Annex I - Department of Defence · 2015-05-04 · 1 Re-Thinking Systems of Inquiry, Investigation, Review and Audit in Defence Stage B Report for Secretary and CDF Annex I: Current

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

Annex I Current mandated legal support available to Defence under Defence policy and instructions

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

Defence Instructions (General) OPS ....................................................................................2

Defence Instructions (General) ADMIN ................................................................................4

Defence Instructions (General) PERS ..................................................................................7

Defence Instructions (General) LOG ..................................................................................15

Defence Instructions (General) FIN ....................................................................................17

Defence Instructions (Navy)................................................................................................17

Defence Instructions (Army) ...............................................................................................19

Defence Instructions (Air Force).........................................................................................23

ADFP 06.1.4 Administrative Inquiries Manual ..................................................................26

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

Annex I: Current mandated legal support available to Defence under Defence policy and instructions

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Introduction

1.1.1. Defence policy which enables Defence personnel to obtain legal support is extensive. This includes legal support available to commanders or line managers as well as to ADF members individually in a more personal capacity.

1.1.2. The following table provides a breakdown of some of the applicable Defence policies which contain references to the availability of, or requirement to obtain, legal support. These have been grouped by policy type, including:

• Defence Instructions (General) OPS

• Defence Instructions (General) ADMIN

• Defence Instructions (General) PERS

• Defence Instructions (General) LOG

• Defence Instructions (General) FIN

• Defence Instructions (Navy)

• Defence Instructions (Army)

• Defence Instructions (Air Force)

• ADFP 06.1.4 Administrative Inquiries Manual

1.1.3. The Stage B Report discusses how complex and legalistic current arrangements for inquiry, investigation and review are. This results in decision-makers seeking support from specialists including legal officers. For example, there is a requirement that all inquiry officer inquiries under the Defence (Inquiry) Regulations 1985 be reviewed by a legal officer. Similarly, ADF members frequently seek assistance from legal officers in preparing Redress of Grievance submissions, particularly where the focus of the request for review is failure to comply with legal process.

1.1.4. In the event that the recommended model is implemented, the reduced complexity and bureaucracy would reduce the current reliance on legal support. That is, written material containing the outcome of fact finding activities prepared by decision makers would not longer require legal review, and ADF members would not have an automatic entitlement to legal support when preparing applications for review. This would not only reduce the costs to Defence and assist in the more timely resolution of matters, but it would also help to minimise the ‘legal culture’ that currently exists.

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Document Sponsor In what situations is legal support offered?

Is the legal support open to ADF, APS, cadets and/or contractors?

What is the process to obtain legal support

Defence Instructions (General) OPS

DI (G) OPS 1-1 Defence Force aid to the Civil Authority

Issue Date: 18 Jun 2010

Headquarters Joint Operation Command, Director General Plans

Defence Force Aid to the Civil Authority within part IIIAAA of the Defence Act 1903. Specific legal advice must be sought in respect of circumstances outside part IIIAAA.

Command and line management

Not specified

DI (G) OPS 05-1 Defence Assistance to the Civil Community—policy and procedures

Issue Date:16 Mar 2004

COMAST Insurance policies are to be scrutinised by a Defence Legal Officer to ensure that they fully meet the Department’s requirements.

*Who ever is seeking to provide the support

*Command and line management

Not specified

DI (G) OPS 13-9 Defence Counter intelligence Policy (restricted)

Issue Date:19 Mar 2004

Deputy Secretary Intelligence, Security and International Policy

As comprehensive legal guidance is not within the scope of this instruction, legal advice must be sought before proceeding with other than routine CI activities, or where there is any doubt about the legality of proposed activities.

*Anyone working in counter intelligence


Not specified

DI(G) OPS 13-16 Defence policy relating to the collection of biometric data for intelligence purposes

Issue Date: 3 Oct 2012

Deputy Secretary Intelligence and Security Group

Tactical level commanders are responsible for promulgating detailed standard operating procedures (SOPs) that have been cleared by a legal officer setting out collection guidelines.

Advice must be sought from Defence Legal on the matters set out in the instruction at Paragraphs 12–

Command and line management

Not specified



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Document Sponsor In what situations is legal support Is the legal support open offered? to ADF, APS, cadets What is the process to

obtain legal support and/or contractors?

14, including when planning new collection methods of biometric data or collection of biometric data in a country which has not previously been the subject of such advice.

DI (G) OPS 28-1 Use of light aircraft by Defence personnel on duty

Issue Date: 5 Jan 2010

Chief of Air Force Where doubt exists as to the appropriateness of the terms and conditions of hire for aircraft , participants should seek advice from the Defence Legal Division, Directorate of Advising.

*ADF members


Simply to seek advice directly from the Defence Legal Division

DI (G) OPS 30-1 Joint warfare individual training policy within Australian Defence Force Warfare Centre

Issue Date: 19 Feb 2003

Chief of Staff—Headquarters Joint Education Training and Warfare Command

None – simply that the Defence Legal Service is nominated as a stake holder

Not applicable Not applicable

DI (G) OPS 32-1 Appropriation and import of defence related material during Australian Defence Operations

Issue Date: 29 Nov 2006

Director Strategic Logistics Policy

DCJOPS or his delegate, or Australian contingent or component commanders shall issue local regulations or instructions regarding the acquisition by individual members of the ADF or Defence civilians, of Defence material of non-Australian origin. Advice shall be sought from an ADF legal officer regarding such local regulations or instructions before they are issued

*DCJOPS or his delegate


Not specified

DI (G) OPS 33-1 Australian Defence Force Law of Armed Conflict Training

Head Defence Legal

Director General of Australian Defence Force Legal Services is the training advisor for LOAC training in the ADF

Command and line management Not specified



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obtain legal support and/or contractors? Issue Date: 27 Jan 1994

DI (G) OPS 44-1 Legal review of new weapons


Director Operations and International Law

The Director-General Australian Defence Force Legal Service is to review all proposed new weapons in accordance with this instruction to determine whether the new weapons or their intended use in combat are consistent with the obligations assumed by the Australian Government under applicable treaties to which Australia is a party and with customary international law.

