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Coronial and related issues in the Australian Defence Force (ADF). Overview of Defence policy on ADF deaths since WWII and Defence – Coronial interactions since 2001 Lieutenant Colonel Rosemary Landy. Defence presentation for Asia-Pacific Coroners Society Conference

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Coronial and related issues in the Australian Defence Force (ADF)


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    1. Coronial and related issues in the Australian Defence Force (ADF) Overview of Defence policy on ADF deaths since WWII and Defence – Coronial interactions since 2001 Lieutenant Colonel Rosemary Landy Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007 Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    2. History • WWI, WWII and other conflicts, casualties buried overseas in Commonwealth War Graves • 309 casualties of Korean War • Few ADF deaths on operations since Vietnam Defence presentation for Asia-Pacific Coroners Society Conference - Hobart Tasmania 31 October 2007 Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    3. ADF deaths* * Sourced from National Archives 2007 Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007 Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    4. Afghanistan Iraq Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    5. ADF’s current activities approx pers • Operation Catalyst – Iraq 1575 • Operation Astute – Timor-Leste 1100 • Operation Slipper – Afghanistan 970 • Operation Resolute – Australia’s offshore maritime areas 450 • Operation Anode – Solomon Islands 140 • Operation Mazurka – Sinai Peninsula, Egypt 25 • Operation Azure – Sudan 15 • Operation Paladin – Middle East 12 • Operation Tower – Timor Leste 4 • ADF support to the United Nations Office in Timor Leste (UNOTIL) • Recent Past Operations: Operation Sumatra Assist | Operation Pakistan Assist | Operation Cranberry | Operation Relex 2 | Operation Celesta | Operation RampADF support to Tonga | ADF support to Australian citizens in Fiji Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007 Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    6. Now • Increased operational tempo since 1990’s • Duty of care by ADF • Intense media scrutiny • Changing public expectations • Political interest Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007 Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    7. ADF legislation • Defence Act 1903 • Naval Defence Act 1910 • Air Force Act 1923 • Defence Force Regulations Part IV • Defence (Certification of Death) Regulation Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007 Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    8. ADF policy • Defence policy re deaths ▼since WWII • ? Changing social attitudes, casualties not acceptable • By 1990’s, nothing applicable to all three Services • Nothing of the scope to cope with today’s scenarios • HMAS Westralia 1998, Bali bombings • ? Terrorism on home soil, multiple locations throughout the world Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007 Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    9. ADF issues • Media and political attention • Private Kovco’s death and repatriation • Funeral for Trooper Pearce (? Sergeant Locke) • Attended by PM, Minister, CDF, Leader of Opposition • Defence has constant changeover of personnel, most have no experience of handling deceased Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007 Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    10. Coronial and related issues in the Australian Defence Force (ADF) Overview of Defence Instruction (General) Personnel 20-6 Deaths within and outside Australia of Australian Defence Personnel Wing Commander Jim Lewis Directorate Military Personnel Policy Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007 Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    11. ADF management of fatalities • Defence policy re deaths ▼since WWII • ? Changing social attitudes, casualties not acceptable • By 2000, no appropriate policy • Now – Defence Instruction – Deaths within and outside Australia of Australian Defence personnel Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007 Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    12. Defence Instruction (General) Personnel 20-6 – Deaths within and outside Australia of Australian Defence personnel. • Applies to Navy, Army, Air Force, and applicable to Defence Public Servants and Defence Civilians • Issued by or with the authority of the Secretary and CDF • Always applicable to Defence members, • May be applicable to Defence employees and external service providers • Enforceable instructions intended as long-term (three or more years duration) policies Defence presentation for Asia-Pacific Coroners Society Conference - Hobart Tasmania 31 October 2007 Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    13. ADF issues • • Size and diversity of Defence • Posting cycle • • Perishable corporate knowledge • • The need for written instructions • • Our Death Policy Defence presentation for Asia-Pacific Coroners Society Conference - Hobart Tasmania 31 October 2007 Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    14. Coronial and related issues in the Australian Defence Force (ADF) Overview of new ADF DVI capability/DNA repository for ADF personnel Commodore Robyn Walker Director-General Strategic Health Policy and Plans Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007 Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    15. Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    16. Background • Busiest operational period for many years • Risk to our people is very real particularly in MEAO • Involvement with Bali I, Sumatra and potential for mass casualties led to a review of our DVI capabilities Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    17. DNA Repository • Visual identification is not reliable • Dental material may not be recovered • Fingerprints – not collected by the ADF and may not be possible post incineration • DNA- antemortem • DNA repositories exist in the US and UK Defence Forces Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    18. DNA Repository – ADF experience • RAAF Institute of Aviation Medicine • Black Hawk Board of Inquiry • Current legislation • Voluntary vs Compulsory Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    19. Interim Voluntary Repository • Obtain consent • Blood spot on Whatman’s FTA paper • Tamper proof envelope • Central storage facility • Recorded in medical records and personnel records (PMKEYS) • Operational preparation, annual health assessment, time of entry • No analysis until time of death Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    20. Required Actions • Identify and procure/establish a central storage facility • Develop detailed policy regrading collection, storage, retrieval and destruction of samples • Develop a detailed implementation and communication strategy • Seek legislative change to allow the compulsory collection of blood Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    21. Where are we at? • RFT for a commercial storage service released but only one tender submitted • Requirement for storage facility to require National Association of Testing Authorities Accreditation (NATA) • Tender has been re-released Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    22. ADF Forensic Identification Capability • Primary mission is the recovery and identification of the remains of ADF personnel who die on duty whilst overseas • Scope exists under DACC to assist in any domestic identification operation • At this stage the capability of mounting a formal DVI operation from within the ADF does not exist Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    23. Immediate capability • Each core ADF forensic identification team consists of one forensic pathologist and two forensic odontologists • Force prepared and ready for deployment • Equipment issues Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    24. Medium to long term capability • The ADF should develop a DVI capability to enable a response to intermediate incidents (incidents involving 5-20 fatalities) • Service police investigators and service police to be trained • Close liaison with the AFP to access this training continuum and a secondment program • Workforce planning to recruit and train the forensic health specialists required • Equipment issues • Operational zone coordination • Large incidents (greater than 20 fatalities) – will need assistance Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    25. Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    26. Coronial and related issues in the Australian Defence Force (ADF) Defence legislation with implications for coroners Mr Greg Styman Deputy Defence General Counsel Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007 Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    27. AUSTRALIAN DEFENCE FORCE INQUIRIES & ADMINISTRATIVE ARRANGEMENTS FOR DEFENCE MEMBER DEATHS Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    28. WHAT IS AN ADF INQUIRY? • ADF Inquiries are: • administrative not discipline processes • designed to support the command and control of the ADF • internal to the ADF • held to determine the facts and circumstances surrounding an incident or situation • not to investigate civilian criminal offences or offences under the Defence Force Discipline Act 1982 Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    29. LEGAL BASIS FOR ADF INQUIRIES • ADF Inquiries are: • Authorised by the Defence Act 1903 s124(2A) AND S124(2c) and appointed and conducted under the Defence (Inquiry) Regulations 1985 (D(I)R) • appointed by the Chief of the Defence Force (CDF), CDF and the Secretary of Defence, Service Chiefs, or Commanding Officers -depending on the type of Inquiry • governed by the Terms of Reference drafted by the Appointing Authority, which determines the scope of an Inquiry Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    30. D(I)R - TYPES OF INQUIRIES • General Courts of Inquiry • Combined Boards of Inquiry • Boards of Inquiry (BOIs) • Chief of Defence Force Commissions of Inquiry (CDFCOIs) • Inquiry Officer Inquiries (IOIs) The purpose of these inquiries is to determine the facts and circumstances surrounding an incident to allow Defence to find out what happened and why, and if possible, to prevent a recurrence. The most common inquiries are IOIs, BOIs and CDFCOIs Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    31. BOARDS OF INQUIRY APPOINTMENT A BOI may be appointed by: • CDF and the Secretary of Defence, acting concurrently, to inquire into “matters concerning the administration of the Defence Force” (reg.23(1)(a)) • CDF, to inquire into “matters concerning the Defence Force” (reg.23(1)(b)) • Service Chiefs, to inquire into matters concerning their respective service (reg. 23(1)(c)) • A delegate of CDF or a Service Chief (reg. 24) The Terms of Reference determine the scope of an Inquiry Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    32. BOARDS OF INQUIRY CONDUCT • A Board is made up of two or more persons who can be ADF or civilians (reg. 26) • The President of a BOI can summon civilians and ADF members to appear at an inquiry to give evidence (reg.30) • BOIs are not conducted in public unless directed to by the Appointing Authority (reg. 29(1)&(2)) • There is no set inquiry format (reg. 28) • Evidence is not given on oath or affirmation (reg.31(1)) Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    33. BOARDS OF INQUIRY WITNESSES • Civilians and CDF members can be compelled to attend and give evidence (reg.32) • Witnesses cannot claim privilege against self-incrimination (reg.32(5)) • Defence Act 1903 s124(2C) provides witnesses with immunity from prosecution in civil or criminal courts for evidence they give to an inquiry, except in the case of false testimony Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    34. BOARDS OF INQUIRY REPORTS • A BOI provides a report to the Appointing Authority setting out the findings and recommendations (reg. 36) • The Appointing Authority will decide what action should be taken on the agreed findings and recommendations and appropriate implementation Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    35. CDFCOIs APPOINTMENT • A CDFCOI is appointed by CDF (reg. 108) • It is mandatory in the event of a “death or suicide of a member of the Defence Force that appear to have arisen out of, or in the course of, the member’s service” (reg. 109) • The Minister may, however, direct that in specific circumstances a CDFCOI is not required (reg.109(2)) The Terms of Reference determine the scope