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FOREIGN AFFAIRS, DEFENCE AND TRADE REFERENCES COMMITTEE
22/04/2004
Effectiveness of Australia's military justice system

CHAIR —Welcome. I will now read a statement which is read out at all hearings, so do not be intimidated by it. Should a witness expect to present evidence to the committee that reflects adversely on a person, the witness should note that the committee is obliged to draw to the attention of the person any evidence which in the committee’s view reflects adversely on that person and to offer that person an opportunity to respond. Examples of adverse reflection on a person would include allegations of incompetence, negligence, corruption, deception or prejudice. Witnesses are reminded that the evidence given to the committee is protected by parliamentary privilege. It is important for witnesses to be aware that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. The committee welcomes to the hearing Mr David and Mrs Corinne Hartshorn. Mr Hartshorn, your submissions have been received confidentially. Do you wish to make any alterations to those submissions?

Mr Hartshorn —No.

CHAIR —Do you understand the remarks made about parliamentary privilege and adverse comment?

Mr Hartshorn —Yes.

CHAIR —Do you have any questions on those?

Mr Hartshorn —No.

CHAIR —I would like to now invite you both state the capacities in which you appear today.

Mr Hartshorn —I am appearing here as a confidential witness to this inquiry.

Mrs Hartshorn —I am here as an observer.

CHAIR —Thank you. Mr Hartshorn, would you like to make an opening statement?

Mr Hartshorn —Thank you for the opportunity to provide evidence to this military justice inquiry. Although now a civilian, I am still interested in fair justice in the military. It was not a pleasant experience for me being a whistleblower in the Army and it showed me how hard Army tries to stop a grievance, once received from a complainant into the system, from proceeding. As background information, up until I initially submitted my grievance I was at the top of the merit list for my rank and trade in the Royal Australian Signals and had served for 17 years. This high merit directly influenced my selection for service in the Middle East. My merit slipped on submission of my redress of grievance about a hit and run in the Middle East and I had a lieutenant colonel tell me that it was pointless progressing my grievance to Army office because the only people who would see it would be the Chief of Army staff, not the chief himself. The same lieutenant colonel also signed off on my 1996 annual confidential report, which contained a comment that there was opposition to my grievance. The report also stated that my grievance was a drawback to my commitment to the Army. I have a copy of that report.

I have always believed it is illegal for the military to oppose a valid grievance. A legal officer told me that I could not submit the same grievance because it did not affect my service, but I had been ordered to keep quiet about a hit and run by the most senior warrant officer in the Australian contingent. My grievance asked the question, simply: why was I ordered to keep quiet? An investigating officer who had been appointed to investigate my grievance, by instrument of appointment with official terms of reference, told me during my first interview with him that he was a very busy man and I was wasting the Army’s time. I regard that behaviour by a commissioned officer appointed to conduct an administrative inquiry as intimidatory, inappropriate, unprofessional and possibly illegal. My fear of retribution from the Army was so great that I initially made an anonymous complaint about the hit and run to the duty officer at Randwick Barracks in April 1995, three months after my return to Australia. I followed that up with a signed formal grievance, once I was satisfied that military police had established that the incident actually occurred.

It took involvement by the Commonwealth Ombudsman for those trying to stop my complaint to do a backflip and accept it, but ultimately no charges or any type of penalty resulted from either my complaint or the military police investigation. What made this incident smell even more was that the senior warrant officer who committed the hit and run was the appointed disciplinarian for an Australian contingent serving in a foreign land. He was also a representative of the Australian government and should have set an impeccable example of good conduct for the rest of the contingent.

CHAIR —Thank you, Mr Hartshorn. Would you like to say anything, Mrs Hartshorn?

Mrs Hartshorn —No.

Senator CHRIS EVANS —Thank you very much for coming in today. From what you are saying I gather that this effectively ruined your career. You got caught up with your moral concerns about the whole thing and it ended up eating away at you. Is that fair?

Mr Hartshorn —It was the straw that ended my career. I took voluntary discharge but this is what stopped any future, I would say.

Senator CHRIS EVANS —There were others in the car as well, weren’t there?

Mr Hartshorn —That is right, yes.

Senator CHRIS EVANS —What was their attitude to it all?

Mr Hartshorn —When it happened, I was fairly stunned. I did not see the person again. They were flung away from the vehicle. But I did hear a comment from somebody else in the vehicle that she had bounced off another car, although I did not see that. We had Kiwi soldiers following behind. They were a fair way behind. We found out later that they had seen people gathered around someone as they went past. I was a cryptographic specialist over there, so I was not in an infantry or armoured unit. I was in the signals unit—not so much in the front line. The guys that were in there with me were infantry, armoured and artillery. The general attitude that I felt was: ‘It’s only an Arab so why worry about it?’ That is the feeling I got, which I did not think was right. There was not a lot of comment after the actual incident, other than, as I have mentioned, someone saying, ‘Sir, do you realise you have just hit that woman?’ That is the comment I remember quite clearly.

