provides numerous examples that can illustrate the point. One was the destruction of property in Manila (see paragraph 3.30 in Part One of this report). In each incident a small number of personnel were involved and enough was known to be able to narrow down the identity of those likely to have been concerned. Regardless of the position concerning potential charges under the Defence Force Discipline Act 1982, there was a proper foundation for the Commanding Officer to devise administrative measures to protect the deployment from that or similar behaviour in other ports. That would have been far more effective than the speeches that were subsequently made prior to Success's arrival in other ports. Another striking incident concerns the sexual relations that occurred between two crew members in a public bar in Qingdao, China (see paragraphs 2.129 to 2.160 in Part One). By the following day enough was known about that incident to cry out for an administrative response somewhere along the chain of command, even though the failure to properly and promptly investigate meant that Defence Force Discipline Act charges could not have been laid at that stage.

2.57 The case of the landing o f can be looked at again in the light of this discussion. It was considered at some length in Parts One and Two of this report, on the basis that ADFP 06.1.3 applied to it. On that basis, given the contents of the equity and diversity report, the Commanding Officer could not be criticised for acting promptly and decisively, although the manner of execution of the decision to land was


harsh. If the landing were truly temporary-say, until CMDR Wark had completed his interviews of the ship's personnel-it is doubtful whether formal reasons would have been necessary in order to avoid injustice. An explanation that the landing was effected to preserve the integrity of the lnquiry Officers' lnquiry would have been sufficient. It was the later continuation of the unexplained state of limbo that caused the injustice.

2.58 Proper exercise of command should have ensured that a full explanation was given in a timely fashion. But, if that were not done, ADFP 06.1.3 was not required in order to a l l o w t o seek redress of grievance, and the absence of reasons would not have stood in his way; indeed, it might have improved his chances of gaining redress. The reviewing officer can come to the correct and preferable view on the merits of the case.

2.59 ADFP 06.1.3 constitutes a 'safety first' approach to decision making. It appears to assume a wide view of the scope of judicial review so as to pick up all command decisions that might be seen as adverse to the interests of a Defence Force member and then seeks to frame appropriate exemptions and exceptions. If, however, it is best for the efficient operation of the Defence Force that command decisions be excluded from the rules of natural justice and procedural fairness- unless those decisions involve the imposition of identified administrative sanctions--l see no reason in law why that policy should not apply.

2.60 1 recommend that ordinary command decisions be excluded from the operation of ADFP 06.1.3 and that the guide be clarified so that it is limited to the imposition of identified administrative sanctions.

Equity and diversity and unacceptable behaviour

2.61 Part One of this report outlined the allegations of 'unacceptable behaviour' (as that termed is defined in the applicable Defence Instructions) on the HMAS Success deployment that were brought to the attention of command between March and May 2009.

2.62 A feature of the evidence concerning the allegations is that some allegations were characterised as equity and diversity matters or were reported as 'equity and diversity complaints' and were subsequently treated as such. There seemed to be some misunderstanding about what is an equity and diversity matter and what is not and about how such matters are reported and managed. The misunderstanding was not limited to those on Success: it reached into Naval Headquarters.


Equity and diversity

2.63 The admission of women in numbers to the ordinary ranks of the Navy (and other areas of the Defence Force) is the backdrop for the analysis that follows. It involved a major cultural change. It was also inevitable that sexual issues would arise, particularly in the closed environment of a vessel on a deployment and calling at exotic foreign ports. Some of the discussion about equity and diversity does not adequately accommodate that fact.

2.64 Defence policy as to equity and diversity in the workplace and its management is expressed in DI(G) PERS 50-1, Equity and Diversity in the Australian Defence Force. The Instruction imposes on all personnel an obligation to comply with the principles of equity and diversity. It describes the terms 'equity' and 'diversity' in paragraphs 8 and 9:

8. Equity means to give everyone a fair go, with appropriate access to training opportunities, development opportunities, fair working conditions and opportunities for promotion. However, equity does not assume that everyone has the same abilities, qualifications, experience, or that everyone will reach the same level. Rather, the emphasis is on providing everyone with an equal opportunity to make the most of their talents and abilities. In short, equity does not mean sameness; it means fairness. Equity questions the fairness of apparent equal treatment when dealing with differences, such as gender, physical and cultural background. Equity seeks to treat people on their merit and in accordance with their different circumstances and needs.

9. Diversity in the workplace means creating an inclusive environment that respects, values and utilises the contributions of people of different backgrounds, experiences and perspectives. Diversity relates to gender, age, language, ethnicity, cultural background, sexual orientation, religious belief and family responsibility. Diversity also refers to the ways we are different in other respects such as educational level, work experience, socio- economic background, personality profile, geographic location, marital status and whether or not one has carer responsibilities. Diversity seeks to capitalise on the diverse talents and skills of all personnel. [emphasis added]

2.65 The 2004 Defence Guide to Managing Diversity in the Workplace lists the characteristics that contribute to diversity as life experience, work experience, values, personality, age, ethnicity, cultural background, family responsibility, religious beliefs, sexual orientation, language, gender, disabilities, political opinions, nationality, level of education, rural or urban affiliation, socio-economic background, marital status and responsibilities as a carer.

2.66 Equity and diversity encompass the concept of fair treatment and the notion that everyone should be given the opportunity to make the most


of their talents and abilities-DI(G) PERS 50-1, paragraph 7. The aim is to achieve an equitable and diverse working environment through application of the basic principles described in paragraph 7 of DI(G) PERS 50-1:

a, treating each other with respect and dignity;

b. recognising that all people are different and valuing differences;

c. using the different contributions that people can make to the team;

d. making judgments genuinely based on fairness and merit;

e. eliminating artificial, unfair and inappropriate barriers to workplace participation;

f. providing appropriate means to monitor and address discrimination and harassment;

g. providing opportunities for flexibility when meeting organisational requirements; and

h. consulting people on policies and decisions that affect them.

2.67 DI(G) PERS 50-1 also cites legislation 'relevant to equity and di~ersity'~O-the Commonwealth's Racial Discrimination Act 1975, Sex Discrimination Act 1984, Australian Human Rights and Equal Oppottunity Commission Act 1986, Disability Discrimination Act 1992, Workplace Relations Act 1996 and Public Service Act 1999. Annex A to DI(G) PERS 50-1 summarises the legislation and notes, for example, that the Racial Discrimination Act 'makes unlawful any act involving a distinction, exclusion, restriction, preference or incitement to unlawful acts based on race, colour, descent or national or ethnic origin when it has the purpose of impairing any human right or fundamental freedom in the political, economic, social, cultural or any other field in public life'; that the Sex Discrimination Act 'makes it unlawful to directly or indirectly discriminate against a person on the grounds of an individual's sex, marital status, pregnancy, potential pregnancy or family responsibility'; and that the Workplace Relations Act 'prohibits discrimination on the basis of race, colour, sex, sexual preferences, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin'.

2.68 The thrust of that legislation (dealing in the main with various aspects of unlawful discrimination, harassment and treatment of people) is

20 DI(G) PERS 50-1, paragraph 6 read with Annex A.


consistent with the definitions of 'equity' and 'diversity' in paragraphs 8 and 9 of DI(G) PERS 50-1.

2.69 The concepts of equity and diversity have not evolved as a means of or mechanism for maintaining and enforcing discipline among military personnel. They are imported from civilian life.

2.70 It is also to be noted that in the definitions of 'equity' and 'diversity' in DI(G) PERS 50-1 there is no express reference to 'unacceptable behaviour'. Equity is concerned with giving 'everyone a fair go', while diversity 'means creating an inclusive environment that respects, values and utilises the contributions of people of different backgrounds, experiences and perspectives'. There are, however, passing references to the term 'unacceptable behaviour' in DI(G) PERS 50-1. For example, in explaining the roles and responsibilities of various entities with respect to Defence's policy on equity and diversity, paragraph 17 of DI(G) PERS 50-1 states:

Everyone in Defence has a right to be treated with respect, courtesy and without harassment. It is the responsibility of all personnel to provide a work environment free from unacceptable behaviour and to report equity and diversity issues to their immediate supervisor so that corrective action can be taken. [emphasis added]

2.71 Paragraph 18 of DI(G) PERS 50-1 describes the roles and responsibilities of commanders, managers and workplace supervisors with respect to Defence's policy on equity and diversity, including the following:

a. implement and report on the Defence Workplace Equity and Diversity Plan and set the equity standards in the workplace;

b. develop a fair and inclusive workplace;

c. ensure that all personnel and prospective personnel are valued and treated fairly, on individual merit and with respect and dignity;

d. ensure that the different skills and contributions that personnel possess as a result of their background, experiences and perspectives are utilised as appropriate;

e. take all appropriate action to prevent andlor eliminate unacceptable behaviouq

f. act to stop unacceptable behaviour immediately it is reported or observed and respond promptly, seriously and with sensitivity to allegations of unacceptable behaviouc


g. ensure that all personnel involved in unacceptable behaviour complaints are informed of the options for resolution;

h. ensure that all personnel involved in unacceptable behaviour complaints are aware of and are provided access to the range of support mechanisms;

i. report incidents of unacceptable behaviour as required;

j. support and promote the Equity Adviser Network;

k. ensure appropriate annual equity and diversity training of all personnel is provided and recorded; and

I. demonstrate, through their behaviour, commitment to the principles of equity and diversity. [emphasis added]

Sub-paragraphs 18(b), (c) and (d) are entirely consistent with the definition of the terms 'equity' and 'diversity'. But sub-paragraphs 18(e), (f), (g), (h) and (i) introduce the term 'unacceptable behaviour' in describing the roles and responsibilities of commanders with respect to equity and diversity. I discuss the meaning of 'unacceptable behaviour' shortly. Suffice it to note here that the terms are not synonymous or interchangeable. Conduct that offends the principles of equity and diversity, as defined, will usually amount to 'unacceptable behaviour', as defined, but not all 'unacceptable behaviour' breaches the principles of equity and diversity. Unqualified use of the term 'unacceptable behaviour' in DI(G) PERS 50-1 gives rise to the possibility of confusion about the concepts of equity and diversity.

