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Friday, 20 February 1987
Page: 390

Senator GIETZELT (Minister for Veterans' Affairs) —I table the report of Mr Menzies and other documents relating to the dismissal of the Director of the Australian War Memorial. I seek leave to make a statement and to incorporate it in Hansard.

Leave granted.

The statement read as follows-

Mr President, for the information of honourable senators, I have tabled the report of Mr A. C. C. Menzies, the Acting Minister for Veterans' Affairs' letter of 6 January 1987 to Air Vice-Marshal Flemming and Air Vice-Marshal Flemming's response of 12 January 1987, and the Press release issued on 19 January 1987 by the Acting Minister for Veterans' Affairs. All of these documents relate to the termination of the appointment of Air Vice-Marshal Flemming as Director of the Australian War Memorial.


Honourable senators will recall that the report provided to the Council of the Australian War Memorial by Mr K. N. Jones, AO, CBE, which was tabled in the Parliament on 11 November 1986, drew attention to serious deficiencies in the administration of the Memorial. Mr Jones found there were serious weaknesses in the management performance of the then Director. Mr Jones also concluded that Air Vice-Marshal Flemming had engaged in capricious decision-making and had provided inaccurate, inadequate, misleading and untimely advice to me as Minister for Veterans' Affairs. While Mr Jones found this justified my expressed lack of confidence in Air Vice-Marshal Flemming, he concluded that although the Director had displayed a less than satisfactory level of competence and carelessness in expression where the circumstances required truthfulness, no misbehaviour, as he understood that term, had occurred.

However, contrary to Mr Jones's view, legal opinions provided to the Government by the Solicitor-General and Mr Graham, QC, without ruling out other matters which may amount to misbehaviour, advised that in relation to a particular matter before Mr Jones there was misbehaviour for which Air Vice-Marshal Flemming's appointment could be terminated, pursuant to sub-section 24 (1) of the Australian War Memorial Act.

I wrote to Air Vice-Marshal Flemming on 27 November 1986 to inform him of this. I also advised him that before the Government took a decision on whether it should advise the Governor-General to terminate his appointment, in accordance with that legal advice, I wished to inform him of the grounds relied upon and to afford him an opportunity to be heard and to put forward both his response to those grounds and any other matters which he might wish to advance as reasons why the power of termination should not be exercised on those grounds.

The grounds which I provided to Air Vice-Marshal Flemming were:

(a) ``That by letter dated 28 October 1983 addressed to the Secretary of the Department of Home Affairs and Environment sent for the purposes of providing information to enable the Minister for Home Affairs and Environment to answer a Parliamentary Question on notice you knowingly gave false information. Part of the said question inquired `What arrangements were made to investigate the services of the various available banks'. The false information was contained in your response which read `Discussions were held with trading banks concerning their services''.

(b) ``That in a document delivered under cover of a letter dated 15 October 1986 addressed to Mr K. N. Jones who had been appointed by the Council of the Australian War Memorial to conduct an Inquiry inter alia into the said matter and to report thereon to the Council, in response to a question by Mr Jones, you knowingly gave false information. The said question concerned the discussions referred to in sub-paragraph A, and inquired, `With which banks and with whom did you or your staff have those discussions?'. The false information was contained in your response which read:

`I am not familiar with the Parliamentary Question quoted but regarding banks contacted, I had discussions with the Commonwealth Bank, London Circuit, Canberra-Mr L. Ferguson. The Commercial Banking Corporation (now National Bank), London Circuit, Canberra-Mr Drury. Manager of Westpac Banking Corporation, Petrie Plaza, Canberra-Mr John S. Smith. The Regional General Manager Westpac Banking Corporation-Mr Fulton Muir. The ANZ Banking Group, Ainslie Avenue, Canberra-Mr Carey.' ''

Air Vice-Marshal Flemming was also informed that the Government had decided that an independent person, Mr A. C. C. Menzies OBE, would be appointed to consider these grounds, and any response to them from Air Vice-Marshal Flemming, in accordance with procedures which would afford natural justice to him.

Subsequently Mr Menzies conducted an inquiry during which Air Vice-Marshal Flemming was represented by legal counsel at Commonwealth expense and had the opportunity to examine witnesses and to make submissions.

In his report to the Government, Mr Menzies found that ground A, to which I have already referred, was not established. The Government accepted that finding. However, Mr Menzies found Ground B was established in that Air Vice-Marshal Flemming knowingly gave false information to Mr K. N. Jones in the course of an inquiry into the administration of the Australian War Memorial. Mr Menzies identified two distinct elements of falsity, namely:

that Air Vice-Marshal Flemming claimed that he had dealt personally with all the named officers of the banks which he specified in his reply to Mr Jones; and

that Air Vice-Marshal Flemming had dealt with all four major trading banks on an equal footing.

