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

The matter I wish to address tonight concerns the practices and attitudes of the Legal Services Division of the Department of Defence. In particular, I want to concentrate on its key role in apparently fostering and carrying on with a revisionist attitude to military justice. That attitude seems to me to be in direct conflict with the strategy, directions and culture outlined and sought by the Chief of the Australian Defence Force, Air Chief Marshal Angus Houston.

The strong condemnation of the Senate and the community has already been expressed at the failure of Defence and the government to adequately attend to the problems within the military justice system. The activity, culture and attitude of this Legal Services Division are a critical part of that ongoing problem. This problem no doubt reflects the ongoing attitude and view of the hierarchy of this particular division. This division is combative and litigious in the extreme. More to the point, it demonstrates a contemptuous attitude to the Senate. I say that because of answers given to my questions on notice from the supplementary estimates last November. Those questions sought information on a number of matters concerning the case load of the division and its attendant enormous costs. The answers to those questions are, at best, deliberately evasive and, in many respects, offensive.

Continually, it seems that the government, through its bureaucracy, is bent on doing snow jobs or using the flimsiest of excuses to deny information. These excuses need to be challenged. As we know, the classic from the disaster-prone procurement area is the old commercial-in-confidence camouflage. The Senate has grappled with this for some time. It covers a multitude of sins which actively prevent serious scrutiny of Defence activity in the spending of some billions of taxpayers’ money. We understand the need to protect commercial information so as not to, obviously, disadvantage companies tendering for contracts, but it is so often used to hide much more.

The next great excuse is that the matter is sub judice—that is, a case of complaint within the military justice system is protected from investigation by the Senate because it is alleged it remains under the consideration of a particular court. This too is often used to avoid scrutiny. This particularly applies in cases already in the public domain, where the facts are fully known and understood. Inevitably, though, many cases proceed through the litigious and combative maze of Defence to, for example, the Federal Court. That, of course, does not prevent the Senate exploring any matter preceding the initiation of that action. This applies to a number of cases where victims of the system are forced to sue for any form of redress, yet that action is seized upon by Defence to deny further examination by the Senate. And I say at the outset that it simply is not good enough. The other excuse used with increasing frequency is that of privacy, and this is applied willy-nilly in a blanket fashion. It is a standard response regardless of a victim’s or complainant’s willingness to have their interests raised and represented in the Senate.

Finally, there is the old excuse of not being prepared to do the work to answer the question, based on priority use of resources. We understand that sometimes the information sought is not available in the form in which it has been requested. In this case, though, the information should be an item of common knowledge. Here I refer particularly to the case load of the legal division before tribunals and courts around Australia. I asked a simple question about workload, yet I am told that the information cannot be provided. It is another smokescreen to avoid accountability and responsibility. My simple question was:

How many common law applications seeking damages or any other form of redress are currently being handled by the division?

I also asked, of those:

How many are contracted to private firms, and what firms?

It is pretty simple. It was a straight-out question of case load management. But the answer was that such figures are not readily available. The truth perhaps is that they really do not know their business or the commitment and resources being allocated. More likely, though, the answer is that it is huge and the Legal Services Division or the Department of Defence do not want anybody to know how much is being spent and how much is being allocated. So at best it is poor management; at worst, it is arrogant secrecy and concealment.

The reason I am pursuing this matter is that military justice goes way beyond acts of simple bastardisation and the consequences that derive from that activity. It goes beyond the failure to investigate and to provide redress. It goes ultimately into the heart of this division, whose task is apparently to make sure that no case, whatever its merit, is properly settled.

Let me remind the Senate of the four cases in particular which were the subject of my questions. The first is that of Commander Fahey—and there is no dispute about the circumstances concerning Commander Fahey. They are on the public record, and there are large media files and continuing media interest in the case. It is a celebrated case involving the harassment and persecution of a bright and able young officer who has now been on leave on full pay for well over five years.

