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Friday, 20 February 1987
Page: 395


Senator DURACK(3.09) —The Minister for Veterans' Affairs (Senator Gietzelt) has just incorporated in Hansard a statement concerning the very sorry history of the relationship between the Minister, the Government and the former Director of the Australian War Memorial, Air Vice-Marshal Flemming. As we have come to expect from Senator Gietzelt, it is a very long winded statement which canvasses the issue from its earliest period. It is also a very self serving document and one which is designed to justify the Minister's own highly questionable attitude in this matter from the very beginning of this saga. In the end he tries to justify his actions in regard to many matters that are quite outside the report that was commissioned from Mr Menzies, which the Minister has now tabled. The report that was obtained from Mr Menzies, of course, was that of the first inquiry that was designed to give Air Vice-Marshal Flemming any semblance of natural justice. It was conducted in accordance with basic principles of natural justice. The conduct of the former inquiry by Mr Jones-although I am not impugning Mr Jones's inquiry-was dictated, of course, by the Government, and it was really an administrative inquiry.

The inquiry by Mr Menzies, although it was conducted in accordance with the principles of natural justice, was circumscribed to two particular questions only. As can be seen from the Minister's statement, there is a whole range of matters which the Minister has argued are matters which justified the dismissal of Air Vice-Marshal Flemming. So we have here a most extraordinary gulf between the true reasons that motivated this Minister and this Government to get rid of Air Vice-Marshal Flemming-and they ultimately succeeded-and, of course, the very narrow grounds under which they asked Mr Menzies to make a finding for them. They used a finding of Mr Menzies to make the very decision about which they had made up their minds months previously.

I want to traverse quickly the history of this sorry matter, as I have already referred to it. I understand-although I was not present-that Senator Gietzelt made an extraordinary statement at the end of an Estimates committee hearing in about September last year. Apparently, he must have been disappointed that no questions were asked which would enable him to get off his chest the views that he held about the Director of the War Memorial. At the end of that Estimates committee hearing, he made a statement. That would have taken people by surprise, as no background information was requested or arose out of the hearing. That was the first salvo that was fired by Senator Gietzelt.

The first I became aware in this place of his attitude to the Director was from a series of dorothy dix questions which were referred to him by some of his back bench colleagues. We were treated to quite a number of questions, although I have not counted them. Day after day Senator Gietzelt, in answering those questions, openly attacked not only the competence of Air Vice-Marshal Flemming but also usually his bona fides. In the course of the series of answers that Senator Gietzelt gave he said on at least one occasion, if not more, that he had lost confidence in the Director. Of course, it was during this time that we suddenly became aware that there was some conflict of view within the Council of the War Memorial. Indeed, the Minister, during this period, declined to reappoint at least one member of that Council-a former Premier of South Australia, Mr Des Corcoran, who was on his way to the airport to attend a meeting of the War Memorial Council when he was told that his appointment would not be renewed, even though until that eleventh hour he had been given the impression that it would be. Senator Gietzelt was engaging in a numbers game with the members of the War Memorial Council, presumably to try to get a sufficient number of members of the Council to support the decisions which he had already made.

At this time on the last sitting day of the week, in responding to a ministerial statement I do not want to canvass all the very serious questions that arise about Senator Gietzelt's conduct in this matter; his attitude to the War Memorial and his attitude in particular to Air Vice-Marshal Flemming; and the various ways in which he went about trying to achieve this purpose. Suffice to say that a whole series of inquiries of one sort or another were conducted. I think he engaged some management consultants. A senior officer of his Department was also involved. After there had been a good deal of protest about what was going on, he finally decided that an inquiry should be conducted by an independent person, a distinguished retired public servant, Mr Jones, who conducted a very sound form of inquiry. It was not perhaps fully in accordance with the principles of natural justice, as it was purely a wide ranging administrative inquiry. Mr Jones, although critical of Air Vice-Marshal Flemming in some respects, made a clear finding that he had not been guilty of misbehaviour. That should have been the end of the matter, in accordance with the Minister's own approach to this matter. He was under pressure. He was told that Air Vice-Marshal Flemming had not been found guilty of misbehaviour by a man exercising the sort of judgment that a distinguished retired public servant is very capable of exercising.

