Knight v Defence Force Ombudsman [2024] FCA 474 | Case summary

Federal Court of Australia|2024-05-09|Before: Ms J, Button J

Background 75 Mr Knight's reply submissions were filed somewhat late (Mr Knight said that his USBs containing materials relating to this proceeding had been confiscated for a time by prison authorities). In his reply submissions, Mr Knight sought leave to amend his originating application to seek declaratory relief in respect of the operation of s 14(1)(d) of the Regulations. Due to the late receipt of the reply submissions, the Respondent did not have adequate notice of the proposed amendment. The Respondent did not oppose leave being granted to Mr Knight to amend his originating application, and counsel for the Respondent was able to deal with the new ground - to a point - in oral submissions. However, as it emerged during the hearing that Mr Knight sought to refine the terms of the declaration he sought, I determined that it was preferable that Mr Knight finalise the form of relief he was seeking and that the parties then put on their submissions on the ground, as finalised, in writing. Both parties were content to proceed in this manner, and orders were made accordingly (allowing sufficient time given what the Court was told about constraints on access to computers in Port Philip Prison). Neither party sought a further oral hearing. 76 The additional declaration sought by Mr Knight by his amended originating application was as follows: [T]hat s.14(1)(d) of the Ombudsman Regulations 2017 (Cth) directs that the Defence Force Ombudsman has the statutory function of investigating the complaint made by the Applicant under cover letter dated 16 March 2023 regarding the way his complaint previously made to, and dealt with by, the Defence Abuse Response Taskforce was handled. 77 Section 14(1)(d) of the Regulations is in the following terms: 14 Conferral of functions on Defence Force Ombudsman - new complaints etc. (1) For the purposes of paragraph 19C(1)(a) of the Act, the Defence Force Ombudsman has: … (d) the function of dealing with any matter relating to complaints previously made to, and dealt with by, the Defence Abuse Response Taskforce. 78 Mr Knight's 2023 complaint included a personal statement running to 121 pages (without attachments). In addition to extensively detailing his early background and experiences in his time with Defence, Mr Knight included a section headed "Submission to the DART". In this section, which was just over two pages long, Mr Knight set out some facts concerning his 2013 complaint, referred to the range of outcomes that the DART Report listed as outcomes provided by the DART, and referred to the January 2015 Assessment Note finding his complaint contained an account of abuse that was plausible and which raised plausible mismanagement by Defence of a plausible report of abuse. After pointing out additional features of the 2015 Assessment Note, Mr Knight then referred to the Guidelines and the provision concerning certain reparation payments being held on trust for, among others, prisoners. Mr Knight continued: Despite this provision and the fact that my complaints were found by DART to be plausible, I was not given a reparation payment after the Minister for Defence and the Minister for Justice issued a direction in mid-2015 that the DART should 'not make reparation payments to incarcerated complainants or persons currently on parole.' Of over 2,400 complainants to the DART, this direction only affected me and two other complainants. On 15 September 2016, my application for a judicial review of the Ministers' direction was dismissed by the Federal Court of Australia (Knight v Commonwealth of Australia [2016] FCA 1160 (15 September 2016) Bromberg J). A referral from the DART to the ACT Police in 2014 did not result in any charges being brought against any person involved in the injuries I received at RMC Duntroon as a result of criminal assaults. ACT Police declined to prosecute in spite of a signed statement by me in which I identified some of my assailants. I received no other outcome from the DART (e.g. an apology or counselling). 79 Earlier on his personal statement, Mr Knight detailed a belief that the Director of Army Legal Services provided advice to the Victorian Office of Public Prosecutions concerning allegations of "bastardization" that Mr Knight was likely to make in Court in connection with the Hoddle Street shootings. 80 In responding to the 2023 complaint by a letter dated 21 March 2023, the Respondent's liaison officer referred to the contents of the 2023 complaint, and said that it was the same, in substance, as the 2013 complaint. After referring to the definition of "excluded complaint", the letter dated 21 March 2023 stated as follows (emphasis added): This means we cannot re-assess your report under this Scheme. We have no authority to consider the Involvement of the Director of Army Legal Services in the prosecution of R- v-Knight in the Supreme Court of Victoria, nor to consider the management of your submission to the DART. We can only consider those incidents which occurred whilst you were a serving member of the Australian Defence Force and the alleged perpetrators of the abuse, were also serving members of the Australian Defence Force. As you ceased to be a serving member of the Australian Defence Force on 10 July 1987, all incidents after this date are outside this Scheme. 81 As is clear, the Respondent took the view that, under the Regulations, he did not have authority to consider the management of Mr Knight's submission to the DART. Mr Knight contends that the Respondent did in fact have authority to do that, pursuant to s 14(1)(d) of the Regulations.

