CHAPTER ONE INTRODUCTION 1-1 The Defence Honours and Awards Appeals Tribunal (the Tribunal) is established under the provisions in Schedule 1 of the Defence Legislation Amendment Act 2010 [No. 1] (Cwlth), which came into effect on 5 January 2011. Before that date, many of the functions of the Tribunal were undertaken by the Defence Honours and Awards Tribunal (the old tribunal), which operated administratively from July 2008. The Defence Legislation Amendment Act contains the provisions for the establishment of the new Defence Honours and Awards Appeals Tribunal (the new Tribunal, or the Tribunal), as well as specifying its membership, powers and functions. The Tribunal’s functions are set out in s. 110UA of the Defence Act 1903 (Cwlth). The Minister may direct the Tribunal to hold an inquiry into a specified matter concerning Defence honours or awards. The Tribunal must then hold an inquiry and report, with recommendations, to the Minister. 1-2 On 21 February 2011 the Parliamentary Secretary for Defence, Senator The Hon. David Feeney, referred the matter of Unresolved Recognition for Past Acts of Naval and Military Gallantry and Valour to the Tribunal. The Terms of Reference for the Inquiry into Unresolved Recognition for Past Acts of Naval and Military Gallantry and Valour (the Inquiry), as agreed on 29 April 2012, are set out in full at the commencement of the Report of the Inquiry into Unresolved Recognition for Past Acts of Naval and Military Gallantry and Valour (the Report). 1-3 The Tribunal comprised the following members: • Emeritus Professor Dennis Pearce, AO (Chairman until 20 June 2011) • Mr Alan Rose, AO (Chairman from 26 September 2011) • Professor David Horner, AM (also Presiding Member from 20 June to 25 September 2011) • Vice Admiral Don Chalmers, AO (Retd) • Brigadier Gary Bornholt, AM, CSC (Retd) • Air Commodore Mark Lax, OAM, CSM (Retd). Declaration of conflict of interest 1-4 No conflicts of interest were declared. Background to the Inquiry 1-5 At an estimates hearing of the Senate Standing Committee on Foreign Affairs, Defence and Trade on 19 October 2010, Senator Guy Barnett (Liberal, Tasmania) raised the question as to why no member of the Royal Australian Navy (RAN) had been awarded the Victoria Cross (VC), and suggested that several individuals should be considered for the award. The Chief of the Defence Force, Air Chief Marshal Angus Houston, initially resisted this approach because retrospectivity ‘creates all sorts of follow-on difficulties’. When pressed, he stated that ‘we 12 The report of the inquiry into unresolved recognition for past acts of naval and military gallantry and valour will let the Honours and Awards Tribunal have a look at it’.1 In the course of the discussion, six personnel were mentioned. Navy personnel: • Lieutenant Commander Robert Rankin (HMAS Yarra — February–March 1942) • Ordinary Seaman Edward Sheean (HMAS Armidale — December 1942) • Lieutenant Commander Henry Stoker (AE2 — April 1915) • Captain Hector Waller (HMAS Perth — February–March 1942). Army personnel: • Gunner Albert Cleary (Sandakan — 1945) • Private John Simpson Kirkpatrick (Gallipoli — April–May 1915). 1-6 In November 2010, Air Chief Marshal Houston directed the Chief of Navy to develop a submission and identify potential candidates for review by the Tribunal. As a result, the following naval personnel were identified in addition to the original six: • Midshipman Robert Davies (HMS Repulse — December 1941) • Leading Cook Francis Emms (HMAS Kara Kara — February 1942) • Lieutenant David Hamer (HMAS Australia — January 1945) • Able Seaman Dalmorton Rudd (HMS Vindictive — April 1918) • Leading Aircrewman Noel Shipp (RAN Helicopter Flight Vietnam — May 1969) • Lieutenant Commander Francis Smith (HMAS Yarra — February–March 1942) • Leading Seaman Ronald Taylor (HMAS Yarra — February–March 1942) 1-7 In February 2011, the Deputy Secretary Defence Support and the Chief of Navy forwarded a brief to the Chief of the Defence Force covering a ministerial submission that contained the names of former Defence Force personnel whose actions and recognition might be subject to review.2 1-8 On 12 February 2011 Air Chief Marshal Houston advised the Parliamentary Secretary for Defence, Senator Feeney, that the most prudent course would be for Senator Feeney to write to the Chair of the Defence Honours and Awards Appeals Tribunal ‘inviting him to consider an investigation into individual Navy cases of valour, and because it was difficult and unwarranted to seek unique treatment for Naval personnel … the inquiry should involve a wider review of potential VCs’.3 An attachment to the submission listed the 13 names. In a follow-up question at the Senate estimates hearing on 23 February 2011, Senator Barnett asked if the matter had been referred to the Tribunal, and on what date. Senator Barnett was advised that the matter had been referred to the Tribunal, and that this had occurred ‘just in the last few days’.4 1 Senate Foreign Affairs, Defence and Trade Legislation Committee, Parliament of Australia, Supplementary budget estimates, 19 October 2010, pp. 106 –109. 