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Notice given 4 August 2006

2300  Senator Milne: To ask the Minister for the Environment and Heritage—With reference to the Tasmanian devils sourced for export overseas:

(1) Is there a definitive pre-clinical test that can detect the presence of devil facial tumour disease (DFTD); if not, how can the Government be certain that the devils that have been exported will not develop DFTD at a later date.

(2) Given that Tasmania’s Department of Primary Industries and Water (DPIW) stated that the wildlife park that was to be used to source the devils for export was located in a region well away from where the disease has occurred: is the Government aware that DPIW maps in fact show that the areas surrounding the wildlife park in question have the highest transmission rates for DFTD.

Senator Milne: To ask the Ministers listed below (Question Nos 2301-2302)—

(1) What are the quantities of Phosdrin insecticide supplied and sold in Tasmania since its registration.

(2) In what year did the commercial supply and sale of Phosdrin insecticide commence in Tasmania.

(3) What monitoring programs have been put in place regarding Phosdrin insecticide supplied and sold in Tasmania since its registration.

(4) What is the known off-label use of Phosdrin insecticide supplied and sold in Tasmania since its registration.

2301 Minister for the Environment and Heritage

2302 Minister representing the Minister for Agriculture, Fisheries and Forestry

2303  Senator Milne: To ask the Minister for the Environment and Heritage—

(1) (a) How much of the 2005-06 Natural Resource Management (NRM) budget was allocated to projects; and (b) what were those projects.

(2) How much of the 2005-06 NRM budget was spent on administration.

(3) What was the budget for the 2005-06 Marine Species Recovery Protection (MSRP) Fund.

(4) (a) How much of the 2005-06 MSRP Fund was allocated to projects; and (b) what were those projects.

(5) How much of the 2005-06 MSRP Fund was spent on administration.

(6) Why has no budget for the MSRP Fund been put forward for the 2006-07 financial year.


 (7) What are the criteria for the success of Environment Protection and Biodiversity Conservation Act 1999 listed species recovery plans.

(8) Are there any Act-listed species recovery plans that are not costed; if not, why not.

(9) Why are insufficient funds set aside to implement Act-listed species recovery plans.

(10) How many of the 56 NRM regions have fully costed NRM plans in place.

(11) Why does it take so long for the funding round to be announced each year for Act-listed species.

(12) Why does it take so long to process the applications and approve funding.

2304  Senator Bishop: To ask the Minister representing the Minister for Defence—With reference to Air Vice-Marshal Criss AM AFC (AVM Criss), who according to Mr Bill Blick had all positive Investigating Officer (IO) 29 June 2001 Redress of Grievance (ROG) report outcomes overturned on 16 October 2001 by the then Vice Chief of the Defence Force (VCDF), Lieutenant General Mueller, acting as the Appointing Officer for the ROG:

(1) Can the Minister confirm that:

(a) the Inspector General of the Australian Defence Force (IGADF) recently made determinations into three areas of on-going concern to AVM Criss on 27 February 2006 and refused to take corrective action on any of the four issues raised by him relating to: (i) advice received regarding access to evidence during the early stages of the investigation into his redress of grievance, (ii) the refusal by the department, and particularly, the Appointing Officer, to amend the term of reference (TOR) during the course of the investigation, (iii) as a consequence of not amending the TOR, the failure to recognise the significance or relevance of additional written submissions made by AVM Criss to the investigating officers, and (iv) the various inappropriate actions and decisions of the VCDF in relation to his administration of the matter as the Appointing Officer for the ROG;

(b) AVM Criss initially appealed aspects of his concern with some aspects of the conduct of his ROG to the then Chief of the Defence Force (CDF) Admiral Barrie on 9 November 2001, 7 December 2001, 15 February 2002, 13 May 2002 and 19 June 2002, all to no avail;

(c) AVM Criss, having had his compensation for detriment caused by defective administration (CDDA) claim rejected by the first delegate (ASPS) and his appeal to the departmental Secretary denied, wrote to the Defence Force Ombudsman (DFO) on 20 May 2005 requesting that the DFO investigate his concerns with those aspects relating to the conduct of his ROG as listed above in sub-paragraph (a) and that the DFO refused to investigate;

(d) AVM Criss in providing comment to the Deputy Secretary Corporate Services, Mr Henderson on 17 February 2005 regarding the Blick report once again listed his concerns with the conduct of some aspects of the conduct of his ROG and that those comments against paragraphs 120, 125, 126, 127 and 130 now form a part of the Blick report as a formal attachment dated 11 May 2005; and


 (e) Mr Blick, in responding to AVM Criss’s comments on the Blick report, acknowledged on 11 May 2005 that in relation to his concerns regarding some aspects of the conduct of his ROG investigation stated ‘Others, however, particularly those relating to AVM Criss’s grievances about the ROG inquiry process, would require further examination of departmental documents and, possibly, quite a bit more drafting.