A copy of the Menzies report was provided to Air Vice-Marshal Flemming and he was offered the opportunity to make written representations on whether the facts found to be established constituted misbehaviour and, if so, why action should not be taken to terminate his appointment.

When Air Vice-Marshal Flemming's response was received, the matter was put before the Acting Attorney-General and Solicitor-General. Their joint advice to the Government was that:

In our opinion there is no obligation, by reason of principles of natural justice or otherwise, to give any further hearing to the Director, whether by judicial inquiry or otherwise. If Cabinet accept the findings of the Menzies Report (and we have stated our view that the findings should be accepted) it is our opinion that as a matter of law the finding of Ground B constitutes misbehaviour within the meaning of sub-section 24 (1). Upon consideration by Cabinet of the matters as to discretion and mitigation raised in the Menzies Report and by the Director in his letter of the 12th January 1987 there will be full compliance with the obligations of natural justice in respect of the issue of termination of office of the Director. In these circumstances any consequent termination of the appointment of the Director by the Governor-General in Council pursuant to sub-section 24 (1) would, in our opinion, be valid.

The Government's Decision

Mr President, the Menzies Report, Air Vice-Marshal Flemming's representatives and the joint opinion of the Acting Attorney-General and the Solicitor-General were given careful consideration by the individual members of Cabinet. Particular attention was given to the mitigating factors relating to the Director's conduct which were outlined in the Menzies Report and to his representations of 12 January 1987.

The members of Cabinet concluded that Mr Menzies' finding on Ground B should be accepted and that it was a proper ground for removal of the Director from office. The Government was of the view that it regrettably had no alternative but to regard with extreme seriousness the finding that Air Vice-Marshal Flemming knowingly gave false information on matters pertaining to his office.

For these reasons the Administrator-in-Council was advised to terminate the Director's appointment. The press release of the Acting Minister for Veterans' Affairs of 19 January 1987 sets out those reasons.

I emphasise that the Government's consideration of the Director's dismissal turned on Ground B of the Menzies Report and not on other concerns related to the Memorial's administration.

The Seriousness of the Director's Misbehaviour

Since the Director's dismissal, attempts have been made to portray the matter that led to the Director's dismissal as trivial, as involving a lapse of memory and as not related to the administration of the Australian War Memorial.

Let me draw the Parliament's attention specifically to what the Acting Attorney-General and the Solicitor-General had to say in the joint opinion provided to the Government:

Notwithstanding the Director's assertion in that letter (of 12 January 1987) that he did not intend to mislead Mr Jones, the formal finding of the Menzies Report, after full consideration of the facts and matters raised at the hearing whereby the Director and his legal representatives were present and permitted to examine witnesses, and to call their own evidence (including medical and character evidence) and to make submissions, was that the intention on the part of the Director to give false information was established. Moreover, the detail of the untruthful answer, which names four bank officers, tells against mere oversight or inadvertence. In essence the finding is one of dishonesty pertaining to a matter relevant to the office of Director. As such it is misconduct of a serious kind. In our opinion it is conduct which, in itself, is of the requisite seriousness to constitute misbehaviour within the meaning of sub-section 24 (1).

To summarise, the misbehaviour in question was serious. It was intentional. It was dishonest. It was not a mere lapse of memory. It related to the office of Director.

The Government believes it was totally unacceptable conduct for a senior statutory officer to engage in. It is not a matter that would be tolerated in the private sector, nor should it in the public sector. Ministers and the Parliament are entitled to expect honest and reliable advice from our public officials.

Affording Natural Justice to Air Vice-Marshal Flemming

Mr President, honourable senators will recall the complaints made by Air Vice-Marshal Flemming and others that the adverse conclusions reached in the Jones Report allegedly involved a denial of natural justice. The Menzies Inquiry was commissioned in response to those concerns by choosing an impartial person to receive Air Vice-Marshal Flemming's submissions.

Indeed, the Government went to considerable lengths to ensure Air Vice-Marshal Flemming was afforded natural justice before any conclusions were reached on his position. In the Menzies Inquiry:

Air Vice-Marshal Flemming had legal representation the reasonable costs of which are to be met by the Government;

Mr Menzies also had the assistance of legal counsel;

specific allegations concerning Air Vice-Marshal Flemming's conduct were referred to Mr Menzies for consideration and report;

relevant Australian War Memorial and other documents were made available for examination by Mr Menzies;

20 witnesses were called and examined, including 3 character witnesses who gave evidence on the Director's behalf;

Air Vice-Marshal Flemming's counsel had the opportunity to examine witnesses and to make submissions on relevant issues;

Mr Menzies applied a rigorous standard in examination of the evidence relating to the grounds which were put before him, particularly having regard to the seriousness of those allegations.

