Tuesday, 13 March 2012
Tonight I want to address the subject matter of military justice. In particular, I want to consider the recent interim report by DLA Piper and its set of recommendations. I do this as a longstanding member of the Senate Standing Committees on Foreign Affairs, Defence and Trade. This committee has had a key role over many years in ensuring changes to the military justice system. I do not want to rehash the history of military justice, or to rake over old coals, simply because reform has now been underway for almost seven years with the full and continuing support of everyone in this chamber.
As a preface, may I say my intuition is that progress has been good, despite the aberrations of ADFA and HMAS Success. It is quite clear to me therefore, having read and considered in the recent past screeds of complaints about bad behaviour, there is nothing new in the revelations made to DLA Piper. However, having opened Pandora's box, the problem is now what to do with it.
Just like the committee inquiry, aggrieved people have taken the opportunity to register what happened to them over many years. I think the committee realised however that retrospectively little could be done: firstly, because there was then no viable independent process and, secondly, because of the likelihood that evidence would not be available. Records would be missing or falsified, people were no longer available, there were faulty memories and an evidence trail long gone cold. The main problem is that past inquiries and grievance procedures were festooned with such compromise and bias that many people never even bothered to appear. That in fact is the central problem behind any new process. That is accepting the widely varying motives of the complainants, ranging from simple registration of a grievance unattended to a need for revenge or compensation, genuine or opportunistic. In short, most of the recommendations are not the least bit practical—but let me explain why.
Putting aside the impossibility of the evidentiary task, the central focus for investigating 847 cases is on two matters: first, the inquiry process; and, second, the means by which possible compensation might be adjudicated, let alone penalties issued for proven wrongdoers. With respect to the inquiry process, the Senate committee found that there has never been one which was either fair or effective—those being different things. Objectivity was difficult and there was no trust in a system full of bias and compromise. Past outcomes were considered whitewashes and evidence-gathering often failed, simply by denial and non-cooperation. That is, everyone shuts up—a phenomenon still pertinent today. Just ask the Australian Federal Police, where no doubt many files remain open, including on a whole host of sexual assaults.
Defence and the ADF have proven impermeable to outside intervention. That would equally be the case here where, at the most serious end, criminal matters are involved. They would no doubt regard it as the worst ambulance pass of all time with only one predictable outcome—caused by corps loyalty, the band of brothers, et cetera; in fact, all the values important to military operations but sometimes misplaced.
My conclusion from this is that the prospects of proving many of the 847cases are minimal. Putting that aside, however, the report on process assesses the various existing mechanisms. It rightly concludes common-law action in the courts, as was undertaken by those affected by the Melbourne-Voyager accident in 1963, is of no use. Notwithstanding the effect of the statute of limitations, only the lawyers ever benefit. The report rightly notes that access to disability compensation entitlements and health care has always been available and remains so. It also rightly rejects judicial review or a royal commission as being inappropriate. It also rightly rejects the existing processes under the provisions for defective administration or ex gratia payments. These are, by their nature, ad hoc processes which have limited capacity and are highly discretionary and vague. Unfortunately, they seem to work best when the media spotlight is lit and the political process is focused. We have had plenty of those in recent years, securing the peace by paying large sums of money—including some for serious sexual assault, wrongful dismissal and a family class action on youth suicide.
The report rightly rejects the suggestion that a parliamentary committee undertake the task. The report also dismisses the capacity of the Ombudsman and the Inspector-General of the ADF, but not adequately in my view. Unspecified deficiencies in the legal remit are cited without specification, as well as a view that such internal bodies are not trusted. I suspect the truth is more likely to be that neither of these bodies currently has the physical capacity to undertake such a huge task. Moreover, their experience would tell them that the chore is likely to be difficult, drawn out and fruitless. However, either of these two bodies might yet be the only practical answer, if the government decides to proceed at all, simply because they have the expertise, familiarity, technical independence and unrestricted access to records and serving members. The fact that they might not be trusted, understandable though that may be, does not diminish the practicality. To not use them would be to suggest that they have no credible function.
The second matter that I alluded to at the beginning is the means of determining compensation, when and if merit is found. Assuming the existing schemes for defective administration and ex gratia payment are not used, a new scheme may be needed. Reference is made to the compensation made to the victims of the RAAF F111 deseal-reseal disaster—probably one of the worst OH&S breaches in our history. Flick-passed to the DVA to administer, this scheme was ad hoc, unfair and a complete mess. It showed, above all else, the shortcomings of post hoc compensation schemes where evidentiary issues cloud the entire process. As to the suggestion that the Department of Veterans' Affairs might be used again, again I urge caution, simply because the DVA's task is to care for the rapidly declining numbers of veterans and war widows. The DVA is less qualified than any other non-Defence alternative.
The Piper report in the end recommends an external process of the kind currently underway. It is hard to imagine such a review process being given the necessary power, let alone obtaining cooperation on provision of records, other evidence and witnesses. It would be stymied at every juncture, would last for a decade and would cost tens of millions of dollars. Even if procedures could be worked out, I suspect that power to award compensation could only be conferred on a government or judicial agency. It would of course be a means to achieve a rich and contented retirement for those engaged in the work.
In conclusion, I can see no sensible way forward except to use existing internal processes such as the Inspector-General IDF or the Ombudsman. The other recommendations such as apologies, counselling, amnesties, reconciliation and health care may all be okay as well, but really they are just time-consuming political palliatives. The sad fact remains that serious damage has been done to many people, their families, their lives and their health. That is why we focus so much in this place on making sure it does not happen again as we go forward. Above all, it must be seen that the process has been thorough and fair. In the meantime, we should look forward to the final report with a degree of interest.