The parties' submissions 82 Mr Knight contended that s 19C(1)(a) of the Act directs that the Respondent have the functions detailed in s 14(1) of the Regulations and that, pursuant to s 19C(2)(a), the Respondent was under a statutory obligation to investigate his complaint made under s 14(1)(d). Mr Knight further contended that s 19C(3) empowers the Respondent to investigate his complaints both with respect to the involvement of the Director of Army Legal Services in his criminal prosecution, and the management of his submission to DART, contrary to the Respondent's claims in his 21 March 2023 letter. 83 Mr Knight submitted that the expression "dealing with" was broad and, contrary to the Respondent's submission, allowed for the investigation of the matters the Respondent said were beyond its authority to consider. He also submitted that, in "dealing with" a matter pursuant to s 14(1)(d) of the Regulations, the Ombudsman would be able to recommend that Mr Knight receive one or more of the outcomes specified by s 14(1)(a) (in respect of "new complaints"). 84 The Respondent submitted that s 14(1)(d) is not a "complaint investigation" function for two principal reasons. First, the provision does not refer either to the making of complaints, or the conduct of investigations. Secondly, the scheme of the Act shows that the function of investigating complaints is conferred by s 19C(1) and is directed to matters that the Respondent is authorised to investigate by the Act. The submission was that the "complaint investigation function is confined to, and controlled by, the Act itself". 85 The Respondent contrasted the "investigation" of complaints under the Act, with "other" - non-investigatory - functions and submitted that the distinction was deliberate and reinforced by the terms and structure of the Act, which: (a) limit matters which the Respondent was authorised to investigate to matters so authorised by the Act; and (b) thereby tie in with the scheme of a number of other provisions of the Act which apply by virtue of s 19F(1), including provisions that: (i) confer a discretion not to investigate complaints; (ii) govern the manner in which complaints are to be made; (iii) authorise the Respondent to conduct "preliminary inquiries" into a complaint; (iv) regulate the manner in which an "investigation" is to be conducted (eg by requiring giving notice of potential adverse opinions); (v) authorise the compulsory production of documents and information, and the examination of persons on oath or affirmation and powers of entry; and (vi) govern the making and giving of reports at the completion of an "investigation". 86 The Respondent submitted that, against this formal, structured set of provisions in the Act for the conduct of "investigations", the drafters of the Regulations cannot have intended, by the general language of s 14(1)(d), that the Respondent would have an additional or separate complaint investigation function that was not authorised by the Act and was divorced from the specific statutory regime for such investigations established by the Act. 87 The Respondent's submissions focused on the suggestion that, pursuant to s 14(1)(d) he had any investigatory functions. The Respondent contended that the Act contained a detailed and careful set of provisions that establish a function of investigating complaints. He relied here on the terms of s 19C of the Act, and other provisions of the Act which govern the Respondent's investigations. He submitted that, whatever s 14(1)(d) of the Regulations was intended to achieve, it does not confer any function of investigating complaints. 88 The Respondent also submitted that, although Mr Knight's proposed declaration referred to the investigation of "the complaint" [singular], Mr Knight's 2023 complaint in fact made three complaints: a renewed complaint about his abuse in the military; a complaint about how the DART handled his 2013 complaint; and a complaint about the conduct of the Director of Army Legal Services during Mr Knight's prosecution. The Respondent submitted that s 14(1)(d) of the Regulations does not give him any complaint investigation function in respect of any of those three complaints, much less "direct" that he investigate those matters. 89 Finally, the Respondent submitted that the outcomes referred to in s 14(1)(a) are only available in respect of a "new complaint" and the limits on s 14(1)(a) cannot be side-stepped by those outcomes being available by the Respondent "dealing with" a complaint pursuant to s 14(1)(d). 90 He also noted that Mr Knight had not relied on s 14(1)(d) in his 2023 complaint.

