DEFENCE SUB-COMMITTEE SUBMISSIONS
Inquiry into Military Justice Procedures in the Australian Defence Force, Volume 1, Submission Numbers 1-10, Canberra, March 1998
This is one of a number of documents concerning ex-Major Allan K
Warren.
Go to index page for all Warren documents.
This material is located on
Suppression of dissent website
in the section on Documents
CONTENTS
Case Study to Exemplify Deficiences in Existing Legislation on MBCI and DFD
The Implementation and Scrutiny of MBCI and DFD Legislation
Recommendations and Conclusion
Annexure 1 - Military Justice - Legislation, Procedures and Principles
This submission reasons that the existing legislative framework and procedures are adequate and appropriate for the conduct of MBCI and DFD. However this principle is qualified and additional legislation is recommended.
Existing legislation does impose comprehensive, specific and closed obligations on the military command in virtually all aspects pertaining to laws and procedures of MBCI and DFD. It makes clear the "how to do it". A major weakness in the existing legislation is the selective lack of accountability in its implementation. Therefore, existing methods of control over MBCI and DFD by senior military officers must be questioned.
Military boards and courts of inquiry have seriously been brought into question as being unskilful, impotent and incongruous in fulfilling the requirements of the existing legislation and the customs of the service. They have also been exposed as being financially irresponsible and wasteful.
There is powerful evidence of repetitive breakdowns in distinct Australian military law discipline cases. This is despite past assurances by responsible ministers that the military has been brought under control and now understands its responsibilities. Whilst the relevant legislation is sound and consistent these case discrepancies, based mainly on partiality and ill-will, brings distrust to the law and to military leadership. The most important issue raised in this submission, with case example, is the failure of relevant MBCI and DFD law, both in substance and procedure, to arrest endemic military corruption that makes this legislation selectively inoperable.
Existing legislation deliberately provides a competent legal framework that leaves service officers in no doubt as to what is expected from them. Good MBCI and DFD laws and procedures do not need to be altered but nonetheless will fail if senior officers and their portfolio responsible ministers act dysfunctionally. If parliamentarians rely on merely making changes to the MBCI and DFD legislation to solve transparent military leadership failures, improbities and omissions then the existing notorious problems will not be solved.
The existing relevant laws and procedures:
* are well tried and tested
* provide and allow conformity and regularity of procedures to assist competency and integrity.
* have and can produce credible and creditable results
* allow many different service officers, regardless of personalities, experience and prejudice, to make rational and standard decisions consistent with the spirit and intention of current laws, procedures and policies
* allow officers to solve MBCI and DFD problems and make correct decisions within the legal and moral confines of due process and proper value judgments.
It is the function and responsibility of military leadership to provide the checks and balances, the supervision and guidance to ensure MBCI and DFD law and administration produces sound and repetitive good judgments and decisions.
The case study considered in this submission and the positive points to be extracted from it, provide to this Joint Standing Committee opportunity to make a beneficial and long standing contribution to MBCI and DFD laws and procedures. It identifies the current main problems to be:
* senior military officers have a clear recalcitrant and improper intent not to make the existing MBCI and DFD legislation work in particular cases involving:
i) the misuse of power and maladministration
ii) omissions or incompetence by selective officers; or
iii) when the collective reputation or culture of the officer corps is questioned.
* low standards of professionalism and integrity by senior military officers who hold key appointments in the implementation of MBCI and DFD. Their implementation has been and is both discriminating and partial.
* improper, if not corrupt conduct by senior legal officers in their overseeing of the administration of law and justice within the military.
* fraud, deceit and misrepresentation by senior military officers in their dealings with and accountability to their portfolio responsible minister(s).
* failure by military officers to perform their duties on MBCI and DFD matters contrary to adequate levels of training and resources.
* endemic military leadership corruption that makes the existing MBCI and DFD laws and procedures selectively inoperable.
Generally, Australian military discipline cases are conducted with scrupulous fairness and competency. However, there is powerful evidence of repetitive breakdowns in distinct cases. In some cases senior military officers corrupt Commonwealth Law in acts of malice, enmity, prejudice or criminality. But honest scrutiny can identify and arrest any such occurrence.
The case of Major AK Warren is a compelling one. It identifies the limitations and weaknesses of the existing legislation. When the case evidence is examined it reveals that the existing legislation is of less blame than the methods of control used by the military leadership.
If the Australian Parliament is to avoid re-occurrences of similar blatant failures in the rule of law then it needs to examine not only the adequacy and appropriateness of the existing legislation but also the integrity of its implementation. They are inter-dependent.
This case stands as testimony to the complete failure of the rule of law i.e. the MBCI and DFD law and military justice procedures and the inability of the Australian Government to restrain and moderate the abuse of power within the Department of Defence. It makes the salient point that a law administered by corrupt or weak key officials is no law at all. Portfolio responsible ministers have suffered and allowed a vicious sub-culture within the military to exercise unlawful and scandalous power. This has happened because of the failure of ministers to exercise their control and authority over the military. This ongoing failure of effective ministerial control has allowed this state of affairs to continue for 17 years and has left the Australian Government to deal with the embarrassment of several notorious but emblematic MBCI and DFD cases.
