Annex A...(Amanda de Salis) and working level consultation. 2 Re-Thinking Systems of Inquiry, Investigation, Review and Audit in Defence Stage B Report for Secretary and CDF Annex

Re-Thinking Systems of Inquiry, Investigation, Review and Audit in Defence

Annex A Summary of observations from brainstorming and consultation

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Re-Thinking Systems of Inquiry, Investigation, Review and Audit in Defence Stage B Report for Secretary and CDF

Annex A: Summary of observations from brainstorming and consultation

Contents Introduction ............................................................................................................................1

Brainstorming sessions ........................................................................................................3

Internal consultation / engagement....................................................................................16

External consultation / engagement...................................................................................58

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Introduction

1.1.1. Extensive internal and external consultation and brainstorming activities were undertaken during Stage B as part of the development of credible models for a new system of inquiry, investigation and review. Comments were sought on the strengths and weaknesses of the current system, views on how the system could be improved, and the perceived viability of the different elements of the proposed models.

1.1.2. Internal consultation included seven brainstorming sessions comprising representatives from the following areas:

• Commanders / line managers and HR practitioners.

• APS employees and ADF members studying or on staff at the Australian Defence College.

• APS and ADF legal officers.

• ADF personnel involved in the coordination and execution of CDF Commissions of Inquiry.

• ADF legal officers involved in DFDA reform.

• Army senior Regimental Sergeant Majors (in relation to options for a simplified ADF discipline scheme).

1.1.3. Internal consultation also involved meetings with representatives from the following areas:

• Navy – engagement with the principal (RADM Jones) and working level consultation (Provost Marshal Navy; and Australian Navy Cadets).

• Army – multiple engagements with the principal (MAJGEN Campbell) and working level consultation (Army Administrative Inquiries cell; Army Incident Management System cell; Provost Marshal Army; and Australian Army Cadets).

• Air Force – engagement with the principal (AIRMSHL Brown) and working level consultation (Provost Marshal Air Force; Directorate of Defence Aviation and Air Force Safety; and Air Force Cadets).

• Headquarters Joint Operations Command – engagement with the principal (LTGEN Power) and working level consultation (JOC Legal).

• Inspector General ADF – multiple engagements with the principal (Geoff Earley) and working level consultation (COL Gaynor).

• Directorate of Conduct and Probation – engagement with the principal (Nicola Daikin) and working level consultation.

• Directorate of Complaint Resolution – multiple engagements with the principal (Amanda de Salis) and working level consultation.

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• Defence Materiel Organisation – multiple engagements with the principal (Harry Dunstall) and working level consultation (Michelle Vella).

• Australian Defence Force Investigative Service – multiple engagements with the principal (CAPT Parker, RAN).

• Inspector General – Defence – multiple engagements with the principal (Michael Callan) and working level consultation (Jason Woods and Debbie Pollard).

• Defence Security Authority – multiple engagements with the principal (Frank Colley) and working level consultation (Mike Askew).

• Work Health and Safety Pilot Project – working level consultation.

• Chief Information Officer Group – engagement with principal (Clive Lines) and working level consultation.

• Work Health Safety Management Incident System – working level consultation.

• HR Shared Services Team – working level consultation (Glenn Whatman).

• Joint Health Command – engagement with the principal (AIRCDRE Smart) and working level consultation (Military Employment Classification Review Board team – GPCAPT Peel).

• Cadet Reserve and Employer Support Division – working level consultation (Hugh Gregory).

• Opportune meetings with: BRIG Gates (COMDT ADC) and COL Ryan (COMDT CATC).

• ADFA – engagement with the principal (CDRE Kafer) and working level consultation.

1.1.4. External consultation during model development was undertaken with representatives from the Australian Public Service Commission and the Office of the Commonwealth Ombudsman. Other external stakeholders were also consulted later during Stage B, including the Attorney-General’s Department; Professional Standards, Australian Federal Police; General Counsel, Customs and Border Protection; and the Australian Human Rights Commission. Additional feedback is contained in Annex D: Stakeholder comment on the draft Stage B Report.

1.1.5. Briefing materials were developed in advance of each meeting, and follow up written comments were sought in some instances.

1.1.6. The following table contains a summary of the observations from these brainstorming and consultation activities. These observations and suggestions were influential in the way the models were developed, as is evident from the discussion in Annex B: Model development. To encourage frank feedback, comments during brainstorming and some consultation sessions have been recorded anonymously and information has been de-identified so that particular comments are not attributable to individuals or organisations.

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Organisation/ Event

Assessment/ Reporting

Fact Finding Internal Review External Review Coordination

Brainstorming sessions

Brainstorm 1

30 August 2012

There can be different administrative outcomes for ADF and APS personnel involved in the same incident based on different expectations of behaviour.

Compellability – may result in administrative action against ADF but not APS personnel.

Regardless of structure, the review function must be independent and integrated where possible.

Train staff based on position/role, not rank. Commanders also need training on making decisions rather than focusing on statements of reasons. There is no need for standard training across ADF/APS, as not all people require the skills.

Quick Assessments become mini-routine inquiries. Routine inquiries take several weeks, which is a disincentive for their use.

Guidance is necessary for unit level inquires needs, taking into account the low level of experience of most Inquiry Officer.

Complaint resolution needs to be better resources.

Too much policy means it is easy to miss the requirements. There should be a guidance matrix on matters such as how to undertake a Quick Assessment, triage and risk assessments, thresholds, informed support, records, taking appropriate action, etc.

There may be issues with the applicability and interaction of an ADF Code of Conduct and the civil law.

There is a need for the protection of Inquiry Officer.

The review function needs to be streamlined.

Distinguish between review of administrative action vs DFDA action.

In relation to medical separations, there are six modes/levels of review

Independent support and advice is necessary.

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Organisation/ Event



which is excessive.

There is no need to conduct a Quick Assessment when the decisions to be made are obvious.

There are concerns regarding self-incrimination for ADF or APS in fact finding activities.

The timelines for response/review need to be reduced.

Record management is required to support the stages of the investigation, including updates to stakeholders and communicating the outcome of an investigation.

The definition of ‘trigger event’ is ambiguous – matters which used to be a commanders diary note are now Quick Assessment reports. Fleet have resolved this problem by issuing separate guidance.

Participants were open to external investigators assisting units, but there was a concern that external investigators would set their own priorities.

Review processes in relation to contractors should be written into their contract.

There is a need to strengthen performance management by supervisors.

A common system could lead to expectations of common outcomes, which may not be achievable.

Participants had resourcing concerns with external investigators.

Commanding Officer, Service Chief and CDF review in the redress of grievance system should be replaced with one level – service chief review. After this external review should be sought (for example, DFO or Inspector General ADF).

AIMS is cumbersome but assists to manage process.

Outside coordination does not remove the duty and responsibility of a commander to manage the incident.

Participants had concern with investigators - context and independence were seen as trade offs.

