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Krygier's model of a civil society is one in which the rule of law as opposed to law as an institution, provides for a strong state.[1] It is a normative model against which he develops comparative statements between Eastern Europe, in particular Poland and to a lesser degree Australia, cited as 'a privileged provincial liberal democracy'.[2] In explanation of his thesis he argues the rule of law undergirds a society. It is its infrastructural strength because it is able to discipline by restraint and moderation the use and abuse of power. It is able to institutionalize channels of power to entwine the state, politics and civil society in what he calls "mutually reinforcing virtuous circles".[3] His model supports the consequences of a society being "thickly institutionalized" because it generates an ethos in the ways citizens and institutions can behave and be expected to behave towards each other. This makes for its 'civility' grounded in the mutual trust that comes from the rule of law if it "conforms to the values of predictability, regularity, restraint, precision, publicity and prospectively".[4]
Alternatively interactions between individuals, society and its institutions, where there is either a lack of or absence in, an infrastructural strength leads to fear, distrust and violence. These are interactions of what Krygier calls a distinctly vicious kind. Consequently, there is a need for both the state and society to maintain an eternal vigilance of its rule of law. Perhaps it's his passion and love for Poland and its people that's encoded in the warning: "We simply don't know how quickly uncivil disrespect for civilised and civilising institutions will come to erode or deform them, and then deform us. It would be better if we never found out".[5]
But it is with similar passion that I would now apply this model to the Australian context and take up where Krygier fears to tread; into those circles of a distinctly vicious sort. This is not an attempt to discredit what Krygier has evolved. Instead his normative model provides ways of bouncing observation against, with deliberate intent to question his implications of how virtuous are those circles in Australian society, including the military?
In Australia the dominating rule of law has a comparatively short history. But it has long standing in its inheritance from eighteenth century British traditions, making up the "rules of the game". It is rooted in our "cultural baggage".[6] It can be said to represent the heritage of an institutionalised infrastructure of a 'decent' society bonded by ethics. It is expected to work in a society in which legal institutions and legal rights are central to the moderation of the power of officials, including those elected to govern. In some respects this heritage is an evolution of the historical concepts given by Rousseau's social contract model. Rousseau warns us nothing is more dangerous to democracy than the power of private interest in public affairs and the abuse of law by government. When officials become despotic government loses its rights within the framework of the state. The question then is merely of might. Only when government treats all individuals with equity and fairness is its authority final.[7]
In Krygier's model of a strong state, the rule of law routinely followed in the ordinary business of living must function to restrain and moderate the power of institutions over society and the individual. This is a two-way vertical dimension. It exists because officials in institutions are routinely challenged by the rule of law itself. Such law controls the way in which the institutions interact with the individual. It also provides individuals with a way to penetrate the institutions of the state, including government and act with some autonomy. This vertical dimension is the underpining for societal and individual confidence and trust in its relationship with the government. It is this belief system, encoded in an individual's and society's behaviour towards the government that provides continuity and stability in a civil society. Its added strength lies in its meshing with rather than contradiction to, or its irrelevance to "intuitive law" i.e. how people think about and organize their everyday lives.[8] It is the 'how' the rights of individuals are known to be protected from the power of officials. Challenge and/or competition to institutions, including officials is carried out within the known 'rules of the game' i.e. the rule of law. This rule also frees the state from despotic government behaviour(s) against its society and individuals in defence of its own survival. It is this cognitive and normative power of the rule of law throughout society that strengthens the state. Thus government is not separated from society and the individual.
Such is the theory against which comparative statements may be made about the relative strength and weaknesses of states in time and place. The premise for Krygier's theoretical model is that the strength for the state to function as a strong and stable state rests with the individual knowing and having trust and confidence in the fair and just workings of the rule of law. i.e. it is a 'bottom-up' model of societal strength and this is where the individual is at in his/her relationship with government in particular and society in general. But there is often a vast discrepancy between the theory and practice of the rule of law. Hence there can be a vast difference between the appearance of a civil society and the reality of vicious circles of violence by officials who abuse and misuse power against society and the individual.
"At a bare minimum, the point of the rule of law - and its great cognitive and normative contribution to social and political life - is relatively simple: people should be able to rely on the law when they act ... you have central elements of the rule of law when the law in general does not take you by surprise or keep you guessing, when legal institutions are relatively independent of other significant social actors but not of legal doctrine, and when the powerful forces in society, including the government, are required to act, and come in significant measure to think, within (italics) the law; when the limits of what is taken to be do-able are set by the law and where these limits are widely taken seriously- when the law has integrity and it matters what the law allows and what it forbids."[9]
Also inherent in Krygier's model of comparative states is the notion of 'violence'. But what constitutes the kinds of violence needs to be made explicit. Easily recognised forms of violence are the kinds of military and civil unrest e.g. Poland, Northern Ireland, Philippines and Yugoslavia. But kinds of violence by institutions against society and the individual also embraces the tyrannies of silence and connivance and/or inaction of public duty by government. Many wrongdoings by key officials are perpetrated by omissions rather than actions. Current laws against their techniques of omissions appear ineffective. It is this form of violence by rulers and officials that also has to be restrained and moderated or else its consequence is to render the rule of law within the institutionalized strength of society inoperable. Its effect is to alienate and isolate ordinary individuals from the rule of law. In a "thickly institutionalised" society such as Australia, this is made more insidious because if flows undetected simply because people do not know how widespread it is. It may be diffused, in part protected by the ever present threat of defamation laws in civil action against those whose identities are lost in the language we use to talk about "officials", "the government" or "the institution". Yet it is key officials' abuse and misuse of power entrusted to them, that is capable of eroding that which is the undergird of a civil society, its rule of law. And it is this law Krygier warns us that supposedly separates Australia from the violent experiences of states elsewhere.
When the routine, stable and predictable procedures in behaviours between individuals and officials breaks down then the rule of law is threatened. Political decency is threatened. This is when the individual loses political autonomy within a civil society. But when the accumulative experience of individuals lose confidence in the rule of law because of repetitive violation of these procedures, then the strength of a society begins to separate from government, i.e. corrupt or improper behaviours by officials alienates government from society, the individual and the state. It is the "thickly institutionalised" make-up of Australia which may well incubate its own weakness. So powerful is the threat of improper and/or corrupt behaviour by officials in government against the state that judicial adjudications on abuse of power cases in Australia repeatedly emphasise and warn of the weakness and mistrust in government that follows their corrupt or improper conduct and their maladministration.
The place of the military can be no exception to the rule of law in a strong state. It too, as an institution of the state must be restrained and moderated in its relationship with society and the individual. Herein lies the poignancy of one particular case, that of Major Allan K Warren. This case raises pertinent questions about responsibilities of 'the state' to 'the individual'. These fundamental questions are specifically referenced to the role of the executive arm of government and its portfolio responsibility over the Army generals. In law, MAJ Warren's case stands as testimony to the breakdown and impotence of the rule of law to restrain the power and authority of the institutions of the military and government against the individual. What is even more poignant is evidence of a military network more powerful than the workings of the rule of law. Not only did that network and its military culture violate routine procedures of the rule of law within the military structures of Australia's Defence Force but it was able to render silent either by its own actions or connivance, government officials of the state, including the Governor-General.
Australians recognise the rule of law is needed but needs to be administered with integrity otherwise law and order fails. Therefore at the centre of both democracy and its inherent social contract must be government rules, clearly stated and properly policed, against maladministration and lying by public officials. The consequences of failure are corruption and violence. Particularly targeted for scrutiny must be key officials as they can easily intimidate and corrupt subordinates within the public service. The military generals of the government are no exception.
Government, like society, works well if people adhere to codes of conduct stricter than the law requires. A society's welfare is constantly threatened as senior bureaucrats and politicians either make laws deliberately weak or become blind to the spirit and intent of the rule of law when and where their own accountability is involved. Also, a law administered by corrupt or ruthless officials is no law at all. Ultimately, it is the integrity of the rule of law in office not law that gives legitimacy to government, ministers and public servants, including the Army generals.
Australia's functioning as a liberal democracy is not as secure as our politicians would have us believe. If the rule of law is subverted by those employed to protect its integrity then disorder can only breed and fester. In 1995 a council of all State and selected Federal ministers unanimously called upon the public to respect the mores and traditions of Australia's non-violent resolution of social and political conflicts. It is a mandatory pre-requisite to this that no official has any right whatsoever to abuse power so as to financially, psychologically or physically harm another citizen. It is also a pre-requisite that Ministers have courage and competence to redress grievances against maladministration. It is insidious violence when a minister avoids, delays or obstructs corrective action or is otherwise indifferent to or acquiesces in his/her Department's maladministration. This includes the acts or omissions of the Army generals.
It is nearly twenty-two years since Australians faced the potential of politicians separating government from society. That was the dismissal of the elected Prime Minister, Mr Gough Whitlam. His dismissal is already recorded in the annals of history as Australia's gravest constitutional crisis. Public outrage was poised on the brink of violence in the streets. History has also recorded how ACTU President Bob Hawke's energies were spent muzzling the unions. And the Governor-General, Sir John Kerr was worried that the army might have to be called out to quell the unrest. The rule of law was under threat. The potential was to use the military as an institution of the government against society and its individuals. It is only with hindsight that some politicians have subsequently downplayed and re-written the imminence of civil unrest of this event.
But the mood was very different at the army base in Singleton NSW on November 11, 1975. Only two hours after word of the Government's dismissal had permeated through Canberra, senior officers at the base rang around local businesses and community leaders inviting them to 'free drinks'. It was time to celebrate the Whitlam Government's dismissal. And this political event was to be celebrated in a sensitive military place - the officers' mess. A LTCOL A Corboy was the Base Commanding Officer. He, and/or his officer's mess president, MAJ Burges took to the telephones.
Singleton Army barracks was in the heart of Labor's stronghold - the coal and industrial communities of the Hunter Valley, NSW. If violence did break out it would be Singleton soldiers who would be trucked to Newcastle had the Army been called out as Bob Hawke exclaimed it would.
On that day a CAPT Allan K Warren, Officer Commanding Singleton Transport Unit, stood and objected to LTCOL Corboy's and MAJ Burges' use of military facilities for overt political purposes. CAPT Warren was well aware of the potential role Singleton army base could play that day. This was particularly so since he was the officer who would have been ordered to co-ordinate transport of soldiers to confront workers and ordinary Australians demonstrating in the streets of Newcastle. He rang MAJ Burges to confirm the intent to use the officers' mess for overt political action. Such behaviour would be in defiance of military law and tradition. It would politicise the officer's mess. The celebration was confirmed whereupon he said "in that case, I want to register by objection". MAJ Burges said "noted", and put down the phone.
The point had been understood. Twenty minutes later MAJ Burges rang CAPT Warren's subordinate officer. The language of celebration had changed. No longer was this to be officers celebrating the 'Whitlam Dismissal'. Instead the military and members of the Singleton community went ahead and on that day celebrated 'the passing of supply' i.e. Army wages were to be paid. But CAPT Warren had apparently broken the rules of a military sub-culture i.e. the 'rules of their game'. He had spoken up to a senior officer, albeit not his Commanding Officer at the base, LTCOL Corboy. In Warren's mind it was a minor incident. But the Singleton incident began a process which eventually saw the entire might of Australia's military chain of command from Generals through Brigadiers, Colonels and Lt Colonels force termination of MAJ Warren's officer career. In 1993, an Administrative Appeals Tribunal (AAT) said:
"..this case is in many ways a tragic one as it concerns the destruction of a career."[10]
On 10 February 1981 MAJGEN D S Baldwin, the then Chief of Personnel-Army gave notice to MAJ A K Warren to 'Show Cause Why Your Appointment Should Not Be Terminated'. He accused MAJ Warren of failing to attain the standards of competence and professionalism expected of an officer of his rank and experience. Baldwin's evidence for his charges against Warren, under s16 Defence Act 1903, were four confidential reports and five letters of warning directed to him over the period 1978-1980. MAJ Warren was forced to resign effective 7 July 1981.
On 10 May 1995 Mr Gary Punch, Minister for Defence Science and Personnel wrote to Mr Warren. In part it reads:
"The delivery of the Notice to Show Cause dated 10 February 1981 to you amounted to unfair Defence administration because the Notice alleged that you had failed to reach standards of competence and professionalism expected of an officer of your rank and experience and that this was demonstrated by confidential reports and by letters when the documents said to demonstrate the allegations did not do so."