If Australia's parliamentary democracy is to have and be seen to have legitimacy and integrity then its standards of committee of inquiry and investigation must demonstrate standards of professionalism and competency far above those of MCBI and DFD that have brought the current dishonour and discredit to military leadership.
On 9 November 1981 the then Minister for Defence, Mr Ian Sinclair made a ministerial determination concerning ex-Major Warren. It took his Department one year to investigate the case. Mr Sinclair decided "The Army's administration in your case was methodical and at all times according to the letter of the law." He further decided that there was no evidence of unfairness or improbity by the Army and the reports made on Major Warren "were in accordance with the law and the rules of natural justice."
Almost predictably, sixteen years later and after nine previous ministerial investigations and reviews the now Minister for Defence Industry, Science and Personnel, Mrs Bronwyn Bishop, in effect decided there is no evidence of official improbity in the Major Warren case. Her deliberation took five months to 22 October 1997.
However the evidence in the official records has always stood out in the Major Warren case. There has been serious malfeasance and nonfeasance by his superior officers aimed at deliberately and wrongfully bringing about the destruction of his reputation, career and livelihood. Malicious, false and illegal evidence was used to discredit him. Concealment, deceit and fabrication was employed. In other instances evidence was destroyed.
The circumstances leading to the charges been laid against Major Warren provide consistent and unyielding evidence to establish that his superior officers subverted and perverted existing MBCI and DFD legislation and military procedures, destroyed accountability checks and balances, disobeyed legal advice and military law and abrogated their fidelity to duty. This case arose and continues today without redress of wrongs to ex-Major Warren because military officers, including Brigadier J A Hooper (Retired) and LTCOL P Emmet (Retired), acted with impunity to personally quash and annul the law and substituted their own agendas, prejudices and improbities. Lieutenant Colonel Peter Emmet's 1980 behaviour and activities are consistent with an intent, as Major Warren's commanding officer, to manufacture evidence to be used by Brigadier J A Hooper to falsely charge Warren with incompetence. There is too much substantive evidence, suspicious actions and decisions in their case that reveal a criminal consciousness amongst senior military officers who have handled the case to-date.
How could the relevant MBCI and DFD legislation governing the hierarchical methods of control over military charges and the congruent responsibilities in military leadership to administer justice fail so absolutely as it did in this case? It allowed a clear conspiracy by senior officers to violate military law. No excuse can extenuate the level of improbity and maladministration involved in this case.
A number of university academics have closely studied the Major Warren case and commented that Army seems to have acted in a manner contrary to what the public would expect from a respected Australian institution committed to the support of the rule of law. How could the military improprieties involved in this case escape detection from ten ministerial investigations or reviews 1981 to date? This excludes the Minister for Defence Industry, Science and Personnel, the Hon B Bishop's answers to 'Questions on Notice' of 31 October 1997 from Senator Dee Margetts as:
"to the role of Ex-Brigadier J A Hooper in the termination of ex-Major Warren's armed service career?"
and on
"the several ministerial investigations carried out with regard to ex-Major Warren's case between 1981 and 1994?"
Existing legislative fabric and military law relevant to this case included that a military charge laid against a member must:
* state the statute on which it is based
* be laid under the correct section, order or regulation
* set out the precise offence so that the accused may intelligently admit, deny or plea mitigation.
* specify the material facts necessary to constitute the alleged offence
* not offer evidence which is inconsistent, ambiguous or argumentative.
In addition the legislation requires that the military must:
* detail to the accused all relevant factors, reports and other documents which bear directly on the charges
* allow the accused access to his/her entire service reports.
In January 1981 Brigadier J A Hooper, the then Military Secretary instigated statutory charges against Major Warren on the grounds of unprofessionalism and gross incompetence. So grave were these charges against a military reputation that conviction of them carried a mandatory sentence of dismissal from Army.
In violation of existing MBCI and DFD legislation and procedures - in infidelity to military law and natural justice - Brigadier Hooper planned these charges against Major Warren in a way that pre-determined his guilt and pressed them without any substantive evidence whatsoever. He used loose and general charges to create the illusion that Warren was an unfit person to be an officer in the Australian Army.
It is incredible that Brigadier Hooper was able to bring false charges against Major Warren and destroy his reputation and career without the Commonwealth Law requirement to provide any substantive evidences or reasons.
Official Department of Defence records show that in his activities to document evidence against Major Warren, Brigadier Hooper selected from and used secret and illegal letters submitted for this purpose by Warren's commanding officer, Lieutenant Colonel Peter Emmet. The Defence records also show that these two senior officers were acting with a common purpose with intent to discredit a subordinate officer.
Brigadier Hooper's intent was to consolidate all existing evidence and collate it as justification for raising his charges against Warren. He knowingly and wilfully used Emmet's illegal letter of 15 May 1980 to improperly, directly and surreptitiously harm Major Warren. After consulting with Warren's superior officers, Brigadier Hooper, on 15 October 1980 threatened Major Warren with termination of his service. Brigadier Hooper did this in defiance of legal advice from the then Director of Army Legal Services (DALS) Brigadier I Ewing and contrary to the directive of 6 October 1980 from then Major-General Peter Gration.