Command and line management CCDG is responsible for requesting legal review from DGADFLS. Where the DMO is responsible for the study, development, acquisition, adaptation or modification of a weapon outside the capability development process outlined above the DMO is to seek a legal review of the weapon from DGADFLS.

Defence Instructions (General) ADMIN

DI (G) ADMIN 06-01 Policy and procedures for the implementation of Defence Trials


Director-General Test and Evaluation, Chief Capability Development

Proposals to use organisations from outside Defence (eg CSIRO, National Acoustics Laboratories, etc) as Trial Agencies must be cleared, through ADTEO, with appropriate Defence authorities. Requirements covering international agreements and arrangements are to be determined in consultation with the Directorate of International Government Agreements and Arrangements within Defence Legal.

*As required


Not specified

DI (G) ADMIN 27-2 Access to Defence and Defence–related archival records under the Archives

Director Classified Archival Records Review

Within Defence, the Directorate of Classified Archival Records Review (DCARR), Defence Legal Division, is responsible for providing advice to the NAA and the AWM on the public access status of potentially sensitive Defence and Defence-related open period records being considered for public

*As stated


Not specified



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obtain legal support and/or contractors? Act 1983


release.

DI (G) ADMIN 30-1 Forms management in the Australian Defence Organisation

Issue Date: 26 Sep 2006

Director Publishing, Deputy Secretary Defence Support

FMU personnel have a responsibility to provide a cost effective, efficient and a customer aligned program of forms services to Defence. If there is a question surrounding the compliance of a form with these privacy obligations, the matter should be referred to the relevant subject matter experts or to the Directorate of Advisings, Defence Legal

A form sponsor is the administrative authority behind a business process or procedure. All registered Defence forms have sponsors, generally acknowledged at the branch or unit level. Sponsors are specifically responsible for: obtaining approval and clearance of form content from all relevant authorities and stakeholders, including the design acceptance authority representative or equivalent, and Defence Legal;


DI (G) ADMIN 38-1 Policy and procedures for the use of the Woomera Prohibited Area and Woomera Test Facility


Director Enabling Capability—Air Force

Where the WPA is to be used by non-Defence organisations, these users will be required to provide appropriate indemnities to the Commonwealth and to obtain suitable insurance cover. Non-Defence users are to liaise with the DWTF and the Defence Legal Service to determine the appropriate levels of indemnity and insurance

If doubt exists as to the appropriate requirement, Defence personnel should consult Defence Legal Division

*Defence personnel


Not specified



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DI (G) ADMIN 45-2 The reporting and management of notifiable incidents

Issue Date: 26 Mar 2010

Commanders and managers are to determine whether an incident is a NI as soon as possible after becoming aware of the incident. Where it is determined that an incident is a NI, it is to be reported immediately in accordance with this Instruction. If there is doubt as to whether a matter is a NI, it is to be reported. Advice is to be sought from a DIA or legal officer in appropriate cases

*Command and line management Not specified

DIGAA must be consulted as early as practicable when an Agreement or Arrangement is being considered.

DI(G) ADMIN 48-1 International Government Agreements and Arrangements

Issue Date: 28Jun 2012

Directorate of International Government Agreements and Arrangements

The Directorate of International Government Agreements and Arrangements (DIGAA) within the Defence Legal Division has responsibility within Defence, pursuant to a specific exemption granted under the Legal Services Directions 2005, for the coordination of all Agreements and Arrangements sponsored by Defence. This includes the provision of advice on the interpretation and legal status of Agreements and Arrangements and on Australian drafting practice, and consultation with other Australian Government agencies.

*Al Defence Personnel and External Service Providers (ESP) where compliance is a term of their engagement with Defence

*Legal Assistance to ADF members


DI(G) ADMIN 61-1 Inspector–General of the Australian Defence Force—role, functions and responsibilities

Issue Date: 27 Aug 2003

Inspector-General of the Australian Defence Force

Persons particularly concerned about privacy and confidentiality may wish to seek their own legal advice prior to making a submission to the IGADF

*ADF members

*Cadet Officers / instructors in certain circumstances.

None is specified but reference is made to

DI(G) PERS 12–1—General Scope of Legal Assistance Provided to Service Personnel and Legal Aid to Australian Defence Force Members Overseas

DI (G) ADMIN 63-01 Management of land affected by

Director training area management, Deputy Secretary

Any application by a landowner/occupier for an indemnity from the Commonwealth in respect of personal injury or property damage that has arisen

*Command and line management Any application for an indemnity will be referred in the first instance to AST&FS



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obtain legal support and/or contractors? unexploded ordnance

Issue Date:23 Sep 2004

Defence Support from functioning of UXO will be referred in the first instance to AST&FS who may then consult with Chief Finance Officer Group and Legal Services Division.

who may then consult with Chief Finance Officer Group and Legal Services Division.