Senator CHRIS EVANS —Did you try to talk to someone in command in the first couple of days after the incident?

Mr Hartshorn —The person driving was the RSM. They are god. You do not approach an RSM.

Senator CHRIS EVANS —What rank were you at the time?

Mr Hartshorn —I was a sergeant and the others were all sergeants as well. We got together and said, ‘Look. This was a hit and run. What are we going to do about it?’ Basically the consensus was: ‘Leave it alone. The RSM knows what he is doing. He’s going to deal with it. He’ll report it. We don’t need to worry about that.’ I guess I made an assumption that I was not to know that he had not reported it to the CO of the Australian contingent. As with a lot of investigations, he could have done that and we would not necessarily find that out. I had only been there a month. I did not really know how it worked. I had thoughts that he may have reported it. I gave him the benefit of the doubt. It was only after I came back to Australia that I realised that nothing had happened with it. It is just not right that people do this sort of thing.

Senator CHRIS EVANS —I am going to play devil’s advocate here. I want to make it clear you understand that. The first question someone trying to test you on this would ask: did you have a bad relationship with the RSM? Was there any personal animosity between you before the incident?

Mr Hartshorn —No. I have the report that he wrote about me, which was written three months after that incident. It is a fairly glowing report.

Senator CHRIS EVANS —So you had not had much to do with him? There was no personal—

Mr Hartshorn —I had not had a lot to do with him, no. Between that incident occurring and the end of my time there, we were fairly busy so, once the incident occurred and I had gone through thoughts about if he had reported it or not, I was really too busy to worry too much about it until I got back. As I said, he has written a report of my performance over there. No, I did not have a bad—

Senator CHRIS EVANS —You were not sure whether or not he had reported it. I understand the military justice system moves in mysterious ways, so you might not necessarily have been told. But, when you got back, what was it that brought on your doing something about it—was it a pang of conscience?

Mr Hartshorn —When I got back to Australia?

Senator CHRIS EVANS —Yes.

Mr Hartshorn —I guess it was playing on my mind. You come back and there is not a lot of support when you get back. You are then going through everything that happened—there are other things as well as that, so you are going through all of that—

Senator CHRIS EVANS —What sorts of other things?

Mr Hartshorn —Deaths—people in the force being killed. We were right near the Gaza Strip, at the border, and there were a number of skirmishes there. So the normal type of operational incidents that would occur were still going on. The pace of work while you are there is such that you really do not have a lot of time to think about things or analyse them until you get back. We did have a psych debrief, prior to leaving to come back, where I guess I could have offloaded some of this but I did not do that because we had been basically told to keep quiet.

Senator HOGG —Was that a collective debrief or an individual debrief?

Mr Hartshorn —Collective, and then we had an individual one.

CHAIR —What happens when you serve overseas? Are you given advice on what you are to do in, say, a circumstance like this?

Mr Hartshorn —No. We had briefings prior to going over, along the lines of the culture of the Egyptians and the culture of the Israelis, Islamic culture, how to tread carefully as far as cultural sensitivities are concerned and all that sort of thing. But there was nothing specific about what to do if this type of incident happened, other than being told that if you are charged over there you would probably be covered under Australian military law, rather than being charged under the local legal system.

CHAIR —Did you hear any more about the actual hit-and-run from the Egyptian authorities?

Mr Hartshorn —No, there was nothing further that I am aware of.

Senator HOGG —Did the local civil authorities get involved?

Mr Hartshorn —Not that I am aware of.

CHAIR —To take up the cudgels from Senator Evans and be a devil’s advocate: for all we know she might have got up and walked away?

Mr Hartshorn —She may have. I have no doubt she was injured. The vehicle would have been doing about 40 kilometres an hour. I was sitting directly opposite the driver in one of those American tank sorts of things with a bullbar. She was struck by the corner of the vehicle and flung away. I would not want to speculate that she got up. Certainly there would have been injuries, but to what extent I would not know.

Senator CHRIS EVANS —You decided to pursue this. I notice from your submission that yours is a good example of all the paperwork involved in the way the system works, and so I find it a little confusing because that is how the system works. You got talked out of making a redress of grievance a couple of times—you describe it as ‘talked out of it’. Why is that? Were they basically saying to you: ‘Don’t make trouble. You’re only going to hurt yourself’?

Mr Hartshorn —Along those lines. I submitted a grievance, asking why did this happen? They appointed an investigating officer. When I sat down to give evidence he basically said, ‘I’m too busy to do this.’ In a unit, being an investigating officer is only one aspect of many other responsibilities. Quite often the officers are inundated with what are termed ‘extra regimental duties’ and this is just yet another thing which they have to do. Therefore, with administrative inquiries, investigating officers sometimes do not give the required amount of attention they should to an inquiry because they have got so much else on their plate. It is not a dedicated task. They are doing that as well as doing a stocktake and running a troop; they might have a range shoot and have to write a practice for that; they might be doing intelligence reports out at Cabarlah, where I was. This is just another thing they have had offloaded onto them from the commanding officer, so they think, ‘I can’t dedicate 100 per cent of my time to this.’ That is what I think was behind it. The culture has been that way for a long time. The CO does not appoint an investigating officer whose sole job is to come in and conduct an investigation; it is yet another task on top of many others.