(2) Can the Minister further advise:

(a) in relation to the ROG issues, if Mr Blick estimated that it would only take him 2 to 3 days to research the issues properly and do any necessary redrafting;

(b) if the department re-engaged Mr Blick to complete that work; if not, why not;

(c) whether AVM Criss wrote to the IGADF on 26 May 2005 requesting an investigation of his concerns relating to some aspects of the conduct of the ROG as previously listed;

(d) whether AVM Criss did not receive a response to his May e-mail to the IGADF and so e-mailed the IGADF again on 20 June 2005 and 26 July 2005 requesting a response to his 26 May 2005 request for an investigation and ‘an update on progress to date and intent’;

(e) whether the IGADF responded to AVM Criss on 27 July 2005;

(f) whether they met in Canberra on 12 August 2005 and, at that meeting, whether AVM Criss provided the IGADF with additional information after their meeting on 12 August 2005;

(f) whether the IGADF wrote to AVM Criss, IG ADF CF/32/05 dated 19 August 2005 and inter alia stated: (i) ‘I confirm that I will review those matters that you raised with the DFO, namely access to evidence, error in TOR and additional submissions’, and (ii) ’In addition, having regard to the points you raised about Mr Blick’s observations as to the legal advice received by the Vice Chief of the Defence Force, I will consider the relationship between that advice and the outcome of his consideration of your application for redress of grievance’;

(g) whether AVM Criss, after receiving the 27 February 2006 letter from the IGADF advising that Defence was going to do nothing further and wishing him well with his future life, again wrote to the DFO on 14 March 2006 and inter alia requested Professor McMillan to investigate the decisions of the IGADF, and that the DFO in his letter 2006-104122, dated 4 April 2006, declined to investigate AVM Criss’s concerns with the actions and decisions of the IGADF.

(3) Can the Minister further confirm that in his letter to AVM Criss of 27 February 2006 the IGADF inter alia confirmed that:

(a) the advice provided by Defence Legal staff during the conduct of the ROG regarding the complainants access to evidence was correct but in doing so that the IGADF did not acknowledge that initially incorrect advice was provided by Defence Legal staff and the correct advice was only provided after AVM Criss had finished giving his evidence to the investigating officers;


 (b) the IGADF acknowledged ‘that the TOR for the investigation into your ROG did not allow the IO to address all of the instances of alleged misrepresentation by Air Marshal McCormack that were included in your ROG. I also acknowledge that you attempted to have the TOR amended to include provision for this’;

(c) ‘I accept that there was a factual error contained in the TOR, which could have been avoided had your request for the TOR to be amended not been overlooked’; and

(d) ‘the IO took into account all of the information that was provided in the additional submissions’; if so, given that the IGADF failed to make the connection with his previous admission by not realising that if the TOR prevented the IO from looking at the correct dates for the alleged grievance relating to misrepresentation of facts by the Chief of Air Force (CAF), were not the additional submissions irrelevant to the IO and not appropriate to his investigation, and therefore should have not been taken into consideration as they would have been had the TOR been amended, as it is now acknowledged they should have been.

(4) Can the Minister also confirm that in the same IG letter to AVM Criss dated 27 February 2006 it was stated:

(a) ‘Legal advice is simply that and VCDF was not obliged to accept all, or any, of the legal advice provided to him’;

(b) ‘he [Lieutenant General Mueller] also drew upon his own considerable experience and knowledge of the dynamics of high command’;

(c) ‘I might say that it seems to be a commonly held, if erroneous, view that non-compliance with any DI will potentially [be] found an offence under the Defence Force Discipline Act’;

(d) advice received from the Australian Government Solicitor was that ‘the broad language of the DIs does not make it clear that a failure to comply would make the relevant officer guilty of a Service offence’;

(e) ‘other factors also influenced the VCDF’s position at the time, not the least of which appeared to be the CDF’s view that the VCDF’s reporting obligation did not pose an impediment to his role as the ROG decision maker because the requirement for a report had otherwise been met informally’;

(f) ‘there is no indication, for example, of bad faith, negligence or improper motive which otherwise might have enlivened disciplinary liability under any of the military law provisions to which you have referred’;

(g) ‘I agree that many aspects of the management of your case overall left a lot to be desired and note that this has been acknowledged in settlements reached between you and the Department’; and

(h) ‘There may well have been judgements made that were poor or even possibly wrong, but it does not follow that this, without more, will necessarily constitute offences against military law”.

(5) If the quotations in paragraph (4) above are confirmed, is it now acknowledged by the department that the TOR relating to the CAF allegedly misrepresenting facts should have been amended during the conduct of the investigation to correctly reflect the complainant’s concerns.