Brigadier Hooper had extensive years of experience in the Office of the Military Secretariat. His positions were ones of extreme trust, confidentiality and responsibility. As Military Secretary he controlled and implemented military law and procedures relating to the privileged confidential reports (A26 & PR19) that he used to manage the careers of all officers up to the rank of colonel. Commonwealth Law gave him the protection of presumed propriety in the performance of his duties. It also required that his integrity in the exercise of power is and must always be predominant.
The official records clearly show Brigadier Hooper played the central role in the collation and analysis of his now disputed evidence to deliberately cause the dishonourable severance of Major Warren's appointment from Army. Hooper failed to apply his skills and experience with integrity, uninfluenced by improper methods and motives. It was incumberant on Brigadier Hooper to identify his public duties and not join with other senior officers to improperly destroy Major Warren's career, reputation and livelihood.
Commonwealth Law provided that Brigadier Hooper was presumed to have knowledge of the law and procedures by which he exercised his power over Major Warren. He was legally bound under existing legislation only to prepare charges against Major Warren after he had investigated the evidence to determined that it was well founded and non-malicious. If his investigation results showed Warren had a case to answer then Hooper was obliged to put forth in a clear and unambiguous manner his best evidence on which his case was made. A military officer's reputation was at stake and a formal inquiry or investigation was obligatory. But by his conduct this was a case Brigadier Hooper did not want honestly, comprehensively or objectively investigated under relevant MBCI and DFD law or procedures. Instead he was able to employ one of his subordinate officers, Major I Flawith, to examine and report on Major Warren's reply in defence to the charges that he, Hooper, in combination with Warren's superior officers, had fabricated. In turn Major Flawith improperly handled this investigation totally to the benefit of Brigadier Hooper and against Army.
The Defence records show that Brigadier Hooper had built his case around deceit, illegal reports and fabricated deprecating accusations made by a group of Warren's superior officers. He improperly ignored the substantive evidence favourable to Warren, including his own office records. His best and only evidence on which he based his Notice To Show Cause Why Your Appointment Should Not Be Terminated (NTSC) charges were four confidential reports (A26) on Warren 1978 to 1980 and five letters, said to be letters of warning, directed at him by superior officers. These included three letters from Hooper and the Emmet letter of 15 May 1980 that was handed to and illegally used by Brigadier Hooper in secrecy from Warren on 30 September 1980.
When the Administrative Appeals Tribunal (AAT) came to examine this evidence in August 1993 it was at a loss to understand how Army (Brigadier Hooper) could have brought any charges against Warren in the first place. It also found the salient parts of Hooper's evidence to be totally improper or in violation of military law. Clearly, the AAT would have had the existing legislation in mind when making these grave observations. In December 1994 LTCOL Salmon QC found NONE of the four confidential reports and five letter cited by Army's generals as evidencing Major Warren's unprofessionalism and gross incompetence in fact did so.
When the AAT examined Brigadier Hooper's evidence against Warren it also found of the accusations made by superior reporting officers:
"Whereas these officers were quite prepared to make damning assertions regarding him not one scintilla of evidence was then or now produced to justify the extravagant use of language adopted by them..."
In law all charges made by a superior officer against a subordinate must be substantive and made in good faith. A military charge depends upon an existing fact or facts. It must be clearly and distinctly stated so that it is fully understood. Furthermore, all grounds of accusations must be presented together - either by multiplication or accumulation of the charges. LTCOL B Salmon QC reasoned in his December 1994 report to the then Minister for Defence Industry, Science and Personnel, Mr Gary Punch "of course natural justice requires that the charges bring to the notice ..(of the officer)...the substance of what is alleged against him (see Re La Trobe University: Exparte Wild (1987) VR447 at 458)".
The above requirement of MBCI and DFD law would have been well understood by the-then Director of Army Legal Services (DALS) Brigadier I Ewing and the then Military Secretary, Brigadier J A Hooper. History is full of many cases where hostile charges or those not well founded or laid, are inevitably powerful indicators that the officers preferring the charges showed grave impropriety or corruption.
The existing legislation required that Brigadier Hooper prove his charges against Major Warren. It obliged him to produce his best evidence (by quality not quantity) to justify his intent to bring about the discontinuance of Major Warren's service. Instead Brigadier Hooper was able to put himself above the law and abuse power for improper purposes. He was able to improperly ignore relevant evidence that was favourable to Major Warren. He was able to consider illegal, manufactured and irrelevant evidence, decide partially and ignore legal advice.
Brigadier Hooper's evidence to support his grave and damning charges were merely an array of malicious allegations based on loose and highly emotive words and on warning letters containing lies, deceit and fabrications, including his own letter of 15 October 1980. The charges had the distinct manifestation of a 'frame-up' by a group of senior officers who were determined to destroy Warren's reputation and career. This is consistent with the joint findings of the AAT and LTCOL Salmon QC that there appears to have been a sinister intent by a person or persons at Army Office to get rid of Major Warren from Army. Brigadier Hooper's deceit and manipulation of illegal report letters exposes his involvement with this group of officers to destroy Major Warren's career and reputation. These officers demonstrated that they had no allegiance to the rule of law- the existing legislation - but instead perverted and subverted it for their personal agendas and interests. This is in defiance of their paramount duty to ensure preservation of public trust and confidence with which they exercise their power in office.
