In his response to the release of the redacted Brereton report, Chief of the Defence Forces Angus Campbell noted the prevalence of a culture that had been allowed to fester that favoured secrecy and cover-up over disclosure and transparency. He noted that, left to investigate itself, the oversight of some Special Operations Task Group rotations fell dramatically short of basic standards. “Oversight mechanisms such as legal reviews, operational assessments and inquiries took place, but they were not sufficiently rigorous or independent,” he said on the release of the report.
Defence has a well-documented disinclination towards transparency, including within the 2011 report from DLA Piper into abuse allegations within the ADF and a 2019 decision to refuse release of an external consultant’s work on culture change due to fears of how the released materials may be received on social media.
Defence, perhaps more than any other institution in Australian political landscape, appears to have a cultural opposition to independent oversight.
It is this antagonism towards accountability that flavours this bill.
This is a bill that’s supposed to help veterans and their families. But families don’t want this. Veterans don’t want this.
In the public hearing into this bill, the families of veterans who’ve died from suicide lined up one by one to tell the committee unequivocally that, if it is a choice between this bill and nothing, they would all prefer nothing. This is the level of antipathy towards this poorly conceived proposal.
If the people it’s supposed to help don’t want it, why are we proceeding?
The Morrison Government never wanted a Royal Commission into veteran suicide
In December 2019, the Prime Minister met with Julie-Ann Finney and told her that he would seriously consider the establishment of a Royal Commission into veteran suicide, as she had asked.
As this was occurring, the Departments of Defence and Veterans’ Affairs were constructing alternatives to a Royal Commission instead.
They were not asked to do so. This was an undirected effort.
It is open to one to consider what might have prompted this effort, if it was not at the request of the Minister, or the request of the Prime Minister.
But there is ample evidence to suggest that the view within the Government and the bureaucracy with respect to a Royal Commission was dismissive, well before Christmas of 2019.
On 4 December 2019, the Minister for Veterans’ Affairs Darren Chester MP told a Sydney radio host in an interview that a Royal Commission into vetearn suicide would “bog the DVA down for two years”.
In June 2019, the Minister told the Daily Telegraph that “I don't want to spend $100-odd-million paying lawyers when that money could be spent on medical assistance.”
At a June 2019 meeting with members of the Ex-Service Organisations Round Table, Department of Veterans’ Affairs Secretary Liz Cosson encouraged those in attendance to try to “balance” negative media reports of veteran suicides, particularly with respect to their impacts on families, individuals and the wider community.
Nonetheless, in December 2019 Defence Minister Linda Reynolds told the Senate that, with respect to a Royal Commission, “all options are on the table”.
This would understandably come as some surprise, as there appears to have been no effort from any part within the bureaucracy to initiate a draft terms of reference for a Royal Commission (which, presumably, would be one of “all” the options being on the table in December 2019).
They hired the Defence Minister’s mate to investigate her department
There was, at this time, a self-directed effort to design an alternative.
This was promptly adopted. In February 2020, the Prime Minister joined with the Defence Minister and Minister for Veterans’ Affairs to announce the National Commissioner into Defence and Veteran Suicide Prevention. The interim Commissioner was to be appointed and was to start immediately, with the Defence Minister praising the work of her department for allowing this role to get “straight down to work.”
On 25 August 2020, I asked the Minister in the Senate who the interim Commissioner was. In response, the Minister said:
“I can confirm for Senator Lambie and the Senate that legislation will shortly be introduced by the Attorney-General to set up the office of the permanent commissioner. As I said, the interim commissioner will be appointed shortly to implement that work, so—”
“the Attorney-General is in the process at the moment of going through a short list for the interim commissioner to undertake the work as discussed.”
The interim Commissioner was subsequently named on September 30 2020, more than a month after the Minister said that the commissioner would be appointed “shortly”.
The Commissioner role was filled on an interim basis with an intention for the Commissioner to commence an initial review of past known suicides. This review, to be performed without the powers and resources of a Royal Commission, is to deliver an interim report in 12 months from the date of commencement, and a final report in 18 months from the date of commencement.
This was to commence immediately, prior to the passage of this legislation with which we are dealing. Ms Cosson told the Senate that legislation was not required for this 18-month review period.
This is a relief. It confirms that this legislation is unnecessary, for this review to commence and continue. Voting this legislation down does not sabotage this review, because the legislation is not necessary for the review to be conducted.
One of the objectives of this review is to “provide a foundation for the future work of the National Commissioner”. But, according to unpublished letters from the Minister for Veterans’ Affairs, the National Commissioner is the interim Commissioner. Dr Boss will be formalised as the National Commissioner immediately following the passage of this legislation (if that, for some horrific reason, is allowed to occur).
It is worth exploring how surreal this arrangement has been allowed to become, either by design or by, more likely, an utter absence of it. Dr Boss is, presumably as you read this, conducting a review into how she ought to do her own job—a career member of the Australian Defence Force, fulfilling a role created in part by the Department of Defence, recommended to the role by the Minister of Defence, with a long-term relationship with the Minister of Defence, conducting a review into how she should use the powers bestowed on her by the Department of Defence to investigate, amongst others, the Department of Defence.
The process for selecting the Commissioner was flawed, plainly.
In answers to questions on notice, the Attorney-General’s Department confirmed that the position was not advertised.
In Senate Estimates, the Minister for Defence confirmed that she personally recommended Dr Boss for the role.
