Chapter 1
Inquiry into incidents that occurred onboard HMAS Success
Referral of inquiry and terms of reference
1.1
On 26 November 2009, the Senate referred matters relating to incidents
that occurred onboard HMAS Success and subsequent events to the
Foreign Affairs, Defence and Trade References Committee for inquiry and report
by 18 March 2010. The terms of reference for the inquiry are extensive and
available on the committee's website. They are also at Appendix 1.
1.2
By and large, the terms of reference deal with: allegations of
unacceptable behaviour by a number of sailors onboard HMAS Success; an
equity and diversity health check of the ship; the subsequent removal of three
senior sailors from the ship; and the many administrative and disciplinary
investigations that followed.
Conduct of inquiry
1.3
The committee advertised its inquiry on its website, and in the Australian,
calling for submissions to be lodged by 21 December 2009. During the first week
in December, the committee also wrote directly to a range of people likely to
have been involved in matters covered by the terms of reference, drawing their
attention to the inquiry and inviting them to make written submissions.
1.4
The committee received 10 submissions which it has resolved to keep confidential
for the time being. The Chief of the Defence Force (CDF) and the Chief of Navy
also provided private briefings to the committee on 3 and 23 February 2010 and
22 February 2011. No transcripts of these meetings were recorded.
1.5
In March 2010, the then Chief of the Defence Force, Air Chief Marshal
Angus Houston, commissioned a former judge of the Federal Court, the Honourable
Roger Gyles AO QC, to conduct an independent commission of inquiry to inquire
into the alleged incidents of unacceptable behaviour onboard HMAS Success (the
Commission). The committee resolved to monitor the Commission's progress and to
wait until it had completed its work before deciding on how it would proceed. The
committee tabled an interim report on 18 March 2010.
1.6
The Commission took longer than expected to deliver its findings. In
light of this delay and with the prorogation of the House of Representatives, the
committee tabled a second interim report on 20 August 2010 notifying the Senate
of its intention to present a final report as soon as possible in the 43rd
Parliament. On 30 September, two days after the new Parliament sat for the
first time, the Senate resolved that the committee continue its inquiry with a
reporting date of 12 May 2011.
Part One—HMAS Success Commission of Inquiry
1.7
In September 2010, the CDF proposed that the Commission take account of
a report, not then available, of a working group into Defence Administrative
Inquiries. He did not want to prolong completion of the Commission's work on the
events that happened during Success' deployment of March to May 2009. Consequently,
they agreed that Mr Gyles would produce a report in two parts. The first would deal
with substantive matters arising from events onboard Success and the
second with the general Defence processes that followed the decision to land the
three senior sailors in Singapore on 9 May 2009.
1.8
Mr Gyles did not finalise the first part of his report until the end of
December 2010. The Minister tabled a redacted version of this report on 22
February 2011 entitled HMAS Success Commission of Inquiry, Allegations of
Unacceptable Behaviour and the Management Thereof, Part One: The Asian
Deployment and Immediate Aftermath.[1]
The CDF stated that he expected to receive the balance of Mr Gyles' report in
the middle of the year.
