Chapter 7 - The reporting of wrongdoing in the ADF
7.1
There are many avenues available to a member of the ADF
to register a complaint including the redress of grievance system, the
divisional system, chaplains, equity officers, the equity 'hotline' and the
Defence Force Ombudsman. Yet there is no doubt that some members remain unwilling
to use the system. The committee draws particular attention to the number of
cases mentioned in the previous chapter where the parents of ADF members resorted
to taking up their son or daughter's concerns with command or even with the
Minister. As indicated in the previous chapter, such action is not taken
lightly by the parents of service personnel. That it needs to and does happen
and that the results have included the deaths of soldiers clearly is a serious
indictment of the reporting system or the oversight by senior Defence personnel
or both.
7.2
The committee has considered in detail the conditions
at SOI, Singleton, against the backdrop of the 3RAR investigations, to
highlight the potential for abuse to go unreported and, apparently, undetected.
Evidence received by the committee suggests that this problem of unreported
bullying and harassment may be found in different parts of the ADF.[411]
7.3
The failure to expose such abuse means that the
administrative system stumbles at its most elementary stage—the reporting of
wrongdoing. It does not provide a reporting structure that encourages the
disclosure of impropriety or poor work practices which means that unacceptable
behaviour is allowed to take root.
7.4
Witnesses appearing before this committee who have been
the victims of abuse or are relatives of people who have suffered ill-treatment
recount an all too familiar story about the unwillingness to report wrongdoing.
The very fact that the two young soldiers (Amos and Williams)
at Singleton were not prepared to pursue their right to make a complaint and
that impropriety came to light through the determined efforts of their parents
speaks volumes about the inadequacies of the administrative system at
Singleton.
7.5
The committee is concerned that evidence it has
received about the failure to disclose poor or dangerous work practices or
unacceptable behaviour appears to affect many aspects of life in the ADF. The
findings of a number of administrative inquiries have identified behaviour that
could potentially endanger members' lives but which had gone unreported until
an investigation following an incident exposed a history of negligence, unsafe
work practices, or other risky or improper behaviour.[412]
7.6
The committee has considered the evidence presented to
it during the inquiry and the findings of previous inquiries into abusive and
intimidating behaviour in the ADF over recent years. Also, on 11 and 12 November 2004, a number of
reports appeared in the media about Australian soldiers dressed up as members
of the Klu Klux Klan and other related allegations of racial abuse. The
committee wrote to the Minister for Defence inviting him to make a written
submission on the facts and circumstances surrounding this incident at Lavarack
Barracks, or any similar type of activity, and on the steps taken to address
the problem.[413]
7.7
The Minister declined the invitation on the grounds
that the incident and related allegations of racial abuse were under
investigation and the findings and decisions arising from them would not be
finalised before 17 March 2005.[414] This was the date that the committee
was expected to table its report.
7.8
During Estimates hearings on 31 May 2005, members of the Senate Foreign
Affairs, Defence and Trade Legislation Committee
asked for further information on the alleged offences at Lavarack Barracks. The
CDF told the committee that the Chief of Army was concerned that there may have
been 'procedural shortcomings in an investigation in 2003 and that the
investigation might have lacked thoroughness'. The Chief of Army directed that
a 'new and comprehensive' investigation be undertaken. The CDF explained that:
It has now been completed to determine the circumstances of the
photograph and the subsequent actions taken by the chain of command. The final
report has been cleared by the Defence Legal Service and submitted to the
Deputy Chief of Army. He has considered the findings and recommendations of the
final report. He has decided on a range of disciplinary and administrative
actions against individuals who were in the unit at the time. The soldiers who
were subjected to racial name-calling will receive an apology from the Army and
will be offered counselling support. The Deputy Chief of Army is also recommending
improvements to the preparation of investigation officers and a follow-up
examination of the unit to determine if the unacceptable behaviour is still
being practised. A directive will be developed to implement the Deputy Chief of
Army’s decisions and this formal action is being taken now to demonstrate
Army’s determination to eliminate discriminating behaviour and to support those
who need the protection and support of their leaders.[415]
7.9
The committee notes that Army has taken steps to remedy
the problem at Lavarack Barracks. It is concerned, however, that again an
initial investigation into serious allegations of misconduct proved inadequate
and that a second investigation was undertaken only after the alleged events
had attracted widespread public attention. Furthermore, it took a second
investigation to compensate for the failings of the first and to get Army to
take decisive measures to correct the problem.
7.10
The committee understands that the ADF has taken steps
to address the broader problems associated with reporting and preventing unacceptable
conduct or work practices. These include initiatives such as the Fair Go Hotline,
the handy 'seek help' card and the establishment of the Directorate of
Personnel Operations to provide strategic direction and advice and to
coordinate action with regard to sensitive personnel issues. Army has also
developed a specific campaign for the safety and welfare of trainees which
includes a code of conduct that governs the treatment of trainees and promotes
the desire for all trainees to be successful in training.
7.11
More specifically in the case of Jeremy Williams, Lieutenant
General Leahy acknowledged that organisational failures, unacceptable conduct
and negative attitudes of staff and trainees towards other trainees contributed
to a sense of despair and depression in Private Williams. He further acknowledged
that the investigation revealed that there had been a failure to act on
recommendations from a similar incident at the School
of Infantry some years before. In
his view, it 'became patently apparent that the Army needed to take action to
tighten up and formalise mechanisms for tracking and ensuring that
recommendations are acted on and followed through'. He stated:
We have created separate rehabilitation and transfer centres to
improve the rehabilitation of our soldiers who are injured in training and to
improve the support that soldiers who are unable to continue training receive.
We have developed a new course for instructors to improve instructor
performance and to enhance equity training for all instructors. We have put in
place a system of external audits to allow soldiers to report anonymously on
their treatment during training. We have increased staffing levels and the
supervision of staff as well as reducing instructor-trainee ratios to better
manage the welfare and performance of both instructors and trainees. We have
taken administrative action against members in the School
of Infantry chain of command who
allowed unacceptable behaviour to go on and, so far, we have charged two
noncommissioned officers under the Defence Force Discipline Act. One charge has
been heard; another charge will be heard in April.