Consideration: the declaration sought in respect of s 14(1)(d) of the Regulations 91 The declaratory relief sought by Mr Knight by his amended originating application concerns the way in which the DART handled his 2013 complaint. It does not concern the actions of the Director of Army Legal Services during Mr Knight's criminal prosecution. Inasmuch as Mr Knight's submissions raised that matter as one that should be "dealt with" by the Respondent pursuant to s 14(1)(d), it was outside Mr Knight's amended originating application and it is not necessary to address it further. 92 The substantive issue concerns the functions of the Respondent in relation to Mr Knight's complaint to the Respondent regarding how the DART handled his 2013 complaint. It is clear that the Respondent took the view, as his letter of 21 March 2023 stated explicitly, that the Respondent had no "authority to consider" the way in which Mr Knight's earlier complaint had been managed by the DART as that was a matter that post-dated his service in the Australian Defence Force. By his amended originating application, Mr Knight has taken issue with the Respondent's view that that matter was outside his authority and could not be considered by him. 93 In his submissions on the present application, the Respondent did not seek to justify or support the position taken in the 21 March 2023 letter that he had "no authority to consider" the matter. Rather, his submissions contended that s 14(1)(d) does not extend to his having any function of "investigating" a complaint about how Mr Knight's 2013 complaint was handled by the DART. 94 Mr Knight's amended originating application sought a declaration that the Respondent "has the statutory function of investigating" the handling of his earlier complaint by the DART. 95 The starting point is s 19C(1)-(2) of the Act, which provide as follows: 19C Functions of Defence Force Ombudsman (1) The functions of the Defence Force Ombudsman are to investigate complaints made to him or her under this Act and to perform such other functions as are conferred on him or her by: (a) this Act or the regulations; or (b) another Act or regulations made under another Act. (2) Subject to this Act, the Defence Force Ombudsman: (a) shall investigate action that he or she is authorized by this Act to investigate and in respect of which a complaint has been made to him or her; and (b) may, of his or her own motion, investigate action that he or she is authorized by this Act to investigate. 96 Section 19C is in Pt IIA of the Act, which concerns the establishment, functions, powers and duties of the Defence Force Ombudsman. Part II of the Act concerns the establishment, functions, powers and duties of "the Ombudsman". Part IIA of the Act is self-contained in that it establishes the office of the Respondent, which is an office that is distinct from the office of the "Commonwealth Ombudsman" simpliciter (ss 19B(2) and 4). Nevertheless, Pt IIA incorporates, by express provision, the machinery and other provisions found in Pt II of the Act (other than specific provisions, which are carved out) (s 19F). 97 As the Respondent submitted, Pt II of the Act contains a comprehensive scheme of provisions, concerning the conduct of, and reports arising from, "investigations". The concept and conduct of an "investigation" is central to the operation of this set of provisions, which are, as noted, mostly incorporated in relation to the Respondent's activities. This is important because it exposes that the central function of the concept of an "investigation" and the closely prescribed set of provisions concerning the conduct of investigations (including matters such as the conferral of powers to compel the production of documents, take evidence on oath, enter premises, and the requirement to make reports) is part of the context in which s 19C(1)-(2) of the Act, and s 14(1)(d) of the Regulations, must be construed. 98 The Act confers on the Respondent the function of investigating complaints made "under this Act" and the function of performing "such other functions as are conferred … by: (a) this Act or the regulations …" (s 19C(1)). 