CDF COI has a backlog of 18 months – 2 years with no guidance of data to collect.

Need robust training.

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Organisation/ Event



Suggest tick list for Quick Assessments to allow issues involving Unacceptable Behaviour, Notifiable Incidents and Hot Issues Briefs to be addressed.

ADFIS is unresponsive.

The Notifiable Incidents threshold is too low.

There is too great a remit for the resources allocated to undertake such activities.

Processes are currently stove–piped (ie admin, discipline and medical) rather than allowing people to contest / seek review across all avenues.

There is a need for an ICT solution – one incident ICT system for ADF which captures statistics and trends, with appropriate access controls.

There is a need for better understanding of administrative sanctions and DFDA.

Inspector General ADF inquiries may drag matters on for a considerable time. Commanders, line managers and other individuals involved (eg. witnesses or the accused) are not always provided updates on status.

There should be time limits on the review process.

Health care complaints can be lodged externally with the relevant professional standards body.

Defence needs to remove barriers that lead to two investigations into the same matter. For example, by different units/services

The process needs to be shortened to identify whether they are providing capability to Defence or should leave.

Outside coordination may reduce the incentive to resolve a matter at the lower level.

Participants recommended fewer mechanisms to inform multiple inquiries. That is, there should be a single interview for a single matter, even if there will be multiple processes.

There is over servicing by lawyers.

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Organisation/ Event



For example, the same investigation process can be used for APS/ADF before the matter is progressed to separate delegates.

Guidance needs to contain legal principles, support requirements, and the ‘powers’ of those involved.

Investigator skills need to be deployable.

Inspector General ADF unit audits are positive and should be retained.

There may be different consequences stemming from the same incident, but the same evidence needs to be made available to all decision makers as required.

APS Code of Conduct investigations stop when the criminal flag comes up. How can this be dealt with when it is referred back to Defence?

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Organisation/ Event



Mechanisms need to reflect return on investment. That is, there needs to be proportionality.

Provision of guidance would support the ability of ‘commanders to command’ and ‘managers to manage’.

Brainstorm 2

9 August 2012

A trigger event should be defined as something you (supervisor / manager / commander) need to know about so that you can do something about it. The status of person does not determine the trigger event. The nature of the incident determines whether it constitutes a trigger event.

Fact finding activities need to be professionalised for serious/complex matters and DFDA matters.

Processes need to comply with legal requirements.

External review can be sought through the Administrative Appeals Tribunal.

There is complexity with multiple reporting chains

In terms of process, participants suggested that the first step is to determine whether it is a minor incident (ADR or empowered command decision) or major incident (serious or complex). Establish ADF inquiries cell ADF, APS, AFP - prepared for deployment (for theatre

There needs to be joint command of investigative organisations

Review should be by petition only, not a matter of course.

External review should only be used when all internal measures exhausted.

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Organisation/ Event



COI). Nature of incident will determine timeframe.

Reporting should be by case number not name to protect privacy.

There should be one level of internal review. Delegates should be of sufficient rank to create solutions, such as 1*. Review should be along single service lines or panel review.

Trigger events include safety, compensation, personnel conflict, security, media political, equipment incident, systemic, or criminal allegation.

Review should be available for grievances and inquiries.

Review should not be available for DFDA matters, operational decisions, non justifiable decisions, or prerogative powers.

There needs to be recording of trigger events, not just reporting.

Internal review requires legitimacy, impartiality, empower to implement decisions, exclude CDF, single level, power to suspend executive action at discretion.

ADF and APS process should be aligned but not integrated.

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Organisation/ Event



Brainstorm 3

6 August 2012

The Hot Issues Brief format should be used for Quick Assessments.

Non-statutory inquiry should commence with a record of decision required, why the inquiry is being conducted, and what the inquiry is going to be used for (for example, the decisions that need to be made).

There should be an ability to seek review of the failure to make a decision as well as a decision.

Funding and legal advice for ADF should ne brought in line with the APS.

The coordination areas need to provide guidance to managers as to how to limit/give direction to inform decision makers.

The focus should be on supporting and guiding the Commanding Officer / manager to make the initial decision.

There is a need for a statutory inquiry framework in order to investigate systemic issues without an initial assessment, and to investigate DFDA service offences without ADFIS.

The Inspector General ADF can be internal.

The Inspector General ADF can be external.

There needs to be a control of access to information, not the collection of information.

The definition of trigger event should include notifiable incidents. The commanding officer can define in SO, but not routine matters.

There is a need to compellability to ask questions / obtain documents (for both APS/ADF).

Complaints should be recorded on a form and sent to the decision maker or supervisor.

The Defence Force Ombudsman and Inspector General ADF should be combined. They need to be empowered to compel documents/witnesses.

An ICT system needs to retain full details – for example, personnel, incident, and cost (time, travel, resources)

The definition of trigger event should include incidents that need to be reported through statutory requirements, death in service, and platform systems failure (air, sea,

Investigation should be professionalised as a gradation, not binary.

Bodies such as the Australian Human Rights Commission, Administrative Appeals Tribunal, courts and the Merit Protection Commissioner are

Defence needs regulations relating to access to information, including who gets access, what they can access, and provisions for use.

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Organisation/ Event



vehicle) unlikely to change.

Trigger events should not be defined as including pre-existing mechanisms such as health care complaint.

Each Service / Group needs access to professionals to do more complex investigations / inquiries (for example, access to a pool of qualified staff).

There should be a reduction in the number of steps and complaint agencies. Fewer levels means it is easier to provide transparency / visibility.

The initial assessment should be used as the report to ensure there is not duplication of effort through double entry.

Reporting must be proportionate to the incidents occurring.

Participants raised concerns regarding protections for Inquiry Officers.

The ADFARB concept should be used in lieu of the Defence Force Ombudsman.

Reporting obligations are too onerous and may lead to under reporting.

A tighter Terms of Reference culture is required.

Perhaps only the finding or outcome should be reported, not the occurrence of the trigger event.

The number of recommendations by Inquiry Officers needs to be reduced.

The initial assessment should be used as the report to remove duplication of effort.

Defence needs an ADF Investigative Service. An element needs to be in uniform.

There is an obligation to provide procedural fairness only if there may be an adverse decision.

Participants expressed concerns about disclosure and access to outcomes and reports of non-statutory inquiries. For example, to protect the

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Organisation/ Event



reputation and privacy of individuals.

Brainstorm 4

15 August 2012

Deaths should not require a Defence inquiry, but will require some form of assessment (case by case discretion).

Retain Freedom Of Information exemptions that exist under the current system.

Resource issues impact the ability to conduct multiple Commissions of Inquiry.

The cost burden of Commissions of Inquiry not significant and is not sustainable.

There is a lack of perceived independence for in-house inquiries.

Participants expressed concerns about the reputational risks associated with the quality of Commissions of Inquiry and Inquiry Officer Inquires.