This was the same legal point that had been raised by MAJ Warren in his reply in defence to the charges against him in 1981, yet ignored by the then Director of Army Legal Services, Brigadier I Ewing.
So what happened to the rule of law for 16 years between 1981 and 1996? From 1981 to date at least 9 ministerial investigations and decisions - allegedly objective and thorough and at all times, allegedly adhering to the letter of the law, failed to detect one iota of improper conduct or improper administration by Army to bring about Warren's career termination. Who or what still controls the repetitive vicious circles entwining the military and government officials against the individual? How and why were these vicious circles able to work their way through the hierarchy of a military environment taking on more power as they moved to the legal arm of the military and its generals undetected 1978 to 1981?
Warren has received a ministerial apology from both the Keating and Howard Governments. But there has been no redress of wrongs. There has been no enforcement of the rule of law by the government in a case where its military officers continue to violate the individual. Successive ministers and their generals have allowed vicious sub-cultures in military leadership to take over from the rule of law. This is in defiance of their paramount duty to ensure preservation of public trust and confidence with which they exercise their power in government.
In the recognised 'strong' state of Australia, the military holds a special place. In many ways it is a closed institution. It is a place where the demands of the discipline for war and adherence to the rule of law tend to dominate the everyday vertical dimensions of its behaviour. "This can be so easily translated into a moral environment where the perceived demands of the institution and its good name outweighs the rights of the individual."[11] But there are other 'rules' that have no allegiance to the recognised rule of law. These are the sub-cultural rules of mateship and careerism. These 'rules' are often volatile to the whims of the most ruthless and powerful of individuals within the sub-culture. Evidence in the MAJ Warren case would show how these unwritten 'rules' or codes of behaviour were more powerful than military law and repeatedly would be used to pervert, subvert and breach that law. Evidence would also show how sub-cultures would prostitute and undermine the integrity and professionalism of the officer corps. Yet they would be protected by the Generals in routine procedures within the military. Later they would be protected by the military in its dealings with government ministers and the then Governor-General, Mr Bill Hayden and defended by them before independent legal institutions of the state. In one respect the details of MAJ Warren's case are secondary to the extraordinary fact that several times these ministers had investigated and made improper decisions against him. They repeatedly and defiantly failed to identify even one incident of unfair administration by Army despite their having ample evidence of its habitual maladministration until this was exposed by the Administrative Appeals Tribunal (AAT) in 1993.
At that celebration in the Singleton officers' mess everybody was silent about 'The Dismissal'. LTCOL Corboy had lost face. Another incidence of difference separated Warren and Corboy. LTCOL Corboy removed CAPT Warren as Treasurer of the mess at Singleton on the grounds of bad bookkeeping. Warren was able to prove the complaint was baseless.[12] LTCOL Corboy's own subordinate officers were responsible for exposing his false allegations against CAPT Warren. Corboy's bad judgement or malice or both on the bookkeeping was cause for his embarrassment amongst his subordinate officers. Corboy refused to acknowledge or correct his wrong action against Warren and directed him to make representation to COL Deighton. He did so. As for CAPT Warren it was a not a major incident and commented upon it as such to his Commanding Officer, COL Deighton. This was approximately one month prior to COL Deighton writing his 1975 report on him. But Corboy was to appear in the demise of Warren military career from hereon in. With effect 1978 he was Warren's corps officer career manager under Head of Corps, Royal Australian Corps of Transport (RACT), COL Blyth. And the pattern of unbelievably petty incidents in the management of Warren's career towards its destruction would also continue.
LTCOL Corboy had been part of the Royal Australian Army Service Corps (RAASC). He had colleagues, MAJ Jacombs, LTCOL Gillespie, LTCOL Christopherson, LTCOL Gough, LTCOL Emmet, COL Blyth and COL Deighton. They had all worked together in the now defunct RAASC. Each had been transferred into the Royal Australian Corps of Transport (RACT). Each in turn either directly or indirectly through the chain of command would have contact with MAJ Warren.
Warren had originally served in the Royal Australian Engineers (RAE). When the army was reorganised in the early 1970s, he too was moved to the Royal Australian Corps of Transport (RACT) in June 1973. His expertise at that time was in movement control and water transport. He was not daunted by having to learn an entirely new system. He had a strong belief in the military and was ambitious for himself in it. He had his sights set on Staff College. Entry to this college was upon selection and this would be dependent upon annual confidential reports made by his commanding officers through the chain-of-command. Up until 1975 they had been good reports. The 1975 annual confidential report on CAPT Warren had been done by COL Deighton. It T-Scored 23 (see Annexure 1). This was a bad score and positioned him at the bottom of the bottom 1% of 1,700 peer group Captains. COL Deighton was also LTCOL Gillespie's commanding officer. The latter was to become Warren's commanding officer in 1977-78. Only then did Warren again begin to get devastingly low T-Scores.
The first signs that events at Singleton 11 November, 1975 would have any repercussions came a few months later when he reported to Holsworthy Army Base, NSW as second-in-command of the 1st Road Transport Squadron. At morning tea, on his first day in the unit, CAPT Warren's Officer Commanding MAJ Jacombs told him "I know about the incident at Singleton, but you've got nothing to worry about from me because I'm a Labor Party supporter." He then suggested a "trade-off". By neglect Jacombs had caused his Squadron's stores accounting system to fail an external Army audit. He was concerned that this bad audit report might jeopardise any further promotion in the Army. He suggested that CAPT Warren fix up the Squadron's accounts in return for giving him a 'good' report. Warren told MAJ Jacombs that he would work to correct the bookkeeping, as was now his job, without the need for coercion. At the next audit the Squadron got a good report. The significance of this event though was that LTCOL Corboy's colleagues knew about CAPT Warren and the 'Dismissal' incident before his arrival at Holsworthy Army Base.
A year later Warren was posted as a temporary Major under command of LTCOL Gillespie at Victoria Barracks, Sydney. As was customary, Warren made a pre-posting courtesy visit in December 1976 to meet with Gillespie. In that meeting Gillespie said that he did not like Warren and that he did not want him in his Transport Group. He also stated that he had tried to have his posting cancelled. MAJ Warren did not know LTCOL Gillespie having only met him once 18 months previously. But Gillespie was a colleague of LTCOL Corboy and MAJ Jacombs. All three officers were ex-Service Corps. In 1993 in sworn evidence to the AAT Warren repeated Gillespie's initial diatribe against him. Army was represented and could have cross-examined him. The AAT notes:
"No evidence in rebuttal was adduced by the Respondent (the Department of Defence) consequently the Tribunal accepts that the incident ...did occur."[13]
Warren vividly recalls that when he pressed Gillespie for an explanation for his overt hatred Gillespie said, "I have it up here," pointing to his shoulder rank and added "I don't explain myself to you." When pressed further Gillespie referred to the incidence of Warren and Jacomb's first meeting in January 1976. That is, Gilliespie was telling him that he too was aware of Warren's objections to the party celebrating Whitlam's dismissal in the Singleton officers' mess. A working relationship between these two men was established on these negative grounds throughout 1977-1978. But it was Gillespie's confidential reports on Warren during this period that began the destruction of Warren's career and reputation.
Department of Defence-Army knew that LTCOL Gillespie abused subordinates but apparently chose to do nothing about it. In Tribunal evidence MAJGEN Carter wrote:
"It appears that Lt Col Gillespie was severe on all his officers when writing confidential reports. Though Lt Col Gillespie's manner may have been aggressive and confrontational and his report writing severe, it does not necessarily follow that his reports on Mr Warren are untirely untrue."[14]
In Army, officers are subject to annual reviews by their commanding officers. The reviews comment on a range of aptitudes like appearance, judgement, and paperwork. They give an overall opinion section which rates officers from 'not want him' through 'take a chance on him', 'happy to have him to 'fight to get him'. The confidential reports are them sent up the chain of command for comment. Officers of the same worn rank are graded on a statistically based distribution of T-Scores given to the reviewing officer's ratings. These T-Scores mark the reviewed officer's performance relative to other officers. As COL Hall from Director of Psychology-Army (DPSYCH-Army) documents in evidence to a 1994 ministerial investigation state:
"The T-Score provides, at a glance, a measure of how any particular officer is performing relative to all other officers of the same worn rank. The T-Score does not accurately reflect how well an officer is performing in his current appointment and is not use for this purpose."
Certainly the T-Score is not intended to be used for punitive purposes. Yet in Major Warren's case there is clear evidence it was. In routine procedures of the rule of law these T-Scores were used by the Military Secretary BRIG Hooper's Second in Command, to support Hooper's termination of MAJ Warren's career. After 1981 they were used by the government to justify that decision. In 1993 the then Acting Chief of the General Staff, MAJGEN Carter again used them before the AAT as evidence of Warren's guilt of unprofessionalism and incompetence.
Within the military confidential reports carry with them the individual's right to sight, sign and reply to the report so made. In a civil society this rule of law provides the individual with a degree of autonomy to penetrate and routinely challenge the institution. This is meant to protect the rights of the individual. As early as December 1978 Warren was denied this right. That denial continued on two separate occasions in 1980 and was recognised in 1993 by the AAT as breaches in military law AMR 769 and 765(ii).
One of the problems with the system is that reports flow up the chain of command often without being questioned. A bad review can damage promotion and career prospects or ultimately be used to bring about dismissal.
In 1996 Hugh Smith, a lecturer in the Department of Politics, Defence Force Academy, Canberra explained to "The Age" journalist Laura Tingle:
"It is hard to disagree with a bad report when it goes up the chain to a superior. I don't know how different it is now to 20 years ago but unless the person at the top of the chain has some knowledge of the individual being reported on ... the determining factor in assessing the report will be the fact you've probably appointed the person doing the reporting. Therefore it must be a good appointment and the judgements therefore universal.
It's true that in the reporting system, and it's still like this, if a person gets one bad report in their career it tends to stick with them."[15]
Yet no superior officer in the chain of command is entitled to refrain from asking questions by way of clarification or explanation on such a report if there is any suspicions of the improbity of the report. No superior officer is entitled to adopt a position of such wilful ignorance. This is an abuse of power which destroys the integrity of public office. Alternatively, "what is condoned is an organisational pathology or culture with no proper regard for the binding obligation of ethical standards"[16] or adherence to the rule of law. This can and has happened in the Army officer performance appraisal system. Yet, under Australian Military Regulation 203 and Army Act Section 27, a person knowingly making false accusations or false statements affecting the character of a member is liable.
It was Warren's reports from 1977 to 1980 and how they were manipulated by his commanding officers and their superiors to devastating effect that form the backbone of the breakdown in routine procedures of the rule of law. This breakdown in procedures was encoded in part, in the language used by higher ranking officers to comment on MAJ Warren. Yet at no time in the history of this case has there ever been any substantive evidence brought forward either then or now in support of the damning images so created by those in the chain of command. Army's facts and evidence against Warren have been exposed to be of such triviality it served only to highlight the intense improbity of the senior officers involved. Furthermore, since 1981 Army has produced volumes of legal writing in its attempts to cover-up "old-boy" corruption as well as ineptness of a high order by ministers.
Warren's negative reports had the support of the Psychology Corps based statistic called the Mil Sec T-Score. In September 1996 an independent university analysis of the statistical legitimacy of the confidential report and the T-Score system was published.[17] It found the Army performance appraisal system to be a mixture of hocus pocus, ignorance and arrant nonsense. It concluded it to be a system of dubious value for anything. It demonstrated how the statistics in this system are bastardised and how the flow-on effect of this bastardisation could be expected to continue over a number of years.
"If an officer is badly graded because of personality clashes with rating officers, then the flow on effects can be quite marked over a number of years. Such an officer will have a bad "odour" (give a dog a bad name) and will have negative effects in assessment conferences and so on. On the other hand, an officer may receive high gradings, and this "halo" effect could last for a substantial time. Neither may represent the reality of the officer's performance."[18]
This was an analysis of the same facts and evidence Army had always had in its control and that which had been given to a ministerial investigation done by LTCOL B Salmon QC, in 1994. It found Army's Report and T-Score system valid. But in 1996 it was done by a university outside the portfolio control of the responsible Minister for Defence. It found this Army system to be a management sham. Yet this was the same confidential reporting system that had been responsible for the promotion of those officers in the chain of command over MAJ Warren. It was the same report system that put his immediate commanding officers in positions of trust to use their power for acceptable reasons and not to breach that trust thereby lowering the standards of integrity of the profession of arms.