Senator CHRIS EVANS —But obviously, on a couple of occasions, you did not pursue it.

Mr Hartshorn —When I asserted that I was going to keep the complaint in, he said, ‘The military police report has not been finished,’—I now have a report from the Ombudsman saying that it had been—but, on that basis, I accepted that and withdrew the complaint. When I was posted out to the Army Aviation Centre a few months later, I resubmitted it out there and got the same tactic with the legal officer telling me I had no right to put it in—and she gave that to me in writing—because it did not affect my service. I just wanted an answer. I had been in the mess and heard about other cover-ups and things like that, but this was the first time I had actually been involved in one myself. I thought, ‘Right, I’m going to ask questions.’ Being a serving member—because I did not do it after I had discharged—it really showed me how you are isolated as soon as you think outside the square. That is it, you are finished because you are not in with how everybody else thinks.

Senator CHRIS EVANS —So eventually you got into the process and they refused to redress of grievance. Since then you have been through the whole shooting match, by the looks of it. We now have the Inspector-General to add to the mix. It ended with the Ombudsman. What observations would you make about how the system works? Putting aside the core issue, I am interested in your sense of how the system works.

Mr Hartshorn —The system was most definitely not transparent at the time that that happened. The whole feeling coming through was that they tried to stop it at each level—they did not want it to go through. I put a submission to the joint inquiry where I said what they need is something independent between the military and the Ombudsman, some sort of review. I do not know whether the Inspector-General is now fulfilling that role, although that is still a fledgling—

Senator CHRIS EVANS —They report directly to the chief; that is the issue there.

Mr Hartshorn —That is right. So whether that is totally independent, I do not know. That is what I suggested: there needs to be more independence. I guess that is what I am looking at. That is the main thing I was concerned about: the lack of independence and transparency. You have Caesar judging Caesar. I have helped some of my soldiers over the years submit grievances. I have helped write them for them. All the way there are obstacles trying to stop those grievances from getting through.

Senator CHRIS EVANS —Did you find it easy to get the process though in the sense that you did not require any legal skills?

Mr Hartshorn —Not me personally. I am probably fairly literate in that respect. I knew how the system worked. I guess the only advantage of knowing how the system worked was that I knew how to progress it. So when somebody stood over me to stop me getting it through at one level, I did not give up. I have seen soldiers give up in despair. Basically I just wanted the question answered: why did this happen? Why can people who are in a very senior position order something to be kept quiet and that be the end of it?

Senator CHRIS EVANS —It seems that in many cases they have relied on the argument that no avenue was available to redress the possible unlawful command. That seems to be the legal defence for this.

Mr Hartshorn —Yes, that is a fairly common response that you get by the time it gets to the Army office.

Senator CHRIS EVANS —What was your experience of dealing with the Ombudsman’s office?

Mr Hartshorn —That was much better. They were definitely more independent. I was reasonably satisfied with them. They looked at the whole process and basically agreed that the whole thing was handled inappropriately and should not have occurred. But there was not much more they could do, due to the fact that some paperwork had been destroyed and they were not able to review all the evidence from Defence. The paperwork was not available for them to make a value judgment on how the whole process had occurred.

Senator CHRIS EVANS —I suppose the lack of an investigation of the original incident would have made the whole thing quite difficult, in the sense that there was no report of the incident from day one.

Mr Hartshorn —That is right.

Senator CHRIS EVANS —I am not trying to defend anyone, but it does strike me that, without that, the things that flow from it are a bit harder than they would otherwise be.

CHAIR —Why was the paperwork destroyed?

Mr Hartshorn —I do not know. I have no knowledge of why but I have a letter from the Ombudsman in which they said that a document was destroyed. Defence, I guess, would have to answer that question.

CHAIR —You said that over the period when you were serving you had assisted a number of your soldiers with handling grievances. Is it unusual for paperwork to go missing?

Mr Hartshorn —No. In my 20 years I found that it is definitely not unusual for paperwork to go missing.

CHAIR —But not to be destroyed?

Mr Hartshorn —It goes missing; you do not know whether it is destroyed.

CHAIR —In military life, are there a lot of grievances being submitted up and down the chain of command?

Mr Hartshorn —There are more than people probably realise, and there would be a lot stopped. They might get as far as a commanding officer and then the person might get satisfaction at a very low level. There might be counselling or some sort of meeting set up between the aggrieved person and the person they are complaining about, and they might get a result at that level. I would say that a fair few go in but a lot are stopped or resolved.

Senator CHRIS EVANS —The Ombudsman’s letter talks about an anonymous complaint about the former RSM and concerns that you were not advised of the outcome of that investigation. Were you the source of the anonymous complaint?

