Section 2
Health and effectiveness of the Military Justice System

2.5 CDF Commissions of Inquiry

Amendments to the DIR to enable the appointment of COIs 6 were passed by the Federal Executive Council on 21 June 2007 and commenced on 26 June 2007. With the introduction of these Regulations, COI superseded Boards of Inquiry (BOI) as the primary mechanism for inquiring into the death of ADF members. A civilian with judicial experience now presides over each COI.
COIs have a very specific purpose. They are appointed by the CDF primarily to inform internal Defence decision-making by thoroughly and impartially examining deaths and other serious incidents — principally with a view to preventing similar incidents from occurring in the future. The outcome of these inquiries, in turn, assists in obtaining timely information on incidents that affect Defence personnel, training and policy, which is vital for the maintenance of Defence’s capability – including operational capability.

The Minister for Defence may dispense with the requirement to appoint a COI where a death occurs in circumstances in which he determines that a COI is not required; a combat fatality for example.

COI reports are submitted to CDF and, after consultation with relevant stakeholders, CDF issues directions concerning the implementation of agreed recommendations and makes recommendations to the Minister concerning the report's release.

Six COIs concerning the deaths of ADF members were appointed by CDF during the reporting period. Defence appreciates the importance of conducting such inquiries in a way that promotes public confidence in the integrity of COI processes. In November 2007 CDF decided his general practice will be to direct that COI, be held in public subject to considerations of security and the exercise of legal discretions by COI Presidents. The public COIs/BOIs that were appointed or reported during 2007-08 are summarised below.

Captain Lawton

Captain Paul Lawton died on 31 August 2006 while aboard the MV Talisman in the Pacific Ocean. CDF appointed a Board of Inquiry (BOI), to inquire into his death on 18 September 2006. CDF determined on 13 February 2007 to dissolve the original Board, which had completed its hearings but not reported, in order to avoid lengthy time delays associated with Federal Court proceedings initiated by an inquiry witness. On the same date CDF appointed a new Board which completed its hearing on 23 October 2007. The Board submitted its report to CDF in December 2007. The report was publicly released on 17 June 2008. It contained 28 findings and 41 recommendations of which 32 were accepted. Nine recommendations were not accepted because Defence is constrained from implementing some of the recommendations due to privacy implications and some of the matters recommended by the Board have already been addressed by Defence separately.

Black Hawk 221

On 7 December 2006 CDF appointed a BOI into the circumstances surrounding the crash of an Army Black Hawk helicopter (Number 221) off Fiji on 29 November 2006. Two members of the Army, Captain Mark Bingley and Trooper Joshua Porter, died in the incident. The Board submitted its report to CDF on 25 January 2008. CDF immediately initiated consultation with key Defence stakeholders in preparation for implementation of the report’s recommendations.

Private Baker

Private Ashley Baker died on 5 November 2007 from non-battle gun shot wounds sustained while he was serving with the Timor Leste Battle Group. On 9 November 2007 CDF appointed a COI to inquire into the circumstances of Private Baker’s death. The COI conducted hearings in March and April 2008 and submitted its report to CDF on 23 April 2008. CDF immediately initiated consultation with key Defence stakeholders in preparation for implementation of the report’s recommendations.

Major McKerron

Major Thomas McKerron died at work at Bulimba, Queensland on 11 May 2007. CDF appointed a COI to inquire into the circumstances surrounding Major McKerron’s death on 4 September 2007. The Commission held its hearings in Brisbane during February and April 2008. CDF received the Commission’s report on 4 June 2008 and has commenced implementation consultations.

Captain Paljakka

Captain Andrew Paljakka died on 26 Feb 07. CDF determined on 19 August 2007 that a COI was to be held to inquire into the circumstances surrounding this death. The Commission commenced its hearings in Sydney on 23 January 2008 and provided its report to CDF on 6 May 2008. CDF has commenced implementation consultations.

HMAS Sydney II

On 28 March 2008 CDF appointed a COI to inquire into the circumstances associated with the loss of the HMAS Sydney II on 19 November 1941 and consequent loss of life and related events subsequent thereto. The first day of hearings was held in Sydney on 30 May 2008 and a further four days of hearings were conducted in Perth and Melbourne in late June 2008.

  1. Prior to the introduction of changes to the Defence (Inquiry) Regulations 1985 on 22 June 2007, the term Board of Inquiry was used to describe these inquiries. All CDF appointed inquiries into the death of a member of Defence are presided over by a civilian with judicial experience.