Determining all the facts



By Capt Gabrielle Turnbull
When commanders are notified of an incident or complaint it may be necessary to conduct an administrative inquiry. An administrative inquiry determines the facts of an event. By determining what went wrong, the ADF is able to take action to address the problem and where appropriate, initiate reforms that maintain operational effectiveness and prevent a recurrence.

While not a part of the discipline system the administrative inquiry process is part of the Military Justice System. Director of Administrative Law, Cmdr Tony Welbourne says this distinction is important. Administrative inquiries are not conducted to investigate offences under the DFDA. "Members involved in an administrative inquiry must be open and frank when giving evidence, without fear of disciplinary action arising from their admissions," he says.

The ADF administrative inquiry system has five distinct parts - quick assessment, developing the terms of reference, the inquiry process, decisions on findings and recommendations, and the implementation of agreed recommendations.

Quick Assessment

Before initiating an administrative inquiry into an incident a quick assessment must be completed.

From the quick assessment, the commander must determine the nature and gravity of the event and the most appropriate type of administrative inquiry, if any, that should be used to reveal the facts of the event. It also provides a record of the initial details of an incident and the reasons for any action taken.

There are five main types of administrative inquiries, a Routine Inquiry, an Investigating Officer Inquiry, a Board of Inquiry, a Combined Board of Inquiry and a General Court of Inquiry. The appropriate type of inquiry used for an incident depends on the circumstances of each case.

Terms of reference

Once the type of inquiry has been decided, the Terms of Reference (TOR) must be developed. These state what is to be done and sets limitations on the matters to be inquired into. To be effective, an inquiry must be focused on essential and relevant matters. The format of the TOR may be as simple as a minute from the commander for a routine inquiry, or formal document from a lawyer for a Board of Inquiry.

Inquiry process

The inquiry is then conducted in compliance with applicable standards of procedural fairness and administrative law. The inquiry process may be subject to internal and external review, in order to protect members' rights. If a member is the subject of an allegation or complaint, that person is entitled to know the substance of the inquiry and have the right to respond.

Except when notifying the subject may result in the destruction or removal of evidence.

Decisions on findings and recommendations

Following the inquiry, a report is submitted to the appointing authority to make a decision on the findings and recommendations. Before a decision is made, the appointing authority, with the assistance of staff legal advice, considers the report to ensure it adequately addresses the TOR, and that the evidence supports the findings and recommendations.

If the appointing authority is not satisfied that the inquiry was properly conducted, there is a range of options available, including reopening of the inquiry. Otherwise the agreed recommendations must be implemented. This process may also be subject to internal and external review.

Implementation

A plan to support the implementation of agreed recommendations should be developed and tracked to ensure that matters identified for remedial action, including administrative action, are followed through to completion.

The fundamental objective of administrative inquiries is to determine the facts and circumstances surrounding an incident or complaint so that an informed decision may be taken about the action required including action to avoid a recurrence, and to remedy procedural or policy failures.