DI (G) ADMIN 65-1 Administrative Inquiry Tracking

Issue Date: 4 July 2006

Inspector-General Australian Defence Force

Appointing Authority and Appointing Officer responsibilities include: subject to service exigencies where it would not be practicable or timely to do so, ensuring Terms of Reference (ToR) are reviewed by independent legal counsel prior to issuing an Instrument of Appointment;

*Appointing Authorities


Not specified

DI(G)ADMIN 67 -2 Quick Assessment


Director Health Capability Development, Vice Chief of the Defence Force

This DI only specifically refers to legal advice in relation to the type of inquiry that might occur following a QA but it does refer to a number of other Instructions that need to be complied with where legal advice is open

*Members undertaking a QA

*Command and line management (as far as what to do after a QA)

Not specified

Defence Instructions (General) PERS

DI(G) PERS 03-4 Termination of service in the Australian Defence Force

Issue Date: 25 Jul 2011

Directorate of Military Personnel Policy

A decision maker who is considering making a termination decision without following the usual processes should seek legal advice before doing so.

*Decision maker for termination


Not specified

DI (G) PERS 05-5 Rationalised education and training

Issue Date:10 Jan 2012

Directorate of Education and Training Policy

Where there are issues with respect to the development or interpretation of the terms in an MOA, the concerned parties may seek appropriate legal guidance.

*Defence Education and Training Committee


Not specified



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DI (G) PERS 05-41 Management of Australian Defence Force Standby Reserves

Issue Date: 13 April 2005

Chief of Staff to Head Reserve and Employer Support Division

A member of the Standby Reserve in an overseas location, who was aware of the call-out order and the direction to render CFTS, is subject to the provisions of the Defence Force Discipline Act 1982. If, following a call-out order and a direction to serve, a member failed to report for duty, the member could effectively be absent without leave pursuant to section 24 of the DFDA depending on the individual circumstances of each case. In such a situation, legal advice should be sought.

*Uniform personnel


Not specified

DI(G) PERS 12-1 General Scope of Legal Assistance Provided to Service Personnel and Legal Aid to Australian Defence Force Members Overseas


Deputy security Defence Support, National Practice Manager

Any member of the Defence Force may obtain legal assistance from a Service legal officer, whether a member of the Permanent Forces or of the Reserve Forces. The legal aid entitlements available to ADF members and detailed in this Instruction are additional to those entitlements provided under the Defence Force Discipline Act 1982. Legal aid may also be provided to ADF members on approved leave whilst on official duty overseas who are charged with criminal offences allegedly committed whilst off-duty or who are facing civil litigation arising out of incidents which occurred whilst the ADF member was off-duty. Legal assistance is also available in certain circumstances to officers and instructors of cadets appointed under the Cadet Forces Regulations.

*ADF Members

*Cadet Officers / instructors in certain circumstances

Members are required to seek legal assistance through normal unit channels. Legal assistance is designed to supplement and not displace the long standing principle that member should turn to their superior officers for assistance.

Overseas: On overseas postings, legal assistance is subject to the exigencies of service. If a legal officer is in the locality, he/she will usually provide legal assistance if other duties permit and provided that the provision of assistance does not involve him/her in any conflict of interest as legal



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obtain legal support and/or contractors? adviser to the commander.

DI(G) PERS 12-2 Court or police orders restricting access to weapons or firearms by members of the Australian Defence Force



The Commander must seek urgent legal advice from the Defence Legal Division as to whether or not an order in relation to weapons to an individual is applicable to the authorised possession and use of an ADF weapon by the Defence Member.

*Commanding Officers or those who are in charge of ADF members to whom this issue applies


Not specified

DI (G) PERS 13-4 Exchange and secondment of Australian Defence Force personnel with Non–Defence Organisations


Director Military Personnel Policy

Following approval of an exchange, appropriate ADO and NDO appointments are to interview the personnel selected for the exchange. In addition, for both an exchange and secondment, a Deed of Arrangement with the host agency is to be negotiated and the final draft is to be cleared by the Defence Legal Division (DLD).

*Defence personnel arranging the exchange


Not specified

DI (G) PERS 14-3 Defence policy on Adventurous Training


Directorate of Education and Training Policy, People Strategies and Policy Group

While planning an AT activity, the activity organisers should consult the Defence Insurance Office to discuss particular aspects of the planned activity. Defence legal officers are available to assist with such matters

*Those planning AT activities


Not Specified



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DI (G) PERS 15-5 Management of the use or involvement with prohibited substances in the Australian Defence Force

Issue Date:2 Apr 2011

Directorate of Military Personnel and Policy

If a Defence member is accused of selling, dealing or trafficking in a prohibited drug, the applicability of any relevant laws of the country in which the alleged offence occurred will depend on the particular situation. If there is any ambiguity legal advice should be sought.

ADF members may consult a Defence legal officer to assist them in preparing a Statement of Reasons.

ADF member

Not specified

DI (G) PERS 16-15 Australian Defence Force Medical Employment Classification System


Directorate Military Personnel Policy

Commanding Officers are to ensure that Defence members within their command receive advice from a Service legal officer, if necessary.

Any ADF member whose MEC is being reviewed.

Not specified

DI(G) PERS 16-20 Privacy of health information in Defence


Director Health Capability Development

Where there may be a release of health information advice may be sought from Defence Legal.

*Anyone involved in the issue of the release of information


Not specified

DI(G) PERS 20-6 Death of Australia Defence Force Personnel

Issue Date: 20 May 2008


If the disembarkation of remains to the port of another country is considered (following a death at sea), advice from the authority commanding the operation must be sought. Relevant authorities should seek appropriate legal advice in this circumstance.




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DI(G) PERS 21-1 Political activities of defence personnel



Where Defence members wish to stand in a State or Territory election, they must have regard to the legislative requirements of the particular State or Territory when considering whether a transfer to the Reserves or termination of their appointment is appropriate. Defence members in this situation should seek legal advice.