DI(G) PERS 50-1 does not provide for a specific regime for reporting an equity and diversity matter or for making an 'equity and diversity complaint'; nor does it deal with how to manage and investigate complaints and allegations in relation to equity and diversity. There is no reference to an 'equity and diversity complaint' or 'equity and diversity investigations'. I note that paragraph 17 of DI(G) PERS 50-1 does impose an obligation on 'all personnel' to report equity and diversity matters to their immediate supervisor. That does not, however, create a particular regime for reporting and managing allegations of a breach of the principles of equity and diversity that is separate and distinct from any other disciplinary matter or complaint of unacceptable behaviour.

The Defence Equity Adviser Network

2.74 DI(G) PERS 50-1 makes various references to the Defence Equity Adviser Network. DI(G) PERS 35-7, Defence Equity Adviser Network, provides guidance and information on the network, the roles and


responsibilities of equity advisers, and the procedures for their selection and appointment.

2.75 The Defence Equity Adviser Network consists of equity advisers and senior equity advisers-DI(G) PERS 35-7, paragraph 4. The network provides equity advisers in workplaces to 'support commanders and managers in implementing equity and diversity initiatives' and to 'provide all personnel with support, information and options for the resolution of workplace equity and diversity issues'. The focus of equity advisers is on 'equity and diversity issues' by providing 'advice'.

2.76 Paragraph 12 of DI(G) PERS 35-7 includes the following:

d. Equity Advisers and Senior Equity Advisers are not technical experts on Defence's unacceptable behaviour policies and procedures;

f. Equity Advisers are available to provide all ADF and APS personnel with support, impartial information and options for the resolution of unacceptable behaviour,

g. Equity Advisers are available to support commanders and managers in the implementation of equity and diversity initiatives;

k. It is important that all complaints of unacceptable behaviour be kept as confidential as possible to protect the right to privacy of the complainant, respondent and any other person involved in the complaint. Preserving confidentiality does not negate the requirement to report possible sexual offences or complaints of other forms of unacceptable behaviour to the DEO; and

I . Unacceptable behaviour reporting is coordinated by commanderslmanagers. [emphasis added]

2.77 Paragraph 19 of DI(G) PERS 35-7 then describes the responsibilities of equity advisers:

a. be available to assist commanders, managers and personnel from any unit or site and give confidential and impartial advice to any person who feels they have been subjected to, witness to, or accused of unacceptable behaviour or sexual offences;

b. provide confidential and impartial advice, support, information, and resolution options to ADF, Defence APS and contractor personnel on matters relating to all forms of unacceptable behaviour or sexual offences. Equity Advisers are to encourage personnel to resolve issues at the lowest


appropriate level and to report incidents, but are not to attempt to dissuade orprevent any person from making a complaint of unacceptable behaviou~

c. provide support to commanders and managers in the implementation of equity and diversity initiatives, and provide advice on workplace equity and diversity trends that may impact on workplace performance and unit capability;

d. provide support to complainants or respondents and, if asked, accompany them to interviews or meetings (to act in a supportive capacity; not as an advocate who speaks on behalf of the person), or arrange another appropriate person to act in this capacity;

e. inform and disseminate equity and diversity information and resources to personnel in their area;

f. support and network with their Senior Equity Adviser, Defence Equity Coordinator and other Equity Advisers. They are to be actively involved in the local Equity Adviser Network; and

g. avoid conflicts of interest with their responsibilities as an Equity Adviser. They are not to mediate nor become involved in any subsequent investigation, nor the resolution of a complaint for which they have been involved in their role as Equity Adviser, as this could result in a conflict of interest. An Equity Adviser should not advise more than one party to a dispute if there is another Equity Adviser available or there is the option of contacting the Defence Equity Advice Lines. [emphasis in italics added; bold in original]

2.78 Paragraphs 13 to 18 of DI(G) PERS 35-7 detail criteria for the selection of equity advisers. Equity advisers must be volunteers and can be of any rank or category but must possess specific stated qualities. They need not be in command positions. A junior sailor, for example, could technically be an equity adviser provided the sailor met the selection criteria. The evidence is that equity advisers complete an initial two-day training course then a refresher course every three years.

2.79 The selection criteria and considerations for the appointment of senior equity advisers are outlined at paragraphs 22 to 25 of DI(G) PERS 35- 7. Senior equity advisers' responsibilities are outlined in paragraph 26:

a. mentor, coordinate and support their network of Equity Advisers for all units collocated at a site;

b. assist commanders/managers to coordinate unacceptable behaviour incident reporting requirements in accordance with policy instructions;


c. advise the chain of command or management of the nature and extent of equity and diversity issues;

d. maintain and promulgate a list of Equity Advisers at regular intervals through local instructions and to the Defence Equity Coordinator of their Statenerritory; and

e. train and educate Equity Advisers, coordinate Equity Adviser training and ensure the currency of these Equity Advisers on equity issues through the dissemination of information and resources. [emphasis in italics added; bold in original]

2.80 Paragraph 35 of DI(G) PERS 35-7 outlines the role and responsibilities of commanders, managers and workplace supervisors as part of Defence's policy on equity and diversity in materially the same terms as those provided in paragraph 18 of DI(G) PERS 50-1.

2.81 Paragraphs 46 to 50 of DI(G) PERS 35-7 deal with confidentiality and privacy and provide in part as follows:

46. A person may discuss an incident of unacceptable behaviour with an Equity Adviser for the purpose of gaining advice. Discussions must be kept as confidential as possible to protect the right to privacy of the complainant, respondent and any other person involved. Encouraging, coercing or forcing the person receiving the information to identify any person involved in the complaint is strictly prohibited. Legal or disciplinary action may follow if a person is encouraged, coerced or forced to divulge personnel information unlawfully. Note that Defence personnel, including Equity Advisers must not be directed to divulge an anonymous complaint.

47. In accordance with the unacceptable behaviour and sexual offence policy instructions, an Equity Adviser must not inform any other person of a discussion they have with anyone in their role as an Equity Adviser, unless they believe that the use of the information is necessary to prevent or lessen a serious and imminent threat to the life or health (including safety or mental health) of the individual concerned or another person.

48. Other than brief notes for statistical purposes, Equity Advisers are not to keep notes of discussions held. The notes should only contain the date of the discussion and the type of issue discussed. Any such notes are to be destroyed as soon as possible after they are no longer required and in all cases are not to be retained for more than six months.

50. Preserving confidentiality does not negate the requirement to report sexual offences to the DEO. Incident reporting requirements are outlined in unacceptable behaviour and


sexual offence policy instructions. [emphasis in italics added; bold in original]

2.82 The primary function of an equity adviser is thus to be a source of impartial, independent and confidential advice to personnel and commanders. The underlying policy intention is to offer an independent source of assistance to personnel who feel unable to disclose matters in the normal course (say, through their immediate supervisor or the chain of command) or who feel they need advice. It is not intended that the Defence Equity Adviser Network create a chain of reporting or an 'equity chain' that sits outside the traditional chain of command for the management of complaints.

2.83 DI(G) PERS 35-7 does not, however, limit the function of equity advisers to advice about 'equity and diversity' matters, as defined in DI(G) PERS 50-1 or the policy is at least ambiguous on that point. Paragraph 5 of DI(G) PERS 35-7 makes reference to providing equity advisers to support commanders in implementing 'equity and diversity initiatives' and providing for personnel support, information and options for the resolution of workplace 'equity and diversity issues'. As is to be expected, the focus is on 'equity and diversity'. But the stated role of equity advisers goes beyond equity and diversity and extends, in paragraph 19(b) of DI(G) PERS 35-7, to providing advice 'on matters relating to all forms of unacceptable behaviour or sexual offences' [emphasis added]. Equity advisers are available to provide support, impartial information and options for the resolution of unacceptable behaviour.

2.84 As with DI(G) 50-1, just discussed, the various references in DI(G) PERS 35-7 to 'unacceptable behaviour' when describing the Equity Adviser Network create the possibility of confusion and an inconsistency. The definitions of 'equity' and 'diversity' do not cover all forms of unacceptable behaviour.

Defence policy on 'unacceptable behaviour'

2.85 At the time of Success's deployment to Asia between March and May 2009, DI(G) PERS 35-3, Management and Reporting of Unacceptable Behaviour (amendment number 5, dated I I February 2004) (referred to here as DI(G) PERS 35-3 as at 2004), was in force. After the deployment it was amended and updated by amendment number 6, dated 28 June 2009 (referred to here as DI(G) PERS 35-3 as at 2009).

2.86 DI(G) PERS 35-3 (as at both 2004 and 2009) defines 'unacceptable behaviour' as: 'Behaviour that, having regard to all of the circumstances, would be offensive, belittling, abusive or threatening to another person or adverse to morale, discipline or workplace cohesion,


or otherwise is not in the interest of DefenceS[emphasis added~.~' There are seven stated categories of unacceptable behaviour:

a harassment

a workplace bullying

a sexual harassment

a discrimination

a abuse of power

a inappropriate relationships and associated behaviour

a other unacceptable behaviour [which is stated as a category only in DI(G) PERS 35-3 as at 20041.