The command discretion accept / reject / implement findings should be retained.

There is a need to manage the expectations of families of deceased ADF members, the Government, the media and the public.

Centralised monitoring of conduct and implementation of inquiries should be retained.

ADFIS could act as a Coronial Investigation

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Organisation/ Event



Unit with a link to the coroner. There would be no other ADF inquiry. ADFIS role for combat death would involve repatriating the body, gathering evidence that would otherwise perish; and dealing with coroner. This function needs to be retained only until the body is returned to NSB.

The threshold jurisdiction assessment under Regulation 109 should be devolved to lower levels.

An ADF Coroner should be established.

There is a requirement to refine Regulation 109.

Delay is a significant risk – inside 12 months is too long.

Service-specific knowledge is an essential factor in death inquiries.

There has been a delayed in doing corrective measures for fear of

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Organisation/ Event



prejudicing inquiry process – this needs to be countered.

Services cannot do suicide investigations as there is too much interest in saying that it was not the problem of the ADF.

Common themes include identification, aggregation of data, trend identification, track implementation, and quality control.

Participants expressed strong support for the replacement of the existing Commission of Inquiry model with an external investigation system with either civilian coroner or agency at Federal level.

Brainstorm 5

4 September 2012

In relation to the proposal to reform DFDA, there was a suggestion to expand the Discipline Officer Scheme, and change SUBSA and SUPSA jurisdictions.

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Organisation/ Event



Brainstorm 6

12 September 2012

The definition of trigger event should be an incident that requires third party intervention or an investigative expert to manage the matter.

There should be synergies between ADF and APS inquiry process, but not necessarily outcomes.

There should be fewer layers of appeal.

DPSMS should be used across Defence.

A trigger event occurs when there is a breach of policy or law that requires investigation.

The DFDA should align with the Public Service Act 1999. Policies should be consolidated and aligned as well.

There are too many layers in the review process; procedural fairness should be balanced with administrative accountability

Trigger event should be defined as an incident which the commanding officer is required to apply punishment or corrective action.

Inquiries external to the unit should be conducted when criminal activity is serious or the unit too small / toxic.

Commanding officers should be empowered to change decisions on review.

Policies and processes should be simplified.

Trigger events should only be recorded if a Quick Assessment has been completed.

The role of the Inspector General ADF should be outlined / made concrete.

The MECRB process has too many layers of review.

The MECRB should only be made up of medical personnel.

Recording databases should be altered so that the behaviour of ADF and APS personnel can be mapped (helpful for identifying repeat offenders).

Trigger events should only be recorded if the matter cannot be resolved in the first instance.

Integration can be fostered by creating a centralised group of investigators that operate as fact finders – not

External inquiries should be conducted when the criminal activity is of a serious nature (for example, child

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Organisation/ Event



decision makers. The facts found as a result of the investigations can be used to aid supervisors and commanding officers in their decision making.

pornography).

Open reporting is useful for supervisors for visibility of outcomes. This enables them to create precedents for other decisions to promote consistency in decision making.

ADF may not want APS investigating them (as there is a perception that they do not understand ADF culture).

A review should incorporate change or lead to a change: it should not be just about making recommendations.

Integrated systems foster transparency in decision making and actions.

The role of the Inspector General ADF should be outlined / made concrete: it should manage the database, use the database for research purpose and provide expertise on military issues.

Policy / processes should be simplified and consolidated and duplication should be eliminated.

Brainstorm 7

11 December 2012

Discipline needs to be imposed by unit leaders at the lowest level.

The record of Discipline Officer offences should be held at the unit. This would allow the pattern of behaviour to be observed,

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Organisation/ Event



but not be detrimental for career management.

The system needs to be de-complicated and de-legalised. An expanded Discipline Officer system would provide this.

Instead of detention, consider ‘residential rehabilitation training’,

‘ADF Code of Conduct’ is a poor name.

Participants wanted to keep detention in principle, but not at the expense of simplifying the discipline system.

Participants wanted to retain pre-conviction custody (ie ability to arrest and constrain someone for their own safety)

Internal consultation / engagement Consultation 1

27 July 2012

The current process works but is slow and convoluted.

The ADF needs a body similar to the Merit Protection Commissioner.

There simply needs to be an ability to review decisions.

The Inspector General ADF or Defence Force Ombudsman should be

Central reporting does not identify serial offenders but has value with trend analysis. Greater resourcing will get

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Organisation/ Event



brought together. better results from a database.

Many decisions are outside the remit of the commanding officer, however there is a concern that if the commanding officer level of review is removed, the commanding officer would lose visibility and not be able to manage their staff.

The external review body should report to the Minister for Defence rather than the CDF.

There is a need for time limits on the action of commanding officers so that it does not result in a bottleneck (some commanding officers want to ‘palm off’ the obligation to inquire/make a decision on a Redress of Grievance).

The APS Review of Actions process is not required to be sent through the individual’s manager which results in a loss of visibility.

There needs to be discretion to refuse to

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Organisation/ Event



consider an application for review (ie no ability to deal with the complaint, or the complaint has already been reviewed).

The commanding officer, Service Chief or Values Behaviours & Resolution often do not have power to reverse decisions relating to ADF members, whereas Values Behaviours & Resolution does have the ability to change decisions relating to APS members.

Redress of Grievances should be submitted through a form, stating the member’s unit, what is wrong, what they want, whether it is a decision / referral from their commanding officer, and whether their commanding officer supports or does not support their application.

There should be consideration of providing statement of reasons, as this will remove many

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Organisation/ Event



Redress of Grievances.

The first level of review should be semi-formal, incorporating exclusions, discretions, and flexibility.

There is no review process for cadets. Currently, eventually cadet reviews go to the Services to be managed by the Services.

Fixing the structure of the cadet organisation would allow them to have a path for redress.

Creating a proper merits review process in Complaints Resolution or elsewhere is difficult because of the breadth of the decision making process.

Consultation 2

16 August 2012

There is a tension with Comcare powers. Comcare’s view is that Defence too often focuses on finding someone liable rather than preventing reoccurrence and ensuring safety.

There is still a need for statutory inquiries in the context of work health safety investigations to ensure protection for investigators, witnesses etc.

Education and training is required to advise Defence personnel of their responsibilities.

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Organisation/ Event



Escalation to Comcare is done through shared service processes.

The aim of fact finding in work health safety matters is to determine the cause of the matter and fix the safety issue.

Advice and a support stream is required.

Consultation 3

21 August 2012

There is a conflict in the definition of a security and safety incident, which raises the issue of how incidents are being reported.

Defence Security Authority sets the policy and Defence Support Group delivers the process.

DPSMS is not particularly useful as it is difficult to retrieve information and is not interoperable.

The Defence Security Authority do not share information – there is a tension between ‘need to know’ and ‘responsibility to provide’.

The Defence Security Authority pick and choose investigations based on priority and capacity.