Any ADF member who is proposing standing for a position

Not specified

DI (G) PERS 28-1 Work experience in defence

Issue Date: 5 Dec 2008

Cadet, Reserve and Employer Support Division

Standard Defence templates for work experience placements may be modified, as appropriate, to suit local arrangements. However, in the event that material changes are made to the template, the Base Support Manager is to seek advice on the contents of the modified template from a Defence Legal Officer prior to entering into any placement agreement.

*Defence supervisor of a work experience student


Not specified

DI (G) PERS 33-1 Citizen ship requirements for entry to and service in the Australian Defence Force


Director of Military Personnel policy

Where doubt exists about the citizenship status of an ADF member, advice should be sought from DMPP in the first instance. Where necessary, DMPP may seek legal advice from Defence Legal.

*Directorate of Military Personnel Policy


Not specified



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DI (G) PERS 33-4 Management and administration of Australian Defence Force members under 18 years of age

Issue Date: 22 Apr 2008


In cases where there is a strong conflict between the wishes of the parent(s) and the minor (where the minor does not wish their service to be terminated), or between parents, COs must seek legal advice to determine whether action should be pursued.


*The minor concerned.

In accordance with normal process

DI (G) PERS 34-1 Redress of Grievance tri service procedures


Director-General Fairness and Resolution

Members may request legal assistance in the preparation of a Redress of Grievance.

ADF members

In accordance with DI(G) PERS 12–1—General Scope of Legal Assistance Provided to Service Personnel and Legal Aid to Australian Defence Force Members Overseas. The type and duration of legal assistance provided to a member must be approved by the legal office that supports the unit, in accordance with current policies and directions from Defence Legal Division.

DI(G) PERS 34-2 Complaints of discrimination and harassment through the Australian Human Rights Commission

Issue Date:18 Apr 2009

DEPSEC PSP (DGFR)

In the management of complaints made to the Commission, where referred by DGFR or CR, Defence Legal will:

a. provide advice to DGFR or CR to assist with the preparation of Defence’s response;

b. provide or arrange for legal representation for Defence at conciliation conferences; and

*ADF members


*DGFR and CR

In accordance with DI(G) PERS 12–1—General Scope of Legal Assistance Provided to Service Personnel and Legal Aid to Australian Defence Force Members Overseas. Defence employees should refer to the Legal Services Directions



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obtain legal support and/or contractors? c. assist in the settlement of complaints.

Where a complaint is terminated by the Commission and proceedings are instigated in the Federal Court or the Federal Magistrates Court, the matter is to be referred to Defence Legal. Defence Legal will liaise with Comcover with respect to the further conduct of the matter.

2005—appendix E—Assistance to Commonwealth employees for legal proceedings, issued by the Attorney-General. The granting of assistance is discretionary and each case will be decided on its merits and no assumption should be made that an application will be approved.

DI (G) PERS 34 -4 Use and Management of Alternative Dispute Resolution in Defence


Director Alternative Dispute Resolution and Equity

The ADR practitioner should ensure that the parties are fully informed of the possible legal implications of ADR and where necessary refer the parties to Directorate of Alternative Dispute Resolution and Conflict Management to coordinate the provision of independent legal advice to the parties.

ADF members

Directorate of Alternative Dispute Resolution and Conflict Management to coordinate

DI (G) PERS 34-5 Defence Reserve Service (Protection) Act 2001—policy and procedures for complaint resolution

Issue Date:26 Feb 2004

Head Reserve and Employer Support

Director of Office of Reserve Service Protection may seek legal advice and give consideration to appointing suitably qualified Investigating Officers where there is a complaint against a Reservist


* Director of Office of Reserve Service Protection

Not specified

DI (G) PERS 35-3 Management and reporting of unacceptable behaviour

Directorate of rights and responsibilities

The complainant and respondent may seek legal advice, though from separate legal officers. The respondent is not to consult the legal officer responsible for providing advice to the commander or manager managing the complaint.

*ADF members


In accordance with DI(G) PERS 12–1—General Scope of Legal Assistance Provided to Service Personnel and Legal Aid to Australian



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obtain legal support and/or contractors? Defence force Members Overseas .Generally, Defence APS employees are not provided with the same level of legal assistance as ADF members. APS employees should refer to Legal Services Direction 2005, appendix E—‘Assistance to Commonwealth Employees for Legal Proceedings’.


DI(G) PERS 35-4 Managing and reporting of Sexual offences


Directorate of Rights and Responsibilities

Dealing with sexual offences is legally complex and commanders and managers are advised to seek early legal advice in every case.


*ADF members who are victims or respondents

Not specified

DI (G) PERS 35-6 Formal warnings and Censures in the Australian Defence Force

Issue Date:16 Jul 2010


For a notice of either a formal warning or censure advice should be sought from a legal officer.

An imposing authority may refer the question of whether or not procedural fairness has been applied in the consideration of the matter to a legal officer.

*Command

*ADF member to whom a notice has been issued.

Not specified

DI (G) PERS 35-7 Defence Equity Adviser Network


Director Rights and Responsibilities

If Defence personnel are unsure as to whether information constitutes ‘personal information’ under the Privacy Act 1988, they should obtain legal advice.




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DI (G) PERS 42-4 Philanthropic organisations within the Australian Defence Force—policy and administration


Director Personnel Support and Amenities, Deputy Secretary Defence Support

Philanthropic representatives allocated for duty with the ADF outside Australia are subject to certain provisions of the Defence Force Discipline Act 1982 as approved by Head Defence Personnel Executive on advice from the Defence Legal Service.