In 1993 the AAT hearing requested expert representation on the T-Score system. The Acting Chief of the General Staff, MAJGEN Carter, an artillery mathematician in his own right, chose to present himself as that expert. In sworn evidence before the AAT he went to extraordinary lengths to use and defend the T-Score system. He used it as graphic evidence of MAJ Warren's unprofessionalism and incompetence. He used it to support the damning written assertions on Warren's confidential reports 1978 to 1980 used in routine administrative procedures deliberately designed to bring about termination of MAJ Warren's career. He argued that it justified the Military Secretary, BRIG Hooper's 'Notice to Show Case' charges against MAJ Warren. Warren subsequently obtained copies of Army T-Score policy documents which belied Carter's use of T-Score evidence to the Tribunal.
In February 1981 MAJ Warren was called upon to show cause why his appointment as an officer in the military forces should not be terminated. He was accused of failing to attain the standards of professionalism and competence expected of his worn rank. Failure to provide an adequate reply was dismissal.
In Warren's annual confidential report for June 30 1976, his commanding officer, MAJ Jacomb's opinion was 'happy to have'. He recommended Warren attend Staff College and be promoted to Major. Statistically this report was bastardised by the flow-on effect of the 1975 COL Deighton report. The 1974 T-Score was 50. It slumped to 23 in 1975 after the officers' mess 'bookkeeping incident' at Singleton army base involving LTCOL Corboy. Yet extraordinary in 1975 CAPT Warren was 12 months further into his same job as Officer Commanding Singleton Transport Unit. In 1974 Warren's commanding officer had described him as "an above average officer" and gave an overall opinion "prefer to most". In 1975 COL Deighton's report positioned Warren at the bottom of the bottom 1% of approximately 4,500 comparative reports on all officers.
Only four months after Warren had gone to work for him, Gillespie's report in April 1977 was merely prepared to 'take a chance on him'. When Salmon QC came to examine this report events in 1994 on behalf on the minister, Gary Punch, he noted that "this was the only report between 1970 and 1980 in which Warren did not receive an assessment of 'readily accepted" or 'gets on quite well'.
The T-Score given to Warren for 1976 was 43 but in Gillespie's first report in 1977, it slumped to 22. In stark contrast to MAJ Jacombs' 1976 report, Gilliespie's report positioned Warren in the bottom of the bottom 1% of reports on approximately 1,400 Majors.
Eight months later, Gillespie changed his mind about Warren. In his December 1977 report he now said he was 'happy to have him'. He recommended him for promotion and attendance at Staff College. Up the command chain, Warren's Acting Head of Corps, COL Riley, said the report was 'an average report on an average officer".
The AAT remarked:
"In the light of later comments regarding (Warren) it must be noted that as of December 31 1977 he was described as an average officer who had received an average report and whose Commanding officer was 'happy to have him'."[19]
The December 1977 report T-Scored 34.
But ten months later Gillespie, on the day after his own retirement, had once again lowered his opinion of Warren - cutting his score in an October 1978 report to 27 and saying that he was only prepared to 'take a chance on him'. This was the third successive report done by LTCOL Gillespie on MAJ Warren. Statistically it still carried the bastardised flow-on effect from COL Deighton's 1975 report which would have been aggravated by the added flow-on effect of LTCOL Gillespie's previous two reports.
One of the reasons Gillespie commented unfavourable on Warren in this report was that Warren had declined, as had over 50% of officers, to join the NSW RACT Association - the Transport Corps' social club. Gillespie was president of that club.
The Administrative Appeals Tribunal was scathing of Gillespie's rating method noting that, amongst other things:
"From the evidence, it would appear that the RACT Association was a voluntary association of persons interested in the RACT. There was no evidence adduced to suggest that membership of the association was in any way other than membership of a social organisation. I was certainly not necessary for professional development."[20]
When the report was passed on the now Head of Corps, COL Blyth, he remarked on 28 February 1979 that Warren had an "indifferent reporting history although on occasions he has performed reasonable (sic) effectively". COL Blyth was to make negative inputs on Warren's next three confidential reports.
LTCOL Gillespie's October 1978 report - which largely marked Warren down on the basis that he had failed to join a social club - would eventually be quoted as central evidence in the case to end Warrens military career on the charges of unprofessionalism and incompetence.
The 1978 report was to become the first mentioned in the Section 16 Defence Act, 'Notice to Show Cause' that was eventually raised by the Military Secretary, BRIG Hooper on Warren. An officer is given a 'Notice to Show Cause' why his/her commission should not be terminated. His/her reply is then accepted or not after legal examination by the Department Army Legal Services (DALS) and then the Attorney-General on behalf of the Governor-General.
Yet the bizarre thing was that in the commentary section of LTCOL Gillespie's October 1978 report Warren was marked at near the middle of the range on each of the ten attributes on which an officer was scored, but in the T-Score section got a mark which put him in the lowest 1% of officers of the worn rank of Major.
Salmon QC wrote:
"He is criticised by his (commanding officer) for not joining the Corps Association, for being overprotective of his staff, for his dress and manner, showing a lack of dedication and for occasionally debating directions. His approach and attitude is criticised by senior reporting officer. It is noteworthy that no example of actual incompetence is mentioned"[21]
In January 1979 MAJ Warren was moved to Melbourne as a staff officer in charge of operations at the Army's Victorian transport headquarters.
However, instead of being put in the job to which he had been appointed, in charge of operations, he was put in the administration job and was told by his new commanding officer, LTCOL Christopherson that he had "come to his attention because of Gillespie's poor reports and that a (special ) confidential report had to be written on him in May of that year". Warren had a "negative image" and his T-Scores under commanding officers COL Deighton and LTCOL Gillespie evidenced this. The next three confidential reports would be written by LTCOLs Christopherson and Emmet. They too would score bad T-Scores that allegedly evidenced MAJ Warren's incompetence.
In the meantime LTCOL Corboy had corps transferred from the Ordinance Corps (RAAOC) to the Transport Corps (RACT) and had moved from Singleton, NSW to Army Headquarters, Canberra. In 1975 he had been the Commanding Officer of the Singleton Base Officers' Mess. But by 1978 he had moved to Canberra to be the RACT officer career manager on the Corps Headquarters. He worked directly under the RACT Corps Director, COL Blyth. He consulted directly with the Military Secretary, BRIG Hooper on officer career matters. He had full access to the history of confidential reports on all RACT officers and was responsible for the management of their careers. In 1980 he was replaced by LTCOL Gough. All three officers, Corboy, Blyth and Gough were ex-RAASC.
Salmon QC noted that on 9 January 1979, there was a comment on a memorandum from the Assistant Military Secretary which indicated that Warren's transfer to Melbourne was unwelcome.
"..The memorandum on which this appears is date "9/1". It commences "Check LtCol Corboy for the story GOC..."[22]
The memorandum concluded that D'MOV'T (COL Blyth) warned that an adverse report was necessary before a warning could be directed at Warren.
In 1994 Salmon QC observed that the wording of the memo indicated senior officers were already planning to get Warren out of the Army.
On 28 February 1979 COL Blyth wrote on Warren's report file:
"The Special Report....May 1979...should...determine other MS (Mil Sec) action required."
The above memo from the Assistant Military Secretary "suggests...that elements of the Directorate were of the opinion that some action concerning Warren was justified". Salmon argued:
"In the Special Confidential Report of May 1979, given five months after Warren had come to work for him, his new commanding officer, LTCOL Christopherson wrote:
"Major Warren is an intelligent officer who has the ability to perform well. However, his ability is obscuredto some extent by his inclination to be very critical of what he sees as shortcomings in the system and by a lack of perception of the effect of his manner on those who work with him...." "[23]
Christopherson said he would "take a chance on him". He recommended "promotion, command of troops and attendance at Staff College". This appraisal by Christopherson also would later be cited as central evidence against Warren. The report T-Scored 26 and placed Warren in the bottom 1% of his peer group. It also carried with it the bastardised flow-on effect of LTCOL Gillespie's three previous reports.
Once again there were no example of incompetence given in the report. Up the chain of command further comment was added. On 24 July 1979 COL Blyth wrote on the report: "It appears to me that Warren's basic problem remains one of attitude not of ability'.
He added that he had "an almost obstreperous personality". This was the second time Blyth, without knowing MAJ Warren made a negative comment on his report .
Warren later told the QC conducting a ministerial inquiry into his case, Mr Ben J Salmon that he could not understand how COL Blyth could have formed any personal view about him as the two men only met very briefly once during a coffee break in lectures at the RACT Centre at Puckapunyal in 1979. But COL Blyth had been with LTCOLs Gillespie and Corboy in the ex-Service Corps.
Despite the negative remarks on the 1979 report the Military Secretary, BRIG Hooper acknowledged to Warren, after reviewing it that there had been an improvement in his performance. He categorised this report as "average" and stated that it was better than all three previous reports written by LTCOL Gillespie. He told Warren:
"Your ability is not in question though to some extent your attitude is. You still need to demonstrate that your interests coincide with the interests of the Army."
The alleged "attitude" problem was not described. No examples were given. This letter from BRIG Hooper would later be cited by him as evidence of Warren's incompetence and unprofessionalism.
In 1993 MAJGEN Carter, Acting Chief of the General Staff in sworn evidence before the AAT defended the use of the 1979 report and BRIG Hooper's letter as evidence of Warren's incompetence and unprofessionalism.
In 1980 Christopherson now a Colonel, turned on Warren. In January he gave LTCOL Emmet an unflattering brief on MAJ Warren. He then made input into Warren's June 1980 confidential report which would evidence a substantive shift from his May 1979 opinion. Christopherson came into Warren's performance appraisal and effectively overrode favourable decisions made by Warren's then immediate commanding officer LTCOL Emmet. Christopherson's negative inputs were outside routine procedure but were approved by MAJGEN Gration. In early August 1980, COL Christopherson ordered MAJ Warren to investigate a subject that he had fabricated. Christopherson refused to give Warren any information on the subject or reveal its source. Warren had 5 hours to complete his report. Warren could find no evidence to support COL Christopherson's claim and in a three page brief reported so. The next day LTCOL Emmet told Warren that COL Christopherson's subject did not exist and not to bother about it. COL Christopherson then used this incident to attack Warren's competency and to raise the recommendation in the June 1980 report that Warren's appointment be terminated. COL Christopherson would become the first officer responsible for opinioning that MAJ Warren's services in the Army should be terminated. But Christopherson's behaviour followed an incidence involving a 'Living Out Allowance' (LOA) from May through to November 1979. The processes involved in this incident would bring LTCOL Christopherson into conflict with BRIG Kendall and later both in conflict with MAJ Warren. So poorly handled was this incident by LTCOL Christopherson and BRIG Kendall that the AAT went to elaborate length on it in their final report.[24]
BRIG Kendall had been living in a prestigious street in South Yarra overlooking Melbourne's Botanical Gardens. As was his right, his rent was subsidised from Army budget covering 'Temporary Accommodation Allowance (TAA) However Kendall's choice of accommodation demanded an exorbitant rent. His TAA did not cover this cost leaving a gap between his subsidy and the market rent. At the discretion of the Deputy Regional Secretary additional public monies were paid to BRIG Kendall to meet the shortfall on his South Yarra accommodation. The question as to whether or not he exceeded his authority to do this is not clear. This matter was not raised in AAT hearing. But this was at the time of budgetary restraint in TAA payments within BRIG Kendall's Command. The impact of this restraint caused by overspending on married member's TAA was to be met by denying single service personnel of their right to an accommodation subsidy i.e. LOA. BRIG Kendall's Command was also overspending LOA and had been warned of this by Army Office in 1978. But Kendall had failed to curb expenditure for units under his command in 1978 and 1979. This was not the case by other commanding officers in Victoria, such as LTCOL Christopherson who had approved LOA for MAJ Warren in 1979.
