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Australian Government Defence Honoqrs and Awards Appeals Tribunal

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Australian Government Defence Honoqrs and Awards Appeals Tribunal Australian Government Defence Honoqrs and Awards Appeals Tribunal Fogarty and, the Department of Defence [2016] DHAAT 05 (11 March 2016) File Number(s) 2015/020 Re Mr Terence Fogarty Applicant And Department of Defence Respondent Tribunal Mr M. Sullivan AO (Presiding Member) Brigadier M. ~ornholt AM (Retd) Mr G. Mowbray Hearing Dates 9 and 11February2016 DECISION On 11 March 2016 the Tribunal decided to recommend to the Assistant Minister for Defence that the decision by the Parliamentary Secretary to refuse to set aside the posthumous award of the MG to Sergeant B.F. Diddams MG in 2013 and substitute this award with the VC be affirmed. CATCHWORDS DEFENCE HONOUR- Medal for Gallantry - Victoria Cross - acts ofgallantry - in action - hazardous circumstances - self-sacrifice - posthumous LEGISLATION Administrative Decisions (Judicial Review) Act 1977 - ss 3(1), 5(1),5(2) Defence Act 1903-ss llOV(l), llOVA, llOVB(l) Defence Force Regulations 1952-Reg 93B Sch 3 Commonwealth ofAustralia Gazette No. S25 - Victoria Cross Regulations and Gallantry Decoration Regulations dated 4 February 1991 REASONS FOR DECISION Introduction 1. The applicant, Mr Terence Fogarty (Mr Fogarty) seeks review of a decision to award Sergeant Blaine Flower Diddams MG (Sergeant Diddams) the Medal of Gallantry (MG) after he was killed i11 action in Afghanistan on 2 July 2012. In a letter to the Governor-General dated 15 October 2013, he requested that the matter be reviewed with 'a view to awarding Blaine a Victoria Cross for Australia (VC)'. He claimed that the citation for the award of the MG was proof that Sergeant Diddams' actions 'satisfy the criteria for the award of the VC due to "self-sacrifice'". He further claimed that 'failure to take this into account constitutes an error of law ... ' .1 On 30 May 2014 Mr Fogarty stated that 'it is abundantly clear that Sergeant Diddams is legally entitled to the award of the VC and I formally request that you make such award forthwith' .2 2. On 21 January 2015 the Parliamentary Secretary to the Minister for Defence wrote to Mr Fogarty and explained the process of recommendation and approval of gallantry awards. He indicated in the letter that he was satisfied with the process. 3 In a further letter dated 28 April 2015 the Parliamentary Secretary informed Mr Fogarty that if he was dissatisfied with the responses he had received regarding his claims, he was able to seek review through the Defence Honours and Awards Appeals Tribunal (the Tribunal).4 3. On 15 June 2015 Mr Fogarty made formal application for the review of the decision to posthumously award Sergeant Diddams the MG, indicating that the 'honour he desired' was the VC. 5 4. The application included reference to Lieutenant Adrian Doneley whose World War II Military Cross citation was provided by Mr Fogarty. 6 He claimed that this citation also clearly demonstrated 'errors of law' and accordingly he asserted that Lieutenant Doneley 'is entitled to the VC because "outstanding" is used in his citation' .7 The Tribunal sought clarification that Mr Fogarty also wished to make application in respect of Lieutenant Doneley. 8 Mr Fogarty subsequently advised the Tribunal Secretariat verbally that he would not pursue the Doneley matter in parallel with the Diddams' review. Tribunal Jurisdiction and Decision under Review 5. Pursuant to sl lOVB(l) of the Defence Act 1903 (the Defence Act) the Tribunal has jurisdiction to review a reviewable decision on defence honours if an application is properly made to the Tribunal. The term reviewable decision is defined 1 Fogarty letter dated 15 October 2013 2 Fogarty letter to DHA dated 30 May 2014 3 Parliamentary Secretary to the Minister for Defence MC14-003293 dated 21January2015 4 Parliamentary Secretary to the Minister for Defence MC15-000398 dated 28 April 2015 5 Application for Review of Decision dated 15 June 2015 6 Fogarty submission 'Supplementary Information' 7 Fogarty letter dated 15 June 2015 8 DHAAT/OUT/2015/414 dated 16 July 2015 Page 2 in sllOV(l) and includes a decision made by ·a person within the Department of Defence or the Minister to refuse to recommend a person for an honoilr or award in response to an application. Regulation 93B of the Defence Force Regulations 1952 defines a defence honour as being those awards set out in Part 1 of Schedule 3. Included in the defence honours set out in Part 1 is the Victoria Cross for Australia and the Medal for Gallantry. 