I see both of these as a normal functioning of the military justice system.
We have expanded the medical and psychological support to all
training establishments, including a full-time doctor and a full-time
psychologist at the School of Infantry.
We now formally advise all trainees on arrival of the range of support and
counselling services available at their particular training school. We have
established formal protocols to improve and streamline processes appropriate to
Army circumstances in the case of suicide or accidental death during any
military activity. To ease, in part, the pain of families involved, the Army
has commenced the practice of providing an officer dedicated as the single
point of contact for a deceased member’s family should they desire this. That
officer will explain the inquiry process to the family, carry forward any
concerns they may have and fold these concerns into the inquiry terms of
reference. As a conduit for communications, the officer’s role is to provide
regular updates to families on the progress of the inquiry and any action taken
as a result of it.[416]
7.12
The Committee commends
the actions taken by the ADF to remedy the deficiencies that the investigation
into Private Williams' death
so clearly identified. The committee is concerned,
however, that certain behaviour associated with discrimination, bullying and
harassment may recur in the ADF. This concern is heightened by evidence before
the committee that shows ADF's slow response to incidents at SOI and Lavarack
Barracks and further that initial investigations proved ineffective in having
immediate and necessary corrective action taken.
7.13
The Committee believes
that in order to minimise the likelihood of a recurrence, the ADF needs to have
an effective mechanism that would encourage the early reporting of any concerns
about improper conduct or poor work practices. Such a system would enable
prompt and sure action to be taken to address and remove any form of abuse or inappropriate
behaviour before it takes hold.
7.14
It now examines the main features of the reporting
system to identify the obstacles holding people back from reporting wrongdoings.
Further, the committee seeks to ascertain whether ADF members who have genuine
grievances or are aware of inappropriate behaviour and wish to report their
concerns are well served by the current system. The evidence is based on
experiences that go beyond those at Singleton and reflect a wider picture of
the ADF. They include the following matters:
-
conflicts of interest in using the chain of
command;
-
the military culture and its influence on
reporting wrongdoing;
-
institutional blind spots;
-
reprisals and the reporting of wrongdoing;
-
members' awareness of and confidence in using
the current avenues available for reporting wrongdoing; and
-
avenues for reporting wrongdoing.
Reasons for failing to report wrongdoing or failing to make a complaint
7.15
One of the most frequently cited impediments to
reporting a wrongdoing or making a complaint is the lack of trust and
confidence in a system that seems riddled with conflicts of interest.
Conflicts of interest in using
chain of command
7.16
As mentioned earlier, the ADF requires its members to
seek to resolve a complaint at the lowest possible level through the normal
command channels and administrative arrangements. Defence Instructions are
clear on this matter:
Persons who wish to report suspected misconduct should normally
raise these concerns through their chain of command or line management.
Commanders and managers in Defence have a responsibility to develop and support
a working environment in which staff have the confidence to make such reports.[417]
7.17
Although a long-accepted practice, this process of
reporting a wrongdoing or lodging a complaint with a member's commanding
officer is in itself a major drawback for some members seeking help. Mrs
Madonna Palmer, whose son Damien committed suicide in August 1999 soon after he
graduated from basic training, and who allegedly had been humiliated and
demoralised because of his aboriginality, articulated this problem in the most
effective manner:
I think there should be someone separate who these young kids
can go to—not only Aboriginals; I mean anybody. It is too in-house; everybody
knows everybody or they have been through training with somebody years ago and
know their bosses. If you do have a problem you need to go to someone, even off
base or somewhere where they can go separately that is not connected with
Defence.[418]
7.18
From personal experience, Mr
Neil Howard informed
the committee that he had knowledge of the use of illegal substances in the ADF
and explained that:
There were instances where the need arose to report an incident
and subsequently discovered that the personnel to whom I would report was in
fact the instigator of the incident.[419]
7.19
Mr David
Down, who claims he was subjected to
physical abuse while serving in the Navy, voiced similar concerns:
The reporting of incidents is through the chain of command, to
people who are of similar rank and usually mates with the perpetrators and is
not recorded adequately if at all. The navy's point of view is that if nobody
saw, it did not happen.[420]
7.20
To the same effect, one witness felt he could not go to
his OC with a complaint of bullying and harassment against the CO because his
OC had a close relationship with the CO. After considering other options, he
felt there was no one to turn to and that Defence Instructions offered no
guidance. He recommended that they be rewritten to ensure that clear guidance
is provided for situations where the CO or other high ranking officers are
involved in the complaint.[421]
Further, he believed that an independent civilian investigation agency with a
helpdesk function should be available to provide support to staff who feel they
have a grievance.
Culture of silence
7.21
The prevailing cultural environment of a workplace has
a powerful influence on the preparedness of an employee to report concerns
about wrongdoing. Even where there are formal and known avenues for a person to
disclose information about inappropriate conduct, workplace forces may
effectively render them useless.
7.22
The Burchett Report went into some detail about the military
culture in which each member is highly reliant on the skill and dedication of
other members that tends to engender strong peer group discipline. The JSCFADT
made similar observations about the unique demands placed on those serving in
the ADF which sets a heavy value on dependable and trustworthy mates.[422]
7.23
Evidence before this committee reinforces the above
findings. On occasion, however, the values of loyalty, trustworthiness and
solidarity can take on a form that has little tolerance for individual
difference or perceived vulnerability. The reported instances of abuse at
Singleton were a manifestation of this culture in the guise of weeding out the
weak from the strong. Improper conduct—belittling, personal denigration,
bullying, ganging up, ostracism from the group on the one hand, and the
specific targeting of an individual for humiliation on the other—are
indications that the culture of denigration and harassment had emerged in
concert with the culture of silence. This culture of harassment and silence was
not confined to Singleton.
7.24
Indeed, a number of witnesses described an environment in
the ADF where one was expected to be strong, stoic and uncomplaining in the
face of pain or emotional stress. Any sign of weakness invited abuse or denigration.[423] One soldier recounted his experiences:
Even when soldiers were performing correctly they would be
degraded as being too slow etc, anything to fuel abuse. There would be
excessive swearing and verbal putdowns. Soldiers continually reminded of how
pathetic or useless they were, how they were the worst of the worst and that
they were scum etc. Eventually nerves would see some mistakes and be threatened
with punishment. Charges, extra duties or thrashings were the normal threats.
