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Tuesday, 16 November 2004
Page: 96


Senator Brown asked the Minister for Defence, upon notice, on 5 July 2004:

With reference to investigations instigated in relation to the Lance Collins affair:

(1) (a) How many investigations have been instigated; (b) by whom; and (c) on whose instructions or authority.

(2) What is the legal and constitutional authority for these investigations.

(3) Which agencies are involved in the investigations.

(4) Have any Defence personnel been interrogated without being: (a) informed of their rights; (b) shown any authorising document; or (c) allowed any witnesses or legal representation to be present during these investigations.


Senator Hill (Minister for Defence) —The answer to the honourable senator's question is as follows:

(1) (a) There have been one investigation and five related inquiries. Lieutenant Colonel Lance Collins lodged an Application for Redress of Grievance concerning personnel issues affecting him, which led to an investigation by Captain Martin Toohey RANR into that application. Captain Toohey's Report (`the Toohey Report') was commented upon by Colonel Brown and reviewed by Colonel Tracey QC, although these were not investigations. Colonel Tracey advised that the Toohey Report should be regarded as ultra vires (beyond legal power) and a nullity.

The first related inquiry was by the Inspector of Intelligence and Security (IGIS) into the matters raised by Lieutenant Colonel Collins in a letter to the Minister of 6 December 2000.

Mr Blick PSM (then the IGIS) found that there were two issues into which he should not inquire. One of these was a security issue which was referred to ASIO, which advised in April 2001 that the allegations had been investigated and were without foundation. The second related to the joint Department of Foreign Affairs and Trade/Defence security inquiry into Mr Mervyn Jenkins, the conduct of which had been previously inquired into by Mr Tony Blunn AO on behalf of the IGIS. That inquiry had been finalised in October 2000.

Mr Blick inquired into the remaining three issues and reported in May 2003.

The Chief of the Defence Force referred information relating to the Collins Redress of Grievance to the current IGIS (Mr Ian Carnell) for consideration.

The fourth related inquiry concerns the leaking of the Toohey Report. This inquiry is being carried out by the Security Investigation Unit of the Defence Security Authority (DSA) of the Department of Defence.

The Inquiry into Australian Intelligence Agencies by Mr Philip Flood AO also examined a number of the matters raised by Lieutenant Colonel Collins and found nothing to substantiate them.

(b) Captain Toohey was appointed as an Investigating Officer under the Defence (Inquiry) Regulations 1985 by Lieutenant Colonel B Carey, Commanding Officer, Headquarters Training Command-Army.

The IGIS inquiries were commissioned by the relevant Minister for Defence at the time.

The matter referred to ASIO was referred by the Chairman of the Defence Intelligence Board.

The DSA inquiry was instigated by Deputy Secretary Intelligence and Security.

The Flood inquiry was instigated by the Prime Minister.

(c) The Commanding Officer is required by Defence Force Regulations 1952 Reg 77 to investigate a complaint (Redress of Grievance). There was a statutory obligation on Lieutenant Colonel Carey to initiate an investigation when he received the Application for Redress of Grievance from Lieutenant Colonel Collins.

The IGIS inquiries were commissioned by the relevant Minister for Defence at the time.

The Chairman of the Defence Intelligence Board referred the subject matter of the ASIO Inquiry to ASIO.

The DSA inquiry was instigated by Deputy Secretary Intelligence and Security on his own authority.

The Flood inquiry was instigated by the Prime Minister.

(2) The Commanding Officer's legal authority to appoint an investigating officer is conferred by the Defence (Inquiry) Regulations 1985 Reg 70A. The constitutional authority for the investigation under the Defence (Inquiry) Regulations 1985 is the defence power under section 51(vi) of the Constitution.

The legal authority for the IGIS inquiries is the Inspector-General of Intelligence and Security Act 1986. The legal authority for the ASIO inquiry is the Australian Security Intelligence Organisation Act 1979. The constitutional authority for the inquiries under the Inspector-General of Intelligence and Security Act 1986 and the Australian Security Intelligence Organisation Act 1979 is the defence power under section 51(vi) of the Constitution, the incidental power under section 51(xxxix) of the Constitution and the executive power under section 61 of the Constitution.

The legal authority for the DSA inquiry is Defence Instruction (General) ADMIN 45-2 Reporting and Investigation of Alleged Offences within the Australian Defence Organisation. The constitutional authority for the DSA inquiry is the defence power under section 51(vi) of the Constitution and the executive power of the Commonwealth under section 61 of the Constitution.

The legal and constitutional authority for the inquiry by Mr Flood is the executive power of the Commonwealth under section 61 of the Constitution.

(3) The Toohey investigation was instigated by Headquarters Training Command-Army. The investigation was conducted by a Reserve Naval officer, Captain Martin Toohey. No other agency was involved in the inquiry.

IGIS inquiries are done by the IGIS. No other agency was or is involved in the inquiries.

The DSA inquiry is being carried out by the Security Investigation Unit of the DSA of the Department of Defence. No other agency is involved in the inquiry.

(4) (a) Witnesses are not interrogated in inquiries under the Defence (Inquiries) Regulations 1985. They are interviewed, or they may provide a statement. The procedure is regulated by Australian Defence Force Publication 06.1.4 Administrative Inquiries Manual, which provides that all witnesses are to be given a copy of a document outlining their rights and obligations. It is the obligation of the Investigating Officer to ensure that witnesses understand their rights and obligations before commencing an interview. Captain Toohey gave a copy of this document to each witness and complied with these requirements.

IGIS inquiries are conducted in accordance with Divisions 3 and 4 of Part II of the Inspector-General of Intelligence and Security Act 1986.

The DSA inquiry is being carried out in accordance with the Commonwealth Protective Security Manual and the Australian Government Investigation Standards. All investigations undertaken by the Security Investigation Unit comply with best investigative practice.

(b) Captain Toohey showed his Instrument of Appointment and his Terms of Reference to each witness, but there is no legal or policy requirement for an Investigating Officer to do so.

IGIS inquiries are conducted in accordance with Divisions 3 and 4 of Part II of the Inspector-General of Intelligence and Security Act 1986.

DSA Investigators are authorised by virtue of Defence Instruction (General) ADMIN 45-2 Reporting and Investigation of Alleged Offences within the Australian Defence Organisation. When obtaining statements, persons are told of the basis of the inquiry but are not shown any Instrument of Appointment authorising the investigation. Persons are only cautioned if there is a prospect of their being criminally charged.

(c) Witnesses in a Defence (Inquiries) Regulations investigation may seek legal advice. The issue of legal representation is a matter for the Investigating Officer. No witness before Captain Toohey asked for permission to be legally represented. The Investigating Officer may also allow a supporting person to be present during the interview, particularly when the witness is clearly distressed.

IGIS inquiries are conducted in accordance with Divisions 3 and 4 of Part II of the Inspector-General of Intelligence and Security Act 1986.

Witnesses in the DSA inquiry are allowed to have legal representation present if they request it.