*Head Defence Personnel Executive


Not Specified

DI (G) PERS 45-1 Jurisdiction Under Defence Force Discipline Act—Guidance for Military Commanders


Director Military Discipline Law

To provide legal advice in relation to the application of the DFDA with respect to offences committed in Australia during peacetime which have an equivalent under the ordinary criminal law and advice on review.

Command The CO refers the matter to the legal officer for advice or review.

Defence Instructions (General) LOG

DI(G) LOG 4-3-012 Hire and Loan of Stores and Equipment to and from sources outside Defence


Commander Joint Logistics

The Hirer/Lender may have their own form of agreement which they will wish the Commonwealth to sign in lieu of a Defence agreement. In such cases, such agreements must be referred for legal clearance to Defence Legal (Office of General Counsel).

Clearance also needs to be obtained in relation to indemnities

*ADF members


Not specified



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DI(G) LOG 4-3-002 Procurement of Materiel and Services from the United States of America under the Foreign Military Sales Program



Financial Circular 2003/02 requires that officials obtain legal advice before agreeing to issue an indemnity.

The Office of Special Counsel is responsible for reviewing and endorsing risk assessments in relation to an LOA. Additionally, DMO Legal provides legal advice on issues arising under acquisition strategies for Major Capital Equipment, including where FMS is indicated as a procurement option.

*All ADF personnel involved in the process


Not specified

DI(G) LOG 4–3–008 Disposal of Defence Assets

Issue Date:30 Oct 2006

Director Strategic Logistics Policy

ADF members are advised to seek legal advice should they be unsure of their obligations in respect of the disposal of assets, particularly weapons

ADF Members

Not specified

DI(G) LOG 4-3-016 Defence policy on access to, and ownership of, salvageable military equipment



Commander Joint Logistics is responsible for determining, in consultation with Defence Legal and other Defence stakeholders as required, Defence’s position as to ownership of military equipment discovered casually, proposed to be salvaged, or has been recovered.

*Commander Joint Logistics


Not specified



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Defence Instructions (General) FIN

DI (G) FIN 12-1 The control of fraud in Defence and the recovery of public monies


Inspector General - Defence

All managers and commanders may seek advice from the IGD Group, Service legal areas or Service Police organisations regarding fraud. If a fraud allegation or suspicion relates to an ADF member and the circumstances indicate that the fraud may exceed $20 000 in value, the commanders, managers and/or Service Police organisations involved are to report the matter forthwith to the Director Military Justice (DMJ).

*Defence personnel dealing with suspected fraud


Not specified

Defence Instructions (Navy)

DI(N) ADMIN 1-1 Production of Defence Instructions


DGNCC Personnel responsible for drafting a DI(N) are to consult The Defence Legal Service (TDLS) if they consider that legal advice is required before submission of the draft DI(N) for publication

*Personnel responsible for drafting a DI(N)


DPS may refer a draft DI(N) to TDLS for legal advice before final clearance for publication.

DI(N) ADMIN 35-23 Legal Status of Members of the Armed Forces of Foreign Countries in Australia


DNLS Where a request to assist in the arrest of unattached members of the armed forces of a declared DA country is received from a person, other than a designated authority, the request should not be complied with, and advice should be sought from the Director of Naval Legal

Services.

*Anyone dealing with a request for assistance in the arrest of members of another nation.


On receipt of a written request from a designated authority of a declared DA country, any RAN authorised officer may issue a warrant for the apprehension of a Serviceman who is absent without leave from a visiting force of the sending country.



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DI(N) PERS 40-8 Private debts


DNEC

Members who are the subject of correspondence relating to debts, or who are having difficulty in managing money are to be interviewed and counselled by their Divisional Officers. Depending on the severity of their financial circumstances, the .provision of legal advice should be considered

Serving members of the Royal Australian Navy

*Command and line management *Legal Assistance to ADF member

Per DI(G) PERS 12-1 or DI(N) 90-4

DI(N) PERS 47-1 Disclosure of records of RAN Personnel


Not specified Personal information may only be disclosed in accordance with the terms of this instruction. When in doubt as to whether particular information should be disclosed, the advice of a legal officer is to be sought. Any matter that cannot be solved locally is to be referred to the Director of Naval Legal Services (DNLS).

*Not specified but would be where anyone is asked to disclose information


Not specified

DI(N) PERS 90-4 Legal Counselling


DNLS

Legal counselling is available in relation to matters of Service discipline, conditions of naval service and personal civil legal problems.

*Navy personnel


a. Headquarters of Administrative Authorities, HMA Ships or Establishments in

which PNF Legal Officer Borne. Members should request an appointment with the PNF legal officer through their Divisional Officers.

b. Personal Services Organisation. In situations where PNF legal officers are not readily available, members (through their Divisional Officer and with the approval of their Commanding Officer) should contact the Personal Services



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obtain legal support and/or contractors? Organisation. The Personal Services Organisation will arrange an appointment with an appropriate PNF or Reserve legal officer ensuring that wherever possible a PNF legal officer is consulted in preference to a Reserve legal officer.

Defence Instructions (Army)

DI (A) ADMIN 23-2 Management of reportable incidents


DCOORD–A Military police reports are distributed on a need to know basis. Legal advice is to be sought before access is given to persons other than the original addressees.

*Who ever is proposing on releasing the report


Not specified

DI (A) ADMIN 63-3 Losses of Non-Public Moneys


DPSA As the recovery of any amount cannot be ordered by a court martial or other disciplinary proceedings in relation to NPMA, advice should be sought from a legal officer upon the most appropriate method of seeking recovery prior to initiating disciplinary action.