Threats of physical violence were not uncommon. Sergeants in particular would
make a habit of reinforcing how they could, and would make your life hell.[424]
7.25
A serving Army psychologist attributed this type of
conduct to Army's 'cult of endurance'. He explained:
The easiest way to make a judgment about ability to endure is to
reward the fit and strong, and vilify the unfit, unskilled, and unable. This
does not make allowances for the temporarily sick and injured, but it is a
straightforward way of separating who has the ability to endure from those that
do not...[425]
7.26
Indeed, this prevailing culture appeared to be one of
the most pernicious influences holding members back from disclosing wrongdoing
or pursuing a complaint. The evidence before this committee suggests that the
pressure to endure in silence has a long established history.
7.27
Picking up on this theme, Mrs
Williams told the committee that soldiers at
Singleton would not seek help from the social worker because it was seen as a
weakness.[426] Their situation was made
even more difficult because they again must work through the chain of command
to make an appointment. As Mrs Williams
explained:
If they want to see anybody, they have to sneak out behind
closed doors in order to do it. The only way that they can formally go and see
the social worker or the padre is to actually apply through their NCO. If you
are a soldier and you go up to your NCO and say, ‘Can I go and see the
psychologist? I’ve got a problem,’ what do you think is going to happen?
...These soldiers have told us categorically and unequivocally
that they will not use those sorts of channels. They will not go to their
corporal or their sergeant simply because of the denigration and the
browbeating they will get. It is seen as a form of weakness and they are
treated in that manner.[427]
7.28
One witness, who had reported his suspicions about drug
use in his unit, told the committee:
I found a dangerous myopic attitude held by some, that 'loyalty
to your mates' is in essence, above all else, and reporting on your mates is
equivalent to committing a serious crime, even if it involves doing the right
thing and reporting drug users.[428]
7.29
Not only does the military culture discourage
individuals from reporting wrongdoing, it also exerts influence over the
preparedness of the institution to accept or expose wrongdoing. The ADF is not
alone in this regard. Organisations, public and private, are also known to fail
to act on reports of wrongdoing and to discourage such reporting simply by failing
to recognise that reporting impropriety is a 'positive and constructive force'.[429]
Downplaying or dismissing complaint
7.30
The committee has received evidence that suggests that
although the military culture fosters a strong sense of solidarity and loyalty,
it also has the potential to create blind spots in the institution and its
members particularly among higher ranking officers.[430]
7.31
The Defence Force Ombudsman made the observation that
the office had received several complaints where 'it appears Defence has had
considerable difficulty in entertaining the notion of investigating a complaint
in the first instance despite very clear concerns being expressed both by the
individuals involved, as well as by other people in relatively senior positions
in the ADF'. He observed:
It is axiomatic that if a complaint is not accepted as a
complaint, it cannot be resolved.[431]
7.32
Mr David
Hartshorn wanted to report an alleged hit
and run accident that he had witnessed while on duty overseas involving ADF
personnel. He explained to the committee that he was talked out of pursuing a
redress of grievance by the appointed investigating officer who said he was 'an
extremely busy man and that I was wasting the Army's time.'[432] On a second occasion, he was again
persuaded not to proceed with his complaint by an Army Legal Officer, who said,
there were 'no legal grounds to pursue the redress of grievance as it did not
have anything to do with my service...'[433]
Another person, subjected to unacceptable and bullying behaviour, informed the
committee that she was told 'to accept it and move on'.[434]
7.33
Mr and Mrs Amos
informed the committee that they had contacted senior officers at the SOI at
Singleton and advised them about their son who, in their opinion, was being
subjected to 'inappropriate treatment'. According to Mr and Mrs
Amos:
Telephone discussions with senior officers at SOI advising them
of what was going on in their command were ignored and failed to bring about
change in the treatment of soldiers, their rights to appropriate treatment or
the right to normal soldier management procedures while in SOI's care, in this
case the right to apply for corps transfer, a right both our son and other IET
soldiers were denied.[435]
7.34
Along similar lines, Mr
Richard Satatas,
the brother of a young soldier who had committed suicide at Holsworthy, had
been told by a Major that the allegations of mistreatment, including bullying,
raised by his brother, had been looked into but officers decided that no action
was needed because:
basically, they felt that it was just horseplay...and that things
like this happened with so many boys all living together on the same base—a bit
of tension builds up.'[436]
7.35
To the same effect, Ms
Williams told the committee that the Army
took a 'flippant approach' to their warnings and it failed in its duty of care.
Furthermore, assurances given that her father's call about Jeremy's
welfare would be kept confidential were broken.[437] Mr
Williams concluded:
I point out to the Senate committee that, when we attempted to
lay at the feet of the commanding officer at Singleton over a year ago all the
problems he had on that base, he basically shooed us away. He told us that our
concerns were baseless and that his base was professionally run.[438]
7.36
He added:
What provoked our concern and our desire for an investigation
was the appalling situation at Singleton that came to light in the two days
that we were on that base—in particular, the interaction we had with the young
soldiers of the R&D Platoon of which Jeremy
was a member. Clearly things were very seriously amiss at Singleton and in that
platoon. There was a culture of denigration and abuse. It was very easy for us
to put together a picture of why Jeremy had
despaired to the extent that he did. From there we commenced our efforts to
bring about some form of inquiry and ventilation of the system at Singleton. We
actually voiced our concerns at a final meeting with Roney in his office on the
Wednesday afternoon. His response was that there was nothing wrong on his base
and that it was professionally run.[439]
7.37
This tendency to overlook or make light of a complaint
is not necessarily borne of bad intentions. Mr
David Down
expressed the view that one of the main problems with the military justice
system was that it was run by military personnel and 'their pride in the forces
makes it difficult for them to accept that some things actually go on.'[440]
7.38
So much of the evidence received repeatedly shows that
the culture of the ADF seems to encourage an approach that downplays, dismisses
or ignores the existence of inappropriate conduct. The committee believes that
it is important for ADF members to accept that the ADF is protective of itself
as an institution and that the ADF must ensure that safeguards are in place to counter
balance this tendency to protect the institution. Independence and impartiality
on the part of those responsible for receiving complaints or reports of wrongdoing
must be part of the solution.
