War-Fighting and Administrative Law: Developing a Risk-Based Approach to Process in Command Decision-Making

WAR-FIGHTING AND ADMINISTRATIVE LAW: DEVELOPING A RISK-BASED APPROACH TO PROCESS IN COMMAND DECISION-MAKING

Bronwyn Worswick*

In June 2013, the Chief of Army, Lieutenant General David Morrison, AO, addressed the ranks of the Australian Army on YouTube, expressing anger and disappointment
at the actions of a group of officers and non-commissioned officers – the so-called ‘Jedi Council’. The allegations centred on the production and distribution
of highly inappropriate material demeaning women across both Defence computer systems and the internet. Lieutenant General Morrison used strong language
in his warning – there was ‘no place’ in the Army for members who ‘exploit and demean’ their colleagues. He stated that he ‘would be ruthless in ridding the army of people who cannot live up to its values’.
At the time, three individuals had been suspended from duty pending an ongoing investigation, and another 14 individuals were directly implicated.
A further 90 members of the Australian Defence Force (ADF) were considered to be on the periphery of the group.[1]

In November 2013, Army announced that the service of six members had been terminated as a result of these allegations. Three more terminations followed
by the end of the year. Eight others were retained in the Army but received administrative sanctions.

Press coverage questioned the amount of time taken to take action in relation to these individuals.[2]Lieutenant
General Morrison highlighted the difficulties he faced dealing with these cases expeditiously. In a speech in October 2013, Lieutenant General Morrison
said in respect of the Jedi Council, that he ‘bridled against legal restrictions and complicated processes that constrained his ability to protect both the victims of bad behaviour and the reputation of our Army’.
[3]
Lieutenant General Morrison reiterated the same concerns a fortnight ago in a speech to the Supreme and Federal Court Judges Conference in Darwin,
not to reject the proper application of law to the military, which is fundamental to the rule of law, but to highlight the conflict between trends
towards greater regulation of process on the community’s expectations of accountability and timeliness of decisions.

Lieutenant General Morrison’s intention with respect to the individuals who engaged in serious misconduct in the Jedi cases was always clear. He
sought to take action against them to end their military service. He made a conscious choice to pursue action via an administrative route rather than
lay charges under the Defence Force Discipline Act 1982.[4] However, the process of investigating, initiating action, making decisions to terminate the service of nine members and waiting for these personnel
to exhaust their internal merits review options took many months, consuming time and resources, including legal resources within the Department and
also externally engaged advisors. The question is: How can there be such a difference between command intent, and what actually occurred?

Defence has recently emerged from a lengthy period of rolling reviews of a range of topics including ADF culture and military justice arrangements. This
process has been more or less continuous since the Burchett review in 2001.[5]Each
review introduced new measures  and processes intended to guide command decision-making. However, after over a decade of piecemeal reform, commanders
in the ADF face a labyrinth of instructions, policy and guidance on how to act and what to do in response to issues and incidents, much of it overlapping
and not all of it consistent. The outcome has been layer upon layer of complexity and process as highlighted by Lieutenant General Morrison’s response
to the Jedi Council cases.

Defence is now re-writing its policy guidance for decision-making processes. The new approach will encourage commanders to make values-based decisions,
and to adapt processes to the circumstances of a particular decision. Commanders will be asked to apply judgment and consider risks to both the organisation
and individual ADF members when making decisions, and to apply processes that are adapted to those risks. The intent is to spend time and resources
that are proportionate to the risks of any particular decision.

This paper will discuss some of the problems associated with Defence’s history of cultural, organisational and legal change to command authority, and will
outline how a risk-based approach to decision-making can balance concerns about abuse of power and unfair outcomes with flexible and proportionate
processes.

Role and function of the Australian Defence Force

The mission of the ADF is to defend Australia and its national interests. The ADF serves the Government of the day and is accountable to the Commonwealth
Parliament to efficiently and effectively carry out the Government’s defence policy. The ADF is comprised of the Navy, Army and Air Force and its primary
role is to defend Australia against armed attack. To fulfil this role the ADF must generate combat capability, not only for the direct defence of Australia,
but also with a capacity to do more where there are shared interests with partners and allies,[6] and to support peacekeeping, humanitarian assistance and disaster relief operations worldwide.