Mr Hartshorn —Yes, I was. My fear was that if I made a signed complaint after a number of months I would be leaving myself open to defamation because of the fact that, as you have already alluded to, there was no report from the Middle East. Infantry people and the whole Defence Force tend to—I was not to know whether everybody would close ranks and say, ‘The incident did not occur,’ which would leave me defaming the RSM. So I thought that if an anonymous complaint was made and it started a military police investigation and the others all made a statement saying it occurred I could then put in a signed complaint asking why it occurred—which is what I did.

Senator CHRIS EVANS —So there was an investigation and they issued a show cause notice against the former RSM in relation to the incident, so they obviously ended up taking it quite seriously.

Mr Hartshorn —That is right—a show cause as to why he should not be censured. But that was all; there was no other action. I personally believe censure is a fairly minor thing for an incident like that.

Senator CHRIS EVANS —I would probably agree with you, but as I become more experienced in these things I know that even getting Army to that stage is sometimes difficult. It means prima facie that the colonel had decided that there was behaviour that needed to be answered, so they obviously investigated to that extent.

Mr Hartshorn —That is right.

Senator CHRIS EVANS —Following the RSM’s response they decided not to proceed with the censure.

Mr Hartshorn —That is right. That is where the documents were destroyed. If you read on you will see that the Ombudsman says that, as a result of that decision, the RSM’s response to the notice to show cause was destroyed. So they did not have that to use to make a decision as to whether the decision not to censure him was reasonable.

Senator CHRIS EVANS —What was your seeking an apology from the Chief of Army about?

Mr Hartshorn —Being put through all of that, because the best word to describe their whole attitude towards the incident would be callous—‘Hit a woman in the Middle East. She’s only an Arab. Who cares?’ One guy even made the comment over there—and, as I said, I am not an infantry soldier; I was a signals specialist—‘I am only here for one reason: to take Arab scalps.’ To me, that is not right. I do not care whether they are infantry or armoured, but that comment was made. Regardless of your being on operations in a foreign country, you still show respect for the people in that country. It was the whole thing of being put through that. It has been very hard on my wife, because I have been pushing this and that is why I have got her here today. To me this is a bit cathartic, because, with respect, you are the only ones that have ever asked me to tell the story. Most people have fobbed me off and wanted it to go away. For me to sit down and get this off my chest, and to have been invited to do so, is a cathartic experience, and I wanted my wife to share that.

Senator CHRIS EVANS —We understand that. We have had quite a deal of feedback about that. The military justice system does not seem to allow people their day in court that allows them, even if they do not get the result they want, to feel that they were given a fair hearing and that the issues were addressed and to move on, in a sense. You are expressing that, are you?

Mr Hartshorn —Yes, exactly. You never get the feeling that you can close and move on. In my whole 20 years—right through most activities, including going away—my wife never knew when I was coming back. I could never tell her when I was coming back. She would ask, ‘When will you be home?’ I would say, ‘A month’s time.’ She would ask, ‘When? We need to plan social activities.’ I would say, ‘I don’t know. Could be this week; could be next week.’ Then I would ring her up and say, ‘It won’t be for another week.’ That was even on exercises within Australia and peacetime exercises. You never really know where you stand. There is never real closure where you can move on with most aspects of things.

Senator CHRIS EVANS —I have similar conversations with my wife. They do not go well at all.

Senator HOGG —I am relating to everything that you are saying.

Senator CHRIS EVANS —Ours is only on a weekly basis, but it is much the same. Why did you get out of the Defence Force in the end? Did you voluntarily discharge?

Mr Hartshorn —Yes, I voluntarily discharged. I was disillusioned, probably. I was also coming up to the end of my 20 years. I would have served on, had I still felt that I had a career. I did not really feel that. Fortunately a position came up with the ambulance, working in their communications—which is where I am quite happily now. I have made the transition. I have no agenda and I will receive nothing personal out of doing this, so why would I do it if I did not want to see some sort of improvement for other people to follow? I have a real feeling for the next generation, the guys who are over there now, to get a fair hearing. That is my sole reason for doing this. When I heard that this investigation was on, when the president of the peacekeepers association first told me about it, I thought, ‘Not another inquiry,’ and I viewed it with cynicism. But then, when I was actually invited to come, I thought, ‘I’ll tell my story.’

Senator CHRIS EVANS —You must have felt very strongly about this to go through all these hoops. We have run into a lot of people who have given up in the face of all the procedures. To be brutally frank here, is it because you felt some guilt about what happened in Egypt?

Mr Hartshorn —Yes. You have hit the nail on the head. A lot of people give up, and I did not want to give up. I wanted to try and get some sort of answer out of the military for me. I had been through an experience; I have seen many others go through experiences similar and give up. I thought, ‘I can’t do anything—it’s not my fight.’ You would be in the mess, you knew what was happening, you knew—

Senator CHRIS EVANS —It would be easier just to stop and give it away.