Threats of reprisals or fear of
'getting into trouble'
7.39
If members are to report alleged wrongdoing or complain
about improper conduct, they must be confident that they will be protected from
reprisals for doing so. Defence Force Regulations stipulate clearly that a
member is guilty of an offence if he or she prevents or dissuades another from
making a complaint or causes another member to be 'victimised, penalised or
prejudiced in any way for making a complaint'.[441] A number of witnesses, however,
recalled their fear of recrimination should they make a complaint. It would
seem that the message at the official level has not found its way into common
acceptance.[442]
7.40
Mrs Jayne
Fitzpatrick, who was pursuing action against
an RSM for allegedly defaming her husband, stated that when she refused to drop
the complaint she was told by an ADF member that her husband would be court
martialled or handed over to state or federal police. She understood these
comments to be threats.[443]
7.41
One ADF member, who alleged that he suffered serious
reprisals for reporting the use of illegal drugs in his unit, told the committee:
Soldiers simply did not speak up to anyone through fear of
repercussion should it be discovered. I discussed some problems with the
barracks padre but was too scared to discuss our overall treatment. To speak up
about anything was a definite no-no; we were made well aware of that via
threats to us and our families.[444]
7.42
Another member, claiming that he was bastardised,
exploited, abused, harassed and physically tormented as part of his training,
and, as a consequence, has suffered a 'complete mental breakdown', stated:
...you will never get serving soldiers to fully comment on
wrongdoings. Whether you speak to them privately, away from their Sergeants and
Lieutenants it does not matter, the fear of repercussions should they discover
you have spoken up, something that has an uncanny knack of occurring in the
Army, is far too great.[445]
7.43
In referring to approaches such as 'open door policies',
he maintained that while they look good on paper and sound good in theory:
...speaking from one who has experienced life from the inside,
they are bound to fail and provide nothing to grieving or abused soldiers. Had
I known that I had the power to go above my direct superiors and straight to a
commanding officer's door I still would have chosen not to. As mentioned, the
fear of repercussion is simply too great.[446]
7.44
Mr Williams
recounted an incident where a soldier had sought a redress of grievance through
the chaplain. He explained:
The sergeant found out about it and acted accordingly....
He threatened him with a beating because he went to the padre
and had overturned a decision of the sergeant. The sergeant then took him into
his office and threatened to beat him. Then he said he would take him outside
and do another job on him in the unarmed combat area.[447]
7.45
Clearly, some members perceive those who expose
inappropriate practices within their unit as disloyal and deserving punishment.
7.46
The experiences of Aircraftman Nathan
Moore stand out as an example of the type of
reprisals that are used to punish those who report wrongdoings in their ranks.
His complaints and subsequent treatment after reporting drug abuse at Amberley
in 2002 have been widely reported in the media in publications such as the Bulletin and the Weekend Australian.[448] These
issues have also been the subject of questioning through the Senate Estimates
process for some time.
7.47
There is some contention over whether Aircraftman
Moore first reported his concerns to a
senior officer at Amberley or independently approached the Australian Federal
Police and Queensland Police in May 2002. It was reported in the Weekend Australian that Moore
raised the issue with a senior officer whose response was '...what do you want me
to do about it' and that drugs were 'okay if they use them in their own time'.[449] According to the Weekend Australian, it was after this
response that Nathan Moore
decided to approach the civil authorities. The Chief of Air Force, however, is
adamant that Moore
first approached the Australian Federal Police and Queensland Police and did
not approach the RAAF prior to doing so.[450]
7.48
From May 2002, Aircraftman Moore
became an official informant for the Queensland Police on drug activity on and
off base. The Queensland Police investigations culminated in a civil drug raid
on a number of houses in the south Queensland
area on 29 August 2002.
This raid found two serving Airfield Defence Wing personnel and one former
member involved in illegal drugs.[451]
7.49
The Chief of Air Force advised the committee during
Supplementary Budget Estimates in November 2003 that the Commander at Amberley
had no knowledge of the raids prior to them taking place and no knowledge that Moore
had made drug allegations by way of a formal statement to the Queensland
Police.[452] The Chief of Air Force
further advised that it was this civil raid that prompted the Commander, Combat
Support Group, to question the extent of any drug issue at Amberley by
requesting members to come forward with information.
7.50
Based on allegations that were then made by three
members (including Moore)
on 4 September 2002, the
Commander appears to have used all powers available to him to take action
regarding this information, including briefings, interviews and encouraging
self-referrals.[453]
7.51
On 29 July
2002, one month prior to the drug raid by the Queensland Police,
two RAAF members physically assaulted Aircraftman Moore
at his home off-base. He suffered a fractured cheekbone and broken jaw in the
attack. The two offenders were subsequently targeted by the Queensland Police
drug raid on 29 August 2002.[454]
7.52
It has been reported that, since this incident, Moore
has been threatened with physical assault, received death threats, suffered
severe psychological stress and has attempted to commit suicide. Moore
is reported to have requested a transfer from Amberley when reporting back for
duty on 26 August 2002
because he feared for his safety. Both he and the members who had assaulted him
were still on base together.
7.53
In September 2002, the RAAF transferred Moore
to Brisbane's Victoria
Barracks and a month later to RAAF base Richmond.
He alleges that he continued to receive threats to his safety and was
subsequently transferred a number of times.
7.54
Reprisals, however, do not always take the form of
overt threats or acts of physical aggression. They are known to take many
various and subtle guises. Failure to be promoted, relocation or ostracism in
the workplace can also be used to censure a person for making a complaint. The
Australian Peacekeeper & Peacemaker Veterans' Association submitted:
Defence members who wish to submit an ROG will be strongly
advised against doing so by peers and superiors on the basis of its unlikely
success and negative impact on careers.[455]
7.55
Witnesses also suggested the use of psychological
testing as a means to undermine their credibility for making a complaint.[456] One witness submitted to the
committee that:
There was a determined effort to get me psychologically tested.