2.87 'Harassment' is defined in DI(G) PERS 35-3 (as at both 2004 and 2009) as 'unwanted or unwelcome behaviour that a reasonable person, having regard to all the circumstances, would consider offensive, humiliating, or intimidating'.22 The following examples of harassment are given:

a. insulting comments about the physical characteristics, abilities or mannerisms of a person;

b. disparaging or unnecessary comments about a person's work or capacity for work;

c. the spreading of malicious rumours or public statements of a derogatory nature about a person;

d. interference with a person's workplace, work materials, equipment or property;

e. exclusion of a person from normal conversation, workplace activities or work-related social activities;

f. persistent teasing; or

g. offensive pictures, posters, graffiti or written material.23

2.88 It is obvious that some forms of harassment could result in a breach of the principles of equity and diversity as defined in DI(G) PERS 50-1, but

'' DI(G) PERS 35-3 as at 2004 at paragraph 9; DI(G) PERS 35-3 as at 2009 at paragraph 1, Annex B. 22 DI(G) PERS 35-3 as at 2004 at paragraph 2. Annex A; DI(G) PERS 35-3 as at 2009 at karagraph 7, Annex B.

DI(G) PERS 35-3 as at 2004 at paragraph 3, Annex A; DI(G) PERS 35-3 as at 2009 at paragraph 9, Annex B, which also includes h. 'making a vexatious complaint or malicious complaint against a person' and i. 'causing detriment to a person because they have made a complaint in good faith'.


not all harassment will be a matter of equity and diversity. DI(G) PERS 35-3 (as at both 2004 and 2009) provides that harassment can be a result of a real or perceived attribute or difference, such as race, colour, nationality or ethnicity, sex, gender, religion, marital status, political opinion, socio-economic origin, age, medical record, physical, mental or intellectual disability or impairment, criminal record, sexual orientation or trade union activity. That type of harassment would offend the principles of equity and diversity. But harassment unrelated to such differences in people-for example, harassment based on an abuse of power or by a bully-might be completely unrelated to the principles of equity and diversity.

2.89 DI(G) PERS 35-3 as at 2004 also provides for the sub-categories of 'gender harassment', 'sexual harassment' and 'workplace bullying' under the category of 'harassment'.

2.90 In relation to the sub-category of gender harassment, Annex A to DI(G) PERS 35-3 as at 2004 defines the term in paragraph 4-'unwelcome conduct directed at an individual or group because of their gender . . . It includes openly discussing views that portray the other gender as inferior or subordinate, or using gender-based or sexist derogatory terms'. Examples of such behaviour are suggestive remarks or name- calling with a gender basis, gender-based jokes or comments, and inequitable treatment of men or women. Conduct amounting to 'gender harassment' can also clearly offend the principles of equity and diversity.

2.91 The other two sub-categories of harassment in DI(G) PERS 35-3 as at 2004-workplace bullying and sexual harassment-are treated as separate categories in DI(G) PERS 35-3 as at 2009.

2.92 'Workplace bullying' is defined in paragraph 10 of Annex A to DI(G) PERS 35-3 as at 2004:

10. For the purpose of this instruction, workplace bullying is the persistent pattern of behaviour by a person in the workplace that is harmful, intimidating, humiliating or embarrassing, and which is aimed at making the complainant(s) feel miserable, demoralised and lacking in self-confidence. It is the deliberate desire to hurt, threaten or frighten someone with words or actions by one or more people and can vary in the degree of severity.

11. It is an aggressive form of harassment, and women and men at all levels of employment can be affected by it. A bully is a person who uses strength or power to coerce others by fear to do something they want done. A bully can be a manager, a supervisor, a subordinate or a coworker.


12. Bullying can be related to an interpersonal dispute, predatory behaviour or organisational behaviour that subjugates people and rewards predatory behaviour.

2.93 The Instruction (as at 2004) provides the following examples of workplace bullying:

a. giving a person a much greater proportion of unpleasant work than that given to others;

b. humiliating a person through sarcasm, criticism and insults, often in front of other personnel;

c. sabotaging another person's work by such means as not passing on information, hiding tools and equipment, damaging completed work etc usually with the aim of showing the victim up in front of management;

d. constant checking of a person's work or whereabouts to a much greater extent than others of the same seniority without good reason;

e. threats of dismissal or disciplinary action for trivial mistakes or shortcomings;

f. coercing people to work unreasonable hours on a regular basis and making life difficult for, or taking disciplinary action against, anyone who objects;

g. overloading a person with work or requiring work to be done without there being sufficient time to do it, and then criticising the person for taking too long or not doing it properly; and

h. deeming any people suffering from stress as weak and inadequate, whilst aggressively ignoring and denying the cause of stress.

2.94 Workplace bullying is dealt with in more detail in DI(G) PERS 35-3 as at 2009, in which paragraphs 10, 11 and 14 of Annex B state:

10. For the purpose of this Instruction, workplace bullying is defined as an aggressive form of harassment. Bullying is a persistent, unreasonable pattern of behaviour directed towards a person or group of persons, which may create a risk to health and safety, including a risk to the emotional, mental or physical health of the person(s) in the workplace. Personnel at all levels can be affected. [emphasis added]

11. Bullying may comprise a combination of behaviours including unwarranted criticism, insults, spreading malicious rumours, deliberately withholding information or resources and influencing others to exclude or isolate the targeted person or persons. In many instances bullying may begin as discreet and indirect


behaviour escalating over time into more open and direct behaviour.

14. A person who bullies may use strength, power or position to coerce others by fear and intimidation to do something that they want done; they can be a commander, manager, a supervisor, a subordinate, a co-worker or an external service provider. Workplace bullying can be upwards (directed towards a commander, manager or supervisor), parallel (directed towards a colleague) or downwards (directed towards a subordinate).

2.95 Paragraph 12 of Annex B provides an expanded list of examples of workplace bullying:

a. Physical behaviour-aggressive, intimidating body language.

b. Verbal abuse, for example:

(1) abusive, insulting or offensive language;

(2) humiliation through sarcasm, criticism and insults, often in front of other personnel;

(3) persistent teasing or taunting;

(4) belittling someone's opinions or unjustified criticism; or

(5) criticism delivered by yelling or screaming.

c. Inappropriate or unfair work practices, such as:

(1) giving a person a much greater proportion of menial work than given to others;

(2) constantly making a person the brunt of practical jokes; or

(3) checking of a person(s) work or whereabouts to a much greater extent than others without reasonable cause.

d. Undermining or sabotaging another person's work or reputation by such means as:

(1) not passing on information, hiding tools and equipment, damaging completed work etc, usually with the aim of creating the appearance of the person's incompetence in front of management or peers;

(2) deliberately intruding on a person's workspace by pestering, spying or tampering with their work equipment or personal effects;


(3) spreading misinformation or malicious rumours about a person;

(4) making disparaging comments about a person suffering from illness or injury;

(5) assigning menial tasks unrelated to the job;

(6) giving a person unrealistic tasks that are not within their capability, or that are required within an unrealistic timeframe;

(7) regularly changing work rosters, especially at short notice, to inconvenience particular personnel; or

(8) undermining work performance by deliberately withholding information vital for work performance.

e. Excluding, isolating or marginalising others, deliberately or otherwise;

f. participating in 'collective bullying' or mobbing; and

g. threats of dismissal or disciplinary action for trivial mistakes or shortcomings.

2.96 Conduct amounting to 'workplace bullying' might amount to a breach of the principles of equity and diversity if a wide view is taken of the definition just given. I incline to the view that, if workplace bullying is unrelated to or does not flow from differences such as gender, physical characteristics and cultural background, the conduct is not an equity and diversity matter.24

2.97 As to the category of sexual harassment, DI(G) PERS 35-3 (as at both 2004 and 2009) makes reference to the Commonwealth's Sex Discrimination Act 1984 and provides various examples of such harassment. Most, if not all, cases of sexual harassment, as defined, would concurrently offend the principles of equity and diversity.

2.98 DI(G) PERS 35-3 (as at both 2004 and 2009) defines 'discrimination' by reference to the Commonwealth's Human Rights and Equal Opportunity Commission Act 1986 as 'any distinction, exclusion or preference that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation'.

2.99 The Instruction (as at both 2004 and 2009) also provides, 'Abuse of power and authority attributed to rank or position to harass, discriminate

24 or example, threatening behaviour (say, in the nature of what I found on the part of ABMT Daniel Gordon in paragraphs 2.625-2.685 of Part One of the report) in many situations will not be an equity and diversity matter.


or bully a subordinate is inappropriate and unethical, and in some situations can constitute criminal b e h a ~ i o u r ' . ~ ~

2.100 Paragraph 30 of Annex B to DI(G) PERS 35-3 as at 2009 provides as follows:

Any relationship that involves, or gives the appearance of involving partiality, preferential treatment or improper use of rank or position is inappropriate in the workplace, irrespective of the employment type of people involved, including external service providers . . .

2.101 Paragraph 26 of Annex A to DI(G) PERS 35-3 as at 2004 provides as follows:

An intimate relationship between a superior and a subordinate in the same immediate chain of command is unacceptable as it undermines discipline in the workplace. For the ADF, this may also occur when the personnel are not in the same chain of command if an indirect command relationship exists ...

The Instruction also provides that, in responding to the problem of inappropriate relationships, the promulgation of general orders is an important consideration.

2.102 Conduct that offends the principles of equity and diversity will usually be characterised as 'unacceptable behaviour'. The reverse does not follow, however. There are instances when conduct will amount to unacceptable behaviour but will be wholly unrelated to the principles of equity and diversity. The concepts are not synonymous and interchangeable and should not, in my view, be treated as such in the circumstances of the present definitions.

The policy on reporting and managing 'unacceptable behaviour'

2.103 As noted, Defence policy on equity and diversity does not provide for 'equity and diversity complaints' or for a regime for investigating and managing conduct that offends the principles of equity and diversity. The 2004 Defence Guide to Managing Diversity in the Workplace does, however, refer to 'diversity complaints' on page 6. Under the heading 'Managing diversity complaints' it states:

Harassment or discrimination on the grounds of ethnicity, colour, culture, religion, language or place of birth is unacceptable behaviour and is to be managed in accordance with Dl (G) PERS 35-3 Managing and Reporting Unacceptable Behaviour.