Military service is unique. The breadth of the tasks and the authority to use armed force to achieve them demands that military service be understood for
what it is: a non-contractual and unlimited liability on members to serve, to their deaths if necessary. It permits no union support or any real mechanism
for industrial negotiation in relation to terms and conditions of employment. At its heart is the system of command, and the corresponding requirement
to follow all lawful orders, which is the means by which the ADF instils the self-discipline in members to meet this liability of service at all times.
Flowing from this is a statutory military disciplinary system to enforce compliance, which can include civilian incarceration as a punishment in the
event of the most serious forms of misconduct or disobedience.

This command authority has its statutory basis within the Defence Act 1903 (Cth).Decisions regarding appointment, promotion and employment within
the ADF are also guided by extensive regulations made under that Act.[7] Understanding the scale of the Defence organisation in which these decisions are made is also important – in the most recent Defence Annual Report
for 2012-13, the average full time funded strength of the ADF was around 56,600, plus 20,700 individuals in the Reserve who undertook paid work, plus
21,500 Australian Public Service personnel, including those employed within the Defence Materiel Organisation, and another 400 full-time equivalent
contractors.[8]Personnel
are deployed on 17 operations around the world,[9] including, until recently, combat operations in Uruzgan, Afghanistan. Importantly, all of these people are engaged in providing a service to the Australian
public as a whole, which is quite a different thing from the model of service delivery to individuals in the community common to many other government
agencies. This is the context within which military commanders make decisions.

Commanders do not eschew the role of law in the modern military. They are comfortable with the need to follow process and adhere to legal obligations across
the spectrum of military decision-making, which stretches from the planning and conduct of operations around the world to the management of personnel
in day to day duties on an Australian base. All of these decisions are assisted today by timely, relevant legal advice, often as an obligatory precursor
to action as opposed to simply being an ‘optional extra’. This is so even in the strictly operational realm of targeting and the use of force, and
detention and interrogation of prisoners, in all of which detailed processes are followed before any decision to proceed is made, usually in highly
compressed timeframes. The targeting decision-cycle, for example, involves complex assessments of casualty avoidance and collateral damage and incorporates
a regime for executive / government approval in certain circumstances, although decisions may be required immediately. The process is demonstrably
adjusted to the urgency of each decision.

In dramatic contrast, the Jedi Council cases highlight the protracted timelines prescribed in the process to obtain the involuntary discharge of an ADF
member in the face of overwhelming evidence of misconduct. In these circumstances, an organisation that must, by definition, be agile and adaptable
in the face of threat, has been encumbered with processes which are protracted and complex for commanders to navigate, and have given rise to hesitation
and reluctance on the part of some to take action, because it is easier not to or because they fear disproportionately adverse consequences for making
the ‘wrong’ decision, including the risk of legal challenge.

So what has led Lieutenant General Morrison to make these surprising public statements, and, for our purposes, what does this have to do with administrative
law?

Command

As a basis for decision-making, command is sui generis. The ADF defines command as:

The authority that a commander in the military service lawfully exercises over subordinates by virtue of rank or assignment.Command includes the authority
and responsibility for effectively using available resources and for planning the employment of organising, directing, coordinating and controlling
military forces for the accomplishment of assigned missions. It also includes responsibility for health, welfare, morale and discipline of assigned
personnel.[10]

Therefore, in military doctrine, commanders have an onerous responsibility and are held accountable for their actions and their inaction.[11]

Historically, the prerogative of command was largely unfettered and included power to dismiss at pleasure.[12]However,
the reality for military forces around the world is that command authority has been increasingly limited by the introduction of policy and legislation.
In Great Britain, military discipline arrangements were radically reformed during the 19^th century. A series of acts was implemented in
order to provide military personnel with a wider range of procedural protections and to align military discipline more closely with the societal standards
of the day for criminal justice processes. The ADF inherited this as the basis for its military law in the early 20^th century.[13]