99 The use of the words "other functions" refers, in my view, to functions other than the function of investigating "complaints made … under this Act" (emphasis added). Section 19C(1) anticipates that other Acts, or the regulations made under the Act may confer functions on the Respondent. There is nothing to suggest that those functions cannot include the function of investigating. Rather, the statutory conferral of such functions as are conferred by other Acts or the Regulations allows for the possibility that a function of investigating something may be conferred by that other Act, or by the Regulations. 100 The next question, then, is whether s 14(1)(d) does confer a function of "investigating" matters that would include the handling of Mr Knight's 2013 complaint. When the word "investigating" is used to refer to the concept as it appears in the Act, the answer must be "no". 101 I accept that, as the Respondent submitted, the Regulations must be construed in a manner that is consistent with, and operates harmoniously with, the Act. The Regulations are made under s 38 of the Act, which provides that regulations may be made that are "not inconsistent with this Act" and which prescribe matters that are "required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to this Act". 102 The Regulations are structured in terms that lock in with the principal Act. Section 13 of the Regulations provides for the payment of expenses of witnesses appearing to answer questions "relevant to an investigation" in accordance with a notice served under specified provisions of the Act. Other than in that instance, the word "investigation" is not used in the substantive provisions of the Regulations. The word "investigate" is not used at all. 103 In describing the conferral of functions on the Respondent, ss 14(1)(a)-(d) use language that describes the functions conferred in specific terms, which stand in contrast to the central function - being to "investigate" - in the Act itself. For example, s 14(1)(a) refers to the "function of taking appropriate action" to respond to a "new complaint", and s 14(c) refers to the "function of inquiring into" matters relating to complaints of abuse. The avoidance of the language of "investigate" and "investigation" in conferring these additional functions mean that they do not lock in with the provisions of the Act that confer powers, but also impose obligations, where the Respondent (or the Commonwealth Ombudsman) conducts an "investigation". 104 In that context, when s 14(1)(d) confers the "function of dealing with" any matter relating to complaints previously made to, and dealt with by, the DART, it does not confer the function of "investigating", or conducting an "investigation" into, such matters, as the words "investigate" and "investigation" are used in the Act. 105 Given that Mr Knight's submissions contend that s 19C(2)(a) "directs that the Respondent is under a statutory obligation to investigate" his complaint under s 14(1)(d), and s 19C(2)(a) states that the Respondent "shall investigate action that he or she is authorized by this Act to investigate…", it is clear that the declaratory relief sought by Mr Knight uses the word "investigating" to pick up the statutory concept of "investigate" under the Act and not some looser concept akin to "considering" or "looking into". 106 Accordingly, I decline to make the declaration in the terms sought by Mr Knight. 107 I have referred, deliberately, to the concept of "investigate" and "investigation" as those words are used in the Act. That is because these reasons should not be construed as endorsing the position taken by the Respondent in his letter of dated 21 March 2023 that he had "no authority to consider" Mr Knight's complaint about the handling of his 2013 complaint. In my view, considering the handling of that complaint, in some way (and on the assumption that it had been "dealt with" by the DART) falls within the "function of dealing with any matter relating to complaints previously made to, and dealt with by, the [DART]" under s 14(1)(d) of the Regulations. Section 14(1)(d) does not limit how the Respondent may "deal with" such a matter. In his letter of 21 March 2023, the Respondent did not say that he had no function to "investigate" a complaint about the handling of Mr Knight's 2013 complaint. Rather, as noted, his response was that he had "no authority to consider" that matter at all. I do not consider that he had no authority, as stated.