The Minister further confirmed that she has known Dr Boss for years, dating back to her time in the army.
We also learned in Senate Estimates in March 2020 that the decision of who to appoint as National Commissioner was a decision for the Prime Minister, and not the Attorney-General, as previously indicated. We learned that the decision-making process was underway, even though no legislation was designed.
The Defence Minister told the Senate in March that “the process for the selection of the interim commissioner is already underway”.
At the time, it was unclear how the Minister may have known that, as it was not her decision to make, and not a decision for her Department. We subsequently know that the Minister knew this because she had recommended a candidate at this time.
The candidate recommended by the Minister was a current member of the Australian Defence Force. It is questionable how this could have been viewed as an appropriate choice for a Commissioner to sit independently of Defence and the Australian Defence Force and view its operations with a critical eye.
The National Commissioner model is a poor substitute for a Royal Commission
But this criticism invites the response that perhaps it could be resolved by simply reversing the decision to appoint Dr Bernadette Boss as the National Commissioner. This isn’t right.
You cannot fix this bill by changing who fills the role it creates.
This bill is corrupted at its inception.
The most egregious flaws with this proposal are structural and irredeemable.
Unlike a Royal Commission, the powers of this National Commissioner are designed by the institutions it is investigating. It is fully subject to the power and influence of the government. It is fully subservient. This is due to its nature as a statutory authority. It is entirely a result of the legislation that is being considered by this inquiry.
You won't find any mentions of COVID-19 in the aged-care Royal Commission's terms of reference, but that doesn't stop it from looking into its impacts. That's because royal commissions interpret their own terms of reference without any interference from the government of the day. The National Commissioner is a prisoner to their terms of reference. It cannot stray outside what it is permitted to look into; if it does, it is liable to be pulled into line by the government that controls it.
The National Commissioner can be fired or replaced for any reason at any time. Their terms of reference can be changed with the stroke of a pen. If a government doesn't like what the commissioner is looking into it can change the rules halfway through the investigation. It can make it unlawful for the commissioner to keep looking where they're looking. If they're getting too independent then the commissioner can be fired. If they're getting too powerful, the commissioner's budget can be slashed. If they're getting too much done, they can be axed altogether. The government says they're permanent, but that's only until it changes its mind.
These fears of reprisal or interference are not baseless conspiracy theories. Nominally independent commissions have a track record of having funding reduced subsequent to making adverse findings against those determining their funding. It has occurred with anti-corruption watchdogs at a state level for decades.
The Government has made much of the virtue of having an “enduring” Commissioner, as opposed to a one-off, which only looks at a point in time.
This is making a virtue out of a flaw.
The fact that a Royal Commission does not need to concern itself with its own ongoing survival gives it a degree of autonomy to which a standing capability can only aspire.
The temporary nature of a Royal Commission protects it from reprisal. The complicated and misaligned incentives around an investigatory body requiring the consent of the investigated party to continue its investigation (either financially or legally) is avoided with temporal Royal Commissions and notwithstanding equivalents.
In many ways, it is a false question. A National Commissioner and a Royal Commission need not be mutually exclusive.
The decision to establish a Royal Commission does not preclude the subsequent establishment of a National Commissioner. But, on the Government’s own opinion, the establishment of a National Commissioner does preclude a Royal Commission.
Put another way, the decision to establish a Royal Commission does not commit the Government to a one-off review only.
A temporary Royal Commission that looks into what has gone wrong up until this moment at a structural, systemic level, is far more useful than a National Commissioner endlessly poring over the latest coronial inquest into the latest veteran or Defence suicide. Coroners investigate a death. It is the role of a Royal Commission to investigate an epidemic.
Veteran suicides should be treated as one of Australia’s most pressing problems
Further, if this is a concern (namely, that Royal Commissions are insufficient when relating to matters that are likely to extend beyond the final reporting date of such an inquiry), why does this logic not apply consistently?
Are we indeed expected to accept the view that governments ought not to call Royal Commissions into instances that are likely to continue into the future? If so, when was this standard adopted? Presumably it was not applied to the Royal Commission into Trade Unions—unless the commissioning government was of the view that, upon completion of the Royal Commission, further instances of trade union corruption would be indefinitely suspended!
Presumably, it was also not applied to the Royal Commission into Aboriginal Deaths in Custody.
Was this standard applied to abuse in aged care? Is the Morrison Government advancing the notion that the Royal Commission will mark the end of all abuse in aged care, from here into eternity? Or abuse of disabled people in Australia?
The argument that Royal Commissions are inappropriate to deal with matters that will continue beyond the life of the Commission itself is baseless, illogical and without precedent. It is a standard being used to justify denying a Royal Commission that has never been applied before now. We are right to ask why.
If you want to know if there's any difference between a national commission and a royal commission, ask yourself if there's any difference between who supports one or the other. The families of veterans who have taken their own lives support a Royal Commission. The institutions who are being blamed for those suicides support a National Commissioner. Rightly or wrongly, that blame is being levied against an institution that has an obligation to uphold confidence in its processes. It cannot do that by being seen to have a hand in any investigation into itself. Plainly, that appearance exists with this position of a National Commissioner.
The Senate should reject this legislation. It should do so not because it wants no action to reduce the rate of suicide amongst current and former serving Defence members, but because it does want action. It wants action that is robust, independent, accountable, transparent, resourced and powerful. It does not want this.
This is not what we’re asking for. We need a Royal Commission.