LTCOL Salmon QC found that the Section 16 Defence Act, 1903 charges delivered at Major Warren were framed: "in a way that suggested an existing finding rather than an allegation. Major Warren was (baldly) told that he had failed to attain the standards of competence and professionalism expected from an officer of his rank. No particulars of the respect in which he had so failed were set out in the Notice (NTSC) itself but reference was made to extrinsic documents. These were said to be four confidential reports and five letters said to be letters of warning." Salmon QC found that NONE of these nine documents collected and collated by Brigadier Hooper contained any evidence whatsoever. In effect he found this evidence to be ambiguous, inconsistent and argumentative and that any reasonably minded person would be justified in assuming that the charges were laid in a way that predetermined Warren's guilt.
Brigadier Hooper pressed charges against Major Warren on the grounds of unprofessionalism and incompetency. These were non-specific statutory charges. No particular offence under Australian Military Regulations and Orders was cited. Consequently, and to avoid corruption and misuse of power through loose charges, the legislation obliged Brigadier Hooper to produce comprehensive, clear and sound evidence to support his damning charges. Instead, Hooper in concert with other superior officers had the ill-will intent to improperly destroy Warren's career. Hooper was able to wrongfully and wilfully press his charges without any substantive evidence whatsoever. The charges were ill founded and were based on malice. These circumstances alone indicate the high level of corruption involved in this case. Furthermore, Brigadier Hooper's evidence - his nine intrinsic documents - speak for themselves to reveal his malevolence and their valuelessness.
"If one examines the documents mentioned in the Notice (NTSC) there is not one example of an act or omission capable of amounting to incompetent or unprofessional behaviour. By their very nature confidential reports are assessments of qualities of officers. Certainly, there is space in the comments section to give any examples or particular acts or omissions. In the case of Major Warren no specific instance is identified." - Salmon QC Investigating Officer's Reportm 6 December 1994 page 12 para 66
Pursuant to AMR 769 Major Warren made representation against LTCOL Gillespie's 1978 report on the grounds of his declared personal prejudice and hostility and against his improper methods of assessment.
The Military Secretary, Brigadier J A Hooper, routinely kept official records on the history of a reporting officer's pattern of his/her rating on subordinate officers. He knew or ought to have known that LTCOL Gillespie had a belligerent and confrontationalist attitude towards subordinates. On 3 January 1979 a record of conversation between officers of the Military Secretary Office records in part:
" a. Only 'bad' reports on Warren's dossier were the 3 most recent all of which have been written by LTCOL Gillespie
b. LTCOL Gillespie wrote below average reports on all of his officers.
c. Report (on Warren 1978) was not that bad (take a chance)."
LTCOL B Salmon QC examined this report and found
"Each attribute is marked near the middle of the range...no example of actual incompetence is mentioned."
Salmon QC Investigating Officer's Report, 6 December 94 page 3 para 18
In AAT evidence MAJGEN Carter wrote:
"It appears that LTCOL Gillespie was severe on all his officers when writing confidential reports. Though LTCOL 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 entirely untrue." (AAT 1993 T273 p859 para 4)
MAJGEN Carter's sworn statement of facts to the AAT was an understatement. LTCOL Gillespie's abuse of subordinates included the physical sexual harassment and deliberate humiliation of his subordinate female captain which continued to within a few days of his writing the 1978 report on Major Warren. He made a malevolent threat to the wife of Major Warren's subordinate captain that he could destroy her husband's career if he wanted to. The distressed captain directly reported this threat to Major Warren approximately two weeks prior to LTCOL Gillespie writing the 1978 report. Gillespie's abuse of power was habitual.
Major Warren wrote in his 15 November 1978 representation against the 1978 report that he "had a dislike of LTCOL Gillespie's personality and his attitude towards subordinates."
On 5 January 1979 the Military Secretary wrote to Major Warren that his representations against Gillespie's report "have been noted and will be considered at all times in relation to the report". Brigadier Hooper then went ahead and used this report as justification to raise a Special Report on Major Warren in May 1979 based on a reputed poor reputation created by LTCOL Gillespie. Not once during the subsequent legal proceedings to terminate Warren's appointment did Hooper reveal to any decision-maker that the Military Secretary had evidence to show that Gillespie routinely wrote below average reports on subordinate officers.
Brigadier Hooper used the 1978 report as his leading evidence to charge Major Warren with incompetence and unprofessionalism.
This report recommended that Major Warren be promoted, attend Staff College and command troops. On 23 August 1979 Brigadier Hooper wrote to Warren that this report was better than all three previous reports written by LTCOL Gillespie and that it fell into the category of an average report on rank major.
Brigadier Hooper used this report as his second evidence to charge Major Warren with incompetence and unprofessionalism.