1.9
In Part One of his report, Mr Gyles made clear that he assembled and
presented evidence with regard to HMAS Success 'in order to establish a
factual narrative of events in which many individuals played a part.'[2]
In doing so, Mr Gyles effectively addressed six of the committee's terms of
reference either in full or in part, including:
(a)
the nature, scope and purpose of an ‘Equity and Diversity Health Check’
in the Royal Australian Navy, and under what authority such an investigation is
conducted;
(b)
the equity and diversity issues at large onboard HMAS Success (Success)
giving rise to the ‘Equity and Diversity Health Check’ which was carried out onboard
Success between 21 April and 9 May 2009 including inter alia all disciplinary
issues, the transfer of a Royal Navy exchange sailor, the management of equity
and diversity issues by the ship’s Commanding Officer and his Executive Officer
both before and after the ‘Equity and Diversity Health Check’;
(c)
the nature and veracity of complaints and allegations made by a Petty
Officer or any other person concerning equity and diversity issues on Success;
(d)
the reasons and factual evidentiary basis for the ship’s Commanding
Officer resolving to land a Chief Petty Officer and two Petty Officers (the
senior sailors) at Singapore on 9 May 2009 from Success and the
circumstances of that landing and removal from the ship including whether the
Commanding Officer acted under the direction of any superior officer;
(e)
whether the senior sailors were informed of the full nature of the
allegations and factual evidentiary basis for the subsequent landing in a
timely fashion or at all and whether procedural fairness was provided to those
senior sailors;
(f)
the circumstances and events that led to the Commanding Officer of Success
addressing members of the crew in relation to the landing of the senior
sailors, whether the Commanding Officer referred to the senior sailors by
stating words to the effect of ‘there was a rotten core on this ship and the
core has now been removed’ and if so, the extent that those comments may have
prejudiced any subsequent inquiry.
1.10
The committee notes the comprehensiveness of Mr Gyles' inquiry. In all,
102 individuals appeared before the Commission to give evidence with 12 people
providing affidavits. The transcript of the hearings runs to 4866 pages with
376 exhibits received—many containing multiple documents.
1.11
The release of Part One of the Commission's report provided the
committee with the first opportunity to read and examine Mr Gyles' findings. The
committee considered carefully the report and formed the view that, given that
it dealt thoroughly with six of the committee's terms of reference, the
committee should pay close regard to its findings. Thus, conscious of the scope
of the Commission's inquiry and the passage of time, the committee resolved to
adopt Mr Gyles' approach and also produce a report in two parts.
1.12
In May 2011, the committee tabled Part One of its report on incidents
onboard HMAS Success between March and May 2009.
Unanticipated revelations
1.13
It should be noted that the Gyles Report revealed matters that were not
anticipated in the committee's terms of reference but which have been of longstanding
concern to the committee. The most disturbing revelation was that a culture of
silence existed onboard Success which meant that members of the ship's
crew were reluctant to report wrongdoing or unacceptable behaviour. In
particular, that the most vulnerable members of the crew, young female sailors,
were subjected to verbal abuse but were reluctant to report such conduct.
1.14
The committee was alarmed further by the disclosure during the Commission's
work that an inquiry in 2004 on the same ship had raised similar concerns about
sexual harassment of female sailors. Indeed, the issues raised regarding HMAS Success
in 2004 and more recently have all the hallmarks of those considered by the committee
as far back as 1994 onboard HMAS Swan. Because of the committee's work
with the ADF in trying to promote a culture of responsible reporting of wrong
doing, especially of unacceptable behaviour, and of stamping out bullying and
harassment in the ADF, it was of the view that it must again draw attention to
this broader cultural issue in the ADF. This matter was discussed fully in Part
One of the committee's report.