Mr Hartshorn —It probably would but, if I can turn one small cog in the system, who knows? I might make a bit of good, and that is what I thought I would try and do, because the military is so good at saying how well they are doing everything. The can-do attitude that I heard over there in the earlier public hearings is most definitely there. The commanders would say, ‘We’ll do this regardless of whether we’ve got the resources,’ and ‘I don’t want to hear that we can’t do it. Come back and tell me you can do it. I don’t care if that armoured vehicle is pulled apart; I want to know it’s ready by tomorrow and that you can do it.’

Senator CHRIS EVANS —Do you have any other broader suggestions about how we might improve the military justice system? As you have experienced, it is a fairly bureaucratically driven process. You talked earlier about maybe some independent assessment along the way, but are there any other practical things you have thought about that might make it easier for a serving ADF member to seek justice?

Mr Hartshorn —It should be mandatory that an investigating officer for any administrative inquiry come from another unit. At the moment, they come from within the unit and the unit is a closed shop. Say, for example, if I were at 72 Electronic Warfare Squadron at Cabarlah and I were the commanding officer and an investigation were to occur involving one of my soldiers, then the investigating officer should come from Brisbane or Oakey or from another service. They most definitely should come from outside the unit and I believe that should be mandatory. That is where a lot of the problems lie, because the investigating officer might be the drinking mate of the CO or they might play rugby together and he is worried about his career, and he is worried about the commanding officer signing off on his annual report.

In fact, thinking back to when I was in Sydney in the eighties I remember a specific example of an investigating officer who was continually going back to the commanding officer who was going to sign off on his report and say, ‘I concur with your findings,’ or, ‘I don’t concur with your findings.’ The commanding officer would look at the draft and say, ‘Go back and redraft those recommendations until they are to my satisfaction,’ because he did not want to look at them and then say, ‘I don’t concur,’ and for it to be on the record. He wanted to read it the way he perceived and then say, ‘I do concur.’

Senator CHRIS EVANS —So the investigating officer was ensuring that the commanding officer was going to give it the tick before he finished his report?

Mr Hartshorn —Exactly, and that is because it was an investigating officer from within the same unit. If you had a Navy person coming to an Army unit from another town, another unit, that would not happen to the same degree because that person’s report—and it all boils down to the annual report; I can tell you that—will be written by somebody else. That is my view on one way to improve it. Listening to Mr Pelly’s evidence, there probably should be more independent people on boards of inquiry rather than stacked with all Navy personnel and maybe one independent person. I am not sure how that worked, but I remember that there was, supposedly, one independent person.

Senator CHRIS EVANS —There was a fire brigade officer, I think.

Mr Hartshorn —There should be more independent people sitting on that board so it is not all Navy people or Army or whatever it might be.

Senator CHRIS EVANS —Thank you for that. That is helpful.

Senator JOHNSTON —Mr Hartshorn, you are currently in charge of communications for the Queensland Ambulance Service.

Mr Hartshorn —I am not in charge.

Senator JOHNSTON —Sorry.

Mr Hartshorn —I am working with them.

Senator JOHNSTON —You are hands-on and probably carry a lot of responsibility in that regard. Has this affected your work?

Mr Hartshorn —I do not think so.

Senator JOHNSTON —What sort of road were you driving along on that day?

Mr Hartshorn —It was in the city. It was a reasonable road for Cairo’s conditions. It was bitumen and I would say—taking into account their potholes and all that sort of thing, which are worse than ours—as good as inner-city Cairo would offer.

Senator JOHNSTON —Was its two car widths wide?

Mr Hartshorn —Yes, it would have been.

Senator JOHNSTON —So it was a dual carriageway; is that the way we could describe it?

Mr Hartshorn —Yes.

Senator JOHNSTON —What was the weather like? Was it wet or rainy?

Mr Hartshorn —No, it was fine.

Senator JOHNSTON —So visibility was good?

Mr Hartshorn —Yes.

Senator JOHNSTON —What speed were you doing?

Mr Hartshorn —It would have been about 40 to 50 kilometres an hour.

Senator JOHNSTON —And there were four people in the vehicle?

Mr Hartshorn —Five actually.

Senator JOHNSTON —What sort of vehicle was it?

Mr Hartshorn —It was one of those large American vans, shaped like VW combi but an American version of it.

Senator JOHNSTON —It was a GMC or something like that, was it?

Mr Hartshorn —Yes, that it.

Senator JOHNSTON —Did it have windows or panels? Could everyone see outside?

Mr Hartshorn —It had windows. Everyone could see outside.

Senator JOHNSTON —So it was all very visible. Where did the vehicle strike the pedestrian?

Mr Hartshorn —It was a left-hand drive vehicle. The RSM was sitting in the driver’s seat. I was sitting directly opposite him. She struck my panel.

Senator JOHNSTON —When you say opposite, do you mean in the passenger seat?

Mr Hartshorn —Yes, I was sitting in the passenger seat in the front.

Senator JOHNSTON —And she struck your side.

Mr Hartshorn —Yes.

Senator JOHNSTON —How did it eventuate that the vehicle, to your understanding, struck the pedestrian?