The trend of limiting the absolute nature of command power continued, with the emergence of fetters on other elements of command decision-making beyond
disciplinary processes. These limits have imported concepts and policy approaches that reflect growth in administrative law and the exercise of public
power more broadly in Australia, particularly since the 1970s.These have now permeated much of the operational as well as the peacetime sphere of Defence
activities. For example, the highly risk averse decision to remove soldiers from Afghanistan when they have engaged in misconduct or they present an
operational risk because they are ineffective, involves notice periods, written submissions (usually with the benefit of legal assistance to the soldier),
written decisions and, more often than not, opportunities for review before they are returned to Australia. After their return, they are able to seek
review through a range of internal and external channels, even though the decisions may have no implications for their careers, other than to deprive
them of some deployment allowances.The only adjustment to circumstances is that the initial process can be (but will not always be) completed more
quickly than it would be at home.

The curtailment of command discretion on operations reflects the trend of the last ten years in command decision-making generally. A number of high profile
incidents, followed by external reviews, has fostered this trend, along with a community and Parliamentary desire to ensure that command authority
is tempered by safe-guarding the reasonable expectations of individual members.

History of Defence review and reform

The starting point for the continuous cycle of review and procedural reform in military justice and decision-making is difficult to identify. In 1998,
the Defence Force Ombudsman undertook an own motion investigation into ADF responses to serious sexual offences.[14]In
1999, the Joint Standing Committee inquired into the conduct of military inquiries and ADF discipline processes.[15]Taken
together, the effect of these two reviews was to introduce the principles of procedural fairness into ADF decision-making, and to start an organisational
move towards standard use of formal inquiry processes.

The Burchett inquiry,[16] as well as a Joint Standing Committee report,[17] followed allegations of brutality and ‘rough justice’ within the Army’s parachute battalion (3 RAR) in 2001, which focused on the use of bastardisation,
mistreatment and intimidation as a means of disciplining subordinates during the period 1996 to 1999.Mr Burchett made many recommendations, among them
the appointment of a Military Inspector General, with broad powers to oversee military justice. This was implemented with the creation of the statutory
office of Inspector General ADF.[18]

The Burchett report also expressed the opinion that the exercise of command power by a superior commander to remove an officer from a position of command
could hardly be thought to exist for everyday use. Where there was no true urgency, Mr Burchett considered that the principle of procedural fairness
should have priority over the prerogative of command.[19]Mr
Burchett’s approach is evident in the 2003 introduction of the ‘Guide to Administrative Decision-Making’.[20]This
manual applied, for the first time, the general concept of procedural fairness to command decisions in Defence. It also explicitly acknowledged that,
in many cases, the standards and procedures it prescribed were more onerous than those imposed by law.[21]This
makes the Guide unusual even in the context of a general trend towards increasing administrative guidance across the public sector aimed at
mitigating risk.

Defence had earlier published the ‘Administrative Inquiries Manual’.[22]This
Manual is the archetypal risk averse approach. The guidance includes a table illustrating the types of incidents where a commander should
consider initiating an inquiry, and detailed guidance on setting up inquiries ranging from a simple, non-statutory fact-finding exercise through to
a Board of Inquiry, which would exercise Royal Commission type powers. While the guidance was practical, easy to read and included templates and examples,
it also led to a culture of ‘templated’ responses. The tendency has been to conduct an inquiry in response to incidents, without any real analysis
of what the information requirements actually are, in order to support the kinds of decisions that might need to be made.

The culture of templating and prescriptive guidance was complemented by the creation of a myriad of Defence-specific complaint-handling mechanisms. This
particular feature of Defence reform has been highlighted in a review of the ADF Redress of Grievance System, conducted jointly by the Department of
Defence and the Defence Force Ombudsman in 2005.[23]The
review commented that this rapid increase in complaint avenues vastly added to the complexity of managing and administering complaints in Defence.
The effect has been that very few complainants and managers appear to understand all of the available avenues, and many of the processes have the mandate
to examine similar issues.