At this time MAJ Warren was in receipt of LOA. The Deputy Regional Secretary acting on direction of BRIG Kendall's Headquarters, abused his power to cease payment of LOA to MAJ Warren. Warren sought a 'Redress of Wrongs' against the cessation of this allowance. This cessation had been done on fabricated reasons. He also questioned the power of the Deputy Regional Secretary to make such a decision. This Redress of Wrongs was processed through his commanding officer LTCOL Christopherson. In the process of doing an honest routine investigation of the redress, LTCOL Christopherson was savagely criticised by BRIG Kendall in a formal warning letter of 25 October 1979. He (falsely) accused Christopherson and documented him as an incompetent. At this time LTCOL Christopherson would have known that Kendall would be involved in raising an annual performance appraisal report on him. This would have been a very significant thing in his future promotion through the Army. On receipt of Kendall's reprimand, LTCOL Christopherson in turn threatened MAJ Warren to withdraw his 'Redress of Wrongs'. Instead MAJ Warren raised a second Redress of Wrongs. LTCOL Christopherson and BRIG Kendall then delayed and obstructed it. Warren then appealed on obligatory advice given to him by Christopherson, to the Office of the Defence Force Ombudsman whereupon the redress was buried and ignored for several months. The AAT said:
" The minute of 6 December 1979 quoted in para 85 above shows that there was a distinct intention at HQ 3MD (BRIG Kendall) to divert any question of the role and authority of the DRS (Deputy Regional Secretary.)"[25]
The AAT also ruled that the DRS had exceeded his powers in his cessation of paying of living out allowance to MAJ Warren on Kendall's direction in MAY 1979. The AAT also stated:
" material available which shows that the handling of the Redress of Wrongs by Headquarters 3MD (BRIG Kendall) was undulypedantic and may have been influenced by a desire not to have a definitive ruling regarding the powers of the Deputy Regional Secretary."[26]
The "material" referred to by the AAT were the documents MAJ Flawith, under command of BRIG Hooper, had access to in order to do the serious investigation into MAJ Warren's reply in defence to the charges of unprofessionalism and incompetence 1981. In that reply Warren raised the 'Living Out Allowance' incident involving COL Christopherson and BRIG Kendall. The process of investigation done by MAJ Flawith in response to this issue was flawed in that Flawith did not acknowledge the possible relationship between this incident and BRIG Kendall's biassed attitude towards Warren being passed onto the unit in which he worked. Nor did MAJ Flawith report that his superior officer, BRIG Hooper had handled illegal documents. MAJ Flawith's investigation in effect, had not followed due process. Flawith's investigation was improper. He abused his position in that he failed to act with an independent mind in doing this investigation. In AAT hearing August 1993 MAJGEN Carter under cross-examination by Tribunal members stated there was no need for Army (Flawith and Hooper) to examine Warren's reply in defence as he had clearly refused to admit to the charges against him, hence he could not be rehabilitated.
At the end of 1979 Christopherson had been promoted to a RACT job in Headquarters Logistic Command under the then MAJGEN Peter Gration. This position meant Christopherson was administratively no longer in the chain of command over Warren, though he had control over technical matters to do with the Corps. At the same time LTCOL Emmet replaced LTCOL Christopherson as MAJ Warren's commanding officer. Warren was then put into the job he was supposed to get a year earlier in charge of transport and movement operations. Emmet knew about the redress involving the Office of the Defence Force Ombudsman and made reference to it as recorded in a minute to file dated 20 February 1980. In that minute he also referenced a discussion about Warren to his ex-Service Corps colleague, LTCOL Gough. Gough had now replaced LTCOL Corboy in the Transport Corps Directorate, Canberra as the Corps Officers' Career Manager. Now LTCOL Gough was directly under COL Blyth, Head of Corps. The AAT said:
"It is difficult to understand why reference to the Applicant's Redress of Wrongs (by Emmet in 1980) and his referral to the Ombudsman should have been mentioned at this time unless the very fact of the redress had created animosity at Headquarters 3MD (i.e. BRIG Kendall) which had been passed on to the unit. It is difficult to escape the conclusion that amongst other things, the Applicant was, as a result of redress against the Deputy Regional Secretary, getting a reputation as a malcontent who wished to challenge "the system".[27]
In March 1980 LTCOL Gough interviewed Warren. In that interview Warren expressed concern about the unfair treatment of him and its connection with the 1975 LTCOL Corboy 'Dismissal' incident and 1977 LTCOL Gillespie incident. LTCOL Gough recorded disparaging comments on his record against Warren and failed to minute Warren's reference to LTCOL Corboy in his documents of that interview. Instead he falsely recorded complaints about a LTCOL O'Neill. Warren had no knowledge of such a person at this time.
Soon after taking command of the unit in January 1980, Emmet ordered Warren to draft a confidential report on himself. Documents later revealed that Emmet had already been 'warned' about Warren. He had already received an 'unflattering brief' from COL Christopherson on him and he had been briefed about the LOA Redress of Wrongs.
Warren was to later report that Emmet had "expressed his frustration to me in that he felt he "inherited the situation". It was Emmet who had produced the damning 1980 report and warning letters needed to destroy Warren's reputation and career. In 1992 Emmet wrote to the Department of Defence seeking total financial support in the event of any legal action. In that correspondence he gratuitously recalled events surrounding Warren's career termination "it was the most disgusting affair in his entire army career" and that he "had been handed the poison chalice". But he continued to actively participate in it. In 1993 preliminary AAT hearing the Australian Government Solicitors successfully moved to stop the AAT considering this letter as evidence in Warren's forthcoming hearing. They had good reason. In it was an implied admission of guilt by Emmet. In it was also Emmet's vulgar attempts 12 years on, to fabricate new and unsubstantiated accusations against Warren. It would seem that Emmet was aware that his 1980 accusations were to be undone. This would reveal Emmet's state of mind and his knowledge of the improbity of his 1980 conduct.
As Warren's commanding officer, LTCOL Emmet knew he had to have substantive evidence to adversely report on him. In the absence of any such evidence from January to May 1980 Emmet resorted to fabricating criticisms to raise a severe reprimand on Warren. He damned his performance as Operations Officer, being the key positions on LTCOL Emmet's Headquarters. Emmet threatened Warren in his 15 May 1980 letter that:
'Unless there is marked improvement in your performance between now and June it is my intention NOT to recommend your substantive promotion to major and indicate my overall opinion is 'not want him'.
Later, he secretly and illegally processed this letter into the reporting system for superior reporting officers to act on. It too would eventually be quoted as central evidence in the case to end Warren's military career on the charges of unprofessionalism and incompetence. In 1993 the AAT said the May 1980 letter was in breach of AMR 769. Yet BRIG Hooper used this illegal and dishonest document as his reason to raise a letter of 15 October 1980 to Warren threatening termination. But in it he had deceitfully and misleadingly wrote to Warren that it was the Emmet June 1980 report that was justification for his threat. Hooper was now active in the process deliberately designed to improperly and unfairly threaten Warren with termination of his career. He was also active to conceal his use of an illegal report and letters provided to him by LTCOL Emmet through LTCOL Gough with effect from 30 September 1980.
From May to December 1980, in spite of efforts made, Emmet failed to get any evidence to justify continued criticism of Warren. This was particularly poignant from 26 September and again on 6 October onwards as his superiors, namely COL Blyth and MAJGEN Gration respectively, had directed him to gather and document such evidence.
However, Emmet did keep a secret file on Warren from January to December 1980. He did not destroy the contents of this file but passed them up the chain of command together with his December 1980 report. Included in this file was a copy of his second severe reprimand letter against Warren of 3 October 1980. This was the reprimand he never passed to Warren. Yet is was marked 'Personal for Major Warren'. Also on his file was a copy of his draft covering letter to COL Christopherson of December 1980 in which he warned Christopherson that no senior officer in the corps could write an unbiassed report on Warren at this time.
This chain of events seems to have escalated in a bizarre fashion.
Yet despite his dire warning of 15 May, LTCOL Emmet's June 1980 annual confidential report on Warren was hardly a negative one. It said Warren took a 'normal amount of interest in his work'; was 'as quick to grasp a point as most of his fellow officers'; could 'generally be relied upon had a thorough grasp of knowledge relevant to his duties'; wrote 'quite a good paper'; got on 'quite well with his colleagues' and ' his subordinates work quite well for him'.
The negatives were that he was 'apt to be overconcerned with detail; had difficulty communicating ideas and while paying some regard to appearance 'tends to be careless'.
Overall, Emmet said he would 'take a change on him' and recommended that Warren be promoted. This was the third report that would be cited as central evidence by BRIG Hooper as proof of Warren's alleged gross incompetence and unprofessionalism. But again no examples of Warren's alleged bad attitudes or incompetence were given either by Emmet or superior reporting officers. Yet the T-Score 19 [28] on it had to be consistent with an officer whose incompetence would have been of the highest order.
But first the report was transmitted through the chain of command to BRIG Kendall against whom MAJ Warren's LOA Redress of Wrongs application was still been sat on by the Office of the Defence Force Ombudsman. He commented on Warren's report:
"Major Warren apparently has the outlook of a hippie. He sees his duties as an Army officer quite differently to 98 per cent of other Army officers"
The AAT ruled that BRIG Kendall's input on the report was "totally improper"[29] and commented:
"No explanation was given at the time to justify these remarks and none was forthcoming at the hearing of this matter. It is a condemnation of the Army reporting system that such pejorative remarks can be made without a requirement to justify them."[30]
At the AAT hearing, the Army did not call Kendall to explain his comments. The AAT judged the comments as
"more a condemnation of the officer making them than the officer the subject of the remarks".[31]
The report was next passed to GEN Gration, who according to the AAT evidence
"did not know (Warren), (and therefore) requested the senior (Transport Corps) officer (in the military district) to report and thus COL Christopherson was able to make his input into the report".[32]
That input was entirely unfavourable to (Warren). In particular he downgraded LTCOL Emmet's comment under the Overall Opinion to 'not want' and added the following rider:
"..I do not believe that this reporting history justified the retention of this officer in the service. I would be happy to see him posted out of the ...transport and movements organisation.
COL Christopherson's input downgraded LTCOL Emmet's T-Score 19 to a score of 2.
In 1994 Salmon QC stated:
"(Emmet's) comment was downgraded by COL Christopherson to the comment "MAJ Warren's negative and belligerent attitude has an unsettling effect on subordinates". COL Christopherson downgraded the overall opinion to "not want". This downgrading of the report is hard to fathom. LTCOL Emmet was Warren's immediate supervisor, his opinion concerning Warren's management of subordinates, could not be changed by COL Christopherson in any reliable way unless there was an explanation establishing why Christopherson's opinion should be preferred to that of the CO."[33]
There were further negative remarks added at the Corps Directorate which highlighted the vicious circle now closing on MAJ Warren. The language used would continue to support the negative word images already created on him by those in the chain of command.
The Head of Corps, COL Blyth, wrote:
" ..His reputation in Corps circles is so poor that he would not to my view receive a terribly objective assessment...(Emmet) says that Warren's presence in the unit for more than another week or ten days will be positively damaging..."
The AAT said of COLs Christopherson and Blyth:
"...whereas these officers were quite prepared to make damming assertions regarding (Warren), not one scintilla of evidence was then, or now, producedto justify the extravagant use of language adopted by them."[34]
A linguistic analysis report [35] of the remarks made on MAJ Warren's confidential reports would reveal a commonality in phrasing and repetition of word items used by those in the chain of command making damning assertions against him. Yet at no time had MAJ Warren worked with some of these superior reporting officers. Nor were his commanding officers legally entitled to know the contents of previous confidential reports. But the similarly of their word usage to criticise Warren gave evidence of their improbity or conspiracy or both. This evidence was always available for ministerial investigation. Warren had presented it as evidence to both the AAT and the Department of Defence. Conversely the manufactured evidence and opinions against Warren have never been substantiated nor honestly investigated by the responsible minister(s). If substantive evidence had existed it would have been readily available and Warren's alleged incompetence in transport and movement operations would have been immediate and blatant. Under Warren's control no such failures occurred. Furthermore in 1980 LTCOL Emmet had the management option of moving Warren laterally from the key operations position he held in the unit. This option was never executed either by Emmet or any others in the chain of command.
What made the damning reports on MAJ Warren and their foreshadowing of the end of his career even more extraordinary were the way they contrasted with other reports being written on him at exactly the same time.
