Mark Bishop (WA, Australian Labor Party, Shadow Minister for Defence Industry, Procurement and Personnel) Share this | Hansard source

Military justice is a matter on which the Senate has a close, continuing and abiding interest. It remains a running sore and, as we know, has become a significant disincentive for young people to enlist in Australia’s armed forces. For recruitment to our dwindling armed forces, that of course is catastrophic. And it is of the government’s own making, because it has again failed to adequately address this particular problem. I should say at the outset that we seriously hope that the government’s announced changes will work, although I enter the caveat that we are not greatly optimistic. We hope, too, that the CDF’s audit of training establishments will also be useful in identifying the causes of such a vicious culture.

There is much more to it than that, though. Last night in the adjournment debate I spoke about the excessively litigious and combative nature of the Department of Defence. This is the end of the chain in the military justice system. It is the stage where aggrieved ADF personnel end up after the system has failed them in seeking some form of redress. For some, a simple apology might be sufficient; for others, though, it involves compensation for the loss they have suffered—emotionally, physically and their career—yet for most it is a bitter and fruitless struggle. Remedies are rarely achieved.

The legal division, amongst others, defends the Department of Defence from all claims by ADF personnel who seek redress for harassment they have suffered. This is not an attack on the people who work in that division but on the government and sections of the military hierarchy that direct its activity. Millions of dollars are being spent to defend the government against claims by those who have suffered at the hands of the failed military justice system. The message to those people is simple: ‘Go away; we’ll fight you all the way to bankruptcy’—no matter the case, no matter the cost and no matter the merits of their particular case.

The legal division has 220 staff, 120 of whom are lawyers. It also uses the services of 320 legal officers. That is a total of 540 persons. The budget for last year was some $57 million. That is what the victims of failed military justice are up against when they consider any claim for redress. As I explained last night, the deck is totally stacked against them. There is no limit to the cost of defence, and millions could be spent in any one case rather than pay even the most minor amount of compensation. For instance, half a million dollars was spent in defending a naval doctor for malpractice in the Western Australian Medical Board—completely in breach of the relevant Attorney-General’s guidelines.

Put simply, there is no means for redress for any ADF person who proves that they have been wrongly treated. For those who suffer the defeat and frustration of the military justice system, there seem to be only three avenues. First, complainants can seek what is termed ‘damages for defective administration’—that is, where error on the government’s part is found in making any decision and loss is suffered, modest compensation is paid. Of course, this is standard practice across the Commonwealth. Second, for a small number of females in particular, the Human Rights and Equal Opportunity Commission, HREOC, is used. Finally, the last resort is legal action in the courts. For the first, it must be said that success is limited if measured monetarily.

Of the 50 claims settled by payment of compensation for defective administration, the averages in the last two years have been only $17,000 and $11,000 respectively. For someone whose career has been destroyed, it goes without saying that this is just peanuts. For them, the option of action for damages in the courts is simply too expensive. And, as Defence will use its $57 million budget against you, it does not happen in the real world. The result is a large number of bitter people, sometimes in middle age, with lost careers and poor prospects. These are very sad cases and the system simply gives them no opportunity for adequate redress. Throughout such a process, too, there is inevitably a pattern of aggressive and non-cooperative behaviour. Sadly, this also seems to be the behaviour of contracted solicitors whose contracts with Defence seem to be a pipeline to the Mint. The detail of those payments is on the public record. Given the attitude of ‘never settle’ and ‘fight to the death’, the returns are assured.

This has been a very difficult matter to come to grips with. Military justice should extend to the need for remedies for the aggrieved and the victims when the system fails them. Innocent people wrongly treated are entitled to redress, but there is simply no means by which this can be achieved. There simply has to be a better way. The F111 deseal-reseal liability may be a precedent to some extent. At least liability was conceded and an ex gratia scheme provided—albeit one that was totally arbitrary and unfair. That human disaster is every bit as bad as the asbestos case against James Hardie.

In short, it is about time it was acknowledged that failures in military justice are inevitable. Compensation for wrongdoing and negligence must be given fresh consideration. It should avoid the pain and cost of court action, which will always be beyond most people’s budgets. Bereaved parents whose young are taken from them by sheer negligence or bastardry should be given special consideration. Certainly, the current system is both fruitless and pointless for many. At the end, there is certainly no justice in it for them.

Indeed as last year’s Senate report found, failed process rarely results in any acknowledgement of liability. Wrongdoers are rarely brought to justice, and counselling is as tough as it gets. It is only when there is a public scandal that action is taken, and even then it is totally inadequate. One can only wonder how many victims fail because their case has not received any publicity. And I must say that representations to members of parliament have been treated in the past with the same contempt by relevant ministers. It is not long since the former Minister for Veterans’ Affairs advised me on a very sad case of failed military justice. She simply told me that the subjects of personal representations to me as a senator were being looked at and that I should not worry myself about them. That is typical of the arrogance of the Howard government—and, thankfully, she is no longer the minister.

Everywhere you turn on this subject you face a brick wall. I know the experience of so many others in this place is the same. There is an attitude of complete contempt for the individual. It is almost as if it is an accepted rule that when you enlist you forgo all the rights that are part and parcel of our community and of a normal system. Ask questions, challenge the system, seek redress or justice, and you have to watch out.

I do not believe for a minute that the recent changes put in place by the Howard government to fix military justice are going to have a great effect. They can certainly have no effect while the old combative attitudes and cultures of the Defence Legal Division continue. It is simply about time that the review of military justice took another step. It is about time military justice reform was extended to cover the entire process, and not just the investigation and inquiry stage. Until liability is clearly sheeted home in every case and victims are properly compensated, there can be no real justice at all.