This is the letter that Hooper sent to Warren to record that LTCOL Christopherson's 1979 report showed improvement over LTCOL Gillespie's three previous reports 1977-1978. Hooper categorised the 1979 report as 'average'.
Brigadier Hooper used this letter as his third document to evidence his charges for Major Warren's dishonourable dismissal from Army.
On or about 28 November 1979 Brigadier Hooper insisted to his staff that the CPERS-A, and not himself, personally see and sign the letter that informed Major Warren that his promotion was not approved.
LTCOL J Gillespie had recommended promotion in the December 1977 report, LTCOL Christopherson had recommended promotion in the May 1979 report and LTCOL Emmet was to recommend it in the June 1980 report.
This letter signed by CPERS-A advised Major Warren that Brigadier Hooper did acknowledge improvement in performance in the May 1979 report over the three previous reports written by LTCOL Gillespie.
Brigadier Hooper used this letter as his fourth document to evidence his charges against Major Warren's alleged incompetence and unprofessionalism warranting dismissal in disgrace from Army.
This report marked Major Warren at or near the middle of the range on all performance attributes and recommended he be promoted. Now- Colonel J Christopherson, acting on behest and on behalf of MAJGEN Peter Gration, concurred with the promotion recommendation.
The AAT examined this June 1980 report in August 1993 and found that the comments made in it by LTCOL Emmet are average. MAJGEN Carter gave written evidence to the AAT that Emmet's report "was neither a good report nor bad one."
Brigadier Hooper used this report as his fifth document as evidence to charge Major Warren with unprofessionalism and incompetence.
In this letter Brigadier Hooper threatened Major Warren with termination from Army on the grounds that LTCOL Emmet's June 1980 report "is cause for concern over your future Army employment and career." He made this threat using malicious misrepresentation of the facts.
The official evidence indicates that Brigadier Hooper acted contrary to the law and contrary to reason and facts to cause foreseeable harm to Major Warren. He acted against the evidence and the weight of the evidence. He acted against his duty of fidelity to law. Acting at the highest level in the officer career management system he wilfully failed to carry out his duty and abused his power to deliberately harm Major Warren. But he could not lay charges against Warren without obtaining legal advice. On 24 September 1980 he sought advice from the Director of Army Legal Services (DALS), Brigadier I Ewing, asking if he could use the LTCOL Emmet June 1980 report as evidence to raise charges against Warren on the grounds of incompetence. DALS advised Hooper that he could not and further advised him that the evidence on Warren's history record and reports showed improvement.
On 25 September, the day after DALS advised Brigadier Hooper that he could not use the Emmet June 1980 report to charge Major Warren with incompetence, Head of Corps RACT, COL P W Blyth, spoke with LTCOL Emmet. Blyth recorded that he was annoyed that both Emmet and COL Christopherson had recommended Warren be promoted. Oddly, Emmet told COL Blyth that Major Warren's performance had deteriorated and his presence in the unit for more than a week or ten days would be positively damaging.
On 26 September 1980 LTCOL Emmet wrote to the Commander 3rd Military District, Brigadier J S Kendell, to formally notify him that Major Warren's performance had completely collapsed and that he was a 'negative asset' in the unit and should be removed forthwith. Emmet wrote that he had personally advised both COLs Blyth and Christopherson likewise and requested Brigadier Kendell advise Brigadier Hooper that he wanted to withdraw his June 1980 report assessment of Warren, including the recommendation for promotion and substitute in its place his letter of warning to Warren of 15 May 1980, in which he threatened Warren with 'Not to be promoted'.
LTCOL Emmet was under a military legal obligation (AMR 769) to ensure Major Warren sighted, initialled and be given opportunity to make representation against any written report he made to a superior authority on Warren. Knowledge of this basic law was well understood in Army - clear and explicit instructions are to be found in every unit orderly room. Instead, secretly, illegally and corruptly Emmet forwarded copies of his 15 May and 26 September 1980 letters to Brigadiers Kendell and Hooper via COLs Christopherson and Blyth.
LTCOL Emmet would have also known that it was improper and illegal for him to withdraw the June 1980 confidential on Warren and substitute in its place the warning letter of 15 May 1980 without Warren's right to know, sight, sign or make representation against such a grave and formal reprimand report.
LTCOL Emmet's letter of warning of 15 May 1980 to Major Warren contained lies, fabrications, hearsay and highly emotive allegations against Major Warren. It contained no substantive evidence whatsoever. It was inspired by politicking and improbity and had no other motive than that of criticism by innuendo to discredit Major Warren's professional abilities and personal worth.
On 30 September 1980 Brigadier Hooper was handed copies of Emmet's two illegal letters when he spoke with LTCOL Gough (representing COL Blyth) and COL Christopherson. He told them that he could now use Emmet's letters of 15 May and 26 September 1980 as justification to raise a Special Report on Warren to be written by Emmet in December 1980. Hooper then told Christopherson and Gough "If it is a bad report we (my emphasis) would then be in a position to invite CPERS-A (Chief of Personel-Army) to 'call upon' Major Warren. I told COL Christopherson to pass this report date to Warren's CO (LTCOL Emmet)."