In July 1980, Warren attended a Field Officer's Tactics Course (TAC3). Contrary to the reports being generated on Warren by his own Corps superiors, his reports from the course instructors were quite good. It read:
"Major Warren worked well throughout the course. His work was generally well prepared and his application to the course was pleasing. He displayed a sound knowledge of the organisations, roles and characteristics of the arms and services and his understanding of the principles involved ensured that he benefited from the course. His ability to apply the principles in a logical manner generally led him to produce satisfactory solutions to tactical and administrative problems.He showed that he was able to logically and clearly explain his solutions and his argument were generally well-structured and sound."
At the 1993 AAT hearings, the Tribunal found that the Acting Chief of General Staff, MAJGEN Carter, "attempted to downplay these comments and suggested that somehow they condemned with faint praise".
The Tribunal responded that it:
"does not accept that rationalisation and regards the course report as saying what it means.
"If the plain words of the report are accepted then it can be classified as a good one and in compete contrast to the June 1980 report...being raised by (Warren's) superior officers in RACT'.[36]
In 1994 Salmon QC examined the TACT 3 report and also found it to be a good report. MAJGEN Carter stood alone in his attempt to convince the world that the TAC 3 Report condemned Warren and was evidence of his incompetence.
On 24 September 1980 the Military Secretary, BRIG Hooper gave consideration to use the June 1980 report to call upon Warren to 'Show Cause Why Your Appointment Should Not be Terminated' from the service. But first he consulted with the Director of Army Legal Service, BRIG Ewing. The latter raised the question why an alternative course should not be taken of simply reverting Warren's rank to Captain as he had only held the rank of Major temporarily.
The army failed to explain why it did not pursue this alternative in subsequent AAT hearings, prompting the Tribunal to ask why:
"If, as claimed, (Warren) was failing to attain the standards of competence of an officer of the worn rank of Major, surely the correct procedure would be to have reverted (him) to his substantive rank of Captain and judge his performance in that rank."[37]
But in the Transport Corps, Warren's superiors were trying to expedite the end of his career By not taking up this option it left open routine administrative procedures deliberately designed to bring about issue of the 'Notice to Show Cause' and dismissal from army. The evidence is at least consistent with the conclusion that the process was being directed to achieve an objective by somebody or somebodies to 'get rid' of Warren. If that conclusion were not to be drawn then those in the chain of command were demonstrating a high level of incompetence in the handling of this matter.
On 25 September 1980 COL Blyth acted to criticise both COL Christopherson and LTCOL Emmet. He wrote on the June 1980 report that he was annoyed to see that they both had recommended Warren be promoted. He wrote:
"In my view we should dispose with (Warren's) services forthwith....I suggest that further information should be obtained on Warren's performance."
On 26 September 1980 LTCOL Emmet wrote to the Military District Commander, BRIG Kendall claiming Warren's performance had deteriorated and that he considered him a "negative asset". He requested BRIG Kendall to ask BRIG Hooper to withdraw his June 1980 report recommendation of promotion and substitute 'Not Recommend'. He included with this letter to Kendall his illegal reprimand on Warren dated 15 May 1980. In his covering letter to Kendall, Emmet claimed Warren's performance had deteriorated and that he considered him a "negative asset". A copy of these letters were received by BRIG Hooper by 30 September 1980. The originals went to MAJGEN Gration for action. A minute written by BRIG Hooper on 30 September 1980 revealed his own action:
"I spoke to COL Christopherson and LTCOL Gough today...I was given unofficial copies of 2 letters (from LTCOL Emmet) - the originals are with (MAJGEN Gration) for action. I believe these letters then warning from (MAJGEN Gration) would be sufficient to call for report as at Dec'80. I told Christopherson to pass the report date to Warren's CO (LTCOL Emmet)"[38]
Emmet had three strong motives for acting against Warren by passing his 15 May 1980 letter into the report system to BRIG Hooper. Firstly, COL Blyth was annoyed with his June 1980 report recommendation to promote Warren. Secondly, Blyth had on the previous day (25 September) told him to gather further information on Warren. Thirdly, Emmet must have been intimated by COL Christopherson's savage downgrading of his June 1980 report appraisals on Warren. This had challenged Emmet's competency in command. It appears that LTCOL Emmet had no regard at all for the integrity of power or the rule of law in public administration. In secret from Warren he illegally passed his 15 May letter into the report system under cover of his letter 26 September 1980. In it he requested BRIG Kendall ask BRIG Hooper to use his 15 May 1980 'Not Recommend Promotion' opinion and substitute this for his June 1980 confidential report opinion 'Recommend Promotion'. This in itself was totally improper and illegal. Emmet was attempting to substitute a report recommendation from a previous reporting period into a subsequent reporting period (i.e. post June 1980) after communications with his superior, COL Blyth. By these actions Emmet had demonstrated to his superiors his promptness in giving them the information they wanted, that is to say the evidence to bring about Warren's dismissal from the
Army. Emmet also sent a copy of these letters to LTCOL Gough at RACT Corps Headquarters Canberra. under cover of note in which he stated:
"Dear Derek,
I hope the enclosed papers provide sufficient background for the system now to take appropriate action (to terminate Warren)."[39]
At this point in time Emmet must have focused on his own position in what was becoming a very improper and disgusting matter. Compliance with his superiors explicit or implicit wishes would be prudent for him. Emmet's actions against Warren are best described as repugnant. His actions were totally destructive of the necessary confidence between a superior and a subordinate. It involved a conflict between Emmet's private interests and his public duty of integrity in the exercise of power. On 25 September 1980 Emmet in secret from Warren told COL Blyth that Warren's presence in his unit for more than one week or ten days would be positively damaging. There could be no more a serious accusation by a commanding officer against his key subordinate officer than this one. Again he provided no evidence. Instead he merely made the accusation.
BRIG Kendall - under whom Warren had never worked but had previously written he had the attitude of a hippie wrote to MAJGEN Gration on 29 September 1980:
"I believe the time has come when the Army make a decision on whether MAJ Warren's continued service is in the best interests of the service. My own experience and what I have read of others, indicates it is not. I suggest that (General Gration) recommends to (the Chief of Army Personnel) that Major Warren be asked to show cause why his appointment in the (Australian Regular Army) should not be terminated and that if he fails to do so, then his appointment be terminated early in January 1981.."[40]
There is often a wilful and perverse refusal to acknowledge official maladministration out of self-interest. 'Old-boy' networks and bureaucracy sub-cultures require subservience and connivance as a demonstration of loyalty. This is demanded irrespective of how repugnant official improbity becomes and how much the integrity of public office is compromised by it. And it can be said that this everyday conduct of public administration is in the hands of the executive arm of government at the direction of the responsible minister. This is exemplified by the several ministerial decisions on the Warren case 1981-1994. Ministers claimed that there was no unfair or improper administration against him and at all time this administration was strictly in accordance with the letter of the law.
When LTCOL Salmon QC came to examine the records of the aforementioned events in December 1994 he reported:
"Examining the records in 1994, and taking into account everything I have learned during my investigation, it is quite impossible to find any deliberately unfair or improper behaviour by those involved in the events."[41]
On 29 September 1980 BRIG Kendall wrote to MAJGEN Gration. He wrote that he would "be prepared to employ Major Warren at HQ 3MD on a project where his performance could be monitored regularly rather than in his current job under Emmet. This suggestion would have put MAJ Warren close to Kendall whose decision he had indirectly sought Redress of Wrongs against in the 1979 'Living Out Allowance' incident. This matter, since October 1979 was being sat on by the Office of the Defence Force Ombudsman. It is also peculiar that Kendall saw LTCOL Emmet to be less capable to monitor Warren's work performance given the gravity of the situation Warren was in.But Gration wrote back on October 6 1980 urging caution:
"The course of action you propose is not appropriate at this time ..and Major Warren is to remain in his present appointment for the time being."[42]
Gration told Kendall that Warren's commanding officer, LTCOL Emmet was to submit a further confidential report on him in December.
Gration wrote:
"Further action will be considered on receipt of this Report"
But BRIG Hooper had an agenda that was different to MAJGEN Gration's directive. Despite Gration's warning that Warren should be left where he was, two weeks later on October 21 Warren was given a letter from the Military Secretary in Canberra, BRIG Hooper, written on 15 October 1980 which said that
"successive reporting officers have indicated that your performance suffers through your attitude. ...If no sustainable improvement in your performance is evident I shall recommend to the chief of personnel that he ask you to show cause why your commission should not be terminated."
There are ample facts and evidence to support the improper if not corrupt conduct of the Military Secretary, BRIG Hooper. He acted contrary to the facts and evidence he had on record to issue a letter of 15 October 1980 threatening termination of Warren's career. BRIG Hooper used LTCOL Emmet's June 1980 confidential report, which had recommended 'promotion'. He accepted COL Christopherson's bizarre changes to Emmet's report without question. He accepted Emmet's letter of the 15 May 1980 which had been activated into the reporting system in breach of AMR 769. He accepted without question COL Blyth's notation of 26 Sept on the June 1980 report that Emmet had told him, without substantiation that Warren's presence in the unit for more than a week or ten days would be positively damaging. He accepted without question Blyth's notated annoyance with Emmet's recommendation for Warren's 'promotion' on the June report. Hooper ignored his own officers' records within the Military Secretariat whose appraisal of Warren's October 1978 report as "was not that bad". Hooper ignored his own letter to Warren of 23 August 1979 referring to improvement in his performance and noted by the Military Secretariat 11 November
1979. Hooper ignored MAJGEN Baldwin's letter to Warren of 30 January 1980 which acknowledged improvement in performance. Hooper ignored LTCOL Christopherson's 1979 report which recommended promotion and recorded further improvement in Warren's performance. Hooper ignored the July 1980 Field Officers' Tactics Course (TAC 3) good performance report on Warren. Hooper ignored his legal adviser BRIG Ewing. Instead he threatened MAJ Warren in his 15 October 1980 letter with termination of his career because LTCOL Emmet's
"June 1980 report is cause for concern over your future Army employment and career."
The AAT itself found Emmet's June 1980 report to be "average." MAJGEN Carter, Acting Chief of the General Staff gave written and sworn evidence to the AAT that Emmet's report "it is neither a good report nor bad report". Yet this report which recommended promotion was to be cited by BRIG Hooper as central evidence to terminate MAJ Warren's career.
In July 1995 Warren was made aware that BRIG Hooper (Ret'd) effective 15 November 1985, is a non-presidential member of the AAT. He was in the same place at the same time as his letter of the 15 October 1980 was examined by the AAT(i.e. Sydney, August 1993). Warren wrote to the Attorney-General, Minister for Defence and the Prime Minister raising concerns about this circumstance and its possible influence on the AAT decision not to annotate this crucial letter. All have remained silent.
In December 1980 Emmet prepared a confidential report on Warren and curiously sent a draft of the report, along with a proposed covering letter to Christopherson. In arriving at his second evaluation Emmet was at the least most probably influenced by an expectation he believed was held by his superiors and not by a wholly independent evaluation of MAJ Warren as would be his Commonwealth Law duty and routine procedure. The report was to T-Score 2.
Once again, Christopherson had no official role in the line of command which should have been determining Warren's future, and it is worth noting that General Gration did not subsequently invite him to have any role in assessing the December report.
In the covering December letter to COL Christopherson, Emmet stated:
"..I consider that by failing to post Maj Warren away from an area in which, as instanced a history of poor reports, he has performed unsatisfactorily the Army has not given him a real change to vindicate himself. I believe it is important that this officer be given a final chance to redeem himself. I do not believe that he will do this in a Corps position where his tract record is too well known."
Two and one half months earlier In September 1980, LTCOL Emmet had promptly and unquestionably acted together with his superiors to use illegal and manufactured evidence to irrevocably destroy Warren's reputation. This December 1980 draft covering letter is the first evidence that Emmet had had enough. It would seem he was sickened by his own role among this group of officers who were acting to destroy Warren's reputation and military career. In effect Emmet had written to COL Christopherson that neither he nor any other senior officer in the corps was now in a position to write an honest and objective report on Warren. The report system was too compromised. It was relying on illegal documents and indefensible opinions. Emmet then went ahead and raised the December 1980 confidential report without one scintilla of evidence to support his damning performance appraisal. This was in spite of the fact that MAJGEN Gration had ordered him to document any evidence against Warren to support the report criticisms of him. COL Blyth had done likewise on 25 September 1980. Emmet had no evidence. But he knew that his superiors wanted a bad report on Warren. Emmet would have well understood that the ethical requirements for proper conduct by him and by Army had been compromised for improper conduct and motives.
