Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

I thank Senator Webber for making that significant contribution concerning a most important event and I wholeheartedly support the comments she made.

Today I will return to a topic on which I have made some contributions in recent years and make some comments concerning reforms to military justice since the tabling of a landmark report by the Senate Foreign Affairs, Defence and Trade References Committee in 2005. I want to give a status report—a wrap speech, if you like—as to where government efforts to reform military justice are to date.

By way of introduction, I think there are two elements to the summary that would be worth while putting on the public record. The first is the progress of the systemic reform to military justice that was recommended by the committee and, in some ways, accepted by the government in its response. The second, and more important, is the outcome of those changes and any identifiable or observable evidence of success in the last 12 or 18 months.

Much of the systemic reform is now in place, judging from the six-monthly reports provided to the Senate committee. A significant weakness in the system found by that committee was the then inadequacy of service police. Nowhere has this been more evident than in the unfortunate death of Private Kovco. The investigation there was simply incompetent and it continues to have repercussions, from an equally poor board of inquiry through to the likely New South Wales Coroner’s inquiry. Following a tri-service audit conducted by Ernst and Young, a plan is being put into action. The new provost marshal has been appointed, along with 140 staff, including qualified investigators who will be appointed as part of this new single entity.

We are also advised that new arrangements are being made for seconding civilian police, along with new arrangements for enhanced training of the same. A new position of Director of Military Prosecutions has been created and recently filled. It is not independent of the military, as the committee preferred in its recommendations, but it is certainly an improvement on the previous, much compromised arrangement. Resources for the Director of Military Prosecutions have also been provided. There is associated training for staff and awareness building of the DMP’s new capacity.

At the peak of this organisational pyramid is the newly created Australian Military Court. Our reservations on the independence of that have already been expressed. Its effectiveness will need to be monitored as insurance that it is not compromised and is legally effective. Further legislation for trial procedures, including trial by jury and appeal rights, has been foreshadowed but the amending bill has not yet, as I understand it, been introduced into the parliament.

Below this level of investigation and judgement, there is an equally critical level of grievance process and resolution. That is where the committee found the system of military justice to be most unsatisfactory. Key defects that were identified were lack of transparency, lack of independence and conflicts of interest. We are told that new guidelines have addressed these shortcomings and that new redress of grievance management and procedures have been put into place. It is also pleasing to note that the backlog of grievances has been whittled down significantly but, in that context, it would be preferable to have an independent evaluation to see how far the committee’s most serious misgivings have been remedied.

It is also noted that the position of Inspector-General of the ADF has been established as a statutory position. I trust that this will eliminate former suspicions of compromise, which pervaded much of the military justice system. Indeed, the office of inspector-general has been the subject of its own controversy—for instance, in investigations of alleged substandard maintenance on HMAS Westralia before the 1998 fatal fire and also the controversy over independence of view concerning the dismissal of AVM Criss. In my mind, these issues were never satisfactorily resolved.

Boards of inquiry were also a feature of the committee’s recommendations, particularly with respect to legal representation of persons affected. This now appears to have become standard practice, although the operation of the boards themselves seems to remain controversial. I mention this in connection to the board of inquiry into the death of Private Kovco, because its own findings were disowned by the Chief of the Defence Force and the Kovco family. Contrast that with the appointment of a civilian to head the inquiry into the fatal crash of the Black Hawk helicopter. That appears to have intervened in a meaningful way to challenge the time-honoured practice of secrecy. By contrast, the recent Sea King and Kovco inquiries are not encouraging examples—but they are, it must be said, in some respects legacy matters.

This same provision for civilian appointments to inquiries also applies to investigations of suicides, which at one stage were a serious and almost out-of-control problem. Fortunately, of late there have been no suicides to test the new arrangements for a mandatory commission of inquiry. That in itself is a pleasing indicator of progress. That such a commission would be comprised of a civilian with legal experience lines up with the committee’s express recommendations and preferences.

If there is one message from that Senate committee report, it is that defence inquiries had to cease being so protective of process and evidence. That is why the committee strongly recommended a civilian system of review and adjudication. The ADF had to cease, in this respect, being a law unto itself. It also had to obey modern demands of accountability and transparency. This is a deep cultural issue where the mystique and secrecy of military justice were and are preserved but at the cost of all the shortcomings that were identified by the committee. So, as with the operation of the grievance system, the operation of boards of inquiry needs to be kept under review.