But that did not suit the Minister. He then proceeded to get the opinion of the Solicitor-General. Guess who that was! That is the man who gave this Government the opinion about Mr Justice Murphy. He defined `misbehaviour' so narrowly that the government of the day said: `It does not even warrant any inquiry'. Of course, we know that since then lawyer after lawyer and, just recently, the judicial committee of the Constitutional Commission have said that `misbehaviour' has a much wider meaning than Dr Griffith thought it had. So, the Government got an opinion from the Solicitor-General. This is becoming a very familiar pattern, as we know. The Solicitor-General gave an opinion that Mr Jones was wrong in one respect; that one finding that Mr Jones made about the conduct of Air Vice-Marshal Flemming did amount to misbehaviour.

But the Minister was also told that there had to be a proper inquiry in accordance with the principles of natural justice before the Government could act on that opinion. The Government then appointed Mr Menzies, who conducted an inquiry in accordance with that advice. Mr Menzies was asked to make a finding of fact on two matters. On the first matter he found that no false information had been provided by Air Vice-Marshal Flemming. But on the second matter he found that some false information had been provided by Air Vice-Marshal Flemming. That related to a letter that he wrote to Mr Jones on 15 October. Mr Menzies found that Air Vice-Marshal Flemming made available to Mr Jones two pieces of false information.

Mr Menzies has appended to his report a separate chapter on a whole range of what he calls `matters in mitigation'. I will read them, because one would not know what they were by reading the Minister's statement. As I said, it is a totally self-serving statement, relying on the matters that support the Minister's premeditated decisions in this matter. I want to place on the record the full matters of mitigation that Mr Menzies found, which do not appear in the Minister's statement. Mr Menzies stated:

There are a number of matters that should be noted by way of mitigation:

(1) the previously unblemished record of air Vice-Marshall Flemming and the evidence as to past good character and integrity:

(2) the absence of any motive of personal gain;

(3) the fact that the change of banks-

which was the point at issue-

has not operated to the financial disadvantage of the Memorial and indeed, several witnesses stated that it had operated to the positive financial advantage of the Memorial.

Honourable senators will remember all the hoo-ha about the way the Memorial's bank was changed from the Commonwealth Trading Bank to Westpac by Air Vice-Marshal Flemming in 1983. That was the subject of the first question, the first salvo which was directed at Air Vice-Marshal Flemming back in 1983. I suppose it upset a number of people in the Government that the bank was changed from the Commonwealth bank to a private bank. That seems to be the greatest sin that he could have committed in the eyes of Senator Gietzelt, committed socialist as he is. In fact, Mr Menzies has found that the change of banks had not operated to the disadvantage of the Memorial and may well have been a positive advantage to it. The fourth matter of mitigation Mr Menzies sets out reads as follows:

At the time Air Vice-Marshal Flemming gave the false answer, he was working at home, away from records under circumstances of considerable stress and under the influence, to some extent as least, of drugs which probably impaired his mental processes and affected his concentration and memory.

Incidentally, I might add that these drugs were, of course, medically administered to deal with a condition of tension which had resulted from all the business that he had been suffering at the hands of the Minister.


Senator MacGibbon —And his war service too.


Senator DURACK —Yes, no doubt his war service was affecting him as well. Finally, Mr Menzies found that Air Vice-Marshal Flemming had `corrected the particular false information after it was brought to his attention'. I want to give a little example of the attitude the Minister has revealed in this statement. As I said, Mr Menzies said clearly that Air Vice-Marshal Flemming had corrected false information after it was brought to his attention. On page 12 of this statement which the Minister has tabled he says:

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.

The correction emerged in the course of Mr Menzies' inquiry and Mr Menzies found that after the false information was brought to his attention Air Vice-Marshal Flemming corrected it. But this statement attempts to suggest that, again, there is some falsity on the part of Air Vice-Marshal Flemming. In fact, the Minister is claiming that it was corrected earlier than it was. I do not know where this date of 3 October comes from, because in fact the letter to Mr Jones, which is the subject of this inquiry under Mr Menzies, was not written until 15 October 1986, and certainly there was subsequent correspondence. So I think the Minister himself ought to have another look at his own self-justification in that respect, and many other respects, of this particular statement. I quote again from page 12 of the statement. The Minister said:

. . . 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-

that is, two knowingly false statements to Mr Jones in the course of conducting his inquiry. Mr Menzies exonerated Air Vice-Marshal Flemming from any alleged falsity in the statements he made when providing material to answer a ministerial question back in 1983. So the dismissal was based on only this one respect of the false answer given to Mr Jones. That was corrected by Air Vice-Marshal Flemming, as Mr Menzies found, when it was brought to his attention during the Menzies inquiry.