It is important to note that Emmet kept a copy of his draft covering December letter to Christopherson on his secret file on Warren. No doubt he was fully aware of his collusion in improper conduct to destroy Warren's career. By keeping a copy of his draft letter to Christopherson his involvement would be lessened as he had sought advice from a superior officer in the process. If needed he could claim his loyalty to the hierarchical system as distinct from conspiracy or collusion with superiors in the chain of command. In the same vein it was prudent that Warren's self-report was missing from his secret file. His vicious criticisms of Warren's modest self-report could not withstand investigation because those criticisms lacked substantive facts and evidence. But Warren's self-report was the basis on which Emmet justified his severe reprimand of 15 May 1980 to him. Warren suspected Emmet's direction to do a self-report was again attempting to 'set him up'. Emmet had already done this once before.[43] Consequently the self-report that Warren did was marked at the middle of the range on all attributes as had Gillespie had done in 1977 and approximated those at near the middle given to him by Christopherson in 1979. Yet Emmet savaged this self-report only to then one month later give Warren a similar appraisal in his June 1980 confidential report.
The AAT argued that:
"the proposed covering (December) letter by Emmet would have postponed the inevitable decision as to whether (Warren) was to stay or go. Whether he received further advice from COL Christopherson cannot be ascertained. Suffice it to say that the actual covering letter forwarded by LTCOL Emmet with the final report did not contain the passages quoted above."[44]
Warren was to later write when fighting to keep his career that:
"prior to writing the December 1980 report LTCOL Emmet advised me that he had to consult with "his superiors". I assume he meant BRIG Kendall or COL Christopherson or both. After I received the December report,....Emmet told me that he had formally advised BRIG Kendall, amongst other things, that he believed that my confidential report was as much a reflection on the reporting officers as the officer being reported on. My assessment of these statements is that LTCOL Emmet wanted to absolve himself to me of any individual responsibility for the writing of the December report."
Emmet's overall opinion of Warren in the December 1980 report was that 'did not want him', even though he had increased Warren's marks in some areas. He said Warren's 'technical knowledge is good but overall knowledge of the Army at large is poor." The AAT highlighted the contrast between this last remark and the report from the TAC 3 training course which recorded him as having a sound knowledge of the organisations roles and characteristics of the arms and services. Emmet's December 1980 report T-Scored 2. It equated the June report as downgraded by COL Christopherson. Warren now had two consecutive confidential reports T-Score 2.
MAJGEN Gration's input on the December 1980 report read:
"I have no reason to disagree with (Kendall's) comments. I believe Warren is not suited to the Army and recommend that he should be asked to show cause why his commission should not be terminated."
In February 1981, MAJ Warren was called upon to show cause why his appointment as an officer in the military forces should not be terminated. Failure to provide an adequate reply was dismissal. In preparation of his reply in defence to the "Notice to Show Cause", Major Warren did not have access to most of the records BRIG Hooper had accumulated on him. He certainly did not know of the existence of the Emmet secret file that had been passed up to the Military Secretary, BRIG Hooper. Between 1984 to 1993 and under FOI legislation Warren fought for and obtained most of these records. He found in them:
* negative comments made on confidential reports without his right to reply to them;
* illegal reprimand report raised in secret by his commanding officer, LTCOL Emmet in October 1980 in breach of AMR;
* record of LTCOL Emmet's verbal report to Head of Corps (COL Blyth) of 25 Sept 1980, alleging a total collapse in MAJ Warren's performance and conduct and
* missing was the self report document given by Warren to Emmet and used by Emmet to dishonestly and falsely damn Warren in his illegal 15 May 1980 letter.
In his March 1981 reply in defence to the 'Notice to Show Cause', without access to his complete Army records, Warren asserted that he was "worthy and competent to hold field rank and that my attitudes and abilities are consistent with those expected of a professional army officer." Warren then gave 22 pages of detailed facts and reasons to support his defence that there was no evidence to warrant any charges of unprofessionalism and incompetence.
He reported Gillespie's threats over the NSW RACT social club in 1978 and the controversy over the wrongful cessation of his Living Out Allowance by Brig Kendall in 1979.
Despite his formal reply in defence the Chief of Personnel- Army ruled that Warren had not made a case to stop his appointment being terminated. Later, an Army legal document accessed under FOI legislation would reveal that no proper investigation was ever done into his reply to the Notice to Show Cause why his career appointment should not be terminated. This was the Minute of 6.3.81 from BRIG Ewing, Army Legal Services to the Military Secretary, BRIG Hooper. The AAT commented on the "superficiality" of the whole minute. Yet it disposed of Warren's reply to the s16 Defence Act 'Show Cause. MAJGEN Carter said under oath at the AAT hearing in August 1993 that there had been no need for Army (BRIGs Hooper or Ewing) to do an investigation because MAJ Warren had refused to admit to the charges of unprofessional and incompetence and hence could not be rehabilitated. This was a foolish and professionally a hypocritical position for Carter to take. It stood in start contrast to the ferocity and gravity of the charges that had been brought against MAJ Warren. It also gave the lie to years of ministerial decisions and assertions that Warren's case had been thoroughly, objectively and competently investigated by military authorities prior to his resignation. But the politics of vicious circles laid at the heart of MAJGEN Carter's position. Tribunal Member, BRIG I Way (Ret'd) asked MAJGEN Carter was he aware that the Defence Act Section 16 'Notice to Show Cause Why Your Appointment Should Not Be Terminated' was a very serious legal document? MAJGEN Carter replied that he was.
A central question about the investigation duly owed to MAJ Warren and as yet still unanswered, was how could it go so badly wrong? Did it occur by design or was it due to ineptitude of a rather higher order involving the entire military chain of command? Obviously the greater the departure from standard practice the greater is still the need for an explanation 16 years on and after 16 years of improper or inept ministerial investigation and decisions.
Warren was forced to resign in disgrace from the Army on March 24, 1981.
Both the 1993 AAT and the 1994 Salmon QC report declined to find that there has been a conspiracy "that is to say", the AAT said, "any agreement between two or more officers to injure the Applicant by improper means against him:. However
...."it would have been naive to suggest that Lieutenant Colonel Emmet was not fully aware of the attitude of both Kendall and Christopherson towards (Warren) and that those officers thought that the Army would be better off if (Warren) were no longer part of it."[45]
"The Tribunal is concerned that Lieutenant Colonel Emmet does seem to have had changes of opinion regarding Warren with no apparent cause it is a fair inference that he would have been well aware of the attitude of his superiors to Warren."[46]
In 1980 LTCOL Emmet provided for the career management system the damning reports and severe reprimand letters used to destroy Warren's career and reputation. There are ample facts and evidence to support this action as improper or corrupt conduct by him as MAJ Warren's immediate commanding officer. There were a number of circumstances to give evidence to the nature of Emmet's conduct in 1980. He had been directed by the highest level of command, MAJGEN P Gration to document evidence against Warren. Emmet was aware of BRIG Kendall's dislike of Warren and his submission to the Ombudsman against Kendall and the Deputy Regional Secretary. Emmet activated two illegal severe reprimand warnings into the report system on Warren. Both went to BRIG Kendall. Emmet was aware of the purpose of his damning December 1980 report. He sought advice from his ex-RAASC colleague COL Christopherson outside the administrative chain of command. His second performance appraisal on MAJ Warren in December 1980 was done in a moral dilemma of loyalty to his superiors as opposed to integrity to exercise skill and independence as an evaluator free from the influence or expectations of others. In such circumstances the rule of law requires that integrity is and must always be predominant. But Emmet opted for loyalty. The evidence against LTCOL Emmet is that he had both motive and intent to bring about a result which could ultimately lead to MAJ Warren's dismissal. He then acted by way of the 15 December 1980 confidential report to achieve such a result.
There are ample facts and evidence to support the improper if not corrupt conduct of commanding officers 1978 to 1980 through the chain of command who were willing to make damning accusations against MAJ Warren on confidential reports without one scintilla of evidence to support those comments. Not one officer in the chain of command questioned the damning report comments by way of clarification, explanation or substantiation by example and/or evidence. Not one superior officer questioned their handling and use of illegal documents.
There are ample facts and evidence to support the improper if not corrupt conduct of the Military Secretary, BRIG Hooper. He was responsible for acting contrary to the facts and evidence he had on record to issue a letter of 15 October 1980 threatening termination of Warren's career. His action was an abuse of power to achieve a result that was not the purpose of his power to achieve.
There are facts and evidence to show that MAJ Warren was forced to resign without a proper and honest investigation into his reply in defence to the Defence Act, Section 16 'Notice to Show Cause'.
On 10 May 1995 Minister for Science, Defence and Personnel, Mr G Punch wrote to Mr Warren inter alia:
"Once you responded to the Notice to Show Cause, there was unfair Defence administration in failing to consider the submission that the reports and letter said to demonstrate bad performance did not do so....."
In 1994 Salmon QC said that MAJ Warren had been denied natural justice because he had been issued with a Notice to Show Cause without any substantive evidence of his alleged unprofessionalism and incompetence. He labelled it 'unfair administration. Something more powerful than the rule of law had worked the hierarchy of checks and balances with administrative intent to destroy MAJ Warren's career. It was able to subvert and breach those routine procedures deliberately set in place to moderate and restraint the power of the military chain of command acting against the individual. It was able to destroy MAJ Warren's career, livelihood and reputation. It was able to destroy his legal right to have his reply in defence to the Show Cause charges handled fairly.
Since November 1981 to date Mr Warren has sought a proper and honest ministerial investigation into the circumstances surrounding his forced resignation. He looked to the process of a liberal democracy and the Westminster system of ministerial responsibility. Ministers responded asserting that their investigations and decisions against Warren had adhered to the letter of the law and were thorough and an objective examination and review of his case. But nothing is further from the truth. Instead the evidence shows repetitive breakdowns in the workings of due process and investigative procedures within theministerial portfolio system. This ministerial decision-making is the underpining of the very model of government that separates Australia's historical "cultural baggage" from other political orders in the world where the rule of law does not count. Now the Australian government is defiant in its evasion and silence. By their continued silence and inaction ministers and the Prime Minister, have refused to investigate their military generals and the generals have refused to be responsible to their minister(s). Generals have refused to investigate other generals. This is power without responsibility nor accountability in public office. It is certainly the separation of government and themilitary from the state.
In November 1982 Minister of Defence, Mr Ian Sinclair said that Mr Warren's complaints about maladministration had already been investigated by Army authorities. His decision denied Warren's right to reinstatement of his career appointment in the Defence Forces. Thirteen years later in October 1995 he wrote:
'I have no record of that advice and have requested the Department of Defence give me access to the relevant files so that I may review the issue.' (letter 13.10.1995)
Mr Sinclair has since remained silent.
As early as March and July, 1982 Mr B Campbell, Executive Officer, Office of Defence Force Ombudsman damned Warren's professionalism and competence. He exaggerated evidence against Warren and aggrandised Army's competent and methodical administration and its adherence to the letter of the law in handling Warren's case. In 1993 the AAT described his two investigations as a "cut and paste job" of Mil Sec BRIG Hooper's Minute 3.3.81 and DALS BRIG Ewing's Minute 6.3.81.
Again in June 1983, Assistant Military Secretary COL Salom reported to the Minister for Defence, Mr K Beasley that Mr Warren had no ground for complaint. The 1993 AAT hearing said:
"Mr Warren's representations were reviewed but some of those reviews were cursory in that they did not investigate matters afresh but simply adopted the previous minutes regarding (Mr Warren.)"[47]
In July 1983 Minister for Defence, Mr K Beasley said:
"....your were given ample time and sufficient warning to improve your standards of competence and professionalism. As you failed to do this, I regret that it is not possible for you to be reinstated."
In July 1984 then Mil Sec BRIG Lewis repeated Army's previous position that the case of MAJ Warren had been exhaustively reviewed several times. The 1993 AAT found that this was not the case.