*Command and line management Not specified

DI (A) ADMIN 70-7 Environmental responsibilities in the planning, conduct and post conduct of Army activities

Issue Date:27 Aug 2010

DGDP–A

Army personnel must aim to comply with State government environmental legislation in the State where the activity is to take place on DTAs. If in doubt activity planners should seek guidance from functional command and formation legal staff.

*Activity planners


Not specified



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DI (A) PERS 30-1 Management and exercising of Delegations and authorisation of Powers dealing with army personnel management


DGPERS–A Chief Legal Officer—Army (CLO–A) has an advisory role. Their responsibilities include: to provide quality assurance support to the DGPERS–A desk officer by reviewing proposed delegation changes; and provide legal advice and staff support to the CA for the clearance or approval of delegation changes, as required.

*As per those who make the request


Not specified

DI(A) PERS 33-6 Welfare responsibilities within the army


DGPERS–A Other organisations within Army which should be considered by the CO/OC when ascertaining the most appropriate form of welfare support include Army legal services—Defence Legal Division.

*ADF members


Not specified

DI (A) PERS 47-10 Resignation, Retirement and Termination of Service—Officers


DPP

The rules of natural justice require that the officer be:

a. made aware of the action proposed to be taken;

b. given access to all adverse material upon which the proposal is based; and

c. given a reasonable opportunity to comment on both the adverse material and the proposed action (in this regard the officer is entitled to advice and assistance including legal advice in the preparation of any response).

ADF members

Not specified



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DI (A) PERS 66-1 Alcohol use and the management of alcohol misuse in the Army


Not specified ADF members may consult an Army Legal Officer, if one is available, to assist you in preparation of a response.

ADF members

Not Specified

DI(A) PERS 67-5 Theft


SO1 PERS SPT

DGPS&C-A

When `Show Cause´ action is taken the unit is to provide advice and assistance to the ADF member in preparing any response to the notice; and/or if requested, arrange legal advice for the member.

ADF members

Not specified

DI (A) PERS 111-2 Legal Aid


SO2 MIL/OPS LAW

DALS

The provision of legal assistance to Army members falls into two categories:

a. work related legal assistance, and

b. non-work related legal assistance.

*ADF members

*Command

Appointments to see Legal Officers are to be made through unit orderly rooms

DI (A) PERS 111-6 Disclosure and Production of Official Documents (Including Personal Information Pertaining to Members)


SO2 MIL/OPS LAW

DALS

When a person receives a request for information pertaining to a member’s personnel or Service record the person is to forward the request to the appropriate authority which holds the Information If authorised officers are still in doubt as to the type of information which may be disclosed they are to consult a legal officer.

A person who is required to produce a document without the requirement that the document be produced to a court, should seek the advice of a legal officer.

*`Authorised Officers´


Not specified



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DI (A) PERS 116-5 Separation of Regular Army soldiers, Army Reserve soldiers and soldiers on full–time service—policy and procedures

Issue Date:20 Dec 2005

SCMA Units are advised to seek legal advice prior to initiating termination action on soldiers whose parents/guardians have withdrawn their consent.

Whenever an administrative discharge is being proposed, the DPR requires that the soldier is given at least 28 days to provide a SOR as why the proposed action should not be taken (in this regard the soldier is entitled to seek legal advice when it is reasonably available.

Units are to seek advice from their supporting legal officers re drug terminations

*ADF members

*Command

Not specified

DI (A) PERS 116-13 Army Reserve Traineeship and Apprenticeship Program


Not specified The unit and the GTO are to formalise the partnership with an MOU. This is to be based on the principles and guidelines contained in this directive and designed, in conjunction with formation legal advice, to meet specific regional and trade or technical requirements

*Unit Personnel

*Command

Not specified

DI (A) PERS 117-1 Marriage


SO1 PERS SPT

DGPSC-A

Before performing a marriage overseas, a Service chaplain must be sure that all the requirements for validity are fulfilled. If any doubt exists, this doubt must be resolved by legal advice. If necessary, a Service chaplain may refer the matter directly to Director of Army Legal Services, Army Headquarters for advice.

Service chaplain Not specified



23



DI(A) PERS 217 -6 Waivers of entry requirements and provisional entry


DGPERS–A Administrative action may commence at any time during the period of provisional service when it becomes apparent that the entrant will not comply with the provision. The entrant should be given access to a legal officer, if one is available, to assist in preparing a response. If termination is to be progressed before the completion of DFDA action, legal advice should be sought.

*ADF entrants

*Command

Not specified

Defence Instructions (Air Force)

DI (AF)PERS 24-4 Royal Australian Air Force Specialist Reserve Administration Instruction revised


DRES–AF The primary responsibility of Royal Australian Air Force Specialist Reserve (RAAFSR) legal officers is to assist and compliment Permanent Air Force legal officers

The scope of, and limits to, legal assistance/aid available to members of the RAAF at Commonwealth expense are set out in DI(G) PERS 12

Members of the RAAF As per DI (G) PERS 12-1

DI (AF) OPS 4-8 Individual Readiness


DMAN–AF

Guidelines are provided to assist Commanders and members in addressing the Individual Availability component of Individual Readiness they can do so under DI(G) PERS 12–1.

*Members of the RAAF

*Command

As per DI (G) PERS 12-1



24



DI (AF) OPS 5-38 Provision and management of Explosive Ordnance Reconnaissance and Disposal capabilities in the Royal Australian Air Force


DGCM–AF

Air Force has an IEDD capability coverage for its key Air Command bases such that it can also assist in the protection of key weapon systems in peacetime. If there is confusion about the classification of assistance, legal advice is to be sought.