 (6) Did AVM Criss repeatedly request the amendment of the TOR, and did he question this during or after the conduct of the investigation into his ROG, on multiple occasions with former CDF Barrie, personally face-to-face with VCDF Mueller, in written and telephone conversations with Defence Legal, Commodore Smith, in his original CDDA claim, in his appeals to the Secretary of the department, Mr Smith, in feedback on the Blick report to the department, twice to the DFO and finally successfully (without any corrective action being taken) to the IGADF.

(7) Given that the IGADF now agrees that the TOR should have been amended, will the Minister now correctly address the complainant’s original grievance from 28 March 2001.

(8) Given that the DFO has recently refused to investigate the IGADF 27 February 2006 decisions, despite the IGADF now acknowledging that the TOR for the Criss ROG should have been amended during the conduct of the inquiry, can the Minister explain why an independent investigator should not now be appointed, after the TOR has been correctly amended to reflect the member’s longstanding and unaddressed grievance, to look at the evidence on file and make a determination in relation to the very serious stated grievance of the CAF misrepresenting the truth to protect his position or stance.

(9) Is the IGADF’s recent confidential determination re-validating the actions and decisions of VCDF, now inconsistent with the findings in the independent Blick report; if so, given that the DFO has refused to investigate the matter due to his acceptance of the department’s process, which of the IGADF outcome or the Blick outcome is preferred, and which was accepted by the DFO as sufficient for his purposes.

(10) If the IGADF has now determined that the VCDF’s decision to overturn the IO’s report in areas favourable to AVM Criss was justified and open to him to decide, and given that the department has recently paid compensation to AVM Criss using the same ROG report as the basis to determine the quantum of that compensation paid, can the Minister now confirm if the member has been inappropriately compensated, or has the IGADF incorrectly found that VCDF acted appropriately.

(11) Did the Blick report find that internal Defence Legal staff expressed the written opinion that ‘if the Report or its acceptance and implementation is challenged, the process will look quite shonky’; if so, how did the IGADF determine in February 2006 that VCDF’s actions in late 2001 were not ‘shonky’.

(12) Will the Minister explain how the IGADF can now support the VCDF 2001 assertion that a special bond should exist between two and three star officers and therefore Defence Instructions do not apply at that rank level, when highly specialised legal opinion advised that the Defence Instructions do apply to all rank levels and that everyone is entitled to natural justice as afforded of Air Force personnel by that Defence Instruction.

(13) Did the evidence available to the IOs indicate that that it was CAF’s failure or refusal to communicate that caused AVM Criss to be unaware of any concern his superior officer had with his level of performance, and did the IO report find accordingly; if so, why did the IGADF in February 2006 re-validate the decision by VCDF that the fault lay with AVM Criss.


 (14) Did Mr Blick estimate that it would only take him 3 days to investigate AVM Criss’s ongoing concern with the conduct of his ROG; if so, why did Defence Legal not re-engage Mr Blick as he offered, and was it concerned that it would appear that it took the department and the DFO more than a year and still not finalised the matter.

(15) Why does the department engage highly qualified investigating offices and highly qualified and expensive legal advisers if an Appointing Officer is free to decide whatever he wants, when making his determination into a redress of grievance as is now alleged by the IGADF.

(16) If the IGADF determination is now accepted by the Minister, can the Minister explain how a retired Supreme Court Judge and a retired Rear Admiral can listen to hours of evidence, ask hundreds of questions and observe personal responses and behaviours in the ROG, and yet are effectively overruled by the IGADF.

(17) Does the Minister accept the advice given to AVM Criss by the IGADF that an informal performance report withheld from AVM Criss by both CDF Barrie and VCDF Mueller does not mean that VCDF should have excused himself from being the Appointing Officer for the Criss ROG, particularly given that the IO’s report was critical of the VCDF’s actions in this regard, and that one of the complainant’s grievances related to decisions taken by the CDF before he even received the informal reports.

(18) (a) Did the Solicitor-General provide advice to the IGADF in relation to the enforceability of Defence Instructions; and (b) if the Minister supports that advice, what action does he propose to take regarding the multitude of convictions against past members of the ADF who have been found guilty and fined and or discharged for non-compliance.

(19) Given the IGADF’s admission that ‘There may well have been judgements made that were poor or even possibly wrong, but it does not follow that this, without more, will necessarily constitute offences against military law’, how can the men and women of the ADF obtain protection from similar failings by very senior Defence and civilian bureaucrats inside the department in the future.

(20) In apparently determining that ‘he [LTGEN Mueller] also drew upon his own considerable experience and knowledge of the dynamics of high command’, can the Minister explain how the IGADF determined this when the Defence Instruction under question was an Air Force specific instruction, and one that did not apply to Army or Navy personnel.

(21) If it is the IGADF’s view that ‘it seems to be a commonly held, if erroneous, view that non-compliance with any DI will potentially [be] found an offence under the Defence Force Discipline Act’, will the Minister advise what steps he proposes to take to remedy this unsatisfactory position.