The Respondent's notice under s 78B of the Judiciary Act and objection to competency 108 The Respondent gave notice of a constitutional matter under s 78B of the Judiciary Act. That matter was framed in the following terms: There is a question of construction about whether s 33(1) of the Ombudsman Act 1976 (Cth) (Ombudsman Act), properly construed, is a privative clause that purports to oust the jurisdiction of the Federal Court under s 39B of the Judiciary Act to conduct judicial review for jurisdictional error. That question of construction gives rise to the further question of whether s 33 of the Ombudsman Act should, in order to conform with the requirements of s 75(v) of the Constitution and so preserve the constitutional validity of s 33, be construed as not applying to applications for relief (on the grounds of jurisdictional error) brought in reliance on s 39B(1) of the Judiciary Act. 109 Section 33(1) of the Act provides as follows: Subject to section 35, neither the Ombudsman nor a person acting under his or her direction or authority is liable to an action, suit or proceeding for or in relation to an act done or omitted to be done in good faith in exercise or purported exercise of any power or authority conferred by this Act or Division 7 of Part V of the Australian Federal Police Act 1979. 110 No Attorney-General intervened. For his part, the Respondent did not contend that s 33 operates as a privative clause, and accepted that judicial review of the Decision is available under s 39B of the Judiciary Act. Accordingly, it is not necessary to say any more about this issue, and I proceed on the basis that judicial review is available. 111 The Respondent also served a Notice of Objection to Competency dated 22 September 2023. That notice stated that Mr Knight's application was incompetent on the following basis: To the extent that the application purports to be an application made under the [ADJR Act], the Court does not have jurisdiction to determine the application because, pursuant to s 3, the decision referred to in the application is not a "decision to which [the ADJR Act] applies". Specifically, there is no decision the Respondent could make which would confer, alter or otherwise affect legal rights or obligations, by virtue of its character as a non-binding and non-enforceable recommendation: Griffith University v Tang (2005) 221 CLR 99 at [80], [89]. 112 The Respondent's submissions also referred to Fitzwarryne v Commonwealth Ombudsman [2023] FCA 175 (Fitzwarryne) at [39]-[40]. 113 Section 5 of the ADJR Act provides that a "person who is aggrieved by a decision to which this Act applies" may apply for an order of review on one or more of the grounds set out in ss 5(1)(a)-(j). 114 Section 3 of the ADJR Act defines "decision to which this Act applies" as follows: decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition): (a) under an enactment referred to in paragraph (a), (b), (c), (d) or (e) of the definition of enactment; or (b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca), (cb) or (f) of the definition of enactment; other than: [certain irrelevant decisions] 115 As may be seen, no application will be available in respect of a decision unless it was made "under an enactment" of the requisite character. The meaning of the expression "under an enactment" was explained by the plurality in Griffith University v Tang (2005) 221 CLR 99 as follows (Tang) (at [89] (Gummow, Callinan and Heydon JJ)): The determination of whether a decision is "made . . . under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made . . . under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice. (Emphasis added.) 116 In this matter, it is the second criterion with which the Respondent had taken issue. 117 The point raised by the Respondent was that, because s 14(1)(a) of the Regulations states that one of the functions of the Respondent is "deciding not to take, or to continue to take, action in response to [a] complaint", any decision made by the Respondent in relation to Mr Knight's 2023 complaint was not one that satisfied the second limb of Tang (namely that the decision be one that would confer, alter or otherwise affect legal rights or obligations). The Respondent drew an analogy between s 14(1)(a) of the Regulations, and s 6(1)(b)(iii) of the Act, considered by Rares J in Fitzwarryne. That section confers a discretion on the Ombudsman to decide not to investigate or to stop investigating a complaint, where the investigation is not warranted having regard to all the circumstances. 118 In oral submissions, it emerged that the Respondent's objection to competency promised more than it delivered and that the Respondent did not in fact contend that Mr Knight's application was incompetent. Rather, the Respondent accepted that Mr Knight's application was not incompetent as it was advanced under s 39B of the Judiciary Act, whereas the point raised by the notice of objection to competency only had any purchase to the extent that Mr Knight's action depended on establishing causes of action under the ADJR Act. Mr Knight's application did not depend on establishing that the Respondent had made a decision to which the ADJR Act applied. Rather, his application for mandamus referred to provisions of the ADJR Act by way of illustrative particulars, and his application otherwise sought declaratory relief. Accordingly, it is not necessary to say anything more about the notice of objection to competency.

