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

Tonight I would like to make a few comments to the Senate on government attempts to reform elements of the military justice system, returning to a familiar topic that I know is of great interest to a lot of people who follow this particular debate and discussion. After some 12 or 18 months, it is fair to come to some conclusions about those government attempts to reform the system. My own assessment at this stage is that progress has been slow but also—trying to be objective—satisfactory. Why has it been slow and satisfactory? That is almost entirely due to the Chief of the Defence Force’s determination to fix the military justice system. I respect his efforts and accept that much is being done. Fewer miscarriages of military justice have come to public attention over the past two years. I hope that this means a reduced incidence of complaints and particularly a reduced incidence of suicide. Evidence given to the Senate Standing Committee on Foreign Affairs, Defence and Trade on recent progress is indeed encouraging. I thank the CDF for both his candour and his commitment.

There are several indicators of that progress. A key indicator is the handling of the grievance process, where the backlog of complaints has been significantly reduced. The process has improved after added resources and a restructure of the institution. Then there has been the creation of a new military court—although there are some legal issues about the status of this court that were of great concern to the Senate committee as it reviewed the then proposed legislation. But the legislation was amended by the government consistent with a range of recommendations made by that committee. Also, the audit of the military police, which endorsed the criticisms of the committee, has been completed. It must be said, however, that this took a long time.

The greatest single regret about the delay is that in the meantime we saw the botched investigation into the death of Private Kovco in Baghdad. There were several reasons for this, but the bottom line was that the military police were not capable of conducting that investigation. As they themselves admitted to the board of inquiry, they did not have the manpower, the equipment or the forensic and ballistic skills to do the job. Evidence gathering was a disaster, as was the preservation of the death scene. The latter, though, was hardly their fault. Officers in command—for a range of reasons—ignored the rules. The unsatisfactory outcome of the board of inquiry can be attributed to those particular deficiencies.

From evidence by the Chief of Army at the committee’s last hearing, I believe that my misgivings are shared. The fact that the New South Wales police were called in to conduct a separate investigation, unknown to the military police, says it all. The chain of command did not have confidence in the military police. The board of inquiry transcript is rich with references to the poor reputation of the military police. The pity is, it took the Senate committee to bring a long-known defect to a head.

Sadly, an overhaul of the military police came too late for the investigation into the death of Private Kovco. Worse still, it will take a long time to implement the findings. Steps are in place to install a new single investigatory capacity. It will have the necessary skills and resources across the three services, which is indeed a welcome development. There will also be cooperative exchanges with state and federal police. Recruitment and training plans are also being developed. But, as the CDF concedes, it will take five years before full effectiveness is achieved. But at least a start has been made.

On a separate matter, the report into the culture of training establishments has been completed and delivered. In large part, the recommendations of the latter are now being processed. Already there are some positive signs. Changes are being made to the way in which young recruits are treated, but again one must add the caveat that this is not without some challenges from the old hands. Their culture—a tough approach to initial training as a sorting-out process—is deeply ingrained. It seems that the top brass now appreciate that the hard days of the unrelenting bullying at boot camp had a long-term cost. Indeed, one of the biggest deterrents to recruitment has been the failure of military justice—especially for recruits—so it is pleasing to see the momentum of reform proceeding.

Yet the biggest single issue in military justice continues to be the culture of the armed forces. It was not just the culture of training establishments that should have been put under the microscope. The poor culture surrounding military justice pervaded every part of the Australian Defence Force. It was not confined to Duntroon, the Australian Defence Force Academy, Kapooka or Singleton. In these places young people are initially exposed to military life and are ‘broken in’. The committee’s focus on military justice was on the entirety of the Australian Defence Force. Bastardisation and bad behaviour were long associated with certain units. It is an attitude which was accepted as a part of life because everyone had to experience it. That is why the recent audit is so equivocal in its findings.

Reading that report, underneath all the human resource management jargon, one sees that serious concerns clearly remain. The key concern is the slow-changing nature of that culture; it is deeply ingrained. I wish the Chief of the Defence Force the very best in his efforts to continue to root it out. Doing that ought to include weeding out some of the perpetrators. This is something which rarely seems to occur. Inquiries find that causal matters are breaches of guidelines, which are promptly rewritten. Redress, though, is infrequent. At worst, it amounts to a severe beating with a feather. Even in the most serious cases, some including death, no single person ever seems to be accountable.

This applies to the death of Trooper Lawrence in the Northern Territory. There, the Federal Court found Defence breached its duty of care. It will shortly be fined substantially for that breach. This may well be considered a case of industrial manslaughter. In this case, young men were forced out into the bush. It was midsummer and they had to undertake exhausting work. This exercise persisted without regard to the previous year’s outcome of extensive heat exhaustion. There was also a warning, evidence of which was accepted by the Northern Territory coroner, that this might happen again. Before the Federal Court, Defence did not have a defence. Existing guidelines were breached, and with that the duty of care for the health of employees. In a repeat of the previous year, many young men suffered serious heat exhaustion. Sadly, Trooper Lawrence died. According to the Northern Territory coroner, those guidelines were breached knowing the consequences of sending young men out on exercise in the intense heat. Yet it is clear that, for those making the decision, there is not—or there does not appear to be—the slightest accountability. It is almost as if the entire death was an innocent accident.

The most galling point I have found in pursuing this case, however, has been the evasion of accountability. It seems that, in the face of the hefty fine to be paid, the confession that guidelines had to be rewritten and the negative finding of the Northern Territory coroner, there was no fault on anyone’s part. It beggars belief. This represents a culture which, at its worst, sought to deny an obvious breach of military justice. Wouldn’t it be refreshing to hear more frequently the honest but humble mea culpa? The coroner and the Federal Court said the Army got it wrong, but still the Army insisted that no-one was at fault. It seems to resolve to a dispute between two different parties: firstly, a subordinate officer’s warning of the likely risk, which was accepted by the coroner; and, secondly, what the senior officer accountable heard. Needless to say, the Army hierarchy seems to have accepted the senior officer’s position. That is because the prevailing cultural attitude is one of protecting those responsible.

Look at any serious matter where a complainant has been vindicated in a serious complaint. Now ask the question, ‘What happened to the perpetrators?’ Ask that question of each of the young suicides. Ask it of Lieutenant Commander Robyn Fahey, Air Vice Marshal Peter Criss and others who have been compensated for serious breaches of process but who have also lost their careers. This culture of covering up needs to cease. Labor wants to change the Caesar unto Caesar doctrine which prevails. (Time expired)