25 DI(G) PERS 35-3 (2004), at paragraph 17, Annex A; DI(G) PERS 35-3 (2009), paragraph 29, Annex B.


2.104 How are complaints reported and how are they then managed? The primary document is DI(G) PERS 35-3 as at 2009.

2.105 A complaint of unacceptable behaviour can be made either in writing or verbally.26 There is no distinction between a formal and an informal complaint.27 The Instruction provides that a complaint should be made in the first instance to the complainant's or the respondent's commander.'* If that is not possible-for example, because of a conflict-the complaint is made to the next higher level in the chain of ~ommand. '~ It is also possible for a third party to make a complaint or for a commander to determine that an incident or series of incidents is to be treated as a complaint of unacceptable behaviour, even though an affected party has not made a complaint.30 Further, a commander may determine that an incident or series of incidents should be dealt with as a complaint of unacceptable behaviour even though an affected party has not made a comp~aint.~' The Defence Whistleblower Scheme allows for anonymous ~orn~ la in ts .~ '

2.106 A commander is obliged to act on all complaints of unacceptable behaviour brought to his or her attention.33 During the management process, commanders and managers may seek advice from, among others, an equity adviser-but not one who is providing advice to either the complainant or the respondent--or a senior equity adviser.34

2.107 Paragraph 35 of DI(G) PERS 35-3 as at 2009 provides that a discussion with a commander or manager about a complaint of unacceptable behaviour is not confidential and that personnel in a supervisory capacity vis-a-vis the complainant or respondent are obliged to act on an incident. Paragraph 36 provides (consistently with the explanation of the Equity Adviser Network in DI(G) PERS 35-7) that communications with equity advisers will be regarded as confidential except where the communication reveals a criminal or Defence Force Discipline Act offence or a threat to life, health or national security and that such confidential communications do not constitute the making of a complaint.

2.108 It is noted in paragraph 29 of DI(G) PERS 35-3 as at 2009 that decisions in relation to complaints can adversely affect a person's interests, rights or reputation and that 'Any such decision must only be

ze DI(G) PERS 35-3 as at 2009, paragraph 23. '' ibid. ibid., paragraph 24.

29 ibid. 'O ibid., paragraph 25. '' ibid. '' ibid., paragraph 26; also DI(G) PERS 45-5-Defence Whistleblower Scheme. 33 DI(G) PERS 35-3 as at 2009, paragraph 28. 34 ibid., paragraph 32.


made after persons affected have been afforded procedural fairness'. (See also ADFP 06.1.3, Guide to Administrative Decision-Making.)

2.109 Annex C to DI(G) PERS 35-3 as at 2009 outlines the Defence-funded support options for management of unacceptable behaviour.

2.110 Annex D details who must manage a complaint of unacceptable behaviour and the process of that management. The respondent's commander is identified as the person who is normally best placed to assess a complaint, to manage the inquiry process, to ensure compliance with reporting obligations and to monitor continuing behaviour. Generally, the commanders of both the complainant and the respondent are to be informed of the complaint.

2.111 In summary, on receipt of a complaint the relevant commander is obliged to do the following:

1. Determine whether the complaint is of unacceptable behaviour. If the complaint constitutes a notifiable incident it must be reported in accordance with DI(G) ADMlN 45-2, Reporting and Investigation of Alleged Offences within the Australian Defence Organisation;

2. Conduct a quick assessment in accordance with DI(G) ADMlN 67-2, Quick Assessments;

3. With the quick assessment report and its recommendations, make and record a decision including as to whether (1) the alleged behaviour is unacceptable behaviour and, if so, the category of that behaviour; (2) whether the complaint warrants further action; and (3) reporting of the complaint in accordance with Annex F of the instruction.

Having taken those steps, the commander must decide whether no further inquiry is warranted, whether the matter can be resolved informally or whether further inquiry is warranted.

2.112 Annex E provides more detail about the resolution options. It is explained that the 'objective of an informal approach is to resolve the matter with a minimum of conflict or distress for individuals' and that 'informal resolution should be attempted, where practicable, prior to making a complaint'.

2.1 13 The informal resolution options outlined are self-resolution, supported self-resolution (by way of the presence of a third party for support, such as an equity adviser, colleague, supervisor, chaplain or friend), apology (while noting that a commander may take further action regardless of the apology, depending on the seriousness of the alleged behaviour) and alternative dispute resolution (including mediation, group facilitation and counselling). If an informal approach to a complaint does not

HMAS Success Commission of Inquiry 4 1

resolve the matter to the satisfaction of the commander, other resolution options, informal or formal, must be pursued.

2.114 The formal resolution options include disciplinary action (where the alleged unacceptable behaviour also constitutes a service offence) and administrative sanction (where, following an inquiry, the behaviour is found to be unacceptable).

History of Defence policy on equity and diversity

2.1 15 The original version of DI(G) 50-1 is dated 13 July 1995 and entitled Equal Employment Opportunity in the Australian Defence Force (referred to here as DI(G) PERS 50-1 as at 1995). The lnstruction provided that the Australian Defence Force is committed, so far as is operationally practicable, to equal employment opportunity in the workplace.

2.1 16 Paragraphs 4 and 5 of DI(G) PERS 50-1 as at 1995 provided as follows:

4. [Equal employment opportunity] has its basis in the merit principle which requires that job applicants must be assessed in fair and open competition, according to their abilities, skills and personal qualities and without discrimination, patronage or favouritism. EEO is part of the Government's Social Justice Strategy, which emphasises equity, equality, access, participation and elimination of discrimination in the workplace. All members should have equal access to employment, fair conditions and equitable chances for education, training and promotion. The ADF is committed to the pursuit of social justice and through its EEO policy will achieve the objectives of the Government's strategy.

5. EEO does not assume that everyone has the same abilities, qualifications and experience, or that everyone will gain the promotion or career progression that they desire. It does however, assume that everyone will be given an equal chance to make the most of their talents and use their abilities to the betterment of the ADF. The differential impact of policies and programs on various groups must be acknowledged and every effort must be made to remove all obstacles to enable ADF members to perform to their full potential.

2.117 Paragraph 11 of the lnstruction further provided that 'EEO principles require that the worth of the individual be respected, and that diversity, tolerance and flexibility be valued'. Those principles were said to translate into Australian Defence Force policy, including, among other things:


a, judgments in promotions and postings are genuinely based on merit and not on stereotypes or discriminatory values;

b. equal treatment of all personnel is achieved by demanding a non-discriminatory and harassment free workplace;

c, members' skills and abilities are measured equitably and balanced with experience;

d. a training philosophy aimed at ensuring that all ADF members receive fair and adequate training so that they can compete equally, on merit, for senior appointments and promotion not specifically requiring specialist experience;

e. general training and awareness of EEO is encouraged and the provision of equal access to all members undertaking this training;

f. members with carer responsibilities are acknowledged by adopting management practices that accommodate, where practicable, the child care needs of members and the carer responsibilities in relation to disabled, infirm and elderly relatives:

g. EEO grievances are resolved as quickly and as equitably as possible;

h. language and printed material in the workplace [are] non- sexist and non-offensive.

2.118 The lnstruction made reference to and summarised the effect of the Commonwealth's Human Rights and Equal Opportunity Commission Act 1986, Racial Discrimination Act 1975, Sex Discrimination Act 1984 and Disability Discrimination Act 1992.

2.119 Paragraph 9 of the lnstruction provided that ADF Headquarters was to 'maintain a consolidated database of EEO Contact Officers, Harassment Contact Officers and Good Working Relationship Facilitators', although the lnstruction did not deal with the role and function of these personnel.

2.120 Annex A of the lnstruction also referred the reader to DI(G) PERS 35-3, Unacceptable Sexual Behaviour by Members of the Australian Defence Force (as in force at the time); DI(G) PERS 35-2, Application of the Sex Discrimination Act to the Australian Defence Force; DI(G) PERS 32-1, Employment of Women in the Australian Defence Force; DI(G) PERS 26-2, ADF Policy on Religious Practices of ADF Members; DI(G) PERS 44-1, Australian Defence Force Policy regarding the Avoidance and Elimination of Racial Discrimination and Racist Behaviour; and DI(G) PERS 34-2, Complaints of Discrimination and Harassment through the Human Rights and Equal Opportunity Commission.


2.121 There was no reference to the term 'unacceptable behaviour' in DI(G) PERS 50-1 as at 1995; nor was there reference to offensive, belittling, abusive or threatening behaviour or other behaviour that might adversely affect morale, discipline or workplace cohesion. The focus of the lnstruction was anti-discrimination and equality in providing employment opportunities. It had no obvious overlap with disciplinary matters or standards of behaviour for a military force.

2.122 DI(G) PERS 50-1 as at 1995 was subsequently cancelled by DI(G) PERS 50-1, Equity and Diversity in the Australian Defence Force, dated 7 February 2000 ( referred to here as DI(G) PERS 50-1 as at 2000). The title of the lnstruction was changed so as to remove the reference to 'Equal Employment Opportunity'.

2.123 DI(G) PERS 50-1 as at 2000 provides an explanation of the meaning of equity and diversity in materially the same terms as provided in the present version of the Instruction.

2.124 One of the main differences between DI(G) PERS 50-1 as at 2000 and the present version is that paragraph 18 of the latter provides a much more detailed description of the roles and responsibilities of commanders and managers.

2.125 1 have already highlighted the various references to the term 'unacceptable behaviour' in the current DI(G) PERS 50-1. In the version as at 2000, 1 can discern only one reference to the term, in paragraph 15:

The formation of the DEO [Defence Equity Organisation] has provided scope for review and rationalisation of activities associated with equity and diversity, including awareness training, unacceptable behaviour incident reporting, the management and resolution of incidents and Equity Adviser networks. [emphasis added]

2.126 In contrast to paragraph 17 of the current Instruction, with its reference to 'unacceptable behaviour', paragraph 17 of the earlier version simply stated, 'Everyone in the Defence Organisation has a right to expect to be treated with respect and courtesy and without harassment'.