Brigadier Hooper used Emmet's letter of 15 May 1980 as his sixth document to evidence his charges against Major Warren. In 1994 LTCOL Salmon QC examined this letter and found that whilst it contained specific criticism it provided no evidence to support Hooper's allegations that Major Warren was incompetent and unprofessional.
On 3 October 1980 LTCOL Emmet raised a third reprimand letter and addressed it 'Personal for Major A K Warren'. But he did not tell Major Warren of its existence and instead again illegally passed it into the report system for use by Brigadier Hooper. The August 1993 AAT hearing again ruled that Emmet had acted illegally to activate this letter into the report system in breach of AMR 765(2)
On 6 October MAJGEN Peter Gration the then GOC logistic Command, issued a directive that Major Warren was not to be moved and was to remain under LTCOL Emmet and further action would be considered after he wrote the Special report on Warren in December 1980. MAJGEN Gration also directed that Emmet was to document any performance data on Warren. But Brigadier Hooper was operating on his own agenda to unfairly and improperly discredit Major Warren.
On 15 October 1980 Brigadier Hooper wrote to Major Warren and threatened his termination from Army on the grounds that LTCOL Emmet's June 1980 report "is cause for concern over your future Army employment and career." He had defiantly gone against his legal advice from Brigadier Ewing. He ignored all the substantive evidence held by him that showed improvement in Warren's performance. He ignored the two consecutive 1979 and June 1980 confidential report recommendations of promotion. Wilfully, Hooper illegally used the Emmet letters of 15 May and 26 September 1980 in secrecy from Warren to deceitfully set up the destruction of his career and reputation.
When Salmon QC examined Hooper's letter of warning of 15 October 1980 he again found it contained no evidence to support his charges against Warren.
Hooper used his letter of 15 October 1980 as his seventh document to evidence Major Warren's alleged incompetence.
On 11 December 1980 LTCOL Emmet wrote the 'bad' report that Brigadier Hooper needed to destroy Warren's career. Hooper had used Emmet's illegal letter of 15 May and 26 September 1980 as justification to raise this Special December 1980 report. However, despite directives from MAJGEN P Gration and Head of Corps RACT, COL P Blyth, Emmet failed to gather any substantive information that could confirm his erratic and malicious allegations against Major Warren. Instead Emmet again wrote his report in highly emotive language which was devoid of substantive information but with deliberate intent to unfairly discredit Major Warren. Emmet knew Hooper and Blyth's motives were to accuse Warren of unprofessionalism and incompetence. He had provided to them his illegal letters of 15 May, 26 September and 3 October 1980 for this purpose.
LTCOL Salmon QC again found this report contained no factual basis to evidence any charge against Major Warren of incompetence or unprofessionalism.
Unaccountably or aberrantly, LTCOL Salmon QC found:
"It is quite impossible to reach any conclusion that there was unfairness in Defence Administration in compilation of confidential reports on MAJ Warren included in his file." - Salmon QC Report page 14 para. 76.
But this legal opinion does not match the evidence. Instead it went all the way in protecting Brigadier Hooper and LTCOL Emmet from exposure of their malfeasance.
Brigadier Hooper used the December 1980 report as his eighth document as evidence of Major Warren's alleged now gross incompetence.
In this letter Hooper wrote to Warren that his "promotion has been deferred until your 1981 Confidential Report is available. Should that report indicate your readiness for promotion, you will be promoted preserving your seniority as cohort MAJ 81."
Hooper tendered this letter as his ninth and final document that he asserted proved Major Warren was incompetent and unprofessional warranting dismissal from Army with loss of all entitlements.
None of Brigadier Hooper's nine documents of evidence justified any administrative, disciplinary or punitive action against Major Warren whatsoever. It is unconscionable and corrupt that both BRIGs Hooper and Ewing used any of these documents to bring about the destruction of Major Warren's reputation, career and livelihood.
Defence records show that on 16 January 1981 Brigadier Ewing, contrary to his own evidence and the weight of the evidence, inverted his advice to Brigadier Hooper of 24 September 1980. Ewing had advised Hooper that Warren' reports and file up to an including to June 1980 report showed improvement and there were no grounds for 'Show Cause' action against Warren. On 16 January 1981 he now advised Hooper these reports showed "a pattern of professional failure." Hooper was able to reverse Ewing's advice with the use of LTCOL Emmet's illegal letter of 15 May 1980 and the December 1980 report, neither of which contained any substantive evidence to justify Ewing's recant of his 24 September 1980 opinion. Contrary to the evidence on Warren's file, Brigadier Ewing now agreed with Brigadier Hooper and improperly drew up the Section 16 Defence Act charges.
In March 1981 Brigadier Ewing examined Warren's reply in defence to the charges and gave legal opinion that:
i) the evidence showed deterioration not improvement in performance;
ii) there is no evidence that any officers had acted in concert against Warren; and
iii) that Warren had failed to make a case against the charges.
In August 1993 the Acting Chief of the General Staff, Major General Carter, admitted under cross examination to the AAT that Warren's defence reply had not been properly considered by Army. But Carter argued that there had been no need to do so as Warren clearly had refused to admit to the charges and hence he could not be rehabilitated. Carter then presented his own misleading evidence against Warren. The Tribunal ruled against Carter.