There are two final matters worth mentioning with regard to the review of military justice to date. The first is that the government suggested that a review should be conducted every two years. The first of these is due towards the end of this year. I trust this will be done promptly and by an independent agent, free from compromise or the suggestion of compromise. I look forward to the completion of that process.

The final matter I want to mention in relation to the six-monthly report from Defence concerns suicides. The review of training establishments—which is a euphemism for a review into bullying and harassment—conducted by Mr Andrew Podger may have been a bit of a whitewash in terms of its management speak. Of course, it found no evidence of those stressors which lead to suicide but, almost in contradiction, it asserted that there was a long way to go in cultural terms in changing attitudes. As mentioned, the fact there have been no suicides in recent times is salutary. Perhaps this call is too early to make, but the CDF’s determination to fix this problem appears to have been successful. The feedback seems to be positive, as does the PR effort accompanying the campaign to stamp out bullying. That is welcome and I trust we will hear no more of that issue.

This leads me, however, to the matter of cultural change. This has been stressed many times as being critical to changing the face of military justice. It is regrettable that there have been some instances where attitudes remain combative. The case of Trooper Lawrence is one which has been discussed privately by the foreign affairs, defence and trade committee. Frankly, our concerns remain extant. Questions put on notice at the last Senate estimates remain unanswered. Defence was fined almost half a million dollars for a breach of its OH&S responsibilities in this matter, yet there is not a skerrick of contrition.

The finding of culpability by the Northern Territory coroner—with which the judgement of the Federal Court was consistent—appears to be irrelevant to Defence. Defence continues to dodge acknowledgement of wrongdoing or mistake, even to the extent of contradicting the coroner and the Federal Court as to culpability. These perhaps isolated instances of legacy cases do not augur well for the future of necessary cultural change.

Closely associated with reform of the military justice system is a range of cases seeking compensation for past, serious breaches. Adverse publicity associated with a number of those has been such that settlement flowed quickly once the political button was pushed. The cases of AVM Criss, Lt Commander Fahy, and Mrs Susan Campbell are three in particular. They were fought vehemently and, it must be said in the final analysis, pointlessly by the Defence lawyers. The application for ex-gratia payments to the grieving parents of young suicide victims is still being fought by the Howard government. They should have been settled sensitively and responsibly long ago. Sadly, those words do not exist within Defence’s legal lexicon.

Many cases are not successful, despite the apparent merits. Here I mention the case of Ms Kellie Wiggins. She alleged sexual harassment, as did Lt Commander Fahy and, no doubt, many others. For many aggrieved ex-service personnel—and perhaps current serving personnel—sexual harassment remains a serious issue. Looking on from the outside, it appears that some major areas of Defence remain sexist environments. I refer to the recent controversy on the recruitment campaign featuring buxom caricatures of women, representing presumably the image desired by the ADF. Let me quote a response to this campaign by people blogging to my website:

As a young adult I joined up—what a huge shock it was to find that all the positive reinforcement I had been taught about equality throughout my life stopped at the door of the ADF. The subtle innuendo of sexual harassment was ever-present but you also knew that to tell meant upping the sly and very often degrading comments. I wasn’t so naive as to expect to be treated like one of the guys but I was appalled at what myself and other young women were actually subjected to. Yes I did leave at the first opportunity with my self-esteem still in tact but totally disillusioned in regard to equality in the armed forces. So I am not at all surprised with this latest recruitment campaign, that’s exactly how you are made to feel. In fact it’s a very honest portrayal of army life.

There are several more comments of equal import. I think I can speak for many members of the Standing Committee on Foreign Affairs, Defence and Trade who retain an interest in this subject. The real test of the outcomes from the government’s response to the committee’s report will be seen in reported behaviour since. There have been several good and positive indications of committed reform. Equally, though, there are risks and some signs of recidivism. Some cases being reported, including two recent reports of rape and sexual harassment, predate the committee report.

In summary, while much change has been made to institutional structures and processes, theoretically for the better, evidence to date does not disclose the same constancy of complaint as existed previously. In that context, to be fair, there are legacy cases from the past. These tend to colour my judgement because they do not go away. They are not resolved and this continues to be of concern. By far the largest risk, however, is that attitudinal change might be slower than we would like. This is the inference from the Podger review. Certainly the shilly-shallying in response to the committee’s interest in the case of Trooper Lawrence confirms that concern. The watching brief of the committee, therefore, remains quite important.