This was couched in terms of having my best interests at heart...significantly,
the label of someone being under 'psychological' care is the first attack a
bureaucratic system uses when it wishes to discredit a person.[457]
7.56
The number of requests made to the committee to receive
submissions on a 'confidential basis' because of likely adverse repercussions is
a further indication of a widespread prevalence of this fear of reprisal for
reporting failings in the ADF.[458] A
number, who were serving members, stated quite clearly their apprehension that
they would suffer adverse action should it become known that they had made a
submission.[459] One submitter wrote:
In this culture, the identity of Defence personnel in Senate submissions
can have an adverse effect on an individual's reputation and tenure in the
Defence force. I appreciate that although the ADF has publicly declared that
all ADF personnel are free to make submissions to the Senate Committee,
I can tell you that within Defence ranks an atmosphere of fear often drives
personnel to remain silent least they may suffer covert consequences for 'going
public'.[460]
7.57
Another believed that knowledge of his submission to
the committee may prejudice or jeopardise his civilian employment and 'make it
exceedingly difficult to deal with various persons in key executive positions
in Defence'.[461]
7.58
The committee accepts that the senior leadership of the
ADF would uphold the right of an ADF member to make a submission to a
parliamentary committee without that person suffering adverse consequences. It
is clear, however, from the concerns expressed, that ADF members do not
necessarily feel confident to exercise this right.
7.59
Clearly, the assurances offered by the ADF that a
person will be punished for threatening to intimidate or causing detriment to
another for making a report is falling on deaf ears. Many members in the ADF
have a strong and embedded belief that, if they disclose wrongdoing some form
of detriment will follow, particularly to career prospects. For them silence is
the best option—it holds less risk.
Lack of awareness of alternative
reporting avenues
7.60
While a number of witnesses gave evidence of being
actively discouraged from making a complaint or being reluctant to approach
their superiors, others spoke of their frustration with, or lack of
understanding of, the processes involved.[462]
Some of those unwilling to take their concerns to their superiors felt that there
was no where else to turn. One member, who alleged that he suffered serious
reprisals for reporting the use of illegal drugs in his unit, told the
committee:
There was no known avenue for soldiers to complain. We did not
know of any right of complaint besides that of through your chain of command,
in this case the very people inflicting the wrongdoing. At no time during my
period at...was there any mention of, or attempt to mention, a soldier's rights
to bypass superiors in relation to ill-treatment. [463]
7.61
The common understanding was 'What happens in our unit
stays in our unit. Nothing goes out of here'.[464]
7.62
Another member explained that he did not report abusive
conduct because he did not know that he could—'I was confused about how the
military worked'.[465] Similarly, the
parents of a young soldier reported that their son, together with others, was
'totally unaware' of the avenues available to report wrongdoing. They informed
the committee that the soldiers:
...were of the understanding that the chain of command must be
taken within your troop, thus making it impossible to really complain or do
anything about a situation. So with that came the total feeling of
powerlessness, the feeling of isolation and being 'trapped', another frequently
used term by soldiers.[466]
7.63
The parents suggested the establishment of an
independent grievance body available to all serving personnel, located
somewhere off base, so that soldiers who feel that they have problems can go
and speak with someone who is 'civilian'.[467]
A number of witnesses put similar proposals.[468]
Frustration with
administrative complaint handling processes
7.64
The breakdown in communication once a report had been
made was a common complaint cited in evidence. Lost paperwork, misplaced
applications for transfers, failure to respond to correspondence, and
documentation simply not produced were among the complaints raised.[469] One member stated that he was:
...given the run-around by the Defence Equity Organisation when I
was attempting to obtain advice on how to proceed. The lack of support provided
by Air Force during this critical period has now been compounded by a defective
investigation.[470]
7.65
Mr Keith
Showler related how he had suffered constant
harassment and verbal abuse from an officer to whom he was answerable. Having
suffered a breakdown and been hospitalised in February 2002, Mr
Showler stated that nothing was annotated on
his medical files at the time. He explained that he submitted the appropriate
paperwork through the Equity Officer at the Hospital detailing the harassment
and abuse he had received during his deployment. He noted that, in June 2002,
he attended the initial interview with the investigating officer and over the
following 13 months requested, from his former Commanding Officer, a copy of
the investigating officer's report and details of his hospitalisation. He
informed the committee that the last correspondence he received from the
Commanding Officer advised that he would have to contact Defence Health for the
records but that 'the attending doctor or the medical staff have never
furnished these details'. [471]
7.66
Whether the lack of attention given to a report or
complaint stems from a deliberate effort to prevent a report or complaint from
proceeding or from a failure to appreciate the importance of acknowledging a
person's concerns, the result is the same—exasperation with the processes and a
lack of confidence in the system.
Seeking a transfer or discharge as
an alternative to reporting wrongdoing
7.67
A number of witnesses reported that they did not make a
complaint hoping instead that their experiences would be temporary and would be
remedied by a transfer. One witness stated her belief that 'a lot of things are
perceived as one-off events—that they are not going to happen again—and
therefore there is a sense that it is just managed for this event'.[472] Others simply put up with
mistreatment. Mrs Williams
explained that:
...at the moment, you will not have soldiers coming forward to
complain about the way they are being treated by an NCO because they now know,
as a result of this, that nothing will happen to them. So they will sit in
silence and suffer in silence.[473]
7.68
Others, however, just gave up. They sought a release
through discharge from the forces. When asked whether he had formally submitted
a notice of grievance, Mr Showler replied, 'I have literally walked away from
the military now—other than, as I said, in February of this year when I wrote
to the Chief of Staff of Air Force Health Records to get a copy of my records
that were never written.'[474] A former
member of the ADF told the committee:
It takes an enormous amount of courage to take on the Military
system and the system will and does use inordinate amounts of power to
manipulate any inquiry or any investigation that suits their agenda, knowing
full well that the member will in most cases capitulate in fear that their
career will be destroyed through intimidation, implied or real.[475]
Committee view
7.69
The committee cannot ignore the instances of breakdowns
in the reporting system that allowed unsafe practices to go unheeded for some
time. It is concerned about the ineffectiveness of the reporting system as an
early warning system and as a means of stopping unsound practices.