When the Menzies Report was received, as I have said, the Director had the opportunity to make representations which were then taken into account by the Cabinet.

Mitigating Circumstances relating to the Director's Misbehaviour

The circumstances put by Air Vice-Marshal Flemming in mitigation of his misbehaviour were also taken into account by the Cabinet in reaching its decision.

Much has since been made of some of these circumstances concerning Air Vice-Marshal Flemming's poor health, the stress he was under and the effect the drugs he was taking had on him, at the time the misbehaviour occurred. While I was not involved in the Government's decision (being on annual leave at the time) let me make my own position clear. Nothwithstanding these factors, Mr Menzies found that the Director had intended to give false information to Mr Jones. I agree with this finding. There was no inadvertence or lapse of memory. As the Acting Attorney-General and Solicitor-General's opinion indicates, the detail given in the written answer to Mr Jones tells against such a conclusion.

As to the suggestion in mitigation that Air Vice-Marshal Flemming's inability to refresh his memory by obtaining Memorial records may have led him to provide false information, let me again make the true position clear. Access to Memorial records was available to Air Vice-Marshal Flemming under the terms of reference of the Jones Inquiry. However, what is of even greater significance is that there are no relevant Australian War Memorial records in existence that would have assisted Air Vice-Marshal Flemming.

It has also been suggested by way of mitigation that when the false information which Air Vice-Marshal Flemming had given to Mr Jones was drawn to his attention, he corrected it immediately in an answer given to Mr Jones on 3 October 1986. In fact, Mr Menzies found that Air Vice-Marshal Flemming's purported correction on 3 October 1986, and other statements subsequently made by Air Vice-Marshal Flemming to Mr Jones and the Australian War Memorial Council, continued to be misleading, up until a statement made to Mr Menzies on 8 December 1986.

General Administration of the Australian War Memorial

I have made it clear that the only basis on which the Government acted to terminate Air Vice-Marshal Flemming's appointment was his misbehaviour in relation to the matter identified as Ground B in the Menzies Report.

Because of the continuing claims being made by Air Vice-Marshal Flemming and others on his behalf about matters relating generally to the administration of the War Memorial, and in particular the role played by the Minister, it is however necessary to clarify for the record once more some basic facts about the overall situation.

The Council of the Australian War Memorial is an independent body established under the War Memorial Act. As I have said, it is responsible for the conduct and control of the Memorial's affairs. Its members include the three chiefs of staff of the Armed Services. The Director of the Australian War Memorial is accountable to the Council and to the Minister, to the Government, to the Parliament and ultimately to the taxpayer.

Regrettably, Air Vice-Marshal Flemming had no conception of my accountability as a Minister of the Crown to this Parliament for the activities of the Australian War Memorial and of his responsibility in providing me with accurate, honest, timely and reliable information.

Air Vice-Marshal Flemming has dismissed as trivial and irrelevant the proven instances of inadequate, misleading and inaccurate advice which he provided to his Minister. I take very seriously indeed any instance which could have led me to mislead the Parliament. I reiterate that the Government and this Parliament are entitled to expect honest, high-quality and reliable advice from public officials.

Air Vice-Marshal Flemming also failed to respond to my repeated requests to be kept informed concerning aspects of the Memorial's activities. He failed to respond to my Constitutional right and obligation as a Minister of the Crown to request such information. My attempts to gain access to Council papers were continually thwarted.

Air Vice-Marshal Flemming also refused, over a long period, to redress management deficiencies in the Memorial when they were drawn to his attention. He denied that they existed. He strenuously opposed my request that the Council arrange for a management review to be conducted by the Public Service Board. And yet what do we now find? Three reports which contain damning criticisms of his administration. (Australian War Memorial, Special Audit of Council Resolutions, Arthur Young Services, 18 September 1986; Australian War Memorial, Audit Report on Accounts and Records, Office of the Auditor-General, 30 October 1986; Inquiry into the Australian War Memorial, K. N. Jones, AO, CBE, November 1986).

There are findings of incompetence. There are findings that his decision-making was capricious. There are findings that there were serious irregularities in the financial and administrative arrangements prevailing in the Memorial. There are findings that he has failed to follow the proper procedures on crucial occasions. There are findings that there has been extremely poor staff morale. Are these not matters of importance? Are these not matters of serious concern? Are these not matters a Minister of the Crown should take an interest in?

