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Wednesday, 9 November 2005
Page: 33

Senator CHRIS EVANS (Leader of the Opposition in the Senate) (11:48 AM) —I also rise to speak on the Defence Legislation Amendment Bill (No. 2) 2005, which amends the Defence Force Discipline Act 1982 and the Defence Act 1903 to establish statutory appointments for the Director of Military Prosecutions, the Registrar of Military Justice and the Inspector-General of the Australian Defence Force. In doing so, I support the remarks made by Senator Bishop and indicate that the reason I am speaking is to continue my personal commitment to the processes started by the Senate Foreign Affairs, Defence and Trade Committee inquiry into military justice and to keep faith with the many people who made submissions and sought our assistance. As Senator Bishop argued, these measures are supported by us but do not go anywhere near far enough. That is why he has moved the second reading amendment.

The bill gives effect to recommendations that were first made in Mr Justice Abadee’s 1997 study into the judicial system under the Defence Force Discipline Act. Many of these reports have been around since then—since 1997. We also had Mr James Burchett’s 2001 report on the inquiry into military justice in the Australian Defence Force and of course, more lately, the Senate Foreign Affairs, Defence and Trade References Committee inquiry into the effectiveness of Australia’s military justice system, which reported in June this year. At first blush, you could take it that this is a timely response to the committee’s June report. However, nothing could be further from the truth. It has taken eight years for the government to introduce these amendments—eight years of parliamentary inactivity because the government was not prepared to give priorities to fixing these problems.

The ADF deserve better. During those eight years there has been a total of six parliamentary coronial or quasi-judicial inquiries into the ADF’s military justice system. The inquiries in sum have recommended a wide-ranging series of reforms urgently needed in the areas of legislation, policy and legal procedure. For those eight years the government have sat on their hands. Until now, the government have completely failed to act. It took the Senate committee’s June report to once again highlight the need for drastic form.

At the core of the reform is the need for independence in the military justice system. The current system intertwines the administration of justice with the military chain of command. Natural justice, fairness and impartiality flow from an independent legal system. It should be no different for the ADF. Independence negates perceived or actual conflicts of interest because independent decision making is more likely to be accepted once it is removed from the influence of the military chain of command. It is this present connection with the chain of command that has led to perceptions of bias and unfairness in the military justice system.

The lack of independence permeates both the disciplinary and administrative streams of military justice and has led to many instances of unfair treatment. Senior ADF officers admitted to the recent Senate committee inquiry that a number of servicemen and servicewomen have suffered substantive injustices, and the serious nature of the problem was emphasised in a number of submissions to the committee that detailed the consequences of unfair treatment to the mental health and wellbeing of many ADF members, their families and friends. I might note that they were from all ranks: from very senior military officers to the most junior recruit. That is why it is so difficult to understand the actions of the government in refusing to implement completely the three major recommendations of the recent Senate inquiry.

The three recommendations are: to refer all criminal activity to civilian authorities for investigation and prosecution; to establish an independent permanent military court; and to establish a statutorily independent grievance and complaint review body. In relation to the first recommendation, the government has refused point-blank to accept the need to refer criminal activity to civilian authorities for investigation and prosecution. The evidence to the committee that this should be done was overwhelming. The committee was briefed on inadequately trained investigators, equipment shortages, outdated investigation manuals, low military police morale, inordinate delays and inadequate resourcing. The ADF was judged to be incapable of conducting its own criminal investigations and prosecutions. What was also evident was the lack of impartiality in deciding to initiate prosecutions and the lack of independence in summary proceedings. But this does not seem to worry this government.

The second recommendation refers to establishing a permanent military court. This measure would extend and protect a service member’s inherent rights and freedoms, leading to impartial, rigorous and fairer outcomes. Of course, this will occur only if the military court is staffed by permanently appointed judges who possess extensive civilian and military experience and if it is served by a well-resourced and independent Director of Military Prosecutions. On external advice, the committee agreed to recommend that judges and the Director of Military Prosecutions should have some five years of recent civilian experience. The committee also recommended that judges and the Director of Military Prosecutions should be independent, and should be seen to be independent. These criteria were also regarded as essential in selecting the Inspector-General of the ADF.

