Draft submission on Department of Defence annual reports to the Australian Government 1998-2000

"We can always find an excuse for not playing a responsible role in a threatening situation." - Bob Hawke, then - Prime Minister, Sydney Morning Herald 25.8.90 (1985 Decision-maker on ex-Major Warren case)

"In persons grafted with serious trust, negligence is a crime". - Shakespeare aphorism

1. This submission focuses on the Department's reporting of equity and military justice issues. It identifies and gives evidence of causal factors of higher military leadership's systemic failures to be transparent, clear and frank in these issues.

2. It also offers the Australian public an insight into why these Defence systemic failures are unlikely to change after this DS-C Inquiry's eventual findings.

3. The very fact that this DS-C Inquiry has decided to focus on Defence's reporting of equity and military justice issues in itself conveys serious concerns held by and to the Australian public. But this Inquiry comes too late.

4. On 25 June 1995 the ‘Sun Herald’ published an article, written by ABC-TV ‘Seven-Thirty’ Report then-research journalist Cindy Jones, on the ex-Major Warren case. In part it reads:

"Mr Warren plans to continue his fight for an inquiry.... 'I want to know how and why people like me have to endure this intense maladministration which goes to the very heart of government and ministers.' ………."

5. Since then the Australian public have had to endure a succession of serious and scandalous but emblematic exposes of higher military leadership's systemic failures in both its command and leadership.

6. In this submission:

* command means delivery of missions and objectives with focus on responsibility upwards to the responsible minister, Parliament and the Crown

* leadership means fidelity to duty and loyalty towards their service men and women down the chain of command.

7. On 18 February 2000 the Sydney Morning Herald reported on Defence Minister, John Moore's criticism of his Department:

"I don't think Defence has been responsible to Government for quite a number of years".

The pathos here is that long term systemic failures by the Army generals arise when the responsible minister(s) fails to competently administer his/her portfolio. The whole community is affected by the failure of the minister to control his/her bureaucrats including the Army generals. And Defence's squandering of millions, if not billions of taxpayers' dollars is an abhorrent example of this.

8. Clearly, Parliament has real cause to be seriously concerned about Defence's lack of transparency, frankness and clarity of meaning in its reporting and in its military justice procedures.

9. The previous 1998 DS-C Inquiry into Military Justice Procedures into the ADF did not get to the truth of the problems besetting the culture within higher military leadership. That Inquiry only managed to come up with perishable solutions at best or illusionary solutions at worst. It failed to apply appropriate levels of skill and knowledge to these problems. Hence that 1998 Inquiry was easily duped by the Army generals. It failed to sufficiently separate truth and soundness from Defence propaganda and falsehoods. This was despite the weight of evidence available in written submissions and from witness statements available to it.

10. In the United Kingdom the Salmon Royal Commission into 'Tribunals of Inquiry in U.K' concluded:

"the record of Select Committees of Parliament to investigate allegations of public misconduct was to say the least, unfortunate."

11. This Inquiry now needs to identify the causes and consequences of systemic failures in senior officers' leadership and command. Particular focus is on their failure to properly report upwards and on their failure to deliver equity in military justice downwards. Assumedly the Inquiry also seeks solutions to recommend to Government.

12. Three of ex-Major Warren's six submissions to the 1998 DS-C Inquiry 'Military Justice Procedures in the ADF' are published in its Volumes I and IV. These are Submission Nos 5, 5.1 and 5.2. The evidence in these submissions and the weight of that evidence is similar to that progressively given to responsible ministers since the mid 1980s. This evidence gave them knowledge of how Defence officials (Army) have cognitively and unconscionably perverted and subverted their command and leadership responsibilities. It details precisely how they sabotaged Defence policies, military law and procedures to derail Defence reporting and rule of law. Submission Nos 5.3 and 5.4 were not published because the Committee put a confidentiality gag on them. They give even more detail and make more repugnant Defence's lack of accountability to the Minister and to the Crown. Warren's sixth submission was not even acknowledged as a recorded submission. Allegedly it did not fall within the ambit of the Terms of Reference of the Inquiry. That sixth submission in fact detailed how the responsible minister had misled Parliament in response to Questions on Notice from then-Senator D. Margettes on the ex-Major Warren case.

13. It is requested that this DS-C Inquiry re-examine the previous six submissions referred to above as evidence for this Inquiry. They provide the quintessential evidence that would leave no genuine examination into failures of Defence's reporting of equity and military justice issues in any doubt as to what are the casual factors in this chronic Defence maladministration. They give the details of the insidious violence, harassment and discrimination endured by Warren 1980 to date. They reveal the danger and the hypocrisy of double standards of unprofessionalism and incompetency in Canberra's higher military leadership. This is separate from former Secretary, Department of Defence, Mr Alan Hawke's widely media reported on comments on Defence's "culture of learned helplessness".