2.127 In contrast to paragraph 18 of the current Instruction, with its various references to 'unacceptable behaviour', paragraph 18 of the earlier version simply stated:

Commanders, leaders and managers are required to treat all employees and prospective employees fairly and on individual merit; act to stop discrimination or harassment immediately it is reported or observed; and demonstrate their commitment to the principles of equity and diversity. [emphasis added]


2.128 Annex B of DI(G) PERS 50-1 as at 2000 provided a list of instructions and publications relevant to equity and diversity, among them DI(G) PERS 35-3, Discrimination, Harassment, Sexual Offences, Fraternisation and Other Unacceptable Behaviour (as in force at the time).

2.129 As to the policy relating to the Defence Equity Adviser Network, the predecessor of the current DI(G) PERS 35-7 was DI(G) PERS 32-2, Defence Equity Adviser Network, dated 17 January 2000. It came into force at much the same time as the 2000 version of DI(G) PERS 50-1.

2.130 Paragraph 4 of DI(G) PERS 32-2 provided:

This instruction does not provide guidance on the management of unacceptable behaviour. Definitions and guidance on the management and reporting of incidents is contained in Defence Instruction (General) (DI(G) PERS 353-Discrimination, Harassment, Sexual Offences, Fratemisation and Other Unacceptable Behaviour in the Australian Defence Force [as in force at the time]. [emphasis added]

2.131 As noted, DI(G) PERS 50-1 as at 1995 made reference to 'EEO Contact Officers, Harassment Contact Officers and Good Working Relationship Facilitators'. Paragraph 9 of DI(G) PERS 32-2 provided that previously there were a number of 'Equal Employment and Opportunity1-related networks of contact officers in Defence and that those networks had been amalgamated with the contact officers retitled 'Equity Advisers'. Paragraph 10 noted that the Equity Adviser Network was an amalgamation of the Navy's 'Good Working Relationship Facilitators', the Army's 'Harassment Contact Officers', the Air Force's 'EEO Contact Officers', and the Australian Public Service's 'Anti Harassment and Sexual Harassment Contact Officers'.

2.132 DI(G) PERS 32-2 described the aim of the network in materially the same terms as the current paragraph 5 of DI(G) PERS 35-7.

2.133 Paragraphs 13 to 17 of DI(G) PERS 32-2 defined the role and responsibilities of equity advisers. Paragraph 16 stated:

Personnel with command and disciplinary appointments are not suitable candidates for training and appointment as Equity Advisers. Their responsibility to the chain of command and their disciplinaryladministrative responsibilities will pose a conflict with the incident resolution, support, investigative or disciplinary processes that may need to be followed. Commanders and managers may utilise personnel with command and disciplinary appointments to provide advice on equity and diversity matters but are not to nominate or train them as an Equity Adviser. [emphasis added]


2.134 Paragraph 19 of DI(G) PERS 32-2 also provided that personnel with command and disciplinary appointments were not to be appointed as senior equity advisers and made reference to paragraph 16.

2.135 Paragraph 19(g) of the present DI(G) PERS 35-7 provides that equity advisers are to 'avoid conflicts of interest', including avoidance of involvement in any subsequent investigation or resolution of a complaint in which they have had a role as an equity adviser. The principles expressed in paragraphs 16 and 19 of DI(G) PERS 32-2 are, however, not restated in the present DI(G) PERS 35-7.

2.136 There were various references to the term 'unacceptable behaviour' in DI(G) PERS 32-2. Paragraph 13 provided that equity advisers had the following role:

[to] provide support, information, advice and resolution options to ADF and Defence APS complainants (including contractors in some instances), respondents, commanders and managers on matters relating to all forms of discrimination, harassment and sexual harassment.

2.137 Paragraph 27 of DI(G) PERS 32-2 made the same point:

The Defence Equity Adviser Network is comprised of trained Equity Advisers and is maintained within all Defence units to assist with the prevention and resolution of harassment, discrimination and other unacceptable behaviour.

2.138 In paragraph 18 senior equity advisers were given the following task:

... to coordinate unacceptable behaviour incident reporting requirements in accordance with DI(G) PERS 35-3 and DPI 3199-Preventing, Managing and Eliminating Discrimination, Harassment and Unacceptable Behaviour in the Depadment of Defence.

2.139 Paragraph 26 provided that commanders and managers 'are to actively prevent and eliminate harassment and discrimination and resolve issues in accordance with DI(G) PERS 35-3 and DPI 3/99'.

2.140 Paragraphs 31 to 35 of DI(G) PERS 32-2 dealt with confidentiality and privacy in a manner broadly consistent with paragraphs 46 to 50 of the present DI(G) PERS 35-7.

2.141 The Fairness and Resolution Branch of the Department of Defence provided to the Commission a submission dated 20 May 2010 in which various aspects of Defence's policy on equity and diversity were discussed. In response to the question 'What is the origin of the system of Equity and Diversity in the ADF including the circumstances of its introduction?' the Director-General, Mr John Diercks, explained:


There were two significant cases of harassment which prompted Defence's introduction of the Defence Equity Organisation (DEO).

In 1992, allegations of sexual harassment and assault during a deployment of HMAS SWAN led to an inquiry by the Senate Standing Committee on Foreign Affairs, Defence and Trade and tabling and publication of its 1994 report, Sexual harassment in the Australian Defence Force. In his tabling speech, the chair of the committee outlined the recommendations which generally involved the ADF taking steps to raise gender awareness and preventing unacceptable sexual behaviour from occurring. The ADF reported back to the Senate in December 1995 with an Action Plan.

In 1998 an inquiry was undertaken after allegations of harassment were made concerning officer cadets at the Australian Defence Force Academy. A submission to the inquiry by Dr Graham Cheeseman, an academic at the University College at ADFA, suggested that one step in 'eradicating the root causes of sexual harassment at ADFA would be to begin to reconstruct the notion of the armed forces and military service in Australia in non- gendered (and even non-militarised) terms'. The report of the inquiry, Report of the review into policies and practices to deal with sexual harassment and sexual offences at the Australian Defence Force Academy, was published in June 1998.

Defence's responses to the Senate Inquiries' recommendations led to the creation of the DEO in 1997. The DEO (now part of Fairness and Resolution Branch) was established to promote the principles of equity and diversity in Defence through the development of appropriate policies and strategies. Its mission is to inform, educate, encourage and ensure that equitable policies, processes and practices form an integral part of doing business in Defence.

History of Defence policy on unacceptable behaviour

2.142 1 have analysed the Defence policy on unacceptable behaviour that applied at the time of Success's March-May 2009 deployment (being stated in DI(G) PERS 35-3 as at 2004) and the present policy (being stated in DI(G) PERS 35-3 as at 2009). Both versions of the Instruction bore the title 'Management and Reporting of Unacceptable Behaviour'.

2.143 DI(G) PERS 35-3 as at 2004 cancelled the earlier DI(G) PERS 35-3, Issue No. Pers. Bl6199, of 25 March 1999, which bore the title 'Discrimination, Harassment, Sexual Offences, Fraternisation and other Unacceptable Behaviour in the Australian Defence Force' (referred to here as DI(G) PERS 35-3 as at 1999).

2.144 DI(G) PERS 35-3 as at 1999 defined the term 'unacceptable behaviour' in paragraph 1 1 :


. . . behaviour that a reasonable person, having regard to all the circumstances, would consider to offend, humiliate or intimidate other personnel and includes:

a. behaviour of a sexual nature that is directed towards a fellow workplace participant, or member of the Defence Organisation (this includes ADF, Australian Public Service (APS) and civilian contractors), that is inappropriate or improper in the context of the relationship between the complainant and respondent;

b. behaviour that discriminates unlawfully against a fellow workplace participant, or member of the Defence Organisation; and

c. behaviour that harasses a fellow workplace participant, or member of the Defence Organisation.

2.145 Consistent with the subsequent versions of the Instruction, paragraph 12 of DI(G) PERS 35-3 as at 1999 provided that the forms of unacceptable behaviour can be described as harassment, discrimination, sexual harassment, sexual offences and fraternisation. Those heads of unacceptable behaviour were expanded on and further defined in paragraphs 20 to 27.

2.146 Paragraphs 47 to 59 of DI(G) PERS as at 1999 outlined the advice and support mechanisms available to personnel who believed they had been subject to or had witnessed unacceptable behaviour. The focus of the paragraphs is the Defence Equity Network. There is also reference, in paragraph 55, to other support, such as legal officers, chaplains, divisional officers, social workers, psychologists, and medical and health service officers. The chain of command is not the first option for personnel seeking advice and support and, indeed, was not listed as one of the advice and support mechanisms.

2.147 DI(G) PERS 35-3 as at 1999 cancelled DI(G) PERS 35-3, Issue No. Pers. B/9/96 of 27 May 1996 (AL2), which was entitled 'Harassment, Discrimination, Fraternisation and Unacceptable Sexual Behaviour in the Australian Defence Force' (referred to here as DI(G) PERS 35-3 as at 1996).

2.148 DI(G) PERS 35-3 as at 1996 defined 'unacceptable behaviour' in paragraph 6:

Any behaviour which is offensive, belittling or threatening and is directed at an individual or group of workers is unacceptable. It may be the result of some real or perceived attribute or difference (such as disability, race, gender, sexual preference, age or religion). The behaviour may also be unwelcome, unsolicited, unreciprocated and usually, but not always, repeated. It is behaviour which a reasonable person, having regard to all the


circumstances, would have anticipated would offend, humiliate or intimidate the person being harassed.

2.149 The Instruction dealt with the topics of harassment, sexual offences, sexual harassment, other unacceptable sexual behaviour, gender harassment, misuse of authority and fraternisation. In relation to advice and support mechanisms, paragraph 27 stated:

Harassment Contact OfficersIEqual Employment Opportunity Contact Officers may provide moral support and advice on options for future action to those seeking assistance. They are not to become involved in any investigation which may follow, nor the resolution of, a complaint or speak for the complainant, alleged offender or management.