Command Not specified

DI (AF) ADMIN 8-11 Service Documents and Nominal Rolls—Permanent Air Force


DGPERS–AF Requests for information regarding the pay or allowances of a member from any person for any reason, including a spouse or other dependant, or a solicitor for any such person asking for information regarding the pay or allowances of a member in connection with, or in contemplation of, proceedings for a claim for maintenance are to be referred to Defence Force Pay Accounting Centre for action, and to Director-General Air Force Legal Services for information.

*Unit being asked for the information


Not specified

DI (AF) ADMIN 8-15 Management of records arising from formal counselling of Air Force personnel in the workplace and Navy and Army personnel posted, attached or on temporary duty at an Air Force

DMA–AF

Personnel responsible for record keeping and maintenance and the use of formal counselling notes are to seek legal advice if they are in doubt as to what is required to ensure that a person is afforded procedural fairness in any given situation.

*Personnel responsible for record keeping and maintenance


Not specified



25


obtain legal support and/or contractors? establishment


DI (AF) ADMIN 9-32 Reporting of members absent without official leave

Issue Date:18 Nov 2003

DMA–AF Where the member’s return is essential or appropriate (for disciplinary, criminal or security reasons), legal advice should be sought for raising a warrant for the member’s arrest.

Unit commander Not specified

DI(AF) ADMIN 11-6 Committees of adjustment


DPE-AF

Where a CO officer is finalising the affairs of a deceased member and ownership of property is in dispute, the committee is to refer the matter to command headquarters for legal advice.

*The committee (made up of officers or senior NCO’s)

By way of referral by the Committee

DI (AF) ADMIN 14-7 Visits to Air Force establishments


DCOORD–AF Visits involving activities which could potentially cause harm to visitors or damage to their property including, but not limited to, the demonstration of aircraft, vehicles or equipment, are only to be authorised where non-ADO visitors have indemnified the Commonwealth against liability arising from the visit. Advice on the appropriateness of obtaining indemnities and on procedures for their completion is to be sought from local Legal Officers.

*Visits coordinating officer


Not specified



26



ADFP 06.1.4 Administrative Inquiries Manual

Paragraph 1.36 Defence Legal Chapter 1, annex C provides a matrix to assist in deciding which type of inquiry is the most appropriate. Staff legal officers throughout the ADF as well as the Director Military Administrative Law are available to offer advice and assistance on the selection of the most appropriate type of inquiry.

*Appointing authorities


Not specified

Paragraph 1.39 Defence Legal In the case of a Board of Inquiry the legal officer assisting the board will normally undertake the scoping.

N/A Not specified

Paragraph 1.44. Defence Legal In drafting Terms of Reference, staff legal advice is to be sought. In particular, with respect to Boards of Inquiry, the advice of the Directorate of Military Administrative Law is to be obtained before Terms of Reference are issued. Terms of Reference are to be reviewed by a Service legal officer before issue.

*Appointing authorities


Not specified

Paragraph 1.58 Defence Legal Where practicable and consistent with security considerations, provision is to be made for the next of kin to attend Boards of Inquiry whether the Boards are open or closed; and a liaison officer is to be appointed to assist them during the period of the inquiry. A single representative of a deceased member will be provided with legal representation before a Board of Inquiry

Deceased ADF members’ Next of Kin

Not specified



27



Paragraph 1.61 Defence Legal Where the President of a Board of Inquiry has deemed a member (or deceased member) to be affected by the inquiry, an appropriately qualified and experienced Service legal practitioner will be provided at Commonwealth expense to represent the member or deceased member in order to protect their interests and reputation during the inquiry.

*ADF member

*Deceased ADF members’ Next of Kin

Not specified

Paragraph 1.65 Defence Legal Officers conducting Routine Inquiries, Inquiry Officer Inquiries and Boards of Inquiry have no executive authority to implement their recommendations. Executive Authority is vested only in the Appointing Authority/Officer (or a superior officer). The Appointing Authority/Officer is to consider the report of an inquiry to ensure that it adequately addresses the Terms of Reference, and that the evidence supports the findings and recommendations. In most instances a legal review must be obtained in respect of an inquiry report prior to the Appointing Authority/Officer taking action upon the report

Appointing Authority / Officer Not specified

Paragraph 1.72 Defence Legal Commanders acting as Appointing Authorities/Officers should consult staff legal officers and those directed to conduct inquiries should seek advice from legal officers

*Command

*Individuals directed to undertaken inquiries

Paragraph 4.9 (i) Defence Legal Witnesses may seek legal advice; however, there is no entitlement to legal representation before a Routine Inquiry Officer.

Witnesses

Not specified



28



Paragraph 4.39 (c) Defence Legal Where the Routine Inquiry Officer has reservations about disclosing the content of any document, a legal officer should be consulted.

Routine Inquiry Officer Not specified

Paragraph 4.46 Defence Legal On receipt of the report from the Routine Inquiry Officer the commander is to consider the conclusions, findings and recommendations promptly and seek any additional advice as necessary. Examples are legal advice on the report and recommendations or specialist assessments and advice. The commander must seek a legal review of an inquiry report prior to taking action in respect of the report

Commander Not specified

Paragraph 5.5 Defence Legal For Boards of Inquiry, legal officers should brief Appointing Authorities on the nature of their general responsibilities and the factors which will influence the selection of personnel for BOI appointment.

Appointing Authorities Not specified

Paragraph 5.21 Defence Legal Appointing Authorities/Officers should discuss appropriate options for the format of an inquiry with a Legal Officer prior to finalising Terms of Reference and Appointment instruments.


Paragraph 5.26 Defence Legal Planning for inquiries may include consideration of legal support for potentially affected persons.