7.70
The experiences recounted in evidence provide some
understanding of the reasons ADF members do not make complaints. Their reluctance
to disclose wrongdoing to their superiors or senior officers is a certain
indication of systemic problems in the reporting process. Evidence suggests
that for many the reporting system does not inspire confidence and fails to
counter the culture of silence. The committee found that ADF members are
reticent to use the reporting system and many choose to remain silent because
of:
-
the requirement to use the chain of command and
the potential conflict of interest which creates a perception that the process
may be unfair and the system lacks integrity;
-
the cultural environment that values team work,
group solidarity and conformity but which, in some cases, gives rise to a
misplaced sense of loyalty that discourages the reporting of wrongdoing—members
do not want to appear weak or disloyal;
-
institutional blind spots which make it
difficult for some members, particularly the professional and dedicated ADF
member, to admit to failings in the organisation or their colleagues;
-
the fear of the stigma attached to making a
report and the prospect of reprisals that may take many different forms from
threats of physical harm to likely damage to career;
-
a lack of awareness of alternative means of
making a report or lodging a complaint;
-
the complicated reporting process with its
delays and frustrations and, in any event, a sense that a complaint may prove
futile—complainants simply give up; and
-
a hope that the situation is transitory which
means that they seek alternative 'escape' solutions such as a transfer. Those in
more dire situations often seek discharge from the forces.
Whistleblowing scheme
7.71
The committee now turns to the Defence Whistleblower
Scheme which offers another avenue for reporting wrongdoing. Although the
committee did not examine this aspect of the administrative system in detail
during the inquiry, it briefly discusses the whistleblower scheme in the
following section.
7.72
Currently, the
Inspector-General of Defence (IG) is responsible for the management of the
Defence Whistleblower Scheme. Matters reported to him or her concerning the
administration of military justice will normally be referred to the Inspector-General
of the Australian Defence Forces.[476]
7.73
Even though the Defence Instructions on the Defence
Whistleblower Scheme state that it is 'an alternative process for the reporting
and investigation of misconduct when the whistleblower lacks confidence in the
normal reporting process', the expectation is still that members will use the
chain of command first.[477] A
whistleblower may report anonymously or request that their identity be
protected.
7.74
Defence has had an administratively based Whistleblower
scheme in place since 24 July 1997.
The scheme was originally intended to provide 'an effective mechanism for
Australian Public Service employees and ADF members to disclose mismanagement
or corruption in the department'. The scheme focused specifically on fraud and
probity issues.[478] The Burchett Report
in 2001 recommended widening the scope of the scheme to incorporate matters
other than fraud and probity issues. Under the current scheme, the types of
suspected misconduct that may be the subject of a whistleblower report include
activities such as fraud, misconduct under the Public Service Act 1999, harassment or unlawful discrimination, and
practices that compromise occupational health and safety.
Defence Instructions note:
Whilst the IG's organisation has responsibility for the
management of this scheme and for the management of persons who make a report
through this scheme (including identity protection if necessary), the actual
investigation may be conducted by another agency. The IG will determine the
most appropriate investigative or other relevant authority in consultation with
the whistleblower.[479]
7.75
A number of members referred to the ADF's
whistleblowing scheme. Mr Showler
stated, 'The new equity system called the Defence Whistleblowers Scheme
indicates to me that the ‘fair go’ system failed. In view of my case, who in
their right mind is going to be a whistleblower in the Defence Force?'[480] Another witness maintained that he
had not been afforded protection and has suffered career detriment on account
of reporting impropriety.[481]
Protection from reprisal
7.76
If a whistleblower scheme is to remain a credible
mechanism for the reporting of wrongdoing, it must offer a guarantee that a
person will not suffer on account of making a report. The committee is
concerned with the section in Defence Instructions that reads:
There may also be a requirement for the provision of physical
security of the whistleblower and special provisions may be considered on a
case-by-case basis. For example, security escorts may be provided or, in
exceptional circumstances, the matter may be referred to an external agency. In
some circumstances, it may be necessary to transfer a whistleblower to another
work location.[482]
7.77
Although the committee accepts that the requirement for
protection may be the reality, the statement does not inspire confidence in the
military justice system where protection relies on removing the person from
harm rather than stopping the perpetrators. Relocation, in itself, may be a
form of reprisal for making a report. The committee would like to see emphasis
given to stamping out acts of reprisal.
7.78
The case of Aircraftman Nathan
Moore illustrates the failure of the ADF's
whistleblower scheme to protect members from adverse action on account of that
member reporting wrongdoing. It also highlights the confusion surrounding who
has responsibility for protecting those who report wrongdoing. The RAAF was
clearly of the view that Moore
provided information relating to drug use to civilian authorities. Because he
made his complaints to outside authorities who conducted the investigation, the
Defence Whistleblower Scheme would not become involved in that matter. Moore
did, however, alert the whistleblower scheme to his concerns about harassment
and intimidation. According to Air Marshal Angus
Houston, the Defence Whistleblowing Scheme
'only provides protection of identity, it does not provide protection in other
ways'.[483] He explained the steps
taken by the ADF to protect Nathan
Moore:
AC Moore
returned to work and almost immediately he expressed concerns about his safety.
We responded immediately to that and we moved him off base to Brisbane.
He still had concerns about his safety. In fact, he expressed concerns for his safety
to the inspector-general here in Canberra.
That came to my notice so we moved him again. We moved him down to Richmond,
then we moved him to Glenbrook and then we moved him into Sydney.
We kept moving him when he felt unsafe. We have moved him again—and I prefer
not to mention where he is at the moment—but we are very concerned for his
welfare. We have a case officer who is supporting him and we are concerned for
his welfare.[484]
7.79
Air Marshal Houston
believed that the decisions taken at the time to assist Moore
were very reasonable. He nonetheless acknowledged that:
...perhaps we need to have a look at how we approach these sorts
of circumstances in the future.[485]
7.80
It is clear that the Defence Whistleblower Scheme does
not have adequate measures to protect those making genuine disclosures from
unlawful reprisals.