Conclusion 119 The amended originating application will be dismissed. The Respondent is to advise Mr Knight by 14 May 2024 whether, in view of Mr Knight's status as a prisoner, he seeks a costs order. I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Button.

Ombudsman Amendment (Functions of the Defence Force Ombudsman) Regulation 2016(Cth)

Ombudsman Amendment (Functions of the Defence Force Ombudsman) Regulations 2017(Cth)

Ombudsman Regulations 2017(Cth)ss 13, 14, 14B

Judiciary Act 1903(Cth)ss 39B, 78B

Ombudsman Act 1976(Cth)ss 4, 6, 8D, 19C, 19F, 19X, 19ZS, 19ZX, 20P, 24, 25, 33, 38

Consideration of the "dealt with" issues 55 In my view, the expression "dealt with", as it is used in the definition of "excluded complaint" in the Regulations, does not bear the meaning contended for by Mr Knight. In particular, it does not, properly construed, require that the DART have made a specific determination about each of the full range of potential outcomes that may be offered to a complainant whose complaint meets the thresholds established under the Scheme. 56 That conclusion arises from the ordinary and natural meaning of the expression and the relevant historical and legislative context. 57 The principles of construction applicable here are well settled and not controversial. They do not need extensive repetition here. The key principles to be applied to the present application are as follows: (a) The starting point in construing a statutory provision is the text of the statute itself. At the same time, however, regard must be had to its context and purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] (Kiefel CJ, Nettle and Gordon JJ); see also at [37]-[39] (Gageler J). (b) Where a term is not defined in the legislation, its ordinary and natural meaning, understood in context, must be considered: WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190; [2004] HCA 50 at [37] (Gleeson CJ, McHugh, Gummow and Heydon JJ). In determining that meaning, it can be helpful to have recourse to dictionary definitions of the undefined phrase, but they are not conclusive: Polo/Lauren Company L.P. v Ziliani Holdings Pty Ltd (2008) 173 FCR 266; [2008] FCAFC 195 at [24] (Black CJ, Jacobson and Perram JJ). In other words, a fortress must not be made out of the dictionary: Cabell v Markham (1945) 148 F 2d 737 at 739 (Judge Learned Hand), endorsed in Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [23] (French CJ, Hayne, Kiefel, Gageler and Keane JJ). (c) The settled principles of statutory construction apply equally to the construction of regulations. In this regard, Gordon, Edelman, Steward and Gleeson JJ held in ENT19 v Minister for Home Affairs (2023) 410 ALR 1; [2023] HCA 18 at [86] that (citations omitted): Regulations are to be construed according to the ordinary principles of statutory construction. The starting point for the ascertainment of the meaning of a provision is its text, while at the same time regard is to be had to its context and purpose. Of course, the statutory context of regulations includes the Act under which the regulations were made and are sustained. Context should be regarded at the first stage and not at some later stage and it should be regarded in its widest sense, including by reference to legislative history and extrinsic material. 58 As the authorities above confirm, the starting point is the language used in the legislative provision. The expression selected by the framers of the Regulations was a broad, non-technical expression. The framers did not define or include provisions setting out when a complaint will have been "dealt with". Accordingly, the ordinary meaning of the term is the appropriate starting point. 59 As a matter of ordinary language, when the expression "dealt with" is used in respect of an item, it means that item has been addressed or handled by the body charged with dealing with it. While dictionary definitions of terms used, but not defined, in legislative instruments are not determinative, they expose the range of ordinary meanings of a term. The Respondent located and relied on the following dictionary definitions, which, in my view, support the ordinary meaning of the term "dealt with" not carrying the technical and prescriptive meaning ascribed to it by Mr Knight (references omitted): Deal/dealt means: - 'To conduct oneself towards persons'; 'To take part in, have to do with, occupy oneself, do business, act'; 'To have to do with (a thing) in any way; to busy or occupy oneself, to concern oneself with'; '(a) to deal with: to act in regard to, administer, handle, dispose in any way of (a thing). (b) to handle effectively; to grapple with; to take successful action in regard to.' Deal with/dealt with means: - 'to occupy oneself or itself with'; 'to take action with respect to; handle'; 'to take effective action with respect to; handle successfully'; 'to deal with: to act towards (a person), to treat (in some specified way).' 60 There are additional textual indications that do not support the construction contended for by Mr Knight, but support the Respondent's construction. 61 The choice of the expression "dealt with" stands in contrast to other terms that might have been chosen, had the framers of the Regulations intended to adopt a more technical or prescriptive understanding of when a complaint will have been "dealt with". They could, for example, have used terms such as "determine" (or "determined") or even "decided". The Respondent's submissions pointed to various other provisions in the Act using language of that kind (ss 24(1), 25, 19X(6)(e), 19ZS(7)(a), 20ZX(8)(a) and 20P(a)). The framers also chose not to include any words which would have qualified or further described the kind, or extent, of "dealing with" required (cf the use of the qualifying adverb "finally" in ss 14(1A)(b)(ii) and 14B(2)(b) of the Regulations, which refer to a matter being "finally dealt with"). 62 The definition of "excluded complaint" refers to a "complaint" that was "previously made to, and dealt with by" the DART. That which must have been "dealt with" is the "complaint". There is no textual indication that a "complaint" will not have been "dealt with" unless the DART made a determination as to each of the outcomes, other than reparation payments, that may have been offered to a complainant under the Scheme. 