This case demanded a thoroughly professional and comprehensive inquiry in 1982 by the then Minister for Defence Mr Ian Sinclair. The 22 October 1997 decision by the Honourable B Bishop not to re-open this case goes against the rule of law, the weight of the evidence, natural justice and basic civil and human decency. The weight of evidence on official records indicates a chronic incapacity of responsible ministers to deal with a transparent case of Defence corruption and improbity.
To-date, the tendency of the Department of Defence has been to reduce failures in due process, military law and systems of control to problems of lack of experienced staff, inadequate training, poor communications or inappropriate policies. Simple and cyclic solutions are then offered which promise to solve the problem by improving administration, procedures, networks, cultures and internal client service etc. Such measures are frequently weak, irrelevant, illusionary or deceitful when and where real and serious problems of improbity, dishonesty or recalcitrance exists within senior ranks of the military. After all, it is these same top ranking officers who have consistently failed to make the existing legislation work in an impartial, competent and constitutionally just manner in cases where other relatively senior officers' conduct is questioned.
Brigadier Hooper used illegal reports, fabrications and deceit to create his charges against Major Warren. These were intended to discredit the weight of evidence in favour of Warren. The official records and the substantive evidence in this case indicates that military leadership over the past 18 years has wilfully misused power, with impunity, lied to portfolio responsible ministers and perverted and subverted the rule of law and natural justice. This has everything to do with identifiable senior officers and legal officers. It has little to do with the quality of the existing laws. It is about the serious breakdown in the trustworthiness, competency and accountability of military leadership to properly and fairly implement the existing legislation.
There are no extenuating circumstances left to excuse the repetitive failures of the responsible minister(s) and the Army generals to honestly and competently resolve the Major Warren case. Instead they have persistently employed deceit and omissions and refused to conduct timely and objective investigations of the circumstances of his forced resignation in disgrace or grant a redress of wrongs. They have opted to defiantly and improperly continue to inflict insidious violence on Mr Warren and his family and to continue to cover-up to protect corrupt officers, including Brigadier J A Hooper (Ret'd). He is one of many military officers who have and do make the existing MBCI and DFD legislation selectively inoperable. Such political and military connivance and improbity leaves the Australian public with little confidence or trust in any proposed changes to the existing legislation.
In the Joint Standing Committee's consideration of this submission perhaps the most valuable point on MBCI and DFD that it should seek to establish is why and how such clearly corrupt conduct as occurred in the Major Warren case was able to breach and subvert relatively lucid and simple military laws and procedures? It ought to then decide if any of its proposed alterations or additions to this legislation will arrest such corruption?
The current and past conduct of military leadership shows that it lacks the professional integrity and intent to reform its selective manipulation and abuse of the existing MBCI and DFD legislation. It also consistently failed to give minimum standards of propriety, truth and reliability in its treatment of Warren pre-1981 to date. It failed to give honest and safe advice to the portfolio responsible minister(s) on the Major Warren case 1981 to date. This improbity can only occur when and where it is controlled from the top down.
New legislation is required to:
* remove from the Services and the Department of Defence control, responsibility and funding of MBCI and DFD that involves the examination of actions, conduct or attitudes of military officers,
* ensure senior military officers are made accountable for their commissions and omissions involving MBCI and DFD
* make enforceable and genuinely accountable, controls on breaches of fidelity to duty by senior officers in their dealings with subordinates and with portfolio responsible ministers on all matters of command, discipline and administration.
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For a full account of the ex-Major Warren case see the following articles
Constitution, Commonwealth Law and the Statutues.
It is not within the scope of this submission nor is it necessary to go into detail on the origins of the law relating to MBCI and DFD. This is not legislation that has had to adjust to changing values over time or be realigned to modern technology. It would be misleading to suggest that over many past decades former legislators could not get this determined legislation right.
The assembly, procedures and requirements of Military Courts and Boards of Inquiry are taken to be as authorised in Army by Division 20 of Part IV of Australian Military Regulations. Defence Instruction (General) Administration (34-1) is considered in this submission.
Existing legislation gives MBCI and DFD the power and obligation to conduct factual inquiries, arrive at opinion and give recommendations (if requested). Defence (Inquiry) Regulations have evolved over time to their present comprehensive state. Military discipline cases are dealt with under the Defence Force Disciplinary Act 1982 and Military Law Manuals. Relevant Commonwealth legislation is considered to be adequate and appropriate. It is competent. It gives authority, direction and boundaries to military boards and courts of inquiry and to commanding officers to conduct disciplinary cases. These laws stem from international military experiences and legislations over time with roots to the United Kingdom.
In general terms military boards and courts of inquiry are fact finding and observation forming investigative procedures. Peel away the military uniforms, titles, formalities, training and procedures and what remains is simply an official forum that examines into an event, circumstance, accident, phenomenon or military reputation. It may lack the legal power of the civilian court and military court-martial to decide guilt and award sentence i.e. to administer justice. It does however examine, investigate and obtain evidence from witness. It is a matured and determined process and has many civilian parallels that traverse history and countries. These may vary in their degrees of power to call witnesses, gather evidence and make recommendations. A Joint Standing Parliamentary Committee is one such official forum akin to a Board of Inquiry.