Mr Hartshorn —She stepped out. She suddenly appeared. I caught a flash of her coming from the right.

Senator JOHNSTON —So you did not even see her?

Mr Hartshorn —I did initially. I saw a flash. All I remember is a black figure, I think covered from head to foot, who stepped straight out. I remember the sound of the bang as it hit her, and then she flashed back away from me.

Senator JOHNSTON —Was there any damage to vehicle?

Mr Hartshorn —There was some damage. A slight—

Senator JOHNSTON —Indentation?

Mr Hartshorn —Yes, a slight indentation.

Senator JOHNSTON —Did you look back and see what was going on?

Mr Hartshorn —By the time he got through, there was a lot of traffic, I glanced back but I did not see her again. I did hear someone behind me say, ‘There goes a tooth.’ I remember that. Then there was a comment about hitting another car.

Senator JOHNSTON —When the person said, ‘There goes a tooth,’ do you mean an actual tooth from the mouth?

Mr Hartshorn —That is what I assume it to be, yes.

Senator JOHNSTON —Was there any sort of slang description ‘tooth’ relating to the people that you were with in that community at that time?

Mr Hartshorn —No. I took the word ‘tooth’ to mean a tooth flying out of that person’s mouth.

Senator JOHNSTON —So where was the pedestrian struck?

Mr Hartshorn —I would say on the side.

Senator JOHNSTON —On the left arm?

Mr Hartshorn —On the left arm and left side of the body—from my brief sighting of her coming from the right.

Senator JOHNSTON —With the post immediately to your right in the passenger seat there. The van had a flat bullnose; did it?

Mr Hartshorn —Yes, it had a flat bullnose with a bullbar on it I think.

Senator JOHNSTON —What sort of bullbar was it?

Mr Hartshorn —One of those heavy ones.

Senator JOHNSTON —Was it tubular aluminium?

Mr Hartshorn —No, it was more of a heavy one. I never examined it personally so I can not categorically say that it was not that, but it appeared to be heavier than just a tubular one.

Senator JOHNSTON —So she would have hit that?

Mr Hartshorn —Yes, she would have.

Senator JOHNSTON —But there was a dent on the actual vehicle?

Mr Hartshorn —Yes, on the panel side where the bullbar comes out. The panel was just back slightly so she hit directly on the corner.

Senator JOHNSTON —Hit on the corner, and she went back behind the vehicle, not the front—

Mr Hartshorn —Back down the side.

Senator JOHNSTON —There was a component of glance in the striking.

Mr Hartshorn —I felt a solid thud is the best way I can describe it.

Senator JOHNSTON —But she went backwards, not forwards.

Mr Hartshorn —Not forwards, out and back.

Senator JOHNSTON —What happened immediately after inside the vehicle? You say that someone in the back said, ‘Sir, you’ve hit that woman.’ What was the response?

Mr Hartshorn —To the best of my knowledge he said, ‘She’ll be right.’

Senator JOHNSTON —Then what happened?

Mr Hartshorn —We were looking at one another. Hindsight is a good thing, and I have often said to myself that I should have been more assertive. We all kept quiet because it was the RSM. If it had been one of us or one of the lower ranking soldiers, I have no doubt that the RSM would have taken charge and it would have been a different story. Because it was him—and you do not see an RSM do this sort of thing; in fact, I have never seen it happen—your initial reaction is, ‘Gee, the RSM did this. What are we going to do now? We are waiting for direction from the leader, which is him.’ That is the best way to describe it. So nothing more was said at that stage.

Senator JOHNSTON —How long were you all in the car for after the accident?

Mr Hartshorn —It would have been another couple of hours. We were going out to El Alamein.

Senator JOHNSTON —That is a fair distance away.

Mr Hartshorn —We got out and stayed in a motel. I cannot remember whether it was there or at Alexandria.

Senator JOHNSTON —When was the first occasion that you and the other four members of the team, excluding the RSM, discussed the incident?

Mr Hartshorn —Standing around that night someone said, ‘Do you realise what the RSM did this morning?’

Senator JOHNSTON —Who said that?

Mr Hartshorn —One of the other guys in the vehicle.

Senator JOHNSTON —What was his rank?

Mr Hartshorn —Sergeant, same as me.

Senator JOHNSTON —So they are all sergeants plus the RSM?

Mr Hartshorn —Yes.

Senator JOHNSTON —So one sergeant said to the other three of you, ‘Do you realise what the RSM did this morning?’

Mr Hartshorn —Yes.

Senator JOHNSTON —And what was the response?

Mr Hartshorn —‘Yes, we do.’

Senator JOHNSTON —When you say, ‘Yes, we do,’ what did you say?

Mr Hartshorn —As part of the general conversation, I agreed and said, ‘Yes, I understand what happened.’ We did not really discuss it any more. Once again, we were waiting to see if he was going to do anything. You have to understand the culture, and that is the best way I can describe it. I guess that is why we slept on it—I slept on it anyway—and then first up in the morning is when he raised the subject himself.

