Workforce and administrative action FAQ

Administrative action may be taken under the Defence Act 1903 or the Defence Regulation 2016 against individuals whose conduct, performance or standards are unsatisfactory or whose actions or behaviour have adversely impacted, or are likely to impact, the efficiency, reputation or operational effectiveness of the ADF.

Administrative action can include termination of service, censure, reduction in rank, formal warning or formal counselling. Administrative action is based on administrative law and achieves procedural fairness by providing opportunity for response. Members also have rights to seek review of the decision.

A notice to show cause is a written notice proposing decisions that could adversely affect an individual and provides them with an opportunity to respond to the proposed decisions.

Where action is necessary to address individual accountability, administrative law, discipline law (under the Defence Force Discipline Act 1982) and criminal law systems may be used. Each serves different purposes and has different characteristics.

Importantly, use of one system does not exclude the use of another and, of greatest significance, they are independent of each other.

For an individual to be found guilty, convicted of and punished for a criminal or service (discipline) offence, the prosecution must prove guilt ‘beyond reasonable doubt’.

Administrative action does not require the decision-maker to reach this level of certainty. The more serious the action being taken against an individual, the more certain of the facts a decision-maker should be. In administrative law matters the standard of proof is on the ‘balance of probabilities’.

Once a notice to show cause has been received, the individual has the opportunity to respond within a minimum of 14 days. The opportunity for respondents to offer their perspective is provided as a matter of procedural fairness.

The decision-maker must consider any written response that the individual provides before making a decision whether the individual will have their service in the ADF terminated, or whether the individual will return to ongoing service. 

Each matter and individual circumstance is considered on a case-by-case basis.

Yes, members have rights to seek review as part of Defence’s ‘redress of grievance’ complaints system if they are not satisfied with the decision. They may also be able to seek review of the decision by an Australian court or tribunal as part of general Australian law.

Following the release of the Afghanistan Inquiry report, Army initiated administrative action, inclusive of a notice to show cause, for termination of service against 17 individuals where alleged failure to meet ADF expectations and values was identified. 

All members were afforded due process. The issuing of these notices occurred over a period of two weeks.

No notices to show cause for termination of service were withdrawn.

Outcomes of the notices were determined by the decision-maker on a case-by-case basis. Some individuals issued notices have since separated from the ADF on medical grounds. Others continue to serve, whether in the permanent or reserve force.

All members were afforded due process.

All 17 individuals (or their legal representative) were advised of the outcome of their notice.

At this time, the Chief of the Defence Force will give no further consideration to administrative action until any relevant criminal processes are complete.

The Chief of the Defence Force and the Service Chiefs have command responsibilities including the maintenance of ‘good order and military discipline’ of their commands. It is their duty to act should information come to their attention which affects discipline or calls into question the judgement of members of Navy, Army and Air Force.

It is important that deviations from professional standards are addressed, and alleged criminal conduct is properly investigated and dealt with in accordance with Australian law.

The threshold for Defence to take administrative action on poor behaviour or conduct is less than that required under criminal law. A member does not need to be found guilty of an offence before administrative action can be taken against them.

Administrative action enables Defence, as an employer, to maintain its professional standards and ensure the conduct of its people meets the expectations of the nation they are sworn to defend.

All notices have been founded on findings of alleged individual wrongdoing as detailed in the Afghanistan Inquiry report.

The purpose of the termination notices is to take an even-handed approach to all those for whom credible information was identified at odds with ADF expectations and values.

The opportunity for respondents to offer their perspective is provided as a matter of procedural fairness. The decision-maker will decide, on a case-by-case basis, whether each individual will have their service in the ADF terminated, or whether the individual will return to ongoing service without further action.

Decisions on termination are complex, and involve an array of factors and circumstances, which must be assessed individually and on their impacts on the functioning of the ADF.
 

Legal, welfare and chain-of-command support is provided to anyone who is subject to administrative action.

Termination of service and medical separation are two separate processes.

Medical separation occurs when an individual is medically downgraded as they are no longer able to perform their duties.

Medical separation is afforded to individuals on the basis that a medical clinician has determined the member is no longer employable or deployable for service in the ADF.

If a notice to show cause for termination of service has been issued to a member, this does not prevent them from medically separating if the medical recommendation is that they are no longer able to perform their duties. The reason an individual’s service ends is decided on a case-by-case basis according to individual circumstances.

Termination of service and medical separation are two separate processes.

Medical separation occurs when an individual is medically downgraded as they are no longer able to perform their duties.

Medical separation is afforded to individuals on the basis that a medical clinician has determined the member is not employable or deployable for service in the ADF.

The welfare of serving personnel is of utmost priority. Defence has a duty of care to follow medical recommendations relating to the welfare of its people.

The Afghanistan Inquiry report does not identify any witness or participant as a whistleblower, nor are there any recommendations referring to witnesses or participants as whistleblowers.

The fact that some individuals assisted the Inquiry is not disputed and regardless of any recommendation the Inquiry made, it is ultimately a matter for Defence as to what, if any, administrative action should be taken.
 

No. Administrative action is initiated when alleged failure to meet ADF expectations and values is identified. It is not a process to determine criminal responsibility.

The threshold for Defence to take administrative action on poor behaviour or conduct is less than that required under criminal law. 

The decisions made in relation to the administrative action taken by Army are independent of any consideration of criminal liability. 

The table below summarises the number of separations¹ from permanent force² of personnel posted to the Special Air Service Regiment (SASR) over the years 2015-16 to 2023-24, with 2023-24 a year-to-date figure correct as at 1 July 2024.

Definitions:

1. 'Separation' includes both voluntary and involuntary departure from the permanent force and includes those who transfer to Reserve service in Service Categories 2, 3 or 5.

2. 'Permanent Force' is Service Category 7 (full-time) and Service Category 6 (part-time).

3. 'Special Air Service Qualified' is personnel qualified as either a Special Air Service Officer or a Special Air Service Trooper. The SASR is made up of both Special Air Service qualified personnel and personnel from other trades.

No individuals who received administrative notices in relation to the Afghanistan Inquiry were deployed by the ADF to support the Australian Government’s evacuation effort from Afghanistan.