Potentially affected persons Not specified

Paragraph 5.45 Defence Legal Counsel Assisting the BOI is responsible for the collation and presentation of evidence and the provision of legal advice to the Board of Inquiry.

Board of Inquiry Not specified



29



Paragraph 5.47 Defence Legal Senior Counsel Assisting should be supported by one or more experienced Defence Force legal officers

Senior Counsel Assisting Not specified

Paragraph 5.49 Defence Legal Regulation 33(3) of the Defence (Inquiry) Regulations provides that an affected person, or the representative of a deceased affected person, may appoint another person (who may be a legal practitioner) to represent them at a BOI. Services of ADF officers will be provided at the expense of the Commonwealth

*Affected persons

*Representative of a deceased affected person

Not specified

Paragraph 5.59 Defence Legal Where practical a legal officer should assist the Appointing Authority/Officer in drafting the Terms of Reference to ensure that the Inquiry is conducted in accordance with the Defence (Inquiry) Regulations, ADF policy and administrative law principles.

Appointing Authority/Officer Not specified

Paragraph 5.62 Defence Legal Where practical, Terms of Reference should be drafted in consultation with a legal officer.


Paragraph 5.71 Defence Legal If an Inquiry Officer or the President of a BOI concludes at any time that the Terms of Reference are unsatisfactory or require amendment (whether before or during the course of the inquiry) application is to be made in writing to the Appointing Authority/Officer for amendment to the Terms of Reference. Where application is made to widen the scope of the inquiry, the Appointing Authority/Officer should consult a legal officer or DMAL.




30



Paragraph 5.74 Defence Legal Prior to commencement of an inquiry, Board Members, Inquiry Officers and Counsel are to be briefed in respect of their accountabilities and responsibilities and those of the Appointing Authority. The brief may be conducted by the local legal officer, or in the case of more complex inquiries, by a legal officer from DMAL.

*Board Members

*Inquiry Officers

*Counsel

Not specified

Paragraph 5.81 Defence Legal A person who may be affected by the inquiry has the right to representation before the Board (this can be by a legal practitioner)

Potentially affected person

Not specified

Paragraph 5.86 Defence Legal A legal review of an Inquiry Officer report is to be sought by the Appointing Authority/Officer prior to taking any action on the report. A legal review of a BOI Report should in most circumstances be obtained.


Paragraphs 5.94/ 5.95 Defence Legal When disciplinary or civil court proceedings are likely to be instituted as a result of an offence against the Defence (Inquiry) Regulations, care should be taken to avoid:

a. premature publication of the findings and recommendations of the inquiry (other than to the Appointing Authority);

b. any public statement with regard to the findings and recommendations; or

c. the taking of administrative action as a result of the findings and recommendations, which might prejudice those proceedings.

Where any of the above action is contemplated,

Command Not specified



31


obtain legal support and/or contractors? legal advice should be obtained.

Paragraph 6.16 Defence Legal Should there be legal issues that require resolution, the Appointing Officer should seek legal advice as necessary

Appointing Officer Not specified

Paragraph 6.18 Defence Legal Prior to commencement of an inquiry, Inquiry Officers and the Appointing Officer are to be briefed in respect of their accountabilities and responsibilities. The brief may be conducted by the local legal officer, or in the case of more complex inquiries, by a legal officer from DMAL

*Inquiry Officers

*Appointing Officer

Not specified

Paragraph 6.26 Defence Legal The Inquiry Plan will assist in identifying the issues when seeking legal advice prior to commencing the inquiry. A legal officer should be consulted before the inquiry commences, especially in complex cases.

Inquiry Officers

Not specified

Paragraph 6.45 Defence Legal As a rule the Inquiry Officer should provide to the subject of a complaint all the documents relied upon. Where the Inquiry Officer has reservations about disclosing the content of any document, they are to contact a legal officer for advice

Inquiry Officer Not specified

Paragraph 6.57 Defence Legal Witnesses may seek legal advice; however, there should be no presumption of entitlement to legal representation before an Inquiry Officer. If a request for legal representation is approved, a Service legal officer will be made available at no cost to the member.

Witnesses

Not specified



32



Paragraph 6.77 Defence Legal The Appointing Officer must obtain a legal review of the Inquiry report prior to acting on the report


Paragraph 6.85 Defence Legal Appointing Officers are to seek legal advice if there is any doubt about the effect of the Privacy Act 1988


Paragraph 7.8 Defence Legal The Appointing Authority should appoint a Service legal officer to assist the BOI


Paragraph 7.23 /7.24 Defence Legal If the President of a BOI considers a person may be affected by the inquiry, that person is entitled to appear before the Board. This right of appearance also applies to a single representative of a person who has died, where the President considers that the record or reputation of the deceased may be affected. The affected person or the representative of the deceased may appoint another person (who may be a legal practitioner) to represent them at the inquiry. If the appointed legal practitioner is an officer in the Defence Force, the Commonwealth will pay for the legal practitioner’s services. If the legal practitioner is a civilian, the representation will be at the expense of the affected person or the representative of the deceased.

Potentially affected person who is an ADF member

Not specified

Paragraph 7.59 Defence Legal An affected person may appoint another person (who may be a legal practitioner) to represent them before the Board

Affected person

Not specified



33



Paragraph 7.90 Defence Legal The Appointing Authority is to consider the report to ensure that it adequately addresses the Terms of Reference, that the evidence supports the findings and the recommendations are appropriate. Specialist staff advice, including legal advice, should, in most circumstances, be obtained by the Appointing Authority.

Appointing Authority

Not specified

Paragraph 7.101 Defence Legal Appointing Authorities are to seek legal advice if there is any doubt about the effect of the Privacy Act 1988.