In December 1984 Assistant Mil Sec, COL Irvine reported to the Prime Minister, Mr B Hawke that ex-MAJ Warren's representations had been answered comprehensively by competent authority on several previous occasions. Again, nothing is further from the truth.
In December 1985 the Minister Assisting the Prime Minister, Senator Evans decided about all prior investigations:
"...These investigations concluded that there were no grounds for your complaints and the action taken by the Army in your case was thorough and proper at all times."
He repeated this in a second decision in 1986.
In May 1990 and under FOI legislation, Mr Warren attempted to get copies of the re-examination of his case. This request was obstructed by the Senior Executive Officer Defence Central Registry Mr P Hanlin and LTGEN Coates, Chief of the General Staff. This led to the first of three AAT hearings.
Ex-MAJ Warren twiced petitioned the Governor-General, Mr B Hayden. In August 1990 The Governor-General on advice from the Minister for Defence, Mr G Bilney replied to Warren's first petition:
"Mr Warren's case has been carefully and thoroughly examined on a number of occasions and I am satisfied that his claims of victimisation, obstruction and indifference are unsubstantiated. In the circumstances I consider that no further action is warranted."
The Governor-General upheld the charges of unprofessionalism and incompetence against ex-MAJ Warren. This improper investigation and decision at the highest level of state exposed ministerial ineptness of a high order.
In September 1990 Mr Warren again petitioned the Governor-General outlining the improper plagiarism of existing military minutes that constituted the two investigations done by in 1982 by the Defence Force Ombudsman, Mr Campbell. The Governor-General again upheld the 1981 charges against Warren. He further advised Warren to go to the Ombudsman if he was not satisfied with his decision. But in the rule of law the Ombudsman has no power over a Governor-General's decision. Mr Warren's subsequent petitions to the Governor-General were met with avoidance and non-acknowledgement of the unfairness and improbity involved in his previous decision against Warren. In 1993 the AAT said of Campbell's investigation "its a cut and paste job". This was tantamount to improper decision-making by Mr Campbell and it was that which the Governor-General was prepared to uphold.
In November 1990, and under FOI legislation the critical Minute of 6.3.81 from the Director Army Legal Service, BRIG Ewing to Mil Sec BRIG Hooper was finally released to Mr Warren. Prior to this the Department of Defence had denied Mr Warren access to this crucial document in 1984 and again twice in 1990. This was the legal document and a principal report that disposed of MAJ Warren's reply against the s16 Defence Act 'Show Cause'. It was the legal document that forced MAJ Warren to resign in disgrace and is the legal document that caused subsequent obstruction to reasonable investigation in good faith. In making this document BRIG Ewing had failed to consider relevant evidence, considered irrelevant and illegal evidence, failed to exercise duty of care, decided partially and made an unreasonable decision. i.e. BRIG Ewing's decision-making was improper, hence an abuse of his power. The AAT was only prepared to comment on the superficiality of the whole minute. Yet in AAT proceedings, Senior Member Allen made scathing criticism of BRIG Ewing's known propensity for incompetence. But BRIG Ewing more than any other person within the military institution was legally responsible to think and act within the law. He was responsible for upholding the integrity of the rule of law between the institution and the individual.
In May 1991 BRIG Fisher, Director-General Manning-Army violated FOI legislation in two matters relating to Warren's April 1991 application to amend his personal documents held by Army office.
In July 1991 MAJGEN Grey, Deputy Chief of the General Staff reaffirmed BRIG Fisher's improper refusal to amendment Warren's personal files. He refused to provide adequate facts and reasons for his decision as required by law.
In October 1991 Warren's AAT application for access to some of his personal records was unsuccessful. But in September 1992 at a second AAT hearing Warren's application to obtain adequate facts and reasons for the Fisher and Grey's refusals to amend his personal records was successful. The AAT was quite blunt in its decision against both BRIG Fisher and MAJGEN Grey.
In October 1992 in response to the AAT's decision BRIG Fisher refused to amend or note Mr Warren's personal files. He gave 49 pages of facts and reasons plus 31 pages of supporting evidence for the Department of Defence's position. When Warren applied for a review of BRIG Fisher's documents it generated another 28 pages to the existing 80 pages. In January 1993 MAJ GEN Carter, Deputy Chief of the General Staff reviewed BRIG Fisher's documents. He too decided not to amend or note Warren's personal records. He added another 58 pages of facts and reasons. He went into a minutia of detail to support the 1991 improper decisions by BRIG Fisher and MAJGEN Grey.
A third AAT hearing in December 1993 overruled MAJGEN Carter's decision.
What is peculiar about this case is the openness with which Warren has to-date, given ministers the same facts and evidence the military has always had in its control. It took him three exhaustive years and three AAT hearings to get his records and amendments from Army under FOI law. During this time there was a litany of delays, denials, obstructions, allegations of missing files and legal arguments from the highest level of command in the military, including its legal service. No government official involved in decision-making in this case is in a position of being able to use the disclaimer "I didn't know". Certainly no minister can now claim they had been misled by the military authorities. Every submission by Mr Warren in response to attempts by the military generals to avoid investigation into this case, has detailed the abuse and misuse of the rule of law to avoid due process and Redress of Wrongs. It certainly does not support Krygier's statement: "Australians are moderate (italics) both in the use and abuse of power".[48]
In March 1994 Mr Warren made submission to the Minister of Defence, Senator R Ray concerning MAJGEN Carter's sworn testimony to the AAT on the confidential report T-Score system.[49] MAJGEN Carter had come before the 1993 AAT as the Department of Defence-Army's expert on the confidential reporting system. In September 1994, on the eve of his own retirement, LTGEN Grey, Chief of the General Staff under direction from junior Defence Minister, Mr G Punch appointed LTCOL Salmon QC to do an investigation into the circumstances surrounding MAJ Warren's forced resignation. But this was to be an internal investigation done by Army on itself. LTCOL Grey however, refused to investigate MAJGEN Carter's misleading evidence before the AAT.
In interview with Mr Warren in November 1994 Salmon QC asked him to put aside the two plagiarised investigations done by the Office of the Defence Force Ombudsman in 1982. He was told to forget his concerns over the T-Score system used in evidence against Warren in procedures leading to his career termination. LTCOL Salmon QC gave his report to MAJGEN Grey in December 1994.[50] It was released to Mr Warren in May 1995. The report acknowledged evidence of unfair Defence administration deliberately designed to bring about Warren career termination. It's findings were 'soft' on Army as opposed to the more serious findings of improper and/or corrupt administration used to achieve this purpose. The report made recommendation that Warren be given under 'Act of Grace' a payment of $20,000 being one year's of a major's net salary as at 1981 plus interest plus $4,500 for loss of reputation.
But the question of the integrity of the confidential report system T-Score had been avoided in Salmon QC's report. As part of the process of investigation Salmon QC had been delivered from COL Hall, Director of Psychology - Army policy documents and explanatory papers on the T-Score system used to rank and grade the officer corps. Warren warned him to not to accept the documents and gave reason. Instead Salmon accepted these DPSYCH-A materials.
On 3 April 1995 Warren made further submission to the Prime Minister, Mr Keating against the T-Score system as given in evidence to LTCOL Salmon.[51] This time he was using those same policy materials that Salmon had accessed from DPSYCH-A. Those documents gave the procedures for determination of the Mil Sec T-Score. The Prime Minister and the Department of Defence went silent.
On 28 June 1995 Warren made to both the Prime Minister, Mr P Keating and the Leader of the Opposition Mr J Howard submission in response to the Salmon QC report.[52] Copies were also distributed to selected Members of Parliament and to the Governor General. That submission identified inherent weaknesses in the Army's Salmon QC's investigation report into its own improbity and corruption.
In September 1996 an independent university analysis of the ratings, ranking and T-Score system of the confidential reports used by Army was published in the Defence Force Journal.[53] That paper has undone the integrity and statistical legitimacy of the confidential reporting system used in the officer corps of the Australian Army past and present. Yet it was used by the administrative structures of the Australian Defence Force to terminate MAJ Warren's officer career appointment. It was later used by the government and the military to justify that termination.
Prior to publication of this damning university analysis of the T-Score system Mr Warren, in March 1996 wrote to the Minister Mr I. McLachlan requesting inquiry into the misleading and improper evidence presented by the Director of Psychology-Army to the 1993 AAT hearing.[54] The Minister has remained silent.
In June 1996 adviser to the Minister of Defence, Science and Personnel sent, without consultation an 'Act of Grace' cheque $64,738 as 'compensation for the unfair administrative action', together with statement:
"...I consider the matter to be concluded and I am pleased that the matter has been resolved in your favour."(Borgu Aldo Senior Adviser letter 30.6.96)
In July 1996 Warren wrote in response to the Minister's attempts to close down the case. He wrote:
"For sixteen years I have sought redress of wrongs through the responsible minister. For sixteen years ministers have repeatedly made bad and improper decisions against me. They have done this in defiance of their own relevant facts and evidence. This has serviced to protect corrupt senior military officers. For sixteen years I have been denied an honest and objective ministerial investigation into the circumstances of my forced resignation in disgrace. The lengths to which the generals have gone to avoid this has involved the entire might of the Department of Defence deliberately and corruptly against one falsely dishonoured officer."
In August 1996 Mr Warren provided the Minister with substantive facts and evidence of past procedures used by both the Office of the Military Secretary and Army Office to avoid proper investigation into his case.
In December 1996 LTCOL Reynolds, Head of the Army's 1st Psychological Research Unit, publicly responded to the damning university analysis of the confidential report system and its statistical methodology.[55] Whilst he defended its design he admitted the Mil Sec T-Score is to be discontinued in its present form and that each T-Score from each year will stand on its own. This means that the bastardising flow-on effect used against MAJ Warren in administrative procedures deliberately designed to bring about his career termination in 1981 and defended by officials both in the military and government since 1981 to date will no longer exist. It has taken from 11 March 1994 to December 1996 for the Department of Defence-Army to make recommendations to act on the warnings and concerns about its T-Score confidential report system as raised by currently serving officers and by ex-MAJ Warren in his submissions to the government against MAJGEN Carter's testimony before the 1993 AAT and the Salmon QC ministerial investigation 1994. However LTCOL Reynolds' suggested changes to the military confidential reporting system still leaves unaddressed the right of individuals to sight, sign and make representation against exaggerated and non-substantiated comments made by superior reporting officers on his/her performance appraisal. This still remains power unchannelled and unrestrained in the military against the individual. The confidential reporting system will still be open to abuse and will still be corruption prone.
In December 1996 the minister embraced the Salmon QC report and wrote that the case is closed. The minister absurdly considers the case closed without Redress of Wrongs to Mr Warren. This is the uncivilising behaviour of vicious circles that Krygier warns us about. Whatever his faults Warren did not deserve any punishment no matter how mild it was. What he got from ministers 1981 to date is a continuation of the ferocity with which his career, livelihood and reputation were destroyed together with 16 years of anxiety and anger.
To date ex-MAJ Warren has not been able to successfully penetrate those infrastructures of government designed to restrain and moderate the power and authority of key officials against the individual. What he has exposed is tyrannies of silence and connivance by the government to render those very structures impotent. This case, particularly since July 1981 to date has demonstrated how government can act in defiance of the very facts and evidence it has always had in its control. Such repetitive violations of its infrastructural strength, its rule of law in a purportedly civil society, such as Australia, cannot successfully provide security for ordinary people, by substituting the "uncivilising rules" of sub-cultures within government departments that over-ride lawful administration. At the least it violates the ordinary person's notion of "intuitive law".
There is repetitive evidence of a virulent political culture, un-Australian, undemocratic, that is flourishing because key public officials have in place laws made deliberately weak, allowing them to escape accountability and responsibility. There is an unwillingness of Members of Parliament to impose adequate standards of accountability amongst themselves and an unwillingness to adequately investigate each other, assumably out of fear that they themselves one day maybe the subject of scrutiny. This has been blatantly evidenced in Mr Warren's case. This failure in the rule of law within the government has the potential to make Australia a spectacle of oppression rather than democracy.
History teaches that civil unrest and collapse of 'the state' are principally born from excessive bureaucratic maladministration and from the consequential injustices they cause. Citizens are always at risk from bureaucratic treachery. They are dependent upon that virtuous circle of mutual trust entwining key officials with their societal well-being. Ordinary Australians striving to be part of the 'clever country' expect those officials not to betray their endeavours, even if the latter out of fear or indifference to improper and/or corrupt government behaviour, are unwilling to be part of it. For key officials to take from its citizens for their own gratification and greed not only separates them from these citizens but betrays the worthiness of those same citizens. A key official who betrays his/her office may be cunning but that is not clever!