As found by the Western Australian Medical Board, an attempt was made to discharge Commander Fahey on a trumped up diagnosis of psychological stress. The guilty party in this case, no doubt operating collusively, wrote a highly improper and incorrect referral to a tame psychiatrist, who obliged. The naval doctor concerned was found guilty of malpractice by the Western Australian Medical Board and went very close to losing his licence to practise medicine.

As the record—now confirmed—shows, legal fees of $444,000 were paid for him by the Department of Defence, although payment of those fees was in direct contradiction of the Attorney-General’s guidelines, which preclude payment where fault is proven. This breach of guidelines is now under investigation by the Attorney-General’s Department. We will see what the Attorney has to say in due course about the Defence legal division thumbing their nose at the guidelines to protect one of their mates. The doctor was even promoted, the only apparent reason being that the Navy are so short of doctors that they will take anyone. With this sort of policy and practice, the deck is stacked totally against any complainant. Military justice was denied, is denied and will continue to be denied.

The next chapter for Commander Fahey was an application to the Human Rights and Equal Opportunity Commission. Given the patent inability of the military justice system to provide redress, this is the only avenue short of litigation in the courts that is available—especially in cases of sexual harassment. Once again, there was a stone wall. In this case, the Defence legal division paid Phillips Fox $93,867 to defeat her. Now she has an action in the Federal Court seeking redress for her treatment. No doubt that too will be fought with all the ferocity and resources that the legal division can muster. To date, the Fahey case, short of settlement, has cost in the order of half a million dollars in legal fees paid by the Commonwealth. We get no comment because of sub judice, as was the case from the Chief of the Defence Force at the last round of estimates. Their motto, no doubt, is: ‘Show no mercy.’

The next case, which is also on the public record, is that of Ms Susan Campbell, the mother of suicide victim Eleanor Tibble. Ms Campbell has also sought redress and recompense for the loss of her daughter, based on a finding by the coroner that the RAAF was 50 per cent culpable. Ms Campbell also failed to obtain redress through HREOC and is now being fought tooth and nail in the Tasmanian Supreme Court, where the decision is reserved. Defence legal division has spent $193,090 fighting her, with undoubtedly more to come.

Next there is the case of Ms Kellie Wiggins, which also involves a harassment complaint. She, too, has failed to obtain redress and is taking action at huge personal cost in the Federal Magistrates Court. Again, Phillips Fox are the attack dogs. Their dealings with Ms Wiggins’s solicitors seem to be confidential. Put simply, Ms Wiggins’s complaint to my office is that they too are excessively combative. Quite frankly, I am not sure whether Defence knows what their lawyers do on their behalf. It does seem, though, that they share the same combative culture, either instinctively or under instruction. Ms Wiggins is just another David fighting Goliath, and without financial assistance she will be beaten off like all of the others.

The fourth case involves the much publicised settlement with Air Vice Marshal Criss. As the Senate will recall, Air Vice Marshal Criss was a senior RAAF officer who fell foul of senior command. An inquiry by Mr Bill Blick found that he was wrongly treated, despite all denials. Defence has now advised that the legal costs here amounted to $162,314—and that does not include the cost of the Blick inquiry or the cost of legal assistance provided to Air Vice Marshal Criss. This, we can assume, could have been several hundred thousand dollars.

I will not repeat the details of each of these sagas. But the point under discussion is that each is symptomatic of a larger and ongoing problem. There are many others. Some have written to me with similar and even more expensive experiences. In one case, the cost to Defence alone goes to millions of dollars. The point is that much of this could and should have been avoided. In most of these cases, Defence, believe it or not, has conceded liability. Settlements for damages for defective administration are the evidence for that.

In fact, in answer to Senate question 10/97 I was told that in the last two years 90 claims have been finalised. Fifty of these resulted in financial payments, at a total cost of over $690,000. At the same time, three applications have been made before HREOC in each of the last three years by female ADF officers. Settlement was reached only in one case, with payment of a miserable $14,000. As we know from other cases, settlement has been offered to others and either rejected or withdrawn. I will adjourn my remarks and resume tomorrow evening on a similar subject.