In summary, the procedures canvassed by the Ombudsman’s review included the Defence Equity Organisation (1997), Complaint Resolution Agency (1997), the
Army Fair Go Hotline (2001), the Defence Whistleblower Scheme (2002) and the Inspector-General ADF (2003).These were all established in addition to
the statutory ADF complaint mechanism, redress of grievance, in Part 15 of the Defence Force Regulations 1952, which is based on the historic
position that military members can complain to the Crown.[24]Additional
avenues for complaint and investigation have since been created. Most recently, the Sexual Misconduct Prevention and Response Office (SeMPRO) was established
in 2013, after Ms Broderick’s report into the treatment of women in the ADF.[25]While
not permanent, the Defence Abuse Response Taskforce has been established to assess and respond to historical allegations of abuse in Defence.[26]

Defence’s review and reform, and the proliferation of subject specific complaint processes, has also been accompanied by broader whole of government efforts,
such as the introduction of the Public Interest Disclosure Act 2013 and amendments to the Freedom of Information Act 1982 (Cth),
the Privacy Act 1998 (Cth), and the Work Health and Safety Act 2011 (Cth). Meanwhile, judicial review in a range of contexts has
continued to develop administrative law principles, the most expansive interpretations of which are, in turn, integrated into Defence policy.All of
this has added multiple layers of complexity to Defence internal procedures.

Cumulative effect of review and reform: HMAS Success Commission of Inquiry and the ADFA Skype Incident

What this lengthy history shows is the cumulative effect of single issue military justice reviews on the coherence and complexity of decision-making processes
across the ADF. The result is a system which has been subject to well-intentioned but piecemeal adjustments in response to high profile incidents,
to such an extent that it has lost internal coherence and ‘stovepipes’ information and complaints by subject matter without consideration of the effects
on individuals and the organisation.

This was the problem confronted by Mr Gyles in his 2011 Commission of Inquiry in relation to HMAS Success’ Asian deployment from March to May
2009.[27]The
allegations of misconduct were numerous, but focussed on complaints about sexual targeting, a reported ledger of sexual exploits and impunity onboard
the ship. The Commanding Officer landed three sailors at Singapore and sent them home to Australia. In part three of his report, Mr Gyles questioned
whether the many reforms connected with military decision making in the last 10 to 15 years had over-reached their mark, asking the question ‘has the
pendulum swung too far towards individual rights?’ He reflected that the failure by individuals in the command structure could reflect a more general
breakdown in respect for rank and command, accompanied by reluctance on the part of those in command to exercise that command.[28]

In particular, Mr Gyles suggested that ADF policy required too much natural justice to be afforded in some administrative inquiries, noting that procedures
that expand or apply natural justice rights for individuals come ‘at considerable cost. It ties up the time of those in command and affects their ability
to act decisively’.[29]Somewhat
controversially, he adopted an expansive view of the extent to which he believed that ADF command decisions were immune from administrative law review.
[30]
In essence, he asserted that command decisions (based as they are on prerogative power) are not subject to judicial review. Finally, he observed
that the existence of multiple internal merits review avenues for ADF personnel is ‘resource intensive and presents an opportunity for “gaming”
the system and for vexation of the target’.[31]

Mr Gyles’ report was a significant turning point for Defence. His observations and recommendations turned attention to the need for a comprehensive overhaul
of ADF and Defence systems. However, before significant work could be done, the revelation of the so-called ‘Skype’ scandal brought the issues Mr Gyles
had identified into sharp relief.