Consultation 4

22 August 2012

The XP188 security incident form is not perfect and is under review.

Commonwealth security requirements are driven by Commonwealth policy.

Categorisation according to minor, major, and reportable incidents is used to determine how the incident is investigated.

Security investigations are often driven by other entities outside defence or may be conducted to disprove an allegation.

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Organisation/ Event



The Security Incident Cell assesses all XP 188 lodged on DPSMS.

The Defence Security Authority work is assurance – the focus is on whether the information been compromised rather than determining individual liability.

There is silo reporting on security incidents.

Transparency is different with security (people may not know they are being investigated).

The biggest challenge if Defence were to move to one entry form for all incidents is ensuring the data required in the XP188 is provided in order to allow an initial assessment to be completed.

A specialised skill set is required for security investigations.

The Security Incident Cell has integral investigators and analysts to ensure they have an understanding of the context in which the incident occurred.

There is a friction between AGSVA and security investigations and the sharing of information.

Consultation 5

24 August 2012

Those who fill APS staff positions in the Australian Federal Police are non-sworn AFP employees.

A review of the Australian Federal Police was undertaken by Justice Fisher in 2002-03. It found that the tribunal

Fisher recommended that minor and non-reviewable matters should not be open to review by a court or tribunal, except that

The Ombudsman has oversight of Australian Federal Police activities, primarily from a ‘customer service’

Fisher recommended that resolution of minor matters be recorded in restricted form on PROMOIS (the core Australian Federal Police

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Organisation/ Event



model of discipline was unduly slow and legalistic, and punitive disciplinary outcomes do little to correct behaviours.

the Ombudsman maintained oversight. The aim should be to eliminate elaborate review processes which have been costly and cause delay.

perspective with respect to complaints from members of the public about police action.

management ICT platform) and monitored by the Ombudsman.

Fisher recommended changes to processing / assessment of action into minor management matters and non-reviewable action. The manager is now playing a pivotal role in the new system.

Discipline in the Australian Federal Police now has more of a remedial and protective focus rather than a punitive focus.

The Ombudsman does not deal with employment-related complaints made by APS employees in the Australian Federal Police – Fair Work Australia does this.

Fisher recommended serious matters retain a formal investigative approach.

The Australian Federal Police has a Code of Conduct disciplinary model which applies to all employees.

The Ombudsman usually refers complaints to Australian Federal Police Professional Standards to investigate, while maintaining an oversight role.

The Ombudsman’s office emphasised the need to have complaints and investigation under one roof. The information you gain from inquiries tells you things about your organisation

The Ombudsman has direct access to the Australian Federal Police’s CRAMS databases.

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Organisation/ Event



It is important to maintain linkages with audit branch and others who can identify problem areas which require monitoring from a professional standards perspective. .

The Ombudsman monitors PRMIS to examine inconsistencies / poor decision making. This allows a more focussed role for the Ombudsman.

The Australian Federal Police conduct internal ANAO-style performance audits.

For serious misconduct / corruption Australian Federal Police Professional Standards can conduct criminal investigation or use its coercive powers to compel information from witnesses (subject to immunity).

Termination processes for Australian Federal Police members are protracted, involving investigation, review, adjudicator, employee comment, decision to initiate dismissal, NTSC, Legal review (not mandatory),

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Organisation/ Event



and a final decision.

Consultation 6

30 August 2012

We must put people with the right capabilities in the right position. Can the Provost Marshall ADF be a civilian?

Concerns were expressed regarding legislative requirements for the Inspector General - Defence functions. There was concern not to disconnect coverage under the Financial Management and Accountability Act 1997.

External review can result in immediate public disclosure, which means the matter is over and done with from Defence’s perspective. However, Defence loses control of information in the public domain.

Any investigative function needs to consider information across the full spectrum (ie on posting of involved members). Matters can become lost when they are referred to different policy areas.

There needs to be interconnectivity plus intelligence – this can be achieved through centralised functions in the investigative space.

Project Fulcrum recommended a single Defence Investigative Authority (for ADF only).

The DPSMS database is stove piped but it does have significant capability.

A single Defence Investigative Authority is reasonable, as long as there is policy guidance, information sharing, and recognition of civilian investigators.

The Inspector General - Defence conducts administrative inquiries and criminal investigations. The Defence Security Authority and Inspector

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Organisation/ Event



General ADF are also in this space.

There are synergies to be achieved in combining intelligence functions.

Any disconnect between audit and Inspector General – Defence through reforms would be problematic.

A ‘super Defence Investigative Authority’ is feasible. There may be an industrial relations issue with different pay grades. It is all achievable if Defence is prepared to complete the change management.

The super Defence Investigative Authority needs governance in place.

There have / will be issues with acceptance of the Inspector General - Defence administrative product

Consultation 7 Defence Workplace Coordination would allow a

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4 September 2012 Relations establishes the policy for the Defence Materiel Organisation.

known list of sacked / resigned personnel following an APS Code of Conduct breach (noting that an individual cannot be breached if they resigned first). There is an issue with APS employees coming back as Defence reservists (CFTS or similar).

APS Code of Conduct investigations in the Defence Materiel Organisation are conducted by case managers who provide advice to managers and employees.

APS Code of Conduct matters are outsourced where matters are complicated or where there is a resource issue – contractors will have clear terms of reference (including points of visibility). The preference is in house investigations as Defence can control where the investigation goes and there is fidelity in ensuring that an investigation follows the

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Organisation/ Event



proper process.

The first point in any misconduct or performance matter is an ICT dump in order to establish how the individual is spending their work time.

Powers to compel are not an issue as generally people provide information when they are asked (as the information is largely contained in Commonwealth documents anyway – ie email and other correspondence)

Where ADF members are involved, the policy requires immediate referral however the APS Code of Conduct area may conduct an initial investigation to a certain point.

Behavioural terms need to be built into contracts – if Defence requests a contractor to remove their employee from a Defence

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workplace, it can potentially become a Fair Work Australia issue (protected dispute claims under the Act)

Consultation 8

5 September 2012

ADF investigators need to be grown if they are to be capable of investigations.

Writing is a fundamental skill and it needs to be developed – both to complete the work and to communicate the product.

Inspector General - Defence does a 2:1 split on criminal / administrative investigations.

Criminal investigations involve identifying the offence, determining the elements, and collecting evidence.

For administrative matters, the investigator needs to consider and weigh evidence to inform fact finding – this skill is scarce in investigators.

Consultation 9

10 September 2012

There is a requirement for feedback to be provided to the Services, not simply the unit.

There are different types of inquiries, including human inquiries (individual culpability) and

Well understand inquiry processes would achieve consistent results.

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system inquiries.

A blended team approach should be adopted to achieve the right mix for the incident.

There should be three tiers of training: awareness (all), for a specific job, and for promotion to the next rank.

Investigative priorities need to be set, and the Services need to agree to them.