Confidentiality
7.81
Reporting systems must have in place safeguards to
protect the confidentiality of all parties involved in the report. In keeping
with this principle, the Defence Manual underlines the importance of
maintaining confidentiality and respecting a person's right to privacy. Yet
practice is not always consistent with this guidance.[486] A number of witnesses were concerned
with the treatment of confidential information. Complaints about violations of
privacy rights came from persons who had reported the wrongdoing and who
believed that there had been a serious breach of trust in allowing their
identity to become known. Criticism also came from people who were the subject
of a complaint and who also believed that their identity and the allegations
against them had been disclosed unnecessarily.[487]
Committee
view
7.82
The whistleblower scheme is intended to offer a viable
alternative for people wishing to report wrongdoing but who believe that they
'may be victimised, discriminated against or disadvantaged in some way if they
make a report through the chain of command, line management, or established
complaint mechanisms.'[488] The
committee has concerns that the scheme is not meeting expectations especially
in light of the range of obstacles identified in this chapter that stop people
from reporting wrongdoing.
7.83
The committee is strongly of the view that the ADF
needs to examine very critically its whistleblowing scheme and more broadly the
arrangements that it has in place to protect those who report improper conduct.
The reliance placed by senior leadership in the ADF on physically removing a
person, often more than once, from the threat of reprisal is in itself an
acknowledgement that the protection scheme does not work. Indeed it is ironic
that this measure is regarded as a 'solution' seemingly before the prevention
of reprisals is considered a solution. The committee accepts that the ADF has
an uphill battle in convincing a highly sceptical workforce that reprisals will
not take place. It must take firm steps initially to have a protection scheme
that will offer ADF members assurances that they will not suffer detriment for
making disclosures, in good faith, about wrongdoing.
7.84
The committee is also concerned with the scheme's
overall integration in the ADF's system for reporting wrongdoing or making a
complaint. It is concerned that the current system may be confusing and result
in a duplication of responsibilities especially with regard to the bodies
responsible for the protection of people making a complaint and for the
prosecution of unlawful reprisals.
Improvements to the ADF's reporting system
7.85
Following the JSCFADT's report and the Burchett Report,
the ADF has taken measures to improve its reporting procedures. In the
Government's response to the joint committee's findings, it stated:
In order to strengthen the equity and fairness environment
within Army, the Chief of Army issued his Plan
for a Fair Go. A key element of the plan was the promulgation across the
Army of his strong and clear expectation of the required standards of behaviour
in the form of 'Fair Go' rules. These have been supported by the establishment
within Army of an additional hotline to those normally operating within
Defence, for individuals to confidentially seek assistance outside of the
normal command chain, if necessary. Additionally, the Plan for a Fair Go included a review of equity training, the
redevelopment of equity training packages, the conduct of a baseline equity
audit and two follow-up equity audits.[489]
7.86
Updating progress on the implementation of the Fair Go
scheme, Lieutenant General Leahy
told the committee:
The Fair Go Hotline is used often and provides a useful safety
valve for members of the Army who are unwilling to raise allegations of
harassment or mistreatment within their chain of command, or who have done so
but believe their grievance has been inadequately dealt with. Army members’
family and friends may also call the hotline anonymously if they wish. All
calls are treated very seriously. Where appropriate, allegations of offences or
unacceptable behaviour are investigated. The Army hotline has proved an
effective, strong and very successful system.
...
We have trained staff who receive those calls. They counsel the
people and encourage them in the first instance to deal with it through the
chain of command. Where the callers are not comfortable dealing with that, the
staff will take it on and deal with it themselves. We have found a very high
level of satisfaction with the Fair Go Hotline. People tend not to call back.
We find that it is working very well. It acts as a bit of a circuit-breaker.
When the staff on the hotline are able to explain some of the issues and
perhaps some of the administrative procedures and policies, it seems to take
the heat off.[490]
7.87
In the view of Ms
Jayne Fitzpatrick,
however, who sought assistance from the Hotline on behalf of her partner, 'the
Defence Equity Hotline and the Fair Go Hotline have been set up as a public
relations exercise, they seem to do little for members'.[491] Her husband suffered from Post Traumatic
Stress Disorder, had attempted suicide and, according to Ms
Fitzpatrick, had been defamed in front of
the Sergeants' Mess. She informed the committee:
Prior to Keith's discharge he
wrote to the much vaunted Army Fair Go Hotline. As a serving member his
complaint should have been investigated in its own right. This was Keith's
only way to redress the defamatory remarks and threats made against him.
Unfortunately the reply came back that his complaint had been addressed by my
letter to the minister and no further action would be taken on his behalf.[492]
7.88
The committee accepts that not every complaint will be
resolved to the satisfaction of the complainant. The process should, however,
be an efficient and transparent one, free from the perception of bias. Members
of the ADF should have a sound understanding of how the process operates and
have easy access to agencies responsible for dealing with complaints or reports
of wrongdoing.
7.89
Following the various recent inquiries into the
military justice system, the ADF has introduced a series of initiatives which have
resulted in a number of bodies now dealing with various aspects of the
administrative system which aside from the chain of command includes:
-
the Inspector-General of the ADF;
-
the Defence Whistleblower Scheme Hotline (under
the Inspector General of Defence);
-
the Defence Equity Organisation;
-
the Complaints Resolution Agency;
-
the Directorate of Alternative Dispute
Resolution and Conflict Management; and
-
the Army Fair Go Hotline.[493]
7.90
This list of options presents ADF members with a
mixed and confusing set of choices. It is not always clear to the ADF member,
let alone an observer, which is the most appropriate route to take. Clearly,
ADF members need a reporting system that is simpler to use and provides the
necessary support for those seeking to lodge a compliant or report wrongdoing.
Conclusion
7.91
Without doubt, there is an embedded anti-reporting
ethic in some areas of the ADF. The reticence to report improper conduct or to
make a legitimate complaint means that responsible commanders are not well
placed to detect and correct wrongdoing and hence unsafe practices or
inappropriate conduct continue unchecked.