63 The term "Defence Abuse Response Taskforce" is defined in the Regulations as: the taskforce established by the then Attorney-General and Minister for Defence to respond to complaints of sexual and other forms of abuse by Defence personnel alleged to have occurred before 11 April 2011. 64 Not only do the Regulations make no mention of the other outcomes, but those other outcomes were not referred to in the Terms of Reference by which the DART was first constituted or the Guidelines governing the Scheme. 65 While the initial Terms of Reference stated that the DART was to "determine, in close consultation with those who have made complaints, appropriate actions in response to those complaints", it did not identify what the "appropriate actions" might be. Amended Terms of Reference dated June 2015 referred also to the conclusion by stipulated dates of outstanding referrals to police or military justice authorities or to the CDF, counselling, and outstanding restorative engagement conferences. This reflects that, at a practical level, the Scheme was operated on the basis that other outcomes may be offered to complainants. Those other outcomes are referred to (non-exhaustively) in the DART Report, issued by the DART as it was winding up its work. The DART Report is dated 26 November 2014 and makes extensive reference to those other outcomes. 66 The absence of set lists of outcomes in the constituent documents also reflects the historical, contextual fact that the DART was a purely executive body. It had no formal fact-finding, or adjudicative function. It was not established with prescribed procedures. While the processes of the DART developed, in practice, so that complainants were invited to fill in a form if seeking a reparation payment, but other outcomes would be discussed with a Case Coordinator (usually appointed once a complaint passed the relevant thresholds), the procedures adopted by the DART in practice do not establish an inflexible or rigid set of procedures that had to be followed, or outcomes that had to be assessed, lest any divergence result in a complaint being deemed not to have been "dealt with". 67 The short point is that the Regulations stipulate that that which must be dealt with is the complaint. There is simply no textual hook in the Regulations that brings in the other options which were developed as the Scheme was implemented, let alone one that would suggest a construction of "excluded complaint" that requires that each such other outcome to have been considered and determined before a complaint was "dealt with". 68 As the Respondent submitted, other contextual matters also suggest that the term "dealt with" was not intended to carry the exhaustive or prescriptive meaning suggested by Mr Knight. The Act itself (which forms part of the context for construction of the Regulations) uses the expression "dealt with" in an informal sense when referring to whether complaints could be "more conveniently or effectively dealt with by" another body, authority or part of the Act (ss 6(4D)(b), 6(6)(b) and 6(9)(b) are among many such examples identified by the Respondent in his submissions). 69 Adopting the exhaustive and prescriptive understanding of "dealt with" urged by Mr Knight would also undermine the sensible operation of other aspects of the Regulations. Section 14(1)(d) of the Regulations states that one of the functions of the Respondent is "dealing with" any matter relating to complaints that had been "dealt with by" the DART. The ambit of that function would be limited if a complaint was only "dealt with" when every facet and potential action has been examined and determined by the DART. 70 In addition, the construction preferred by Mr Knight would be impractical as it would require the Respondent, in order to determine whether a complaint was an "excluded complaint", to engage in an in-depth review of the DART's handling of an earlier complaint to assess whether each and every potential outcome had been addressed by the DART. 71 Further, and in any event, as documents that only emerged as Mr Knight pursued his case showed, in fact all of the other outcomes were considered by the DART, even if it had not notified him of its view. 72 The documents included a letter containing the consideration given personally by the Chair of the DART to Mr Knight's complaint. That letter, and records concerning civilian police referral, established that counselling was considered, but thought not necessary or appropriate in Mr Knight's case given he was in prison and his welfare (including any need for counselling) was the responsibility of the prison system. Restorative engagement was also considered, but thought inappropriate in relation to Mr Knight. Referral to civilian police was also considered but, as it was known that Mr Knight had already self-referred to the civilian police, it was thought that a further referral would be duplicative. Instead, information sharing was pursued to facilitate the police's handling of Mr Knight's complaint. Referral to the CDF was also considered and rejected. 73 Accordingly, at the factual level, outcomes other than a reparation payment were considered and rejected by the DART. It might have been desirable to inform Mr Knight accordingly (particularly given he had raised the question of whether he was eligible for other outcomes notwithstanding the Ministerial direction that meant he was ineligible for a reparation payment), but the fact that the DART did not write to advise him that no other outcomes were to be actioned in his case does not mean that the DART had not considered and made decisions on all possible outcomes. If, contrary to what I consider to be the proper construction of "dealt with", it was necessary that the DART have addressed all possible outcomes in relation to Mr Knight's complaint, in order for it to have been "dealt with", it did so. 74 Consequently, on either view, Mr Knight's 2013 complaint had been "dealt with" and the Respondent correctly reached that conclusion and rejected Mr Knight's 2023 complaint as an "excluded complaint" for the purposes of the Regulations. Mr Knight is not entitled to the relief sought by paragraphs 1 or 2 of his originating application.

Knight v Defence Force Ombudsman

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