Consultation 10

11 September 2012

The Army Incident Management System (AIMS) allows incidents to be trackable across multiple lines of problems.

AIMS sends automatic messages every 28 days.

AIMS is not used in deployed environments, and aviation safety incidents are excluded. .

When personnel from other Services or Groups are on loan to Army, incidents involving them will be included on AIMS. .

AIMS can track repeat offenders. .

Access to AIMS is controlled by Army Headquarters managers (2 per unit). .

AIMS contains pre-formats for certain types of incidents (for example, if a safety

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incident is identified, it will generate the required form).

AIMS records the decision making through the life of the incident. .

Consultation 11

13 September 2012

DPSMS is a centralised database with common data, then contains silos of information controlled by security settings.

There is limited intelligence sharing between the Defence Investigative Authorities. DPSMS does have security settings to limit access.

Reporting through DPSMS occurs once the matter is closed. It is fully auditable by name for those involved in the investigation (for example, witnesses or complainants).

Investigations are categorised in DPSMS through drop down menus – matters are categorised by the most serious, not all categories.

DPSMS is a case management system. It files all matters on the investigation.

There are performance concerns with DPSMS.

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Inspector General - Defence did seek advice from the Attorney-General’s Department regarding privacy and the retention of records, who advised that the processes were OK.

Consultation 12

13 September 2012

Participants were supportive of an integrated approach to initial assessment and reporting.

There was a view that Defence should get rid of low level disciplinary matters and keep military offences for high end offences.

The Police Jurisdictional model is not truly joint as it does not control the capability or training.

The simplicity of the administrative system is better than the high end disciplinary system.

There are Law of Armed Conflict considerations for non-uniformed investigator on operations.

Consultation 13

19 September 2012

There is nothing between a Quick Assessment and a more formal inquiry. Inquiries can take 6-8 weeks and make 30 recommendations.

The Redress of Grievance process is being used as a tool to prevent early return to Australia.

There needs to be greater consultation on recommendations from inquiry reports.

Staff work within inquiries is immense (80% of

There is a need a place to park the hard stuff (ie 2

CJOPS is developing a directive regarding

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legal’s workload at Joint Operations Command is inquiries).

year old Unacceptable Behaviour cases). This does not have to be Inspector General ADF, but it must have a home.

behavioural issues.

Fact finding should be a staged approach. Initial facts, further inquiry, individual accountability (That is, first then second level inquiry).

The administration for inquiries is very burdensome.

There needs to be a change in focus so that we are front loading fact finding and delaying procedural fairness, transcripts, administration and legal review.

Findings v sanctions. There needs to be a shift so that procedural fairness is afforded at the second level inquiry.

Operational incidents should be treated like AAIT inquiries – there are similar levels of liability but no statutory protection.

Inquiries take too long

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Organisation/ Event



and can result in weeks of lost work, particularly in the operational setting. This is not effective.

Commissions of Inquiry demand a certain level of formality. If they were wound back, then there would be a need to assess / justify the wind back.

There is a possible benefit of a Commission of Inquiry informing a procurement decision.

It is difficult to have civilian investigators if they are deployed outside the wire.

The ADF Investigative Service has a poor reputation with the command chain.

Services are not interested in supporting the development of investigators.

The ADF Investigative Service has no capacity

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Organisation/ Event



or strategic focus.

It is difficult to impose the DFDA on deployed forces with no structure.

1-2 days to deal with the matter (from incident to resolution) should be the standard.

Inquiries are not sustainable – there is no structure available to support them (other than HQ Joint Operations Command legal).

Consultation 14

Defence must retain the ability to investigate purely military matters.

The threshold consideration for any inquiry / investigation is that it be invested with sufficient authority to do its job.

If a person dissatisfied with an assessment or inquiry, there should be one credible avenue of internal review.

After one internal review, the matter should go straight to external review.

Rules for disclosure of report are cumbersome and unnecessarily involve the Minister.

There are misuses of Quick Assessments as they are often a form of inquiry in their own right.

There is a lack of common jurisdictional base to cater for the integrated ADF / APS environment.

Where an individual’s rights may be affected, there should be a merits review.

The Defence Force Ombudsman has limited capacity to undertake the inquiry work completed by the Inspector General ADF.

Defence should be able to disclose inquiry information in order to create transparency of process.

UK Learning Accounts drawn upon by Departmental Working

Inquiries into serious or complex matters should be regarded as a

There is a need to remove referral to CDF from the Redress of

Disciplinary matters are often referred from the Defence Force

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Organisation/ Event



Group into ADF Administrative Inquiry System. There is value in merging aspects of Quick Assessments and Routine Inquiries.

specialist function. Grievance process. Ombudsman to the Inspector General ADF, as the former does not have jurisdiction.

If Quick Assessments .and Routine Inquiries were merged the trigger event itself could be catalyst for informal inquiry without the requirement for a separate Quick Assessment. There should be no automatic entitlement to legal support. and no immediate requirement for procedural fairness.

There is a failure to follow current policy.

Remove Redress of Grievance requirement for commanding officers to inquire into and make decision on matters which are beyond his or her remit.

Defence need to be careful to ensure that any modification of the system does not allow allegations of ‘insufficient regulation’ (as stated in the 1990s).

There is a lack of relevant training or experience on the part of persons appointed to conduct inquiries.

Defence should permit administrative action to continue even though a Redress of Grievance has been submitted. This would remove the incentive for Redress of Grievances to ‘buy time’.

Defence should have a simpler system of statutory inquiries and non statutory arrangements.

There is no reason why the Redress of Grievance could not be generally aligned with the APS system of Review of Actions.

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Organisation/ Event



Routine Inquiries are generally used as they are perceived to be easier, and are not reported on ADFAITS.

Informal inquiries offer the best opportunities to usefully amend the present administrative inquiry system.

Formal inquiries would benefit from rationalisation of the types of tribunal-based inquiry forms under one set of omnibus regulations. There should be separate regulations to deal with the functions of the Inspector General ADF.

Form and powers of the formal inquiry should be subject to the appointing authorities’ discretion. They would need to consider sanctions for refusal to give evidence, evidence taken on oath, remove / limit the entitlement to representation unless they are subject to

37



Organisation/ Event



potential adverse findings.

Only ADF are currently compellable.

ADF Investigative Service and Service policing capability must be made to work effectively.

There is a noticeable trend towards dealing with disciplinary matters by infringement or other administrative means rather than summary proceedings.

Consideration should be given to the extent to which matters dealt with by infringement should be recorded (to identify repeat offenders).

There may be scope to amalgamate investigative functions of the Inspector General - Defence and the Defence Security Authority.

Consultation 15

19 Sept 12

There are 12 personnel qualified to conduct fraud investigations and 8 actively

Systems and human inquiries can be undertaken.

There should only be one avenue of internal review and appeal.