Senator JOHNSTON —After he suggested or stated, ‘We won’t talk of it any more’ or ‘That’s the end of the subject’—words to that effect—was there any further discussion?

Mr Hartshorn —No. He left it. I took it to be a little ambiguous. He said, ‘This is not to be discussed again.’ I am not sure he actually said, ‘I will deal with it,’ but I was left with that impression.

Senator JOHNSTON —The other three sergeants—no names, no pack drill—where are they now? Do you have any idea?

Mr Hartshorn —Yes. The last I heard one was in Canungra and he went to East Timor.

Senator JOHNSTON —Still a sergeant?

Mr Hartshorn —No, I believe he is a warrant officer. Another guy became a warrant officer. I am not sure if he is still serving and I do not know where the other one is.

Senator JOHNSTON —Have you ever discussed it with them since?

Mr Hartshorn —No, because we went all over the countryside. I have never met up with any of them even with the military police investigation. They came to us in Toowoomba and went to wherever each person was posted, but we never got together.

Senator JOHNSTON —The main problem is that you say that you should have been more assertive. When you say that you mean you should have been more assertive in prevailing upon the other three sergeants to do what you perceive now to be the right thing?

Mr Hartshorn —No. What I mean by that is that I should have gone to the RSM and said, ‘Sir, you struck a woman this morning. What are you going to do about it?’ or ‘Are we doing anything about this?’ I should have approached him.

Senator JOHNSTON —What if he had said, as he did the next morning, ‘We’re not going to mention it’?

Mr Hartshorn —I would have taken him on his word. I might have asked him if he was going to report it. Once again—I hark back to the culture—you do not start questioning those people. As soon as you do, you are put in your place and you are basically told, ‘Don’t question me. I’m dealing with this. Don’t imply that I’m some sort of incompetent that can’t handle it.’

Senator JOHNSTON —So your adherence to discipline was sorely tested by this incident?

Mr Hartshorn —Yes.

Senator JOHNSTON —You were betwixt and between.

Mr Hartshorn —Yes.

Senator JOHNSTON —At sixes and sevens, meat in the sandwich—to rattle off a few cliched phrases.

Mr Hartshorn —Yes.

Senator JOHNSTON —And that has been causing you some concern over a very long period.

Mr Hartshorn —It has, yes. I have let it go of late. Until this investigation sprang up again, I had put it behind me. I still felt that the whole thing had not been resolved, but I had gone on with my life.

Senator JOHNSTON —Had you ever made any attempt to ascertain what happened to the woman on that day?

Mr Hartshorn —Yes, I have. That is pretty hard to do—

Senator JOHNSTON —I am sure it is.

Mr Hartshorn —I have inquired through Defence, but nobody would ever tell me whether they took any action. I might have asked people I knew who served over there after me: ‘Did you hear about the incident? Did you ever find out—

Senator JOHNSTON —any report or any signal about anything out there that happened to a woman who was hit by a—what colour was the vehicle?

Mr Hartshorn —White.

Senator JOHNSTON —A hire vehicle, was it?

Mr Hartshorn —Very high, yes.

Senator JOHNSTON —No, ‘hire’.

Mr Hartshorn —No, it was a force vehicle. It belonged to the contingent.

Senator JOHNSTON —An ADF force vehicle?

Mr Hartshorn —No, it was an American vehicle, because it was a—

Senator JOHNSTON —Peacekeeping.

Mr Hartshorn —Multinational, yes. It was a peacekeeping vehicle.

Senator JOHNSTON —What was the name of the operation?

Mr Hartshorn —Operation Mazurka.

Senator JOHNSTON —So it was a Mazurka vehicle?

Mr Hartshorn —Yes.

Senator JOHNSTON —Do you think it would be helpful if you were to know what happened to the woman?

Mr Hartshorn —I would love to.

Senator JOHNSTON —If you write to Foreign Affairs they might be able to assist you. I think we have a mission in Egypt. If there was a deceased or injured woman there, there is bound to be some sort of record somewhere. Go and see your local member of parliament, and he might be able to help you.

Mr Hartshorn —That would be great. I never thought of that avenue, but it would help me to know what happened.

CHAIR —Or senator.

Senator JOHNSTON —Which state are you from? Queensland?

CHAIR —You have a Queensland senator here.

Senator JOHNSTON —See your Queensland senator. There is one on the end.

Senator CHRIS EVANS —I do not know whether you are very familiar with Cairo traffic conditions and the population there, Senator Johnston, but I suspect that their traffic reporting systems are fairly rudimentary, given the—

Mr Hartshorn —That is what I presumed.

Senator CHRIS EVANS —I remember reading the Let’s Go book once about which bus you catch in the middle of Cairo and realising then that I needed to hire a taxi. It was bedlam—absolute bedlam.

Senator JOHNSTON —It does not hurt to ask.

Senator HOGG —At that stage you were part of a United Nations force, weren’t you, Mr Hartshorn?

Mr Hartshorn —Yes. A multinational, yes.