So what is happening to Krygier's model of "virtuous circles" and the consequences of a "thickly institutionalised" civil society? What happened to its "infrastructural strength"? Why have "vicious circles" been more powerful in Warren's case to date? What have been the important revelations from it for Australia's civil society?
Firstly, vicious circles exist within government institutions. They assume the appearance of the rule of law. There are ample facts and evidence in this case to show how sub-cultures working the infrastructural strength of these institutions allow loyalties to over-ride legal integrity in public duty.
Secondly, vicious circles exploit and betray the "thickly institutionalized" structure of society. Working within the rule of law they use public resources to maintain legal procedures but at the same time avoid the spirit and intent of the rule of law. Part of their tactics is the ability to delay, obstruct, omit, deny and promote legal argument. And all this is done within the appearance of normal operations of the rule of law. When such abuses reoccur it will in all probability always point to the dominance of vicious circles in control of the institutions of the state.
Thirdly, vicious circles use routine procedures within the rule of law, and so provide opportunity for those involved in the initial violations of the "rules of the game", to distance themselves from the event. The effect is certainly to destroy any notion of equity. It also destroys the security of the checks and balances of hierarchical decision-making by which government justifies its use of power over society.
Fourthly, vicious circles can penetrate the wider society, rendering people unconnected simply because of the ever present threat of defamation laws in civil action. Identities are further protected because the cost of action against wrong-doing by the government against the individual through the judicial process is too prohibitive for ordinary citizens.
Fifthly, these vicious circles become less restrained and less moderate but more powerful as they systematically embrace elected government officials of either political persuasion, including the Head of State, and render them silent one by one. By such action legal doctrine is silence as law loses integrity. The rule of might correspondingly takes control from the rule of law. Ultimately in these circumstances Ministers of the Crown compromise and adjust their consciences and refuse to accept their public responsibility. They are reduced to being mere opportunists allowing their private interests to dominate public affairs.
Sixthly, vicious circles can penetrate the independence of legal institutions in their adjudication to be other than what they legally could be. Such discretionary judgement serves to protect the status quo.
History is tormented by people having to rebel against bad government only to replace it with bad governments. A solution is available and has always been there - expose corrupt officials and make ministers accountable. Let no elected Member of Parliament, or other key public official, think that he/she can manipulate the public's trust or abuse the rule of law so as to betray the community. Integrity is and must be safeguarded by the rule of law else society loses its freedoms and civility.
The rule of law, that which Krygier's model claims is the infrastructural strength of a strong state becomes impotent because of the tyrannies of silence and connivance. These distinctly vicious circles are so powerful they are able to go undetected and undisciplined. They are able work the "thickly institutionalised" fabric of society for their own purpose to avoid accountability. It makes for an uncivil society under the pretext of civility protected by the rule of law. Krygier would argue so the need for 'eternal vigilance'. Warren would argue he has been 'eternally vigilant', in fact for the last 16 years. The state provided access for the individual to act, with political autonomy within the rule of law, to routinely challenge its institutions, of which government and the military are part. This is the essence of the redress of wrongs system of law. In pursuit of that redress the very rule of law has turned into vicious circles entwining both the government and the military against the individual. Tocqueville would argue it all comes with the 'tyranny of public indifference'. But, perhaps any consequent changes to the military's confidential reporting system will be towards civility within that institution. After the Warren case it would only be fair to the officer corps. But Warren still does not have his owed Redress of Wrongs.
[1] Krygier, Martin 'Virtuous Circles: Antipodean Reflections on Power, Institutions and Civl Society, in Eastern Europe and elsewhere' in Eastern European Politics and Societies Vol 11 No 1 1997 (forthcoming).
[2] ibid. p2.
[3] ibid. p5.
[4] ibid. p11.
[5] Krygier, Martin, 'Sources of Civil Society' Quadrant November 1996 p31.
[6] Neal David quoted in Krygier M op. cit p16.
[7] Rousseau, Jean-Jacques The Social Contract and Discourses Everyman's Library Revised and augumented by J H Brunmfitt and Hohn C Hall University of St Andrews reprinted 1990.
[8] Krygier op. cit. page 14 after Petrazycki
[9] ibid p29
[10] AAT No92/621 para 4 p3.
[11] Tingle, Laura, 'Military Justice?', October 1996, an article on Major Warren's case.
[12] In my third month as Treasurer my books were internally audited by a captain from 22 Supply Battalion. He was pleased with the result and with the shortness of time required to do his audit. The books balanced perfectly, except for one surplus discrepancy of approximately $5. We checked the records. Within 15 minutes the auditor found a bank interest credit on a bank statement for the exact amount.
Shortly afterwards, Regimental Auditors, two captains from 22 Supply Battalion, also audited the Officers' Mess accounts. They found numerous erros in the messing account. I believe these related to living-out officer's payments for lunches etc. They also found two errors in my Treasuer's account. I had incorrectly paid a Singleton supplier $8+/- for frozen lobster fingers that rightly should have been paid for by 22 Supply Bn itself. I had also incorrectly debited approximately $12 (?) against 'messing' instead of 'bar' for a food item (be it biscuits, chips or cheese?)
LTCOL Corboy dismissed me as Treasurer. He wrote directly to COL DCJ Deighton, being my CO in Sydney, that his auditors had discovered my accounts to be in chaos and these Treasurer's accounts had to be virtually rewritten.
Major B Burgess, the Mess President, gave a copy of Corboy's letter to me and told me if I intended to make representation against it then do so directly to COL Deighton. LTCOL Corboy's treatment of me was unstable and arbitary. He refused to discuss the matter with me. Hence I was obliged to make representation against him.
In my representation I reported to COL Deighton on my two accounting errors and on the numerous messing account errors. Military Board Instructions were specific on responsibility for messing accounts. The Messing Member (a Captain Palmer, 22 Supply Battalion at the time) was responsible for their correctness. The Mess President (Major Burgess, 21C 22 Supply Bn, at the time) was responsible personally to internally audit the Mess accounts. Major Burgess had carried out no internal checks of these accounts for the period concerned (or on any other periord to my knowledge on seeing the books). In my representation to COL Deighton I referenced the Military Board instruction to the precise sub-paragraphs concerned but I did not specifically name Major Burgess as being responsible.
Contrary to LTCOL Corboy's false and discrediting accusations against me his auditors took approximately 20 minutes to correct the messing account errors. There was no rewriting of the Treasurer accounts.
At the bottom of my represenation to COL Deighton the two Regimental Auditors signed their names over their name and appointment block with certification that they had read and agreed with my accounting observations as reported to COL Deighton. I gave a copy of this letter to Major Burgess. LTCOL Corboy still refused to see or speak to me about the issue. His subordinate captains were shocked by his treatment of me". in Salmon B QC 'Report of Investigating Officer into Allegations of Mr AK Warren' Army File A94-21544(1) No692-1-1 in affadavit p1-3
[13] AAT No92/621 para 7 p.7
[14] AAT 1993 Tribunal evidence T273 p859 para 4
[15] Tingle Laura Journalist 'The Age', unpublished paper October 1996 on ex-Major Warren's case.
[16] O'Keefe B Justice 'Report on the Public Employment office Evaluation of the Postion of Director-General, Department of Community Service' Independent Commission Against Corruption November 1996
[17] MacLean D. Dr. "An Analysis of a Rating System for Ranking purposes: Did This Really Happen to Officers in the ADF?" Defence Force Journal No120 Sept/Oct 1996 p21-28
[18] op.cit. p26
[19] AAT N92/621 para 13 p.5
[20] ibid para 16 p.6
[21] Salmon B QC 'Report of Investigating Officer into Allegations of Mr A Warren Minute A194-221544 Army File 692-1-1 para 18 p.3
[22] AAT 1993 evidence document T44 p.182
[23] Salmon B QC ibid para 9 p.3
[24] AAT N92/621 paras 71-105 p25-37
[25] AAT N92/621 para p
[26] AAT N92/621 para 100 p36
[27] AAT N92/621 p12 para35
[28] Neither the June report nor the December report were officially T-Scored until 1994 for ministerial investigation by Salmon QC.
[29] AAT N92/621 para 114 p.39
[30] ibid para 40 p.14
[31] ibid para 40 p.14
[32] ibid para 41 p.15
[33] Salmon B QC 'Report of Investigating Officer into Allegations of Mr A. K Warren' A94-21544(1) Australian Army Minute 1 May, 1995 p.6-7
[34] AAT N92/621 para 43 p.15
[35] AAT 1993 hearing Exhibit A
[36] AAT N92/621 para 45 p.16
[37] op cit para 48 p.17
[38] AAT 1993 hearing T97 p281
[39] AAT 1993 hearing T93 p278
[40] AAT 1993 Exhibit A p.48
[41] Salmon B QC op.cit para 48 p9
[42] AAT 1993 Exhibit A p.50
[43] 28.6.95 'Submission in Response to the Salmon Report and a Chroncile of Failure in Ministerial Responsbility 1981 Onwards'.
para 13. Lt Col Emmet's first directive to Major Warren in early 1980 was indicative of his deliberate intent of malice and deceit towards him. He ordered Warren to write a complex Standing Operational Procedure (SOP) for cargo movement for sub-units within Victoria. Emmet had previously been a transport unit commander in Victoria then a senior staff officer on HQ Logistics Command. Both these appointments plus others would have taught him that the Army's Manual of Movement Control (Volumes 1 and 11) was the Army's SOP for the movements system. He dismissed Warren's advice that this system was a national one. It required standardised procedures in all States of Australia and changes to this system were made, authorised and published by HQ Logistics Command (or Army Office). Thus Emmet's order to Warren was deliberately malevolent. Alternatively, Emmet given his background, experience and rank did not understand the basis of movement policy.
para.14. Three weeks after ordering Warren to write the cargo SOP Lt Col Emmet criticised his non-completion of it. Emmet then flaunted at Warren a lengthy draft cargo SOP. He claimed his new subordinate sub-unit commander (Major Peter Denham) had written it for him. Emmet stated the Denham's SOP was of the standard Warren ought to have completed by then. Warren's subsequent inquiries revealed the alleged Denham SOP was in fact a draft new chapter for cargo movement for the Army's Manual of Movement Control. Major Denham had spent the previous twelve months at HQ Logistics Command writing this draft chapter. It had been rejected as unworthy for inclusion in the Army's Manual. Emmet's behaviour was one of misrepresentation with intent at a time when Warren was very busy meeting day-to-day operational demands made upon the Headquarters.
para. 15. Obviously Emmet did not intend Warren write a SOP for him. He was deliberate in his intention to stage a situation to evidence and document criticism of Warren's competency. And he did so by referencing to it as a 'service paper' in his illegal letter of 15 May 1980. In October 1992 the then Mil Sec, Brig Fisher invited Emmet to comment on this incident. On 14 October 1992 Emmet replied that he could not refute Warren's claim as he could not vividly recall events which may or may not have happened 12 years ago.
[44] AAT N92/621 para 60 p.22
[45] ibid para 109 p.38
[46] ibid para 110 p.38
[47] ibid para 168 p.52
[48] Krygier M 'Virtuous Circles' op.cit.p7
[49] Submission to the Minister for Defence by Ex-Major Warren 11 March 1994 and Submission to the Prime Minister by ex MAJ Warren 3 April 1995
[50] Salmon B QC 'Report of Investigating Officer into Allegations of Mr A K Warren A94-21544(1) Army File 692-1-1 1 May 1995
[51] Submission to the Prime Minsiter by ex-Major A K Warren 3 April 1995
[52] Submission in Response to the Salon Report and a Chroncile of Failure in Ministerial Responsbility 1981 Onwards.
[53] MacLean Dough op.cit.
[54] Request and Reasons for Inquiry into Misleading and Improper Evidence Presented by Director of Psychology-Army (DPSYCH-A) to Tribunal and Minsiterial Investigation and Redress of Wrongs by Ex-Major A K Warren
[55] Reynolds N. 'Letters to the Editor' Australian Defence Force Journal no121 Nov/Dec 1996 p3