Once one internal process is exhausted, the next avenue of

Any inquiry system needs to have a mechanism to link outcomes and provide

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Organisation/ Event



conduct investigations. The other four are the director and three staff who operate the Receipt and Assessment Unit.

appeal should be external.

feedback to other elements of the overall system.

The three personnel in the Receipt and Assessment Unit a conduct formal assessment of all allegations and run the hotline for Defence Whistleblower Scheme.

There is a need for an integrated workforce under one head to coordinate priorities’ and set policy positions / standards.

Values Behaviours & Resolution Branch within Defence is the appropriate areas to provide internal review.

An integrated Defence Investigative Authority would require an enabling tool – for example, an ICT system which could talk to other defence systems and has forensic (data and physical) capability and data sharing capability.

ADF and APS investigative structures should be combined.

Defence investigative capabilities include assessment and referral, fraud, security, military discipline and recovery.

Values Behaviours & Resolution could stand up a capability to inquire into complaints of professional misconduct by Defence investigators for both military and civilian personnel.

There is a risk that the Services will fail to post military personnel into important positions.

If civilian investigators are to conduct DFDA investigations, they would require additional powers.

See concept structure diagram.

APS and ADF review processes could be aligned using the whole of government framework.

To investigate fraud requires a Cert IV in Government Investigations.

Any impact for a contractor would need to be in the terms of their contract.

Departmental legislative responsibilities could not be ignored in any reform.

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Organisation/ Event



Fraud cannot be investigated at the unit level, it must be by a Defence Investigative Authority. It can, however, be referred back to a unit to address administratively.

Statutory inquiries should only be used for serious incidents involving safety, serious injury, death or where current legislation requires it.

Consultation 16

20 Sept 12

A brief is being given to the Chief Information Officer Executive regarding an enterprise-wide business case/incident management system (including Defence Materiel Organisation and the Honours and Awards Tribunal). The proposal is to conduct a feasibility study.

Current ICT platforms do not talk to each other.

Customs has a very good incident management systems (for internal and external complaints / incident management).

Defence needs to map who needs to know what.

Canada has an online tool with hyperlinks to relevant policy.

Universal reporting as a concept is supported by the Inspector General ADF.

Any reporting/tracking system needs to be able to be interrogated for statistics.

40



Organisation/ Event



Privacy and archiving must be considered.

Consultation 17

25 September 2012

Procurement process inquiries are required by Commonwealth Procurement Guidelines.

Contractors may not accept internal assessment and review.

Need greater clarity where procurement concerns intersect with discipline.

It is very resource dependent to do procurement process review. Some are now locked into external providers with internal support.

Consultation 18

25 September 2012

Human Resource functions are a shared service. People in education / training will move into Defence Learning Branch shared service.

The advantage of shared service is not reduction in jobs, but that they report to one Deputy Secretary.

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Organisation/ Event



Shared Services functions impacts the category / pay grade of staff.

Until we consolidate the policies we will never have shared services (for example, for safety there are three service manuals, SAFETYMAN, DSTO, and Defence Support Group Manuals)

Shared services facilitates professionalism.

Consultation 19

25 September 2012

WHSMIS system is an off-the-shelf governance / risk management product including risk / hazard logs, incident recording and reporting; incident investigation, audit, automatic notification to Comcare. It is only available on the DRN and does not links to DPSMS or Objective.

Air Safety is coming into WHSMIS

Consultation 20

26 September 2012

It is hard to find the line between where a Quick Assessment ends and an inquiry begins – it is useful

The external review process for APS employees (Merits Protection

Education is 20% formal training, 70% on the job training, and 10% mentoring. There is a limit to what can

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Organisation/ Event



to have a breakout point early so that if the Quick Assessment is not going to add value it is not progressed (for example, for contestable personnel issues).

Commissioner etc) never really addresses the fundamental issue in the workplace – it feels like a court even though it is administrative decision making.

be achieved through formal education / training.

Quick Assessments need to start will looking at what is the outcome sought?

Personnel need information that can point them to the direction of experts – advice to commanders and advice at the tactical level, including web links.

There is a lack of understanding as to where the limit of authority lies with Quick Assessments – the purpose is to support decision makers.

Shadow organisations can develop if the shared services construct is not functioning effectively / has a clear model.

Consultation 21

4 October 2012

Data can be received via phone, signals, email, XP188, referral from DPSMS (eg through ICT security, ADF Investigative Service)

Reporting to and from Inspector General - Defence to the Defence Security Authority is good, but is not good to and from the ADF Investigative Service.

Sensitive information can arrive from other Defence Investigative Authorities.

The aim of the investigation should be a part of the decision making process. That is,

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Organisation/ Event



is it to fix a problem or hold an individual accountable?

Major and major reportable incidents are dealt with by the Security Incident Cell and an assessment is conducted once it is lodged (for example, category, immediate assessment (major, reportable major), circumstances (compromise, action taken, reputational damage).

Who would take priority in the proposed Defence investigation area and what capacity will the area have to conduct the investigations.

Coordination versus assessment –terminology needs to be considered

Taking evidence for DFDA investigations is more resource intensive than other types of investigations (for example, it is more time consuming to take statements, a longer time to caution and phrase questions).

Trust is important among the Defence Investigative Authorities and this should not be lost through centralisation.

Consultation 22 The ADF Investigative Service looks at the

The ADF Investigative Service is not a proactive

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Organisation/ Event



9 October 2012 seriousness of the offence, not the complexity of the issue, number of witnesses etc.

police force, but rather is reactive.

There is a pool of allocation but still stove-piped investigators.

AFPOL has a role to mentor subordinates to conduct investigatons

If Defence were to investigate only on service lines, then there is an issue as to how non-Service groups gain investigative support. Consideration should be given to large non-Service group areas (for example, in Canberra) being provided staff from the Services.

There is an issue with accreditation of the Certificate IV Service Police Investigators Course.

The Air Force is dissatisfied with the priority given to Air Force matters.

The greatest jurisdictional model would see a single area dealing with all complaints, not just the current threshold for the ADF Investigative Service to become involved.

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Organisation/ Event



The ADF Investigative Service reports on DPSMS but there is no visibility to the Service Provost Marshalls, even if a matter involves members in their Service.

Consultation 23

10 October 2012

Naval policing is not sustainable in current form due to deficient staff numbers.

The ADF Investigative Service conducts high end criminal matters, but often declines to investigate.

The Navy model is more preventative and de-escalatory, and therefore may not be open to the other ‘cultures’ being on their ships.

Consultation 24

10 October 2012

CRESD have great difficulty in obtaining information from the cadet organisations.

CRESD is currently reviewing the cadet regulations to look at inquiry processes and consequences.

CRESD are seeking a finite decision of the employment status of Cadet staff and are obtaining the Secretary’s view on this.

Reporting from cadet units to cadet service Headquarters mirrors

There are currently concerns with issuing instructions to cadet staff

The Cadet Policy Manual was withdrawn as it contained an inadequate

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Organisation/ Event



defence policy. (the validity of ADF / APS to officers of cadets).

legal basis.