Senator HOGG —But it was under the control of the United Nations?

Mr Hartshorn —Actually no, it was not. Russia did not agree with that particular one, so America had to create an independent multinational force, which does not actually wear the blue beret.

Senator HOGG —I was just trying to find out whether the fact that it was a multinational force made your task more difficult to pursue. Under whose command were you at that stage? Were you under the command of the Americans or were you still under the control of the Australian forces?

Mr Hartshorn —I was under the control of Australia for disciplinary matters and under the control of the multinational force for all other aspects. So the RSM himself, who was the chief disciplinarian, would have been under the command of his own commanding officer for disciplinary purposes.

Senator HOGG —If there had been a reportable incident, I presume that it would not have been reported to the head of the Australian forces as such. I presume that it would have been reported to the head of the multinational force. Is that a correct assumption?

Mr Hartshorn —Yes. An incident occurring to do with a representative of that force would have been reported to the force.

Senator HOGG —Did you ever approach the head of the multinational force to find out if there had been a report from the Egyptians?

Mr Hartshorn —No, because he was an Australian—General David Ferguson. So, even though he was not posted there with the Australian contingent, he was still an Australian and would be Caesar judging Caesar. The other two were Australians.

Senator HOGG —I was just trying to get that clear. In your view, was the incident an accident or was it intentional?

Mr Hartshorn —It was not intentional. It was an accident.

Senator HOGG —It was an accident.

Mr Hartshorn —It was an accident. My main concern is the aftermath—how it was dealt with by the military. It was an accident. She came out of nowhere. As people have alluded to, in Cairo the driving conditions are shocking and accidents will happen. But the issue is how those incidents are handled. If a white, Anglo-Saxon woman walking down the main street of Canberra was hit under identical circumstances, I would hazard a guess that it would not be viewed lightly.

Senator HOGG —My other questions go to the investigation itself and the investigating officer. Was that investigation hampered in the first instance by the fact that you were a disparate group of people? I presume you did not all come from the same signals corps or something—that the other four and you were from different units and corps.

Mr Hartshorn —Yes. When we came back to Australia I went to Cabarlah, Toowoomba. Someone else went to Kapooka, someone else to Townsville—

Senator HOGG —So they were all over the place.

Mr Hartshorn —That is right.

Senator HOGG —Was that seen by the investigating officer as enough of an impediment to say, ‘This is too hard because you people, whilst you were all in the car at the one time, have now all gone your own ways. Look, we really shouldn’t worry about it.’ Is that the sort of attitude? Was that one of the probable motives of the investigating officer?

Mr Hartshorn —As a gut feeling, I felt that coming across. They made the effort of sending military police to each location and I believe, although I cannot categorically state it, they also went to New Zealand to interview the two Kiwis who were following us. But, yes, because everyone was separated you could not conduct an investigation in close proximity—you were flying all over the countryside and taking days and probably weeks to get all the statements together.

Senator HOGG —I refer to the minute on the redress of grievance determination dated 2 April 1996. I like your handwritten comment on the sheet.

Mr Hartshorn —Yes, that is my comment. I guess that would sum it up, but I do not remember writing it.

Senator HOGG —My question is: do you know what they meant by ‘the incident may cause matters to get out of hand’?

Mr Hartshorn —He never mentioned anything about not thinking the woman was hurt. This has come out after he has been found out and interviewed and has had to come up with a reason why he kept it quiet. That is my reading of the whole thing. To me, ‘matters getting out of hand’ would be him having to be accountable and his career being on the line. I have no knowledge of what else he would have been referring to.

Senator HOGG —You described it as ‘typical regimental horse manure’—the word ‘manure’ being mine, not yours.

Mr Hartshorn —Yes.

CHAIR —Mr Hartshorn, thank you very much for coming along. Would you like to say anything further?

Mr Hartshorn —There is one thing I would like to add, having listened to the very courageous evidence of Ms Sturgess this morning. Between 1986 and 1988 I was troop sergeant of a mounted signal troop. We had a signals unit where everything was mounted on M113As. In relation to diff lock, I was in vehicles numerous times when it happened to me. Most of the time we were in the scrub area of Holsworthy, so when it happened you would be violently tossed around but nobody would be seriously hurt and so no more would happen.

I remember one specific exercise when we went from Holsworthy to Bungendore for an exercise. The vehicles were carried on trucks. The comment was made: ‘We do not want diff lock to make us wipe out any civvies, do we?’ That was a common attitude. As I said, for two years I served in a mounted signals unit. When I heard her evidence this morning I just wanted to offer a bit of back-up there from personal experience.

Senator CHRIS EVANS —I very much appreciate that. I have had a number of people say the same thing to me but it is nice to get someone on the record saying it. Certainly anyone who has ever been in one has said the same thing to me. It is obviously well known to the troops who use them. I appreciate that.

CHAIR —Thank you both for coming in. The public session of the committee now stands adjourned. Thank you to everybody for coming along today.

Evidence was then taken in camera—

Committee adjourned at 5.00 p.m.