2 The sequence of events in Defence is described in the attachment to letter, General DJ Hurley, CDF, to Chair, Defence Honours and Awards Appeals Tribunal, 20 September 2012. 3 Ministerial Submission, ‘Defence response to public calls for retrospective awards of the Victoria Cross for Navy personnel’. Air Chief Marshal A Houston to Senator D Feeney, 12 February 2011. 4 Senate Foreign Affairs, Defence and Trade Legislation Committee, Additional estimates, 23 February 2011, pp. 75–77. 13 1-9 As noted above (paragraph 1-2), on 21 February 2011, Senator Feeney formally referred the matter of ‘unresolved recognition for past acts of naval and military gallantry and valour’ to the then Chair of the Tribunal, Emeritus Professor Dennis Pearce, and the Tribunal received a letter with draft terms of reference on 23 February 2011 for consideration. 1-10 At a preliminary meeting on 16 March 2011, the Tribunal considered and proposed amendments to the draft terms of reference for the Inquiry. These were forwarded to Senator Feeney who added an extra requirement, namely that the Tribunal was to receive submissions supporting the recognition of acts of gallantry or valour performed by other members of the Defence Force. Senator Feeney approved the Terms of Reference, and on 16 April 2011 issued a media statement advising that the Tribunal would be conducting the inquiry and that advertisements were being placed in the media giving notice of the inquiry and calling for submissions. The Terms of Reference were formally sent to the Tribunal on 29 April 2011. Conduct of the Inquiry 1-11 Also at the meeting on 16 March 2011, the Tribunal decided that the Inquiry would need to: • conduct its own research, including in archives in Australia, the United Kingdom and the United States; • receive submissions from family members of the 13 personnel listed in the Terms of Reference, the public, government departments and veterans’ organisations; • conduct public hearings to seek further information from those people and organisations making submissions; and • review the personal files of the nominated servicemen. 1-12 At the 16 March meeting the Tribunal further decided that it would be necessary to test and scrutinise carefully all the evidence presented to it in the oral and written submissions. Accordingly, the Tribunal requested that advertisements be placed in the press inviting submissions. The Tribunal also directed its staff to undertake research, both on the individual cases and the general matter of the awarding of honours for gallantry. In this regard, an independent researcher, Mr Anthony Staunton, was contracted to prepare a factual paper setting out the rules and history concerning the awarding of honours for valour. 1-13 As noted above (paragraph 1-3), Professor Pearce completed his term as Chair of the Tribunal on 20 June 2011. The Acting Chair of the Tribunal, Ms Heazlewood, was not directly involved in the work of this Inquiry, which was chaired in an acting capacity by Professor Horner. The Tribunal’s research continued, but it was not able to begin the formal hearing of submissions until after the new Chair, Mr Alan Rose, took up his appointment, and took over as chairman of this Inquiry, on 26 September 2011. The gap between Professor Pearce’s retirement and Mr Rose’s appointment imposed an unfortunate delay on the Tribunal’s proceedings. 1-14 Submissions closed on 30 June 2011, and the Tribunal received 56 written submissions from individuals and interested organisations by this date. The 14 The report of the inquiry into unresolved recognition for past acts of naval and military gallantry and valour Tribunal also received 76 submissions relating to claims concerning individuals other than those named in the Terms of Reference. The Tribunal received further submissions after the closing date, and these were accepted by the Tribunal. By the end of the Inquiry the Tribunal had received 166 submissions relating to its major Terms of Reference; the organisations and individuals who made these submissions are listed at Appendix 1. The Tribunal also received 174 submissions relating to claims concerning individuals and groups other than those named in the Terms of Reference. 1-15 In August 2011, the Tribunal wrote to the Department of the Prime Minister and Cabinet (PM&C), the National President of the Returned & Services League of Australia (RSL) and the Director of the Australian