Defence needs to ensure any centralised assessment / reporting area understand the cadet organisations.

COMCARE often investigate cadet incidents.

Consultation 25

15 October 2012

Australian Navy Cadet volunteers are less inclined to report incidents to Navy Headquarters – they usually hear about matters down the track.

Navy do not look into incidents such as reviewing Quick Assessments, as this is left up to cadet units / commanders to manage.

Cadet members may seek review through the ‘chain of command’ to the national commander and then the Director General. They seek legal review each time, from a Reservist.

External Review is through the Commonwealth Ombudsman.

CadetNet is on the DRN – it has a database that commanders have access to and must report through. Navy provides all of the ICT.

The purpose of the Navy Headquarters is to inform the Chief of Navy of cadet incidents and prepare Hot Issues Briefs / Senate Estimates Briefs.

If a matter goes to general inquiry, a Quick Assessment may be provided to Navy and they will advise the best way forward.

Officers of cadets have compulsory training they are meant to complete on CadetNet every 1-2 years. Navy is not convinced they are doing it well enough.

It generally takes at least a month to have a Quick Assessment completed.

Navy cannot undertake Quick Assessments because they cannot compel cadet members to speak to them.

COMTRACK is difficult and time consuming to use.

Australian Navy Cadets developed a dispute resolution agency of cadet volunteers.

Navy tracks the time the full time staff spend on the more complex and time consuming matters, such as resources, travel, time.

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Organisation/ Event



Consultation 26

16 October 2012

Cadets are completing the shared services Work Health Safety form so there is scope for integration.

Investigations in Australian Air Force Cadets generally involve staff to staff and Routine Inquires regarding weapons. They have not had a Routine Inquiry involving cadets.

Australian Air Force Cadets are good with safety and flying, but not so good with personnel management and training.

The Director General Cadets is allocated performance management and complaint resolution as a higher priority in order to justify why they remove people.

If Service Chiefs agreed to share policy, it could be achieved within 12 months, in chapters such as operations / admin / health / safety. There could then be separate chapter for Service-specific elements.

Australian Air Force Cadets use their policy manual. If there are multiple avenues, then they use Defence Policy as a guide.

Funding is provided to each wing, and then they fund raise the rest. Each wing is run independently.

An Air Force member cannot compel an Australian Air Force Cadets member to be interviewed.

There is no continued checks of Officers of Cadets, such as annual police checks.

Directed fact finding is favourable as it stops a mini inquiry.

There is still no clarity about the employment status of cadets under Work Health

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Organisation/ Event



and Safety legislation.

Air Force Cadets headquarters is open to concept of a centralised pool of investigators to assist with complex fact finding, but there would be resistance to this if the members were not military.

Consultation 27

16 October 2012

Where health care complaints are made, at the regional level a chair / lead of review team is appointed. It is an internal review with internal specialists but not in the care pathway.

Includes complaints on specialised care ie over servicing (under new contract will be done by contract provider). This is modelled on NSW Health.

Consultation 28

17 October 2012

Conduct & Probation’s concern with the form concept is with any delays it might cause, or incidents being sent through prematurely. Commanders and line managers still must manage their staff.

Conduct & Probation will receive a referral from the work area. They may have completed a Quick Assessment. Conduct & Probation look at it and might ask for more information. It gets inputted into the system.

The delegate will determine if a breach has occurred, and if so write to a person to seek a response. The delegate reviews the response and if they decide a breach occurred will consider a sanction. The delegate then writes back to the individual regarding the sanction and they are given an opportunity to respond. The response is considered, then the

External review is through Merit Protection Commission or Fair Work Australia in the case of terminations.

Conduct & Probation use an access database. DPSMS is difficult as it does not suit these non-criminal investigations.

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Organisation/ Event



sanction imposed.

Conduct & Probation are concerned about a call centre providing advice.

There is no reason why an investigator could not be an ADF member as long as they understand the APS environment.

There is the potential to consolidate investigate areas and segregate into specialist functions.

In relation to security issues, Conduct & Probation will go to the Defence Security Authority but rarely receives a response. Lack of responsiveness is a big issue and it means it is not clear whether they should be acting / reporting to the Defence Security Authority.

When matters involve ADF and APS there is an issue with investigators are looking at the same thing and interviewing the same people. Consolidation would minimise this risk of duplication of error.

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Organisation/ Event



Consultation 29

17 October 2012

There is dual jurisdiction for service offences where there is a civilian law equivalent.

The ADF Investigative Service has not been victim-focussed (enough).

Handing over matters to the Australian Federal Police results in time delays and they would not necessarily care about the minor offences which the ADF does. If the Australian Federal Police were paid it would be costly and the ADF would lose control/priority.

Investigators need to be independent of chain of command.

Any structure could be populated by APS if they changed the DFDA.

The Notifiable Incidents DI(G) has stripped commanders of the power to command.

Where there is an equivalent civilian offence, it should be tried under civilian law.

DPSMS has real problems.

One option is to get rid of minor disciplinary offences and replace with a code, but administrative action is not always better given all of the review mechanisms.

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Organisation/ Event



Different reporting thresholds across the Defence Investigative Authorities is an issue.

Consultation 30

18 October 2012

For health issues, there is clinical management so that when member is stable they look at their fitness (produced by garrison doctor and informed by specialists). They advise on treatment not fitness for service.

Member can represent at the point of the members health statement, the Medical Employment Classification and the Redress of Grievance.

Central Medical Employment Classification – looks at the member health statement, unit workplace statement, and medical information. A recommendation is then made as to whether the member can do their current job or another job, or whether they are deployable.

The Medical Employment Classification Review Board look at this, then the Director General Personnel within the Service decides whether

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Organisation/ Event



to keep the member or downgrade etc.

Consultation 31

18 October 2012

The specialised agency concept does work. They fill the gaps, such as where there are no security issues, fraud etc. The Services do not want to let it go because they will not be able to control and prioritise.

If Army identified the need for an inquiry, they refer it to the Army Administrative Inquiries Cell inbox with a copy of the Quick Assessment. The Director then makes a decision whether to accept it.

Reservists do the inquiries in the Army Administrative Inquiries Cell, and most are not legal officers.

Average inquiry is 3-4 months.

The reports are legally reviewed, then given to the appointing authority for a decision. An implementation plan is developed, is tracked and then the matter is closed.

It was going well until funding was cut from $300k to $75k.

Consultation 32 Central reporting could Army would not want to Non-permissive environment

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Organisation/ Event



19 October 2012 delay response timings as currently there is an immediate response by telephone. At what point should the incident be placed on the system?

lose Service police assets, rather would prefer the DICA recommendation of small high level advice. The remainder of the offences would be dealt with by the Services as DPU low level of offences.

is important for Military Police and Defence needs to consider training suitable for the environment. If the Australian Federal Police are doing x then the military need to have skills in ‘our’ environment.