Mr Menzies added a whole range of most important mitigating circumstances; yet in the face of all those findings the Government could not act quickly enough to take the technical point of the finding of misbehaviour as the technical ground for dismissing this statutory officer under the Act. This should really put shivers through the whole of the Public Service and all statutory officeholders under the Commonwealth, because if governments are going to act that way on technicalities without having proper regard to all other circumstances, as Mr Menzies has listed them in his report, I think this raises a very serious question indeed about the security of their positions under this Government, despite their appointments and their protections under statute.

From page 12 of this statement onwards the Minister has set out all the real reasons why Air Vice-Marshal Flemming was dismissed. They really have nothing whatever to do with this technical finding. That has only been used by the Government as the excuse to get rid of someone whom the Minister had taken a set to for whatever reason. The Minister sets out a whole range of objections he had found with Air Vice-Marshal Flemming. He suggests that he had no conception of his accountability to the Minister. I do not know quite what that extends to. He was a statutory officer and I thought mainly accountable to the War Memorial Council. He claims that Air Vice-Marshal Flemming has given him misleading and inaccurate advice, that he failed to respond to his repeated requests for information, that there is a long record of management deficiency, and he also refers to the low staff morale which Mr Jones had found at the War Memorial. The Minister then goes on with what I think are very strong protests to cover himself. He denies that there was any political conspiracy; he says he conducted no vendetta. I do not know what all the answers he gave in the Senate were supposed to be, if they were not a vendetta against Air Vice-Marshal Flemming, the then Director. This was before the Jones and Menzies inquiries were set up. The Minister was making judgments that he had no confidence in him; yet he now tries to say that there was no vendetta against him. Let us just listen to the final pathetic justification of the Minister:

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.


Senator MacGibbon —That is a pathetic Pontius Pilate act.


Senator DURACK —It is Pontius Pilate personified. Pontius Pilate himself has been resurrected and is sitting in the Senate. He washed his hands of the final decision. What an amazing performance. There we have the sorry record of this Minister and an even more sorry saga of a man with a distinguished record-whatever his faults may have been as a Director of the War Memorial; I will not go into them now-being dismissed on what is simply a technical breach. The giving of false information to the inquiry of Mr Jones is certainly a serious matter, but in the discharge of his duties up to the time of the inquiry of Mr Jones nothing was found on which to base a finding that he was guilty of misbehaviour. It was only this one answer that he gave, among many, many answers, to Mr Jones. In respect of even that there is the finding by Mr Menzies of these very important mitigating circumstances. But not only your life! Nothing was going to stop this Minister or this Government getting rid of a man whom they had months ago decided to get rid of. Talk about principles of natural justice! Clearly there has been no natural justice in the ordinary sense accorded to Air Vice-Marshal Flemming by this Minister and this Government.

The Opposition has at all times called for a full, open and proper judicial inquiry into allegations against Air Vice-Marshal Flemming, and we continue to do so. We have also expressed our concern about and our strong belief in the need for an independent and traditional role for the Australian War Memorial. At long last the Minister in his statement has sought to assure people that he also shares that view of the War Memorial. He denies that he ever raised any political issues about peace memorials or other matters that have been alleged against him. He also says that the Government has no intention of altering the Council's role or of affecting the independence of the Memorial and quotes with approval the statement of the Chairman of the Council, Dame Beryl Beaurepaire, to this effect on 11 February.

Finally, the Minister has on behalf of the Government suppressed its commitment to the traditional role of the War Memorial. We will wait to see how far that is given effect to. But we reiterate our concern that this man, Air Vice-Marshal Flemming, the former Director, has not been dealt with in a fair and open way by this Government, and certainly not by this Minister, and is still entitled to a proper hearing and determination in accordance with natural justice.