There are rumours that incumbent senior military legal officers will be reappointed without having to participate in a competitive selection process for the new statutory appointments. I hope these rumours are not true. It would be wrong if measures were implemented that circumvented attempts to improve the quality of those who serve in senior appointments in the military justice system. The selection process for these significant statutory appointments should be transparent and merit based, perhaps using an eminent and independent selection panel which has civilian participation. Otherwise, there will be a fear that it is business as usual.

The third committee recommendation endorsed the creation of a statutorily independent grievance and complaint review body. The government refused to implement this recommendation and has chosen to implement different procedures that are not independent or autonomous from the chain of command. The committee was unanimous in its findings that a grievance and complaint review system had to be separate from the chain of command and totally independent. The evidence for this was overwhelming and involved: the alarmingly high number of lapses in procedural fairness; failure to inform members about allegations made against them; failure to provide relevant information supporting the allegations; failure to inform members that they were under investigation; and breaches of confidentiality.

Clearly, the ADF is facing serious problems. The gravity of the situation can be gleaned from the committee’s report, which said:

The very fact that two young soldiers at Singleton were not prepared to pursue their right to make a complaint about cruel and abusive treatment, and that the wrongdoing came to light only through the determined efforts of their parents, speaks volumes about the inadequacies ... This failure to expose such abuse means the system stumbles at its most elementary stage—the reporting of wrongdoing.

This is an outcome shaped by a deep-seated culture—a shocking and unacceptable culture. These soldiers were apparently afraid to complain. Perhaps they were bullied into submission. We will never know for sure, but the environment in which they were being taught was wrong.

Extreme culture is sometimes covered up because of the concepts of loyalty, or obedience to ‘lawful’ commands, or even to promote toughness and selflessness. That is why there needs to be sufficient checks and balances in the military system to promote a more receptive environment. Only through checks and balances will ADF members have natural justice protection. A sound administrative system will provide protection and fairness, but it can only work properly when it is separated from the chain of command. Only the government can make this happen. Until that occurs, responsibility for the welfare of ADF members rests squarely with the ADF’s chain of command.

I welcome CDF Houston’s recent comment that he expects all ADF members to be treated with ‘care, compassion and consideration’. I do not question at all his commitment to those goals. I hope he is successful. But the reports of abuse and mistreatment that emerged during the Senate committee’s hearings suggest a climate in parts of the ADF that is far from satisfactory, and the extremes seem too often to occur in some army training establishments. An extreme climate reflects poorly on the chain of command and it will require a concerted effort by the CDF to change that culture of abuse and mistreatment.

Having followed the case of Lieutenant Colonel Lance Collins, I am less than optimistic about success. I see few positives in the government’s approach to fix the grievance and complaint review system. In 2000, Lance Collins informed the Minister for Defence that access to a classified database was denied to our deployed troops in East Timor in 1999. Our forces were on warlike operations and the cut-off lasted for some 26 hours. Lance Collins was ridiculed for his allegation. Public declarations from the Prime Minister, the Secretary of the Department of Defence and CDF Cosgrove declared that the cut-off was of a technical nature and was not deliberately done. These declarations had the effect of undermining Lance Collins’s credibility. He received little support. The system failed him. He was perceived by many to be on the outer, but he persisted. He suffered career damage, apparent impediments to promotion and postings, and personal damage to his family circumstances. He eventually left the Army in August this year.

Nearly five years after the event, the matter was arguably finally put to rest, but it took two investigations by successive inspectors-general of security and intelligence, several letters from Lance Collins to successive ministers for defence, a letter from Lance Collins to the Prime Minister, a series of internal investigations into Lance Collins’s redress of grievance, and media leaks of those letters and the investigations into his redress of grievance. I do not want to overstate the case, but Lance Collins was proved correct, and the Prime Minister, the minister and the CDF were all proved wrong. It took courage and perseverance to continue to raise the incident without a sympathetic bureaucracy. Lance Collins personally suffered. There were no rewards for him other than to right a wrong.

