Commonwealth Ombudsman Philippa Smith and the Vice Chief of the Defence Force, Admiral Barrie, have released the findings of the Ombudsman’s own motion investigation into how the Australian Defence Force responds to allegations of serious incidents and offences.

The Chief of the Defence Force, General Baker, asked the Ombudsman to conduct the ‘Own motion’ investigation after the Defence Force received a complaint about the conduct of an investigation related to an alleged sexual assault at a Defence base.

Ms Smith said the Defence Force’s request for assistance set a precedent for other agencies. ‘It is a welcome initiative for an agency head to come to the Ombudsman and say ‘we want to learn from our mistakes—tell us what we did wrong and how we can improve things,’ she said.

‘Our investigation found that the Australian Defence Force has performed investigations satisfactorily under the Defence Force Discipline Act, however we found a range of cases where Commanding Officers were not adequately guided in the types, or conduct of investigations that should follow a serious allegation.

‘This was especially so in a number of Board of inquiries or ‘Informal Investigations’ where problems with terms of reference allowed investigations to go ‘off the rails’, resulting in breaches of due process and significant cost blowouts for Defence.’

Many of the problems identified by the Ombudsman’s report have already attracted criticism from a number of external bodies, including the Senate and the Human Rights and Equal Opportunities Commission.

The main problems identified by the Ombudsman’s investigation were:

• tendency to investigate complaints (and particularly complaints regarding harassment and discrimination) whether or not an investigation was the most appropriate response
• alternative dispute resolution strategies needed to be better integrated into the processes for deciding how to deal with complaints
• the too frequent use of ‘informal inquiries’, with little guidance on the conduct of such inquiries, and few accountability mechanisms to protect the parties involved
• numerous problems with framing terms of reference for inquiries—they were rarely outcome focussed and frequently failed to take account of contextual issues relevant to the investigation and sometimes included ‘catch all’ clauses which could lead to inappropriate lines of questioning and evidence collection
• in the past, there was little or no training or guidance for investigators, leading to flaws in the way investigations were conducted and an unnecessary waste of resources
• there appeared to have been abuses of investigatory powers and inappropriate conduct by some investigating bodies
• there were no procedures for monitoring and quality control of investigations,which led to some investigations going ‘off the rails’, and
• the principles of procedural fairness were not always adhered to in investigations.

The Ombudsman’s investigation also found that the Defence Force had established some excellent support services for victims and other individuals affected by serious incidents and offences, and the Ombudsman commended the Defence Force for these efforts.

The Ombudsman’s report makes important recommendations about the way the Australian Defence Force should respond to allegations of serious incidents and offences including:

• amending the Defence Instructions for investigations
• development of a comprehensive Defence investigations manual to provide guidance to Commanding Officers and investigating officers
• introducing training courses for investigating officers performing investigations of serious incidents, and
• greater monitoring and supervision of such investigations.

Ms Smith said: ‘The Australian Defence Force has responded promptly and thoroughly to our draft recommendations, and has established a dedicated team to implement them.’

The Ombudsman said many of the draft recommendations had already been put in place, including:

• amendments to the relevant Defence Instructions
• development of a comprehensive draft investigations manual, and
• consideration of a tri-service approach to training of investigation officers.

‘The results should mean that informal Defence Force investigations should in future be more focussed, timely and hence cost effective, and more consistent and professional across all the services,’ Ms Smith said.

‘The development of a tri-service approach and better monitoring of the cause of complaints, investigations processes and outcomes will be critical to this process.

‘From the beginning of this investigation, the Australian Defence Force has shown that it is committed to fixing the problems identified by this investigation, and I have been impressed by their cooperation throughout this investigation.’

Admiral Barrie said that this ‘quality report’ should form the basis for making the necessary changes to the Defence Force procedures to ensure that disciplinary processes were used to ensure good and fair outcomes for the Australian Defence Force and the individuals concerned.

‘There is a very strong sense of commitment by senior leadership in the Australian Defence Force to making sure that community standards are reflected in the way the Defence Force carries out its business,’ Admiral Barrie said.

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Date of release: 16 January 1998