7.92
The committee understands that a fundamental change in the
ADF mindset must be achieved to overcome the stigma attached to lodging a
complaint.
7.93
Furthermore, members will not make reports if they
believe they will not be protected from reprisals. The administrative system
must be sufficiently robust to instil confidence in members that if they do the
right thing they will be protected; that allegations will be duly investigated;
that they will not suffer reprisals on account of making a complaint; and that
offenders will be brought to account. The committee accepts that removing the
fear of reprisal is a most difficult challenge but one that should not be shirked.
7.94
Clearly, education is one answer. The recommendation
for improved education has been made by a number of inquiries and needs to be
reinforced yet again. The committee underlines the need for the ADF to review
the way it promotes its reporting schemes and to put in place a more thorough
education program designed to familiarise members with the system but also to
develop an education program designed to counter the culture of silence.
7.95
Even so, the committee is not convinced that the
reporting system as now structured provides the most effective avenues for the
disclosure of wrongdoing. Evidence before this committee suggests that the
reporting system falls down in its practical application and its ability to
convince members of the merits of the system. It accepts that the reporting
system has on occasion failed its members. At times, it has caused great
distress to members and next of kin who found difficulty in having their
concerns acknowledged, listened to and acted upon. The committee is not convinced
that the Fair Go Hotline or similar initiatives are the complete answer. Rather
they provide another add-on reporting mechanism to a system that is confused
and fundamentally flawed, and they do nothing to counter systemic problems such
as conflicts of interest, the culture of silence and fear of reprisal. Overall,
the committee believes the system would operate more effectively if it were
less complicated and more streamlined.
7.96
In chapter 11, the committee has recommended the
establishment of an independent grievance review body to be known as the
Australian Defence Force Administrative Review Board (ADFARB). This board is
not intended to remove the responsibility for resolving disputes from the chain
of command. Rather it will provide a mechanism to resolve grievances that are
unable to be resolved promptly and effectively within the chain of command.
This initiative will remove some of the problems identified in this chapter
(see recommendation 29).
7.97
In proposing the establishment of an independent Australian
Defence Force Administrative Review Board, the committee took particular
account of situations that may arise where an ADF member is reluctant to report
a wrongdoing. It recommended that the ADFARB receive reports and complaints
directly from ADF members where:
-
the person making the submission believes that
they, or any other person, may be victimised, discriminated against or
disadvantaged in some way if they make a report through the normal means; or
-
the person has suffered or has been threatened
with adverse action on account of his or her intention to make a report or
complaint or for having made a report or complaint.
The committee is also very concerned to ensure that ADF
members who choose to disclose improper conduct or work practices are protected
from reprisals for making such a report.
Recommendation 24
7.98
In line with Australian Standard
AS 8004–203, Whistleblower Protection Programs for Entities, the
committee recommends that:
-
the ADF's program designed to protect those
reporting wrongdoing from reprisals be reviewed regularly to ensure its
effectiveness; and
-
there be appropriate reporting on the operation
of the ADF's program dealing with the reporting of wrongdoing against documented
performance standards (see following recommendation).[494]
Using complaints as signposts to broader problems
7.99
Before concluding this chapter, the committee
underlines the important role of an effective reporting system in producing
information that provides an accurate representation of the overall state of
the military justice system. The Burchett Report was of the view that:
...the diversity of the ADF, and the upheavals it has gone through
in recent years, make for the possibility of occasional lapses, unless
preventative steps are taken. It is important to set in place some means of
detecting misconduct promptly, when it occurs, so that its perception by the
ADF does not have to await an eruption in the form of notorious events. It is
necessary to maintain constant vigilance, including the monitoring of key
indicators and the provision of means for problems to be aired and dealt with,
as they arise.[495]
7.100
Taking up the same point, the Defence Ombudsman stated:
Over time, in the 25 or so years that the Ombudsman’s office has
been going, one of the points it has tried to emphasise to agencies is that
complaints should not be seen as discrete problems, as idiosyncratic
occurrences that can be corrected and then put aside. Complaints, even though
they can be episodic and unrepresentative, should nevertheless be regarded as
an indication of matters that require internal attention. There is a whole
philosophy out there now that complaints can provide an agency with an
opportunity for a dedicated learning process. It is our impression that there
is more work to be done within the Australian Defence Force in establishing
recognition of the point that complaint handling, investigation and
administration is regarded as something inextricably interwoven with the
remainder of the operation of the Australian Defence Force.[496]
7.101
The committee believes that it is vital for the ADF to
be aware of and to monitor the effectiveness of its reporting system. A
continuous assessment would not only provide information on the incidents of
wrongdoing and the prevalence of unacceptable behaviour throughout the ADF but
could also be used to gauge the extent to which members are deterred from
reporting wrongdoing or making a complaint. The committee found the survey
conducted by the Directorate of Strategic Personnel Planning and Research on
the experiences of unacceptable behaviour in the Australian Defence Force
extremely helpful as an indicator of the willingness or otherwise of members to
report inappropriate behaviour.
7.102
The committee notes that Defence's Annual Report
contains statistics on the percentage of reported unacceptable Behaviour
Incidents by Service. It, however, provides no context and no meaningful
analysis or commentary on these statistics. The committee believes that more
searching questions could be asked of these statistics regarding the failure to
report an incident and the reasons for this lapse. Such information would allow
better informed public debate on the reporting of wrongdoing in the ADF and
allow Parliament to carry out its scrutiny role more effectively.
Recommendation 25
7.103 The committee recommends that, in its Annual Report,
the Department of Defence include a separate and discrete section on matters
dealing with the reporting of wrongdoing in the ADF. This section to provide
statistics on such reporting including a discussion on
the possible under reporting of unacceptable behaviour. The purpose is
to provide the public, members of the ADF and parliamentarians with sufficient
information to obtain an accurate appreciation of the effectiveness of the reporting
system in the ADF.
7.104
To this stage, the report has examined the reporting
procedures for wrongdoing or for making a complaint. The following chapter
examines the next stage of the administration system—the investigation
following a report of wrongdoing or a complaint.
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