Annual Report 2004-05

External Scrutiny

Defence Force Ombudsman

There was one formal report to the Chief of the Defence Force pursuant to Section 15 of the Ombudsman Act 1976, but no reports were raised under sections 16, 17, or 19 of the Act relating to the operations of the ADF during the period under report.

Decisions of Courts and Tribunals

On 2 September 2004, the Supreme Court of the Australian Capital Territory handed down its decision on a question of law in the matter of Vance v Air Marshal McCormack in his capacity as Chief of Air Force & Anor [2004]². A single judge of the court held that communications between clients and ADF Legal Officers or Australian Public Service lawyers employed in Defence do not ordinarily enjoy legal professional privilege.

On 12 and 13 May 2005, the Australian Capital Territory Court of Appeal heard the Commonwealth's appeal from that decision. On 23 August 2005 the Court of Appeal handed down its decision on the question of legal professional privilege³. The Court of Appeal has confirmed that in determining a claim for privilege, the primary concerns are still the purpose and confidentiality of the document, and the circumstances of the relationship between lawyer and client. Privilege may be found more readily where a lawyer has a current practising certificate, but the lack of a certificate will not automatically defeat a claim for privilege.

Common law actions for damages for personal injury against the Commonwealth by former crew members of HMAS Melbourne, alleged to have arisen from its collision in 1964 with HMAS Voyager, continue in the Supreme Courts of New South Wales and Victoria. Common law claims are also being defended in the Supreme Court of Queensland in which plaintiffs allege injury caused by their participation in various de-seal and re-seal programs conducted on F-111 aircraft.

The claim in the Federal Court of Australia by the Commonwealth against ADI Limited, Parker Enzed Technologies Limited, Jetrock Pty Ltd (in liquidation) and Todd Hydraulics Pty Ltd, for damages relating to the 1998 fire onboard HMAS Westralia, is continuing. A hearing in early 2006 will be sought by Defence, following completion of the current interlocutory proceedings.

On 9 September 2004, the High Court handed down its decision in Re Colonel Aird; Ex parte Alpert [2004]⁴. The decision deals with the legislative power of the Commonwealth to make the alleged conduct of a service member while on leave overseas a service offence triable before an Australian service tribunal. In a split decision, the court ruled that it was within parliament's legislative power, subject to the facts of each case.

On 13 September 2004, a Defence Force Magistrate handed down his decision in a trial under the Defence Force Discipline Act 1982. The matter before the Defence Force Magistrate was disobedience of a lawful command under Section 27 of the Act by an officer who had refused to provide a urine sample for testing. The Defence Force Magistrate held that Part VIIIA of the Defence Act 1903 is an exclusive code for urinalysis testing outside of the investigation of criminal and disciplinary offences. As a consequence, in the view of the Defence Force Magistrate, there was no scope for command initiated urinalysis drug testing and the only basis on which such testing could be instituted is under regulations made under Part VIIIA. Testing under an amended version of Part VIIIA of the Act has subsequently been implemented in the ADF.

2. Supreme Court of the Australian Capital Territory ACTSC 78 (2 September 2004). [ back ]
3. Court of Appeal of the Supreme Court of the Australian Capital Territory 2005 ACTCA 35 (23 August 2005). [ back ]
4. High Court of Australia HCA 44 (9 September 2004). [ back ]