The 2011 Skype case attracted national media attention and resulted in criminal convictions for two cadets who had broadcast footage of a sexual encounter
over Skype to other cadets. The Government’s response was the initiation of six cultural reviews into various issues as well as the DLA Piper Review
to examine historical allegations of abuse.[32]The
Defence response to these reviews was the Pathway to Change strategy.[33]One
of the more significant goals was the commitment to simpler and more effective processes, with the broader aim of improving accountability for both
unacceptable behaviour by individuals and for those who manage and respond to unacceptable behaviour. Moreover, the report emphasised the need for
Defence to accept that Defence personnel, in light of the heavy responsibilities they carry, be held to the highest standards of behaviour.[34]

Framing the issues post-Skype and Pathway to Change: The Re-thinking Systems Review

Therefore, in framing the challenge for Defence administrative law in 2014, the views of Lieutenant General Morrison, Chief of Army, carry significant
weight.

I have been struck at how legalistic our culture has become. This of course reflects a wider societal trend. But we have reached the point where it may
be about to seriously impede the effectiveness, cohesion and discipline of the Armed Forces.

Quite frankly, as Chief of the Army, I have been restrained from removing some people from the Army whose conduct, if replicated in any reputable civilian
organisation, would have seen them removed from their office and walked to the door by a security guard. That is no exaggeration.

I have little doubt that the cumulative effect of legal change incrementally introduced by Parliament in circumscribing my ability to respond to these
incidents would astonish the public, if they understood that generally the delays and diluted responses are forced by process rather than lack of command
will. I suspect many Parliamentary representatives would be equally surprised at the effects, in some respects unintended, of their reform.[35]

We have now reached the point where a Service Chief does not feel he can command effectively and meet public and government expectations about how he should
deliver Army’s combat capability, because of the regulatory and legal policy framework that the same public and government has imposed or expects him
to follow.

Not long after the Skype scandal, Duncan Lewis, the then Secretary of Defence, and General David Hurley, AC, DSC, the then Chief of the Defence Force,
commissioned a review of all investigation, inquiry, review and audit systems, processes and structures across Defence. It provided a unique opportunity
to address all of these structural issues, rather than having a single issue focus. It differed from the body of earlier reviews carried out since
2001 because it was a holistic examination of fact finding, decision-making and review for Defence’s integrated ADF and APS workforce. The review took
account of recommendations from the reviews referred to above, including those that are the basis of the Pathway to Change strategy, Mr Gyles’
observations in part three of the report of the HMAS Success Commission of Inquiry and the recommendations in volume one of the DLA Piper
Review of Allegations of Sexual and Other Forms of Abuse in Defence, but it did so with the intent of reconciling the aim of each of those reviews
with a single and coherent procedural structure. What was also different about this review was that, for the first time in recent history, it was internally
driven.[36]This
gave it the capacity and the context to respond to command, based on working level military input.

It is pleasing to be able to say that some of the results of what came to be known as the Re-Thinking Systems Review are now in the process
of being implemented. In the main, the recommendations are focused on simplification, reduced complexity, and change focused on making military command
work by having commanders exercise their command responsibilities, make decisions and stand by them. The greatest opportunity offered by these innovations
is the chance to re-adjust Defence systems to the context in which Defence makes decisions.

In advocating the adjustment of administrative decision-making according to context, we are not suggesting that the foundational principles of administrative
law should not be applied to Defence. Rather, the principles need to be adjusted proportionately to the requirements of a lay decision-maker making
day to day decisions. In the past, the Defence policy has been to adopt a purist approach in this respect. However, there is room for greater flexibility.
For example, the Briginshaw principle[37] allows for proportionate adjustment in process to accommodate the relative seriousness of the decision to be made.

In the Defence context, the complex and burdensome process surrounding administrative decision-making has become counter-productive. Processes that are
intended to increase fairness for individuals have actually prevented timely and fair decision-making.

Innovations in decision-making arising out of the Re-thinking Systems Review

As part of first-principles systemic reform, Defence is distilling the plethora of policy into innovative guidance that focuses the attention of commanders
and other decision-makers on the need to exercise judgment in the circumstances that exist at the time and reduces the emphasis on compliance with
rules and formal processes. Commanders will be asked to consider risks to the organisation and individual ADF m