When
commanders are notified of an incident or complaint it might 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. The Director of
Administrative Law, Commander Tony Welbourne, said this distinction
was important as administrative inquiries were 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 said.
The ADF administrative inquiry system has fi ve distinct parts:
quick assessment, developing the terms of reference, the inquiry
process, decisions on fi ndings 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 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 might be subject to internal and external
review 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, unless notifying the subject might result
in the destruction or removal of evidence.
Decisions
of 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 satisfi ed that the inquiry
was properly conducted, there is a range of options available,
including reopening the inquiry.
Otherwise the agreed recommendations must be implemented. This
process may also be subject to internal and external review.
Implementation of agreed recommendations
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
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.
TO FIND OUT MORE For further information on the Military Justice
System, visit www.defence.gov.au/mjs.