of an Inquiry Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    36. CDFCOI CONDUCT • The President of a CDFCOI must be a civilian with judicial experience (reg.112(2)) • CDFCOIs are conducted in private unless the Appointing Authority directs that it is to be public (reg.117(1)&(2)) • There is no set inquiry format (reg. 115) • CDFCOIs are not bound by the rules of evidence (reg.50) • The President can obtain information on any matter relevant to the inquiry in any manner the President thinks fit (reg. 116) • The president can summon ADF members or civilians to given evidence at the inquiry (reg. 118) • Evidence is not taken on oath or affirmation (reg. 119(1)) Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    37. CDFCOI WITNESSES • Civilians and Defence members can be compelled to attend and give evidence (reg.120) • Statements given by witnesses during a CDFCOI are not admissible against the witness in any civil or criminal proceedings in any Federal, State or Territory court (reg.120(17)) • Defence Act 1903 s124(2C) provides witnesses with immunity from prosecution in civil or criminal courts for evidence they give to an inquiry, except in the case of false testimony Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    38. CDFCOI REPORTING • At the conclusion of the CDFCOI a report containing findings and recommendations is provided to CDF (reg. 123) • CDF receives the report & may decide whether or not to accept the recommendations and what further action is required Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    39. INQUIRY OFFICER INQUIRIES APPOINTMENT • Inquiry Officers may be appointed to “inquire into a matter concerning a part of the Defence Force” (reg. 69(1)) • They can be appointed by a commanding officer, an officer with the powers of a formation commander under the Australian Military Regulations 1927, or a superior officer, provided that the matter being inquired into is under the “command or control of the officer” (reg. 70A(1)) • An Inquiry Officer can be an ADF member, and APS employee or a civilian (reg.70) The Terms of Reference determine the scope of the Inquiry Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    40. INQUIRY OFFICERS INQUIRY CONDUCT • Evidence is not taken on oath or affirmation (reg. 73) • The inquiry is not conducted in public (reg. 72) • There is no set inquiry format (reg. 71) Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    41. INQUIRY OFFICER INQUIRIES WITNESSES • ADF members can be compelled to attend and give evidence (reg.74 and 74A). Civilians cannot be compelled • Witnesses cannot claim privilege against self-incrimination (reg.74(3A)) • Defence Act 1903 s124(2C) provides witnesses with immunity from prosecution in civil or criminal courts for evidence they give to an inquiry, except in the case of false testimony Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    42. INQUIRY OFFICER INQUIRIES REPORTING • On completion of the inquiry, the Inquiry Officer must provide the Appointing Authority with a report containing findings and any recommendations from the findings (reg. 75) Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    43. DISCLOSURE OF D(I)R INQUIRY RECORDS OR REPORTS • The President of an Inquiry may give directions relating to evidence given during an Inquiry, such as suppression orders (reg. 62(1)&(2)) • Records or reports of an Inquiry may not be disclosed without Ministerial approval (reg. 63(1)&(3)) • It is a defence to prosecution if the person who discloses a record or report is “acting in the performance of the duties of his or her office” (reg. 63(2A)) • No action can be taken against the publication of “a fair and accurate account of all or part of the proceedings” of an inquiry that is held in public (reg.64(2)) Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    44. INTERACTION BETWEEN ADF AND CIVILIAN INQUIRIES • An ADF inquiry does not preclude and does not interfere with a Coronial or other civilian inquiry such as Comcare, HREOC, and police investigations. • A Coroner has the discretion to include any findings of an ADF inquiry into their final report on an incident Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    45. DEFENCE FORCE REGULATIONS 1952 AND THE DEFENCE (CERTIFICATION OF DEATHS) REGULATIONS 1953 • An examination of the capacity for Commissioned Officers to give directions for the disposal of a body and to issue a certificate of death Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    46. Defence Force RegulationsPart VI • Defence Force Regulations Part VI sets out the requirements of the disposal of dead bodies of members of ADF. • A Commissioned officer may give directions as to the disposal of dead bodies, subject to Ministerial Direction (Reg 27) • An ADF Medical Officer may (Reg 29): • Perform a post-mortem; and • May sign a certificate of death. Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    47. Regulation 27 – Ministerial Direction • Ministerial Direction of 5 May 2004, signed by the Minister Assisting the Minister for Defence, Mal Brough. • Expressly limits a Commissioned Officer’s authority to issue a direction to periods of armed conflict or where the death occurs outside Australia. • Must consider whether it is possible/ appropriate to comply with State and Territory Coronial laws. • Mandates that the direction will be in writing . Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    48. Defence (Certification of Deaths) Regulations 1953 • A Certificate of Death: • The Minister may authorise a person to issue such certificates (Reg 6); • May be issued by a competent authority where a member of the ADF has died, or is missing and is presumed to have died (Reg 7); • Once issued is prima facie evidence of death (Reg 9). Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    49. Coronial and related issues in the Australian Defence Force (ADF) Current status of the Military Justice System in the ADF Rear Admiral Mark Bonser Head Military Justice Implementation Team Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007 Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007

    50. ADF Military Justice System Discipline – Defence Force Discipline Act Administration – Inquiries/Adverse Administrative Action/Redress and Complaint Defence presentation to Asia-Pacific Coroners Society Conference Hobart Tasmania 2007