Part Two—HMAS Success Commission of Inquiry
1.15
On 7 July 2011, the Minister for Defence tabled in parliament a redacted
version of Part Two of the Gyles' report—The Management of Allegations and
Personnel Involved.[3]
The Minister explained that the redactions were made on legal advice 'to
prevent the identification of individuals who may be subject to disciplinary
procedures.'[4]
1.16
This second part deals with Navy's administrative inquiries; management
of the three landed senior sailors on their return to Australia; and Navy's response
to media queries and reporting. The report also looks at the treatment of the
legal officer representing the landed senior sailors and the relevant
investigations undertaken by the Australian Defence Force Investigative Service
(ADFIS). Effectively, Part Two of the Gyles Report addresses the committee's terms
of reference that are still outstanding including:
(g)
whether the Inquiry Officer as appointed pursuant to terms of reference,
dated 15 May, and as set out in Minute S1804843, dated 10 July 2009, declined
to interview any relevant witnesses in circumstances where the senior sailors
were prohibited from attending Success and or contacting any of the
ship’s company;
(h)
the way in which the inquiry into the events on Success was
conducted, whether the method of questioning witnesses and gathering evidence
was conducted according to the principles of justice, whether the inquiry
process was free from any perception of bias, and whether any witnesses were
threatened with disciplinary or other action during the course of giving
evidence;
(i)
whether the senior sailors requested access to evidence gathered during
the inquiry into the events on Success, whether any such request was
denied, and whether any subsequent finding is reasonable in the circumstances;
(j)
the facts and circumstances of the treatment of the Legal Officer (the
lawyer) assigned to the management and defence of the case of the senior
sailors including any threats, bullying, adverse conduct and prejudice
generally, including any threat of posting to Western Australia, and whether
any such conduct constituted an attempt to compromise the lawyer’s capacity to
represent the best interests of the senior sailors without fear or favour;
(k)
the knowledge and awareness of the ship’s Commanding Officer, the
Australian Defence Force Investigative Service investigators and the broader
naval chain of command of the facts and circumstances relating to the Channel 7
News reports on 4 July and 7 July 2009 (the media reports) and the dates and
times of such personnel being availed of such knowledge and awareness;
(l)
the knowledge and awareness of the media reports by the responsible
Minister and the dates and times of the Minister being availed of such
knowledge and awareness;
(m)
all and any other matters relating to the justice and equity of the
management of the senior sailors in their removal from the ship and the
subsequent administrative process or processes, including their complaints as
to the flawed process as set out herein.
1.17
Because of the thoroughness of the Commission's inquiry and its direct
relevance to the committee's terms of reference, the committee is of the view
that Mr Gyles has done much of the work covered by the above terms of
reference. Taking the same approach as it took with its first report, the
committee sees no real gain in duplicating Mr Gyles' work. The committee,
however, has read the transcript of the Commission's hearings and has considered
confidential submissions and additional information. Furthermore, for many
years the committee has been monitoring the implementation of reforms to
Australia's military justice system with a particular interest in the ADF's
investigatory capability as well as the effectiveness of the ADF's
administrative system. As such, while drawing heavily on Mr Gyles findings, the
committee presents its own views and identifies areas that it may wish to
pursue further with Defence.
Limitations to the committee's inquiry
1.18
At this stage, the committee draws attention to a number of difficulties
it had in preparing and presenting this report. The first significant
limitation was producing a factual and balanced report from incomplete and
potentially misleading evidence. The committee did not have access to material
central to its inquiry including the Inquiry Officer's report cited in terms of
reference (g) and (h) and the supplementary material accepted by the Commission
as evidence in the form of exhibits.
1.19
The committee was also conscious of the importance of protecting the
privacy of the many individuals caught up in events during Success' deployment
in the first half of 2009 and used the redacted copy of Mr Gyles' report as a
guide. While the committee also had access to other material not on the public
record, it resolved to use this evidence in accordance with the principle adopted
by Defence and not disclose the identity of a number of sailors.
1.20
In this report, the committee, by and large, traced events from May 2009
as they unfolded. This chronological approach was not always possible where developments
overlapped. The report provides a summary of events that culminated in three
senior sailors being removed from HMAS Success. It then considers:
-
the disciplinary and administrative processes that followed the removal
of the senior sailors from Success and whether they were afforded
procedural fairness;
-
the circumstances surrounding the senior sailors' employment in
HMAS Kuttabul; their persistent endeavours to obtain information about
the allegations made against them, the inaccurate and sensational media reports
of their removal from Success and Defence's response; and
-
concerns about the relationship between the legal officer
representing the senior sailors and the chain of command and whether there were
attempts to unduly influence him.
1.21
This second part of the committee's report builds logically on the
first, but for ease of reading, the committee starts by briefly outlining the
events that led to the landing of the senior sailors in Singapore and the
committee's findings on those matters. It then focuses on their return to
Australia and the inquiries and investigations that took place.
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