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Thursday, 9 February 2012
Page: 727

Australian Defence Force

(Question No. 1473)

Senator Bob Brown asked the Minister representing the Minister for Defence, upon notice, on 22 November 2011:

In regard to the Facebook page entitled 'Steve Austin' (the webpage) which targeted serving gay and lesbian Defence members and to which current and serving members of the Australian Defence Force (ADF) subscribe or contributed:

(1) Can a list be provided of each rank and the number of persons who hold that rank of the defence members who contributed or subscribed to the webpage.

(2) Were the ranks inferior or superior to that of the members of the ADF targeted by the website.

(3) Of the contributors and/or subscribers to the webpage who were junior in rank to those targeted, was a charge of insubordination pursuant to section 26 of the Defence Force Disciplinary Act 1982 (the Act) contemplated; if not, why not.

(4) What is the difference under the Act between conduct and language that is vilifying of a superior officer and conduct and language that is 'threatening, insubordinate or insulting.

(5) Does vilifying behaviour of an officer constitute insubordination under the Act or any other disciplinary provisions of the ADF.

(6) Does the Act make unlawful language or conduct that is vilifying of a superior officer.

(7) Can a list be provided of the laws, rules or regulations which apply to Defence Members prohibiting vilifying behaviour.

(8) Of the laws, rules or regulations listed above, can an explanation be provided as to why Defence members have not been proceeded against pursuant to those laws, rules or regulations.

(9) What was the name and rank of the officer who decided not to proceed against Defence members who contributed or subscribed to the webpage.

(10) With reference to the Defence Instruction (General) and, in particular, the provisions of the instruction relating to Unacceptable Behaviour and Workplace Bullying, can an explanation be provided as to whether vilifying behaviour is or is not: (a) unacceptable behaviour; (b) bullying; (c) insubordination; (d) insulting; or (e) threatening.

(11) Did the conduct of the webpage and participation on the webpage amount to vilification.

(12) Can a copy of the legal advice provided to the ADF regarding this matter be provided.

(13) Is vilifying behaviour contrary to military discipline and order.

Senator Carr: The Minister for Defence has provided the following answer to the honourable senator's question:

(1) A Defence investigation identified 32 serving members of the Australian Army who had accepted friend requests from the Facebook page entitled 'Steve Austin' (the webpage). A list of each rank and the number of persons who hold that rank is below: (a) Captain - One; (b) Warrant Officer Class Two - One; (c) Sergeant - One; (d) Corporal - 13; (e) Lance Corporal - Six; and (f) Private - Ten.

(2) The ranks of the ADF members targeted by the website ranged from Private to Major.

(3) Yes.

(4), (5) (6) and (7) For ADF personnel, the Defence Force Discipline Act 1982 (DFDA) is the primary Act for the purposes of discipline. Vilification is not specifically and explicitly defined in the DFDA. The DFDA also enables the ADF to enforce Commonwealth Laws as applicable in the Jervis Bay Territory. Section 26 of the DFDA defines insubordinate conduct as conduct or language that is threatening, insubordinate or insulting to or about a person where the person is a superior officer and the language is used in that person's presence.

Despite not being explicitly mentioned in the DFDA, vilification of any kind is unacceptable and Army considers the targeting of any person who is, or is thought to be, gay or lesbian to be repugnant and contrary to both Army's values and those of the wider community.

Additionally members of the ADF remain subject to state and Commonwealth laws. Defence must also comply with the requirements of the Human Rights and Equal Opportunity Commission Act 1986, and the acts administered by the Commission, including the Sex Discrimination Act 1984. New South Wales, the Australian Capital Territory and Tasmania prohibit vilification on the grounds of sexual orientation, gender identity and relationships. In these jurisdictions, vilification refers to communications made in public that incite 'hatred towards, serious contempt for, or severe ridicule of' a person or group of people on the grounds of their sexual orientation and or gender identity.

(8) Defence, like the broader community, is coming to grips, in both a legal and policy sense, with the rapidly evolving nature and potential of social media. Defence recognises this and is currently reviewing its social media policies, following the conduct of the Social Media Review announced by the Minister for Defence on 11 April 2011. This will include a review of the legal and policy requirements associated with misuse of social media.

Under the current legal and policy framework within Defence, 'befriending' a site does not - in and of itself - provide sufficient legal basis to sustain a disciplinary or legal charge. A small number of identified members posted comments to the Facebook page, but, this information was not deemed, by investigators to be of a vilifying nature.

Lessons learned from recent events have been translated into the delivery of additional equity training, which has been provided to units to reinforce the responsibilities of individuals. Within the Australian Army, all units have participated in a cultural awareness program, which has reinforced Army's values of Courage, Initiative and Teamwork, as well as Army's nine core soldier behaviours. This awareness program was designed to generate discussion among unit personnel on a wide range of equity and diversity issues and to reinforce the need for all Army personnel to take personal responsibility for their actions. Army continues to actively work to promote a fair and tolerant workplace and maintains the view that any kind of vilification is abhorrent.

(9) The Chief of Staff at Army Headquarters has taken administrative action in the form of a written warning to all 32 identified ADF members who became friends of the Facebook page. This warning has been retained on file for future reference.

(10) Refer to the answers above.

(11) Refer to the answers above.

(12) Legal advice is privileged and is not proposed to be released on public interest grounds.

(13) Yes. Refer to the answers above.