The quality of the results of any such official forum is dependent upon a number of factors. Firstly, there is intent and will to legislate adequate and appropriate laws. These are the most important factors. And, as reasoned in this submission the existing legislation and procedures are sound. Secondly, the competency and propriety of the military persons appointed to inquiries and discipline cases is assumed in law to be compatible to the power they exercise. This gives legality and authority to MBCI and DFD findings and decisions. Thirdly, the resources and the time limits are significant factors. Fourthly, the astuteness, focus, sincerity and veracity of the terms of reference of MBCI and DFD are of utmost importance. (See Annexure 1 Military Justice - heading 'Terms of Reference')
The military is an institution of state. It is shaped by legislation. Military command within this institution is shaped by fidelity to duty and scrupulous regard for military justice and the military ethos. These are mutually supportive and are mutually dependent. This is the essentialness of military leadership. It gives authority to its hierarchical demand to subordinates for unquestioned obedience to orders. This special relationship between military leaders and their subordinates is the point of military law, procedures and discipline. Without this wedlock military leadership fails to function with propriety and in so doing fails the state. For this reason legislation and procedures pertaining to military boards and courts of inquiry are necessarily made closed and unambiguous. And they have so been in the past.
The point of military leadership - its generals and commanding officers, is that their 'fidelity to duty' must first be clearly and irrefutably firstly identified as 'fidelity to the law' i.e. to the existing MBCI and DFD legislation and procedures. Law is paramount for military leadership to function. Hence it cannot be allowed to be denigrated by weak or corrupt commanders to bring about deliberate failures in MBCI and DFD.
It is now appropriate to made comparison between military leadership and the New South Wales Police Service leadership in the wake of the 1996-97 Wood Royal Commission. In essence it revealed that this police service leadership lacked the integrity and competence to identify internal corruption, to implement and administer the relevant legislation and failed to provide ethical personnel management. The consequences of this leadership impropriety was endemic corruption within the service and the seeming failure of the relevant legislation. The corrupt brotherhood culture was more powerful than the law (both in substance and procedure). The solution rested with changing the police service leadership and making it more
accountable and closing the relevant legislation. It remains questionable how successful these changes will be and how long they will last.
Certainly there are lessons from the Wood Royal Commission to be learnt by federal parliamentarians. However it would be a mistake or deceptive to blame alleged failures in the adequacy and appropriateness of existing legislative framework and procedures on MBCI and DFD when and where the weight of evidence indicates uncontrolled and unpunished misuse of powers by senior military officers. Misrepresentation or misidentification of the problem neatly avoids the real question of fidelity to duty and fidelity to the law by senior military officers. Faulty law is readily blamed and the real issue of improbity and maladministration is evaded. Any change in MBCI and DFD legislation will not bring about a change in military leadership attitudes to their misuse of power unless those changes in legislation specifically target offenders who subvert and pervert military law and fidelity to duty.
This submission does not make comment on existing legislative aspects on such matters as the methods used to record the proceedings and the evidence, the formalities of witness attendance or the organisation and sitting of MBCI and DFD.
The general purpose of military inquiries is to examine or inquire into a situation consistent with the significance of the matter, to record the findings and if asked, give recommendations. At the heart of this process is the investigation.
It would be a rare MBCI and DFD subject matter that was not required to examine the action, conduct or attitude of a military member or groups of members involved in the occurrence under-examination. Particular focus has to be on behaviour that appears to be questionable, suspicious or extraordinary. Arising from such inquiries would be opinions formed truly and impartially according to the evidence as to:
* if a member(s) should be put before a court-martial.
* if a member(s) should be vindicated of conduct or character.
* identify weaknesses in the system and methods of control.
* assess if officials have withheld or provided false or misleading information to the inquiry.
* give recommendation if sought.
Relevant legislation on MBCI and DFD is adequate and appropriate in respect of the formulation of terms of reference. However the adage that a government does not set up an inquiry unless it already knows the outcome has some relevance here. Terms of reference can be misused to evade, omit or misdirect an inquiry or investigation away from the real issues. Usually the military officers responsibility for preparing terms of reference for MBCI and other investigations are senior experienced officers backed by senior legal advisers. Flawed terms of reference can be often a vital sign of institution improbity rather than incompetence, or to be generous, inexperience.
Military officers over the term of their service are given wide training and obtain wide experience in investigative skills necessary for their appointments to MBCI and DFD. They must formally qualify in military law for promotion requirements. They must sit as officer under instruction at court-martials, conduct formal investigation on relative minor matters through to serious ones and hear and administer disciplinary cases within their unit. Perhaps most important of all is the praxis of the military appreciation method that is regularly re-taught to all officers. This is the military version of the facts and reasons and decision process. It facilitates officer's ability and responsibility to distinguish the relevant and discard the irrelevant and the trivia. Also, Defence Instruction (General) 34-1 provides detailed guide-lines in investigative procedures. At all times officers have access to legal advice.