Supportive of streamlined policy.

The ADF Investigative Service and Inspector General - Defence could work together to provide the higher level investigative function.

The Australian Federal Police record but do not respond to minor civilian matters.

An Australian Federal Police secondee will not demonstrate the correct culture. The ADF Investigative Service should have a one star with a technical understanding of Military Police and investigations. This would allow them to talk to Service Chiefs of Staff at the same rank level.

Purple solution – create a joint trade which provides a critical mass for career management.

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Organisation/ Event



Consultation 33

19 October 2012

Strategic policing (ADF Investigative Service investigations) versus operational policing (service lines in barracks and on ships).

Navy has a negative experience with Shared Services, especially The ADF Investigative Service and the Defence Security Authority (Security officer Training).

Policing has significant interaction and therefore understanding the organisational culture is important.

There is an issue with Base Improvement Program, but not prepared to pay for searches, detention, and deterrence.

Consultation 34

25 October 2012

In Army the representatives for cadets are integrated. The one APS employee is responsible for multiple employment categories – Regular Army, Reservists, APS, APS plus cadet instructor, cadets, Army cadet officers, and contractors.

Cannot direct cadets and cadet instructors to answer questions.

There are many informal complaint mechanisms, for example, writing to the Chief of Army or the Minister.

In terms of funding, $25 million has been provided to the Army Cadet organisation, from the government, and they raise funds of $3 million. It is not practical to treat it as public money so they do not.

In the management of incidents, the regional commander makes a decision which will involve

The decision to appoint a formal inquiry is made centrally or regionally.

Appeals go to the National Commander from the Deputy.

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Organisation/ Event



the responsible Headquarters APS employee.

School cadets have a dual reporting relationship. School principals will sometimes attempt to control cadet activities in a way that is inconsistent with Army cadet policy.

The responsible Headquarters APS employee often makes a decision on how they should proceed, notwithstanding the policy.

It would not be appropriate for someone outside the chain of command to review and make a substitute decision (they cannot have a sufficiently nuanced understanding of the issues involved).

When an incident occurs, Army will liaise with schools to determine who is going to take action.

There are inquiries conducted by Reservists. Army cadets also have there own inquiry officers. There is a Tasmanian Police Officer who manages the inquiry cell

Legal officers review all inquiry reports.

Consultation 35

1 November 2012

Participants were concerned regarding the removal of protections. ADF members should not be subject to any lesser protections than are currently enjoyed. Ie the DFDA right to remain silent.

Concerns with how Boards of Inquiry draw out all information to point to unprofessional conduct and neglect but then the DFDA cannot be used against perpetrators. It catches those on the periphery but not the principal offenders.

Multiple Redresses of Grievance should be removed (people may say this decreases individual rights) as they are out of control. Querrilent people pursue process – suspending action whilst occurring.

Throw it outside to what? An external authority (coronial inquiry?)

Defence is currently light on educating individuals about how to conduct inquiries. We should have examples of how to conduct inquiry, such as a checklist to enable it to survive a legal review, or examples of good terms of references.

APS rights should not be altered.

There is a boundary around technical

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Organisation/ Event



investigations (air crash for Air force). Refer to Maitland – adverse finding against commercial entity - DMS/Austral. There need to be attempts to address jurisdictional issues.

Harmonise documentation It may be of assistance for investigators not to wear a uniform. Investigators need the right skill sets to investigate APS / ADF / Contractors.

Attracted to the US’s NCIS construct. It is an elegant solution if you have judicial power and independency from uniform. A lot of NCIS members have served.

Now skills are based not service based. We need operational contingencies.

Service Chiefs do not want to see less control of investigations which should be in their remit. If the investigator came in and worked for the

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Organisation/ Event



Service Chief that would be fine. If they worked for a separate titular head it would not be positive.

Investigative capability should be a shared resource with consistent / common standards and specialised. There needs to be a balance between speed and fairness.

Consultation 36

3 Dec 12

ADFA maintain an internal database of serious and complex matters, DFDA matters, members on rehabilitation / at risk, etc

If there were a pool or a central area to manage Inquiry Officer Inquiries, that would be useful.

In tri-service environment there is a tension managing interaction with Service Chiefs as all NTSC / Terminations / Reviews progress through service career / personnel management agencies and then onto Service Chiefs .

ADFA created A3 brochures and credit cards with all Defence and External helpline numbers.

ADFA were developing a Training Officer and Staff code of conduct

Consultation 37

14 December 2012

There is a requirement to adhere to Commonwealth procurement complaint process – it is important to meet Free Trade obligations

Automatic internal review (whether by Defence or contractor), may be followed by internal independent review.

After the Defence Force Ombudsman (or equivalent), civilian legal review is the final external review available to disgruntled tenderers.

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Organisation/ Event



Procurement could be included with fact finding as part of a staged process.

Review is always of the process, not the decision.

Participants were content with the concept of conducting procurement investigations then forwarding all other matters to a central area for investigation (ie code, fraud).

Procurement and personnel matters may need to be dealt with in a different order.

External consultation / engagement Consultation 38

15 October 2012

The Australian Public Service Commission would be nervous about any mechanism which takes the power away from the employer and protects individuals when they have not acted reasonably.

There is no threshold for undertaking APS Code of Conduct investigations.

When the Merit Protect Commissioner looks at requests for Review of Actions, the starting point is to look at the process.

Generally there is no legal assistance for persons involved in APS Code of Conduct investigations.

The purpose of the APS Code of Conduct is to correct behaviour NOT punish people.

The Merit Protection Commissioner makes recommendations. Agencies are required

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Organisation/ Event



to notify of non-compliance with recommendations.

Australian Public Service Commission attendees could not think of a case where compellability has been an issue. APS employees can be directed to participate in the process, subject to the privilege against self-incrimination.

There is no reason why an APS Code of Conduct investigator should have special immunities.

The Australian Public Service Commission had no legal concerns with ADF undertaking APS investigations (contractors do it all the time), but there may be cultural issues.

The key is quality control, with the control remaining with the decision maker.

Consultation 39 The Defence Force Ombudsman mainly

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Organisation/ Event



30 October 2012 does desk-top reviews of ADF complaints – principally due to resourcing constraints. They have the equivalent of 3 FTE and 1 ½ strategic level of analysts. Does not appear to have Defence Force Ombudsman-only staff

There is a risk averse culture within mid-level ADF personnel, almost a fear of a complaint being reviewed externally.

Staffing – if review officers are APS only then experience issues arise; if ADF there are perceptions of partiality.

Raises the possibility of including authority in external integrity agency to make substitutional decisions on review on some suitable matters.

Documents

Annex A...(Amanda de Salis) and working level consultation. 2 Re-Thinking Systems of Inquiry, Investigation, Review and Audit in Defence Stage B Report for Secretary and CDF Annex