2.150 DI(G) PERS 35-3 as at May 1996 cancelled DI(G) PERS 35-3, lssue No. Pers. B114194, dated 10 November 1994, entitled 'Unacceptable Sexual Behaviour by Members of the Australian Defence Force' (referred to here as DI(G) PERS 35-3 as at 1994). DI(G) PERS 35-3 as at 1994 described unacceptable sexual behaviour as including sexual harassment (by extracting the definition in the Sex Discrimination Act), sexual offences and other unacceptable sexual behaviour.

2.151 DI(G) PERS 35-3 as at 1994 cancelled DI(G) PERS 35-3, lssue No. Pers. Bl4192, dated 22 June 1992, also entitled 'Unacceptable Sexual Behaviour by Members of the Australian Defence Force' (referred to here as DI(G) PERS as at 1992). The introduction to the Instruction, paragraph 1, stated:

Australian human rights legislation, in particular the Sex Discrimination Act (SDA) and the Human Rights and Equal Opportunity Commission Act (HREOC Act), and the changing composition of the Australian Defence Force (ADF) have necessitated the development of an ADF statement of policy regarding the extent to which the ADF may, and should, become concerned with the sexual behaviour of its personnel--given that sexual relations and activities are a normal part of adult life and are primarily and predominantly a private matter for each individual. The central element of the policy ... is that the ... ADF ... has no concern with the sexual activities of its members, provided they are not unlawful and are not contrary to or inconsistent with the inherent requirements of the ADF.

Other policy documents dealing with equity and diversity

2.1 52 The Defence Workplace Equity and Diversity Plan 2007-2009 sets out the principles and performance indicators for service chiefs and group heads, services and groups, and the Fairness and Resolution Branch. The foreword, dated 1 July 2007 and prepared by the then Chief of the Defence Force, Air Chief Marshall AG Houston A 0 AFC and the then


Acting Secretary of the Department of Defence, Mr Michael Pezzullo, stated:

We expect everyone in Defence to treat each other with respect and dignity. As leaders you have an additional responsibility to ensure that everyone in your chain of command or management line is treating each other in the right way. We will not tolerate unacceptable behaviour and to do nothing about it is to condone it. We expect you to accept this responsibility. [emphasis added]

2.153 The plan makes various other references to the term 'unacceptable behaviour'. It provides that commanders are 'accountable for equity and diversity in their workplaces' and 'are required to ... manage and report incidents of unacceptable behaviour in accordance with the relevant Defence policy instructions'. One of the stated goals or principles for service chiefs in the plan is that 'All people behave in an acceptable manner and unacceptable complaints are managed in accordance with Defence policy'.

2.1 54 The 2004 Defence Guide to Managing Diversity in the Workplace explains that the 'term Diversity is in wide use today' and that 'What it relates to is valuing the differences that everybody brings to the workplace, and creating an inclusive environment in which they can effectively contribute'. In relation to 'managing diversity complaints', the guide provides, 'Harassment or discrimination on the grounds of ethnicity, colour, religion, language or place of birth is unacceptable behaviour and is to be managed in accordance with DIG) PERS 35-3 Managing and Reporting of Unacceptable Behaviour'.

According to the guide:

There are six recommended steps to managing specific complaints and issues. It is in the best interest of Defence for managers, commanders and supervisors to resolve the issue at the lowest level possible. On receipt of a complaint or upon observing the unacceptable behaviour the commander or manager must take action within three weeks. After the initial report to the Defence Equity Organisation, the following steps should be followed:

Step 1. Conduct a quick assessment of the situation and determine whether the matter can be resolved informally or requires more formal action.

Step 2. Provide advice and support to all personnel involved.

Step 3. Conduct any further inquiry if required.

Step 4. Implement an appropriate resolution strategy.


Step 5. Provide ongoing support after the complaint has been resolved.

Step 6. Report the resolution to the Defence Equity ~ r~an i sa t i on .~ '

2.155 Another Defence policy document is Workplace Behaviour: management of workplace conflicts and disputes and unacceptable behaviour, dated March 201 1. Under the heading 'Unacceptable behaviour' reference is made to DI(G) PERS 35-3 and DI(G) PERS 35- 7. The document notes:

Maintaining acceptable behaviour and effective relationships in the workplace is a primary leadership responsibility. Therefore, supervisors, Commanders and managers have additional responsibilities regarding monitoring the workplace, training and support of staff, the management and reporting of unacceptable behaviour and the promotion and maintenance of the local Equity Adviser ~ e t w o r k . ~ ~

The document uses a question-and-answer format to discuss the reporting and management of unacceptable behaviour. Among other things, it states:

Are there limits to what Equity Advisers can do?

Yes. Equity Advisers:

only provide advice to one party involved in an incident or complaint;

should not advise any party if it is likely that they may subsequently assume a Command, management or disciplinary role of either the complainant or respondent;

do not investigate, mediate or resolve any complaint on which they have provided advice; and

do not assume the role of advocate or counsellor for any person involved in a complaint.37

2.156 A Guide to Fair Leadership and Discipline in the Australian Defence Force, dated 13 December 2002, also outlines the principles of equity and diversity:

Equity and diversity on the one hand, and good conduct and discipline on the other, are not mutually exclusive concepts in Defence. Equity and diversity bring both benefits and protection

35 Page 6. 38 Page 7. " Page 16.


from harassment and discrimination. ADF members also have an obligation not to use them as an excuse for failing to comply with lawful orders and directions. Equity and diversity contribute to operational capability and effectiveness and, accordingly, are considered normal leadership and management issues.

The purpose of this guide is to address commonly held misconceptions about equity and diversity issues and how they affect ADFIAustralian Public Service (APS) Officers, NCOs and the personnel for whom they are responsible. The guide is not intended to be a definitive reference source but it does provide examples that may provide general guidance.

This guide addresses ADF concerns in relation to good conduct and discipline . . . 3e

Summary

2.157 The policy on unacceptable behaviour has changed from a policy aimed at dealing with unacceptable sexual behaviour to the present stance, which covers behaviour that is threatening, belittling, abusive or threatening to another person or might have adverse consequences for morale, discipline or workplace cohesion or that otherwise is not in the interests of Defence. The policy is now so wide that it effectively covers most sub-standard conduct between members of the Defence Force.

2.158 At much the same time, equity and diversity expanded from an equal opportunity base to general anti-discrimination to anti-harassment and bullying, then to imprecise notions of fairness in general between members of the Defence Force.

2.159 The evidence to this Inquiry was that a complaint of unacceptable behaviour is known colloquially as an 'E&D complaint'39 and is described as an 'equity and diversity issue'. 'Equity and diversity' has become the colloquial term associated with many allegations of bad beha~iour.~' Even joint or individual acts clearly involving possible

38 Paae 1 39 ~ h & e was in evidence frequent use of the terms 'e ui com taint' 'E&D complaint oin E&D1 'taking the E&D route' and the 'E&D chainn-for e x a m p l e , ~ c o m p l a i n t to- w h i c h was characterised as an equity and diversity complaint (see paragraphs 2.187 to 2.236 and 2.309 to 2.310 of Part One of the report); as t o t ( s e e paragraph 2.40 making of an 'equity and diversity complaint' against respect to the conduct of their task on Success and the equity and diversity health check report (see paragraphs 3.180 to 3.186 of Part Two of the report); and an allegation that a non-commissioned officer had inappropriately touched female junior sailors was described as an equity and diversity complaint (see paragraphs 3.2 to 3.10 of Part One of the report).

to the complaints and concerns raised by some of the female junior sailors to see the evidence of a s to her conversation with

2.428 and 2.429 of Part One of the report, the evidence of at paragraph 2.430 of Part One of the report, and evidence of her

conversation w i t h a t paragraphs 2.431 and 2.432 of Part One of the report; there was evidence of a senior sailor describing the public sex act in China as an 'E&D issue'.


Defence Force Discipline Act action were categorised by some as 'equity and diversity'. In short, what started as an anti-discrimination policy to counter disadvantage morphed into a policy for dealing with poor behaviour.

2.160 In most circumstances, behaviour that offends the principles of equity and diversity will concurrently amount to unacceptable behaviour, as defined. The reverse, however, is not always true. There are many possible cases and examples of unacceptable behaviour that does not amount to an equity and diversity matter. For example, any offensive, belittling, abusive or threatening behaviour, or any other behaviour that has adverse consequences for morale, discipline or workplace cohesion, and that is not based on differences in people-such as religion, gender, politics, language, ethnicity, culture and sexual orientation-would not be an 'equity and diversity issue': such behaviour would be unacceptable behaviour simpliciter.

2.161 Why is it that the principles of equity and diversity have been conflated with unacceptable behaviour in practice? First, there is the potentially confusing use of terminology in the Defence policies relating to equity and diversity. As noted, although there is no reference to 'unacceptable behaviour' in defining 'equity and diversity', there are various references to the former term in both DI(G) PERS 50-1 and DI(G) PERS 35-7. For example, in defining the roles and responsibilities of commanders with respect to equity and diversity, paragraph 18 of DI(G) PERS 50-1 refers to taking action 'to prevent andlor eliminate unacceptable behaviour' and 'act to stop unacceptable behaviour'. The description of the responsibilities of equity advisers in DI(G) PERS 35-7 makes various references to 'unacceptable behaviour'. It is thus easy to see how some might treat unacceptable behaviour and equity and diversity as synonymous. Second, the compulsory annual 'equity and diversity training' has a heavy focus on 'unacceptable behaviour', rather than strictly on equity and diversity, yet it is badged as equity and diversity training.

2.162 On the Success deployment some behaviour that should have been the subject of disciplinary or administrative action was not dealt with accordingly because it was classified as relating to equity and diversity. This, together with the emphasis on alternative dispute resolution and resolution at the lowest level, meant that unacceptable behaviour was swept under the carpet. Failure to act without a formal complaint had the same result.

