Commissions of Inquiry can be appointed as either open or closed inquiries. Experience has shown that not all Commissions of Inquiry should be open inquiries. The decision on whether a Commission of Inquiry is open or closed will take into account the welfare of the immediate family members as one of the primary considerations.
Where hearings are conducted in public, members of the public, including media representatives, are permitted to observe the proceedings.
An open inquiry does not necessarily mean that all aspects of the hearings will be held in public. This is because Presidents are authorised under the Defence (Inquiry) Regulations 1985 to close Commission of Inquiry hearings, or to prohibit publication of evidence, in particular circumstances. This discretion permits Presidents (who are civilians with judicial experience) to determine on a case-by-case basis whether particular aspects of a Commission of Inquiry should be held in private or public. This discretion also applies to the degree of access afforded to representatives of the media.
For Defence, the success of our operations along with the safety of our people is paramount. Defence appreciates that there is legitimate public interest in Australian Defence Force (ADF) activities. We therefore balance national security needs against the objective of being open about what we do.
The Chief of the Defence Force is ultimately responsible for protecting classified ADF information in order to safeguard Australia's national security and Defence personnel.
The Chief of the Defence Force will therefore not appoint a public Commission of Inquiry where an undue risk of classified information being publicly disclosed during the course of an inquiry exists. This is particularly so where classified information cannot be readily separated from unclassified material. To do otherwise could place the lives of ADF personnel and the success of ADF missions at risk.
A Commission of Inquiry is presided over by a civilian with judicial experience. It may be constituted by a President alone, or with additional members who may be civilians or Australian Defence Force (ADF) personnel.
Commission of Inquiry members may be selected on the basis of their expertise and experience relative to the nature of the incident under inquiry.
Counsel Assisting is an experienced Australian Defence Force (ADF) legal officer selected by the Appointing Authority to assist a Commission of Inquiry. Counsel Assisting obtains and presents evidence to the Commission of Inquiry relevant to the terms of reference.
Counsel Assisting may interview prospective witnesses. During the hearing, Counsel Assisting will make an opening submission, call and examine witnesses, tender documents and other exhibits and make closing submissions.
Where the President decides that a person may be affected by a Commission of Inquiry, that person is entitled to appear before the inquiry and has the right to legal representation. Legal officers who represent persons who may be affected are called Counsel Representing.
Witnesses at Commissions of Inquiry normally give evidence on oath or affirmation. Prior to giving evidence, all witnesses are provided with guidance on their rights and responsibilities.
Any person may be compelled to give evidence before a Commission of Inquiry. However, any statement or disclosure made in the course of giving evidence is not admissible against that witness in any civil or criminal court proceedings or in proceedings before a service tribunal, other than for proceedings for giving false evidence at the inquiry.
During the conduct of Commission of Inquiry proceedings that are open to the public, it may be necessary at times to limit the public disclosure of witness identification or other personal information in fairness to the interests of those affected by the inquiry, or for reasons of operational or national security.
Where necessary, orders to this effect can be issued by the President of the Commission of Inquiry pursuant to Regulation 62 of the Defence (Inquiry) Regulations 1985.
Once hearings have concluded, the Commission of Inquiry members write and submit a report to the Chief of the Defence Force for consideration.
Key Defence stakeholders are consulted regarding actions that need to be taken in response to the Commission of Inquiry’s findings and recommendations, and these consultations help to inform decisions by the Chief of the Defence Force to accept, reject or modify those recommendations. As Defence is a very large and complex organisation, this process of internal consultation and decision-making can take some time to complete.
Commissions of Inquiry are a fact finding process which may establish the causes of an incident and support internal decision making to address the incident.
In many instances the causes will be systemic (practices and procedures). A Commission of Inquiry may, however, make comments or findings that are critical of the conduct of individuals.
Importantly, Commissions of Inquiry are not courts of law and their reports are not judicial findings. Procedural fairness must be applied in Commissions of Inquiry, but Commissions of Inquiry are not a part of Defence’s disciplinary processes and do not impose sanctions. However, inquiry reports may be used to inform others who have authority to make administrative decisions. Matters of a criminal or disciplinary nature are properly dealt with by the civilian court or within the Defence disciplinary process.
After Defence has considered the Commission of Inquiry report, family members, and any personnel who may be potentially affected by the inquiry, are briefed on the findings of the inquiry.
Decisions to publicly release, or not release, inquiry reports are considered on a case by case basis after weighing the wishes of family members and others and public interest in the release of the report.