6. The Parliamentary Secretary to the Minister for Defence in his letter of 21 January 2015 indicated that he was satisfied with the processing of gallantry awards, implying that he refused to recommend that Sergeant Diddams be reconsidered for a VC or to review Mr Fogarty's claims regardi.ng errors of law. 7. The Tribunal considered that the application for review had been properly made, that both the VC and MG were honours subject to the Defence Force Regulations 1952 and that the Parliamentary Secretary to the Minister for Defence had not recommended Sergeant Blaine Diddams for a VC as requested by Mr Fogarty, therefore the Tribunal has jurisdiction to review decisions in relation to this award. In accordance with sl lOVB(l) of the Defence Act, as the award is a defence honour, the Tribunal does not have the power to affirm or set aside the decision but may make recommendations regarding the decision to the Minister. 8. Decision under Review. The Tribunal, having reviewed Mr Fogarty's claims, correspondence from the Directorate of Honours and Awards of the Department of Defence (the Directorate), and the Parliamentary Secretary to the Minister for Defence, determined that the decision under review was the decision by the Parliamep.tary Secretary of 21 January 2015 to refuse to set aside the posthumous award of the MG to Sergeant Diddams in 2013 and substitute this award with the vc. 9 Conduct of the review 9. In accordance with its Procedural Rules 2011, on 16 July 2015, the Tribunal wrote to the Secretary of the Department' of Defence informing him of Mr Fogarty's application for review and requested a report on the material questions of fact and the reasons for the decision to award Sergeant Diddams the MG. The Tribunal also requested that the Secretary provide copies of documentation relied upon in reaching the decision and that he provide a copy of the relevant service record. 10. On 9 September 2015, Headquarters Joint Operations Command (HQJOC) provided a submission on behalf of the Secretary that included a timeline of the nomination process, copies of recommending officer reports and citations and Sergeant Diddams' service record. 10 The submission recommended that 'recognition of the actions of Sergeant Diddams on 2 July 2012 with a MG be affirmed' .11 This material was sent to Mr Fogarty for comment on 14 September 2015. 12 He 9 Parliamentary Secretary to the Minister for Defence MC14-003293 dated 21January2015 lO Ibid. 11 Defence Submission dated 9 September 2015 12 DHAAT/OUT/2015/546 dated 14 September 2015 Page 3 responded on 21 September 2015 indicating that the issues he considered relevant 'will only be resolved by progressing to hearing' .13 13. 15. The Tribunal met on 2 November and 14 December 2015 when it considered material provided by Mr Fogarty and Defence. The Tribunal confirmed the scope, the decision under review, jurisdiction and discussed privacy and confidentiality. 16. Privacy and Confidentiality. The Tribunal considered that Australia's ongoing involvement in Afghanistan continued to be a matter of national security and accordingly, this matter would re uire confidentiality restrictions. result, and in accordance with Procedural Rule 11, the Chair of the Tribunal directed that subsequent hearings would be conducted in private. This information was passed to Mr Fogarty who was also advised that only those with appropriate security clearances would be able to give evidence and attend the hearing on 9 February 2016 and that he would be heard separately. 15 Further, in accordance with Procedural Rule 15 as amended, the Chair directed that the reasons for decision were not to be made public and, in accordance with sl lOXD(l)(c) of the Defence Act, ordered that only Page 4 details of the decision under review, Tribunal findings and the decision would be made public. 16 17. Mr Fogarty wrote to the Tribunal on 31 January 2016 in response to the Directions and Orders claiming that his application: 'is based on the facts that Administrative Law, in particular the ADJR [Administrative Decisions (Judicial Review) Act 1977], applies to Defence 's determination of awards, there is no justification for separate Defence only hearing. The critical elements of my application rely on matters that are already in the public domain. There are no matters affecting National Security. Similarly, there is no justification for a restricted decision. The Tribunal's Directions show a clear bias towards Defence and against me'. 17 20. A hearing was conducted in Canberra on 9 February 2016 attended by retired Lieutenant Colonel Hawkins, the Nominating Officer for Sergeant Diddams' MG; Brigadier Fortune, the Special Forces representative on the ColTiffiander Joint Operations Command (CJOPS) Honours and Awards Board which had considered the Diddams nomination in 2012, Colonel Bennett the senior staff officer responsible for Personnel (Jl) at HQJOC, Lieutenant Colonel Bishop from the Directorate of Administrative Law and Advisings in Defence Legal Djvision and staff from the Directorate and Army Headquarters. A hearing with Mr Fogarty was conducted in Canberra on 11 February 2016. This hearing was also attended by Lieutenant Colonel Bishop, staff from the Directorate and staff from Army Headquarters. 21. Following the hearing, Mr Fogarty wrote to the Tribunal offering his 'thoughts' and suggestions on what recommendations the Tribunal may wish to make to the Minister.
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