The action to restrict access to the intelligence database had been deliberately undertaken without authority, and three officers were ultimately disciplined. The redress of grievance system had clearly failed. Its shortcomings impacted on Lance Collins, with long-term effects. The chain of command seemed unprepared to take the matter seriously. The allegation was so serious that it should not have taken so long to investigate. The subsequent investigations should have been much more thorough. Fairness and impartiality were nowhere to be seen. We do not know how many other ADF individuals have suffered because of the lack of independence and impartiality in the ADF’s grievance system.

The report of Mr Carnell, the current Inspector-General of Security and Intelligence, into the Collins allegation is far from perfect. I might add that that is no fault, as I understand it, of Mr Carnell. What we got was an abridged report—a report 13 pages long—that, quite frankly, is incomprehensible. The report had been so heavily censored—apparently in accordance with security requirements and the provisions of the Public Service Act and the Privacy Act—as to make the end product indecipherable. This is an area that the government and the Inspector-General of Security and Intelligence will need to review. The public will reap little confidence in the investigative and review system if future reports of the Inspector-General of Security and Intelligence suffer in a similar fashion from security and privacy requirements. This is particularly important given the increased role of the Inspector-General of Security and Intelligence in monitoring our security agencies.

The Carnell report made conclusions that we cannot measure for their effectiveness and completeness. It talks of invisible people, led by the mysterious Mr A, who played a central role in this regrettable drama. But it fails to indicate with clarity who was responsible. We know that some sort of disciplinary action was taken against three officials under the Public Service Act, but their names remain confidential and the extent of the discipline was not released. We still do not know with certainty why the cut-off occurred. However, there are sufficient hints throughout the Carnell report that suggest that the cut-off was the last phase of an internecine war within the intelligence community—a turf war conducted by DIO senior staff against the ADF intelligence staff in East Timor. This should not have happened. It was unprofessional and petty, and the decision to implement a cut-off was a gross abuse of power and an unwarranted display of contempt towards our deployed personnel.

The public has a right to know how these actions were taken without authority from the Minister for Defence, the Chief of the Defence Force and the Secretary of the Department of Defence. The cut-off was a critical violation of normal operational protocols, and therefore one might have expected the minister and senior departmental officials to have been more closely involved in resolving the Collins allegations. Their lack of involvement can only be viewed as an unfortunate breach of faith and responsibility. The Collins saga demonstrated once again the importance of having in place a grievance and complaint review system separate from the chain of command. A separate system improves the possibilities that an allegation or grievance can be investigated properly and in a timely manner without undue interference from senior personnel immediately and intimately involved in the allegation or grievance.

I remind senators that for the last 10 years there have been calls from service men and women, their families and others that the military justice system is in crisis. Those calls cannot be ignored. The government must now accept responsibility for its proposed changes. While there is nothing remarkable in this bill, it fails to adequately respond to the Senate committee’s June report. The government, by seeking ADF comment on the recommendations and then fashioning a political response which cabinet approved, probably went down the wrong path. But this bill is the first step in the government’s plan for military justice reform. The responsibility for what happens or does not happen from now on rests with the government. It is their responsibility. The buck stops with the government. The buck stops with Senator Hill for as long as he holds the defence portfolio.

The Senate committee’s conclusions were unambiguous. They were also unanimously accepted across party lines. The work of Senator Macdonald, Senator Johnston and Senator Payne was central to the committee’s work and to the report. They are to be congratulated for their contributions. It is in the public interest to have an efficient and effective military justice system. Just as importantly, it is in the interests of all service men and women to have an effective and fair justice system. Currently, they do not, and the government’s response to the Senate committee’s recommendations for major reform does not bode well for the future.

Finally, I would like to thank past and present members of the ADF, and their families and friends, who have continued the fight for reform. Too many ADF members have suffered because of the system. That is why Labor is committed to monitoring the impact of the government’s plan for change. Labor recognises that what is required is nothing short of root and branch reform. I am very concerned that we have not got that; I am very concerned that the government have not gone far enough. They must now bear the responsibility if they fail to act. All senators are committed to a better military justice system. I urge the government to go further than this bill and ensure that the ADF members get the military justice system that they expect and deserve in the 21st century.