2.163 As noted, the primary role of an equity adviser is to provide independent, impartial and confidential advice in relation to equity and diversity matters. Even that role is sensitive. The Equity Adviser Network is outside both the command structure and the Navy divisional


structure for providing support to members of the Navy. The role of an equity adviser could easily be seen as essentially anti-command since much of it will involve advising those with grievances against command. This tendency will be exacerbated by the existence of confusion about the role of the equity advisers. The understanding seems to have been that the advisers had a role in managing complaints of unacceptable behaviour. The tendency was for command not to directly deal with matters but instead to refer them to equity advisers outside the chain of ~ommand.~ ' Such use of equity advisers as part of the mechanism for managing complaints about unacceptable behaviour creates problems.

2.1 64 As DI(G) PERS 35-7 notes, equity advisers 'are not technical experts on Defence's unacceptable behaviour policies and procedures'. They receive training for about two days; they can be of any rank or classification; and they might or might not be part of the chain of command.

2.165 There are also potential difficulties and concerns in connection with confidentiality. DI(G) PERS 35-3 as at 2009 provides that a discussion with a commander or manager about a complaint of unacceptable behaviour is not confidential and that personnel in a supervisory capacity vis-a-vis the complainant or respondent are obliged to act on an in~ident.~' But that Instruction also provides-consistently with the explanation of the Equity Adviser Network in DI(G) PERS 35-7-that communications with equity advisers will be regarded as confidential except where the communication reveals a criminal or Defence Force Discipline Act offence or a threat to life, health or national security.43 The policy provides that such confidential communications do not

41 Equity advisers were used in the case of Success for the actual re ortin investigation and mana ement of allegations. For example, the management of-

d ( w h i c h is dealt with in paragraphs 2.187 to 2.236 of Part One of the report) and t- (which is dealt with in paragraphs 2.309 to 2.342 of Part One) involved

adviser to take a record of conversation and to record the complaint. On reporting of the complaints of the female junior sailors (which are outlined in oaraarawh 2.401 of Part One of the reDort), she was aiven a list of eauitv advisers instead of the a~legitidns being managed as compl~nts'of unacceptable behaviou; p;rsuant to DI(G) PERS 35-3 (see paragraphs 2.432 to 2.436 of Part One of the report). The Fleet response to CMDR Brown's email dated 30 April 2009 (which is extracted at paragraph 1 . I 17 of Part One of the report) was to despatch an equity and diversity team in circumstances where his email did not disclose an obvious equity and diversity problem but, rather, a serious disciplinary problem (see paragraphs 4.1 to 4.44 of Part One of the report). On this. I note the recent report of Ms Elizabeth Broderick, the Sex Discrimination Commissioner, entitled Report on the Review into the Treatment of Women in the Australian Defence Force Academy, dated 21 October 201 1. Footnote 82 on page 60 of that report notes that the Academy Standard Operating Procedures 'require sexual harassment incidents to be reported immediately to an Equity Adviser or Senior Equity Adviser "when a complainant makes a formal complaint"'. Page 54 of the report also notes with respect to the academy that an avenue by which a complaint of unacceptable behaviour may be raised is to 'designated contactlcomplaint officers--Equity and Diversity Officers'. It seems that the process at the academy contemplates the use of equity advisers to receive and process complaints, which is beyond their role and function as outlined in DI(G) PERS 35-7. 42 DI(G) PERS 35-3 as at 2009, paragraph 35. 43 DI(G) PERS 35-7, paragraph 36.


constitute the making of a complaint.44 Once an equity adviser steps outside his or her role as adviser, that confidentiality will be lost.

2.166 There is another problem relating to confidentiality. A complaint of unacceptable behaviour, even at the lower scale of seriousness, might reveal a possible Defence Force Discipline Act offence (such as prejudicial conduct), so there will be many occasions when a communication with an equity adviser will not be confidential.

2.167 1 recommend that this guidance in relation to confidentiality be reviewed with a view to resolving the apparent conflicts to which I refer.

2.168 Further, equity advisers and senior equity advisers might be in a position of command or acting concurrently in a supervisory capacity somewhere in the chain of command vis-A-vis a complainant or respondent. It might not be clear when such a person is approached by reason of their command or supervisory role or by reason of their role as an equity adviser. The Ships Warrant Officer is a good example. He or she is the 'eyes and ears' of the Commanding Officer in relation to the health, welfare, discipline and morale of the ship's company, yet on Success the Ships Warrant Officer was also the senior equity adviser, with obligations of confidence. The obligations of such a person should be clarified.

2.169 The use of equity advisers as part of the mechanisms for managing complaints of unacceptable behaviour-rather than as confidential advisers-has the tendency to create a structure that is alternative to and outside the ordinary command structure when it comes to unacceptable behaviour. Commanders and personnel in positions of responsibility with respect to unacceptable behaviour and disciplinary matters were all too ready to classify conduct as an equity and diversity matter and avoid the appropriate disciplinary response.

2.170 There will, of course, be occasions when a complainant or a respondent is unsure about what steps he or she should take in connection with a difficult or sensitive situation. It is important that there be a source of independent, impartial and confidential advice who can be approached without fear of repercussions. If a complaint is to be made, though, it should be made through the chain of command, as provided by DI(G)PERS 35-3. The Equity Adviser Network is for advice--not for reporting and management of complaints. The centre of gravity needs to return to the chain of command when it comes to the reporting and management of unacceptable behaviour. That ought to be made clear in training and in practice, and the chain of command and those charged with disciplinary responsibilities should be proactive.

44 ibid.


2.171 In this regard, I note what the Hon. James Burchett QC said in his report entitled Report of an Inquiry into Military Justice in the Australian Defence Force, dated July 2001, when discussing the interface between discipline and equity and diversity: 'The argument was reinforced by reference to the requirement of annual equity and diversity training, which is not balanced by any corresponding requirement of training in the obligations imposed by military discipline'.45 He recommended:

Having regard to the repeated comments of NCOs, and particularly junior NCOs, about the influence of training in equity and diversity at initial entry institutions, consideration should be given to providing more balancing emphasis in that training on the obligations of discipline enshrined in the Defence Force Discipline A C ~ . ~ ~

2.172 1 also note the comments in the recent report of Ms Elizabeth Broderick, the Sex Discrimination Commissioner:

The concepts of equity and diversity applied at ADFA are generally grounded in disciplinary and punitive processes and as a response to unacceptable behaviour. They are not used as overarching, positive values that can inform and enhance everyday practice. They are not linked to enhancing ADF capability.

It is critical that equity and diversity education is separated from education about reporting unacceptable behaviour and the complaints process . ..47

And:

The current focus of equity and diversity training at ADFA is as a punitive and process-oriented response to prohibited conduct, and without any concomitant emphasis upon positive responses and benefits. ADFA should re-focus its approach to equity and diversity so that it is not used as a disciplinary tool but rather stands as a universal concept that underpins ADFA values and principles and is reflected in its policies and practice^.^'

2.173 There has been much emphasis on encouraging members experiencing unacceptable conduct at the hands of their superiors to come forward with complaints and on supporting those members. The evidence to this

45 J Burchett QC, Inquiry into Military Justice in the Australian Defence Force, Department of Defence. Canberra, 2001. page 99. 48 ibid., page 100. 47 Sex Discrimination Commissioner, Report on the Review into the Treatment of Women in the Australian Defence Force Academy, HREOC. Sydney, October 201 1, page xxii.

ibid., page 83.


Commission confirmed the reluctance of some members to make complaints for fear of reprisals.

2.174 The other side of the coin is that the system for dealing with complaints of unacceptable conduct offers another powerful institutional avenue for complaint by a disaffected member against the actions, decisions and orders of those in command. There is little protection against malicious, vexatious or misguided complaints against those in command, particularly as a 'tit for tat' response by those subject to disciplinary action. This avenue of complaint is distinct from, but can be exercised in tandem with, the redress of grievance procedure. There has been no rationalisation to prevent duplication and the capacity for vexation.

2.175 1 recommend as follows:

that equity and diversity principles and training return to their roots and concentrate upon countering disadvantage and discrimination

that management of complaints of unacceptable behaviour be clearly distinguished from equity and diversity principles in training and in practice

that steps be taken to ensure that equity advisers and senior equity advisers do not become involved in making, receiving or managing complaints

that the making and management of complaints of unacceptable behaviour not overlap with other complaint mechanisms- particularly the redress of grievance system

that steps be taken to identify and to deal with vexatious complaints.

Quick Assessments and Routine lnquiries

2.176 Quick Assessments and Routine lnquiries are related aspects of the exercise of command that warrant examination.

Quick Assessments

2.177 The Commission received evidence about a number of Quick Assessments. They were governed by DI(G) ADMlN 67-2 at the time of Success's March-May 2009 deployment. Since then CDF Directive 0412010, Chief of the Defence Force Directive Interim Arrangements- Quick Assessments and Administrative Inquiries, dated 23 April 2010, has provided further guidance. The purpose of a Quick Assessment is as follows:


PURPOSE

2. A QA is not an investigation. The purpose of a QA is to quickly assess the known facts, and to identify what is not known about an occurrence, so that a decision can be made about the most appropriate course of action to be taken in response to it. A QA is not a precursor to a service or civilian police investigation.

3. A QA is made up of two parts:

a. a short brief which identifies the facts, and if so directed, makes recommendations for a way ahead; and

b. a commander's/supervisor's decision, in the form of written endorsement or a separate document.

4. The QA must not be used as the basis for adverse findings, or to replace the need for a separate inquiry or investigation where such action would otherwise be necessary.

5. A QA must not be used as an investigation of a Defence Force Discipline Act 1982 (DFDA) offence or a Code of Conduct investigation under the Public Sewice Act 1999.~'

QAs are also referred to in other instruments-for example, DI(G) PERS 3411, Redress of Grievance-Tri-Service Procedures, Annex F, paragraph 4, and DI(G) PERS 35-3, Management and Reporting of Unacceptable Behaviour, Annex D, paragraph 6.