It has been put about by the former Director and his supporters that this was a conflict involving the Government and the Minister, who were allegedly attempting to take over the administration of the Memorial, and a ``can-do'' administrator with an impatience for bureaucratic red tape. This scenario has no basis in fact. There has never been a personality conflict between me and Air Vice-Marshal Flemming, as indeed he himself has publicly stressed.

So there is no political conspiracy. There is no vendetta. I have not exercised undue or improper influence. I have not been vindictive. I was not even involved (being on leave at the time) in the final decision made by the Government to recommend the termination of Air Vice-Marshal Flemming's appointment, although I supported that decision. What I have done is to respond appropriately, in accordance with my sworn ministerial responsibilities, to matters of accountability and competence in my portfolio.

Mr President, it is a matter for considerable regret that AVM Flemming did not choose to accede to the AWM Council's wishes that he take early retirement.

It was not just I who expressed no confidence in him. The Memorial Council also resolved that they had no confidence in his ability to administer the affairs of the Memorial. The Returned Services League declined to support him. Certain staff associations also expressed no confidence in him. Nevertheless, Air Vice-Marshal Flemming rejected the Council's repeated requests that he resign or at least not attend for duty.

Mr President, the real issues in the debate about the Australian War Memorial are not about left-wing takeovers nor about creating a peace museum. These were never more than furphies concocted by the former Director and his supporters in certain media outlets to distract attention from the real and pressing concerns regarding his administration of the Memorial. The real issues are about accountability and competence. They are about the proper relationship between a statutory authority, its senior executives and the responsible Minister. They are about issues of administrative competence and my requirement for high-quality management.

Role and Future of the Australian War Memorial Council

It is necessary that I set to rest concerns about the future direction of the Australian War Memorial.

The functions of the Australian War Memorial are laid down by legislation in the Australian War Memorial Act 1980. In that Act it is clearly stated that the Memorial's functions are:

(a) To maintain and develop a national memorial to Australians who have died on or as a result of war service or as a result of any war or war-like operations in which Australians have been on active services;

(b) To develop and maintain as an integral part of the national memorial a national collection of historical material;

(c) To exhibit, or to make available for exhibition by others, historical material from the memorial collection or historical material that is otherwise in the possession of the Memorial;

(d) To conduct, arrange for and assist in research into matter pertaining to Australian military history; and

(e) To disseminate information relating to:

(i) Australian military history;

(ii) the national memorial;

(iii) the Memorial collection; and

(iv) the Memorial and its functions.

Under the Australian War Memorial Act, the Council is responsible for the conduct and control of the affairs of the Memorial in accordance with the legislation. The recent media releases by the Council have emphasised that this is the position and that Council is unanimous that the original purpose for which the Memorial was established will always be safeguarded.

I, as Minister, have no powers under the Act regarding the policy of the Memorial. Moreover, as the Council Chairman, Dame Beryl Beaurepaire states in her press release of 29 January 1987, I have never sought to raise with or to direct the Council on any questions of policy and, contrary to reports, had certainly never raised with the Council any political issues such as a peace memorial at the Australian War Memorial, conflicts between European settlers and the Aboriginals or moratoriums. Furthermore I wish personally to assure the Parliament that I have never raised any of these issues with any individual member of the Council. Whatever the merits of commemorating these issues, they do not come within the functions of the Australian War Memorial as laid down by legislation.

This Government has no intention of altering the Council's role nor of affecting the independence of the Australian War Memorial.

The Australian War Memorial is and always will be a tribute to those who have died in war for Australia. I believe that it is one of the World's finest War Memorials. As Dame Beryl Beaurepaire said in the Council's statement of 11 February 1987, the Memorial is sacred to the Australian people and is an intrinsic part of the Australian ethos and culture. For over half a century the Memorial has stood as a reminder of the sacrifices made for Australia's sake and for all that is best in human qualities.

The Government will continue to provide additional resources and support for this treasured national shrine. In my time as Minister, 40 extra staff have been provided to the Australian War Memorial and there has been a 50% increase in funding.

Finally, I would inform Honourable Senators that I as Minister and the Memorial Council by unanimous agreement have undertaken that the post of Director will be filled in accordance with the normal Public Service procedures.

Mr President, neither I nor the Government take any pleasure in the serious course of action of terminating the statutory appointment of Air Vice-Marshal Flemming as Director of the Australian War Memorial. But nor is that anything in the conduct of this matter, either in the context of our concern with the general administration of the Memorial or the action we took to terminate his appointment, for which we have any need to apologise.

Senator GIETZELT —I move:

That the Senate take note of the statement.