2.178 There was a good deal of variation between the manner in which QAs were conducted in relation to the Success deployment, and there were examples 0f.a QA not occurring when one was to be expected. I had difficulty reconciling the evidence about what was being done on the ground with DI(G) ADMlN 67-2. The QAs ranged from a perfunctory desktop exercise at one end of the scale5' to a thorough investigation at the other.51 The time limits for conducting a QA were virtually never complied with.

2.179 The 19 November 2010 report of the Review of the Australian Defence Force System of Administrative Inquiries (referred to here as the Working Group report) was provided to me. Paragraph 61 of that report details perceived problems with QAs:

61 Perceived problems. The working group identified four perceived problems with QAs:

49 DI(G) ADMlN 67-2. Part One, paragraph 4.353.

" Part Two. paragraph 3.184.


a. The purpose of QAs is misunderstood. This perceived problem has two aspects-the conduct of QAs not IAW [in accordance with] policy intent, and the initiation of QAs in circumstances where they are unnecessary:

i. Lack of awareness of purpose of QAs. Many QAs are neither quick nor a preliminary assessment of the facts as they are known at the time. Rather, many QAs take a long time to complete, and contain unnecessary detail including witness statements. They are sometimes conducted like an inquiry, which they are not.

ii Completion of QAs when there is no requirement. Often QAs are initiated and completed in circumstances where other reporting is prescribed. Examples of this include vehicle accident investigations (for which a separate report is mandated), low level injuries not requiring inquirylinvestigation (which require completion of a form AC563-Incident report), and civilian offences with no Service nexus (which are reported on the PMKeyS Conduct Recording and Tracking System), and obvious DFDA offences.

b. Ambiguous policy guidance. The policy guidance for commanders and supervisors WRT [with regard to] initiating a QA is ambiguous.

i Paragraph 8 of DI(G) ADMlN 67-2 Quick Assessments (reference E) provides that a QA is a matter for a commanderlsupervisor's commonsense and judgment, and need only be directed following significant incidents, allegations or problems. Paragraph 2 of annex C of the same reference mandates a QA irrespective of the seriousness of an occurrence as follows:

When an occurrence is reported, irrespective of the seriousness of it, a commander/supervisor must initiate a Quick Assessment [italics in original]

ii Annex F to DI(G) ADMlN 353 Management and reporting of unacceptable behaviour (reference M) mandates a QA following a complaint of unacceptable behaviour, whereas para 19 of DI(G) ADMlN 67-2 implies that in such circumstances a QA is discretionary.

Therefore, there appears to be conflicting policy guidance as to whether a QA is required or discretionary.


c. Mandatory QAs are unnecessary in some circumstances. The requirement (in para 8 of DI(G) ADMlN 67-2) that a QA be completed even where an incident is exclusively disciplinary in nature has the potential to waste resources. If an incident has no administrative features, and discloses a possible offence, then the policy requirement for a QA appears to be superfluous and, possibly, inappropriate.

d. Mission creep. Many QAs suffer from mission creep in that the QA officer carries out inquiry-type activities, including taking written statements and making findings and recommendations. This has the potential to undermine or contaminate subsequent inquiry processes. It may also be unfair to witnesses and any findings subject to challenge, in that the QA officer will have interviewed them in circumstances where the interviewer's level of independence or impartiality will not have been disclosed.

e. No legal protections for QA officers. One advantage of inquiries conducted pursuant to the Defence (Inquiry) Regulations is the protection which is afforded to both the inquiry agency and witnesses. These protections include immunity from potential defamation litigation and privacy law breaches, and also limitations on the use of inquiry evidence in subsequent court proceedings. In addition, Freedom of Information (FOI) laws do not apply to inquiries conducted pursuant to the Defence (Inquiry) Regulations. Under current arrangements, QAs are potentially susceptible to FOI disclosure and QA officers and witnesses are potentially liable to civilian or criminal litigation arising from their comments during the QA.

2.180 1 observed many of these problems-particularly the 'mission creep' into a de facto inquiry. Nonetheless, I agree with the Working Group that QAs do serve a useful purpose. In my view, however, they are necessary only in situations where the decision maker does not already have enough knowledge of the facts and circumstances to make a sound decision about what should be done. In many cases the decision maker will have that information, removing the need for another officer to conduct a QA.

2.181 DI(G) ADMlN 67-2 is framed on the basis that the QA will be done by somebody other than the decision maker. I see no reason why the decision maker should not do the QA in appropriate cases. The present system encourages the interposition of an unnecessary step between knowledge of a matter on one hand and action about it on the other. In this sense, a QA can amount to de facto delegation of decision making and a side-stepping of responsibility. Furthermore, a QA should not be mandatory before a Routine Inquiry is instituted. There will be


circumstances in which it will be obvious to a commander that such an inquiry will be required without the need for a QA.

2.182 1 agree with the Working Group's recommendation that DI(G) ADMlN 67-2 be amended so that the situation in which a QA is warranted is more clearly defined, although a commander's discretion should remain. Redrafting of the lnstruction should take account of the opinions I express in the preceding paragraph. Care should also be taken to ensure that the lnstruction is consistent with other instruments that refer to QAs.

2.183 1 agree with the Working Group's proposal that a standard template or form for a QA be adopted-provided it is not too bureaucratic in form.

2.184 The Working Group's recommendation that legal protection be granted to those participating in a QA is more controversial. It is difficult to see why a QA differs from other investigations and reports made in the ordinary course of command if a QA is restricted to its proper purpose and function.

Routine lnquiries

2.185 Routine lnquiries are dealt with in ADFP 06.1.4, Administrative lnquiries Manual, paragraph 4.1, as follows:

The purpose of this chapter is to provide guidance to commanders and Routine lnquiry Officers (RIO) on inquiries into the broad range of matters, which arise in a unit from day-to-day. These inquiries are conducted with as little formality as possible, free from the constraints and legal requirements of inquiries under the Defence (Inquiry) Regulations. The majority of inquiries conducted in units should be Routine Inquiries. lnquiries under the Defence (Inquiry) Regulations conducted by lnquiry Officers and Boards of lnquiry should be the exception rather than the rule. Chapter 1, annex C provides guidance on the selection of an appropriate type of inquiry.

Paragraphs 1.17 and 1.1 8 of the manual refer to inquiries generally, as follows:

1 . I7 The purpose of administrative inquiries is to determine the facts and circumstances surrounding an incident or situation. lnquiries are undertaken so that an informed decision may be taken about the action required including, where appropriate, action to avoid a recurrence.

1 . I 8 All inquiries have the same basic objective; these are:

a. to collect and assemble information and, in some cases, preserve documents and equipment;


b. to gather the best available information with the least possible delay;

c. to establish facts known to be true and those that may be inferred from all the available information;

d. to make findings on the basis of the information collected; and

e. to make recommendations arising from the findings concerning remedial or other action, including administrative action or the initiation of a separate investigation by Service or civil police.

2.186 Chapter 4 of ADFP 06.1.4 provides comprehensive guidance on the establishment and conduct of an inquiry such as would be appropriate to a statutory inquiry where the rules of natural justice apply, rather than for the informal inquiry envisaged in the preamble. The nature of that guidance differs little from that given in relation to an lnquiry Officer's lnquiry pursuant to the Defence (Inquiry) Regulations, dealt with in Chapter 6 of ADFP 06.1.4. Two of the Routine Inquiries I examined- Houston (see paragraph 4.82 in Part Two of my report) and Larson (paragraph 6.6 in Part Two) were important inquiries that resulted in important reports. Each was conducted in a manner similar to that described for an lnquiry Officer's Inquiry.

2.187 ADFP 06.1.4 states (correctly) that Routine Inquiries are conducted under the inherent power of command (paragraph 1 .lo). As I outline earlier, actions and decisions pursuant to command are not necessarily subject to the requirements of natural justice and procedural fairness. A Routine lnquiry is, in principle, no different from a commander calling on those under his command to state what occurred in relation to a specific event or circumstance. ADFP 06.1.4 does not change that. It is for guidance only. It appears, however, to proceed on the assumption that natural justice and procedural fairness do apply to command activities. Again, the line between command and administration is blurred.

2.188 In my opinion, a Routine lnquiry should not be constrained by rules appropriate to statutory inquiries. If that kind of inquiry is required, an lnquiry Officer's lnquiry is available for the purpose. The present structure does not cater for an operational inquiry conducted when a commander needs to promptly obtain information about facts and circumstances in order to enable a decision to be made without being trammelled by procedures designed to accord with administrative law principles.

2.189 The 'mission creep' in the conduct of a QA, as referred to by the Working Group and as I observed, might well occur because there is no


informal and expeditious way for a commander to ascertain facts and circumstances.

2.190 If Routine Inquiries were approached on the correct basis, the present guidance in ADFP 06.1.4 would need to be substantially amended, and a different and more practical model would emerge. If that model did emerge, I doubt there would be a need for any special policy for inquiries into incidents occurring during operations. The Working Group recommended the development of a new kind of inquiry, described as an 'operational incident review'. I see no reason why such a review would not be an example of a Routine lnquiry of the kind I have in mind. The nature of a Routine lnquiry should be adapted to the differing circumstances under which it takes place and the differing purposes for which it is required.

2.191 But an inquiry is not an end in itself: the thing that counts is the decision that is made following the inquiry, not the process by which the inquiry takes place. Command of the military (or any organisation, for that matter) depends on timely and sound decision making on the part of those bearing responsibility for the decision. Substance-not process- is what counts.

2.192 1 recommend that the conduct of Routine lnquiries be reconsidered and that the guidance in ADFP 06.1.4 be adapted accordingly.


2 erosion of command?...2 erosion of command?2.1 the failure by individuals in the command structure...

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