14. Identification and knowledge of the casual factors in systemic failures in Defence's reporting of equity and in military justice issues are really quite simple matters. There is no real task in this for this DS-C Inquiry. The answers are old and common news, although the labels may change from time to time. The difficulty is owning up to having knowledge of and education in peer-group use of these tools of corruption.

15. Causes of failures in the administration of equity or to properly report up the command structure are rarely problems of legislation, policy or procedures (i.e. the mechanisms of government). They are mostly the deliberate failures of people who control these processes. Much has been written over past decades that can leave scrutineers in no doubt that mixtures of discretionary powers in decision-making, lack of moral courage and integrity in hierarchical leadership and lack of genuine accountability and transparency are principal causes of systemic corruption in public office. Hence the paramount duty of parliamentary committees of inquiry is to seek out and expunge malfeascence and nonfeasance from the Executive arm of Government.

16. If or when the scrutineers - in this case parliamentarians - join in this official improbity then the whole state begins to disintegrate. We have this knowledge as far back as Plato's writings. It's old knowledge to a reoccurring problem as can be deduced from the conclusions of the U.K. Salmon Royal Commission into the performance of parliamentarians.

17. The ultimate issue at the bottom of this DS-C Inquiry ought to be very clear to the members of it. Namely that the civic order and notions of mutual obligations between the citizen and the state must be redeemed from the collapse of fidelity to duty of key officials. This threat to the state is exemplified by the systemic failures of higher military leadership in the ADF for some years now. To their own detriment, and despite numerous warnings and opportunities the Army generals have defiantly continued to undermine the community's trust in the rule of law. And the evidence is building that Federal politicians have acquiesced in this process.

18. Upholding the principles of equity in Defence decision-making on individual cases is paramount to the maintenance of the rule of law and to the notions of mutual obligations. They are perhaps even as important as Defence's role to protect Australia from external threat. The reason for this is that if the Army generals are prepared to betray the former then there is cause to doubt they would honour their duties to the latter.

19. Tacit complicity by the responsible minister(s) encourages systemic failures in military justice procedures. Warren's submission of 1 June 1998 to that DS-C Inquiry - MJP in the ADF- gives insight into this political process. Similarly, the Parliament's past seeming indifference to Defence maladministration and it's failure to competently scrutinise Executive control over Defence has led to uncontrolled and unaccountable abuses of power by higher military leadership for many years. And Defence Minister Moore has now publicly acknowledged these sorts of problems, although not as pointedly.

20. This DS-C Inquiry's ability to meet its responsibilities to the civic body by its examination of Defence reporting on equity and military justice issues depends upon:

* the will of parliamentarians to have power

* to have a clear, transparent and frank understanding of that power

* to have the capacity to exercise that power and to take the initiatives on which all democratic protection depends

* the will to act to stop the Army generals from exploiting the political weakness of responsible ministers.

21. No army officer is above the law. The ex-Major Warren case exposes Army leadership's own dynamic weakness - its failure of self- protection against internal corruption, improbity and deceit. The case also reveals that past responsible ministers have had sufficient facts and evidence to know of the abuses of power that are still being perpetrated. What the generals failed to report to the ministers was reported to them by Warren. And the ministers still failed to act except to do the minimum that was necessary to keep up appearances. This political dynamic encourages the military not to report properly to government as they known they will be protected by their minister(s).

22. Any Australian citizen who is affected by Government corruption or maladministration is entitled to raise such concerns to the responsible minister with the expectation that the matter will be fairly handled, without undue delay and by competent authority who has the moral courage necessary for his/her office.

23. It is well known to the public that the Government's redress mechanisms are frequently perverted to evil use when they are available to ruthless or corrupt officials who know how to use the weaknesses of the responsible minister(s). Examples of ministerial weakness are also seen by the public when investigation of Defence maladministration is taken away from the responsible minister and put into the hands of an independent inquiry as in the current 3RAR brutality case.

24. No matter who has been involved in the administrative process or decision-making, or no matter how long ago a case of maladministration commenced the case should be subject to parliamentary inquiry and to proper redress where the responsible minister(s) and his/her Department have failed to properly investigate it. The Warren case is not a case that happened 20 years ago. It is a case that has been going on for 20 years. The causes for the 1981 failure of Army to report properly to the Minister are the same ones why Army would mislead the Minister and Parliament today on the Warren case. Officers involved in the maladministration against Warren in 1980-81 have risen in rank to be part of the higher military leadership now close to the Chief of Army.

25. And perhaps it is necessary that parliamentarians outrightly reject conventional guises of political examination of such cases. To-date this covered way has encouraged systemic corruption of Defence reporting of equity and military justice issues. The whole community is affected by the political standards of these investigations.

26. A question that needs to be put to this Inquiry is why would the Army generals persist in not giving honest and competent reporting to the minister, Parliament or to the Crown on its continuing corruption of equity in the Warren case? Because the answer is they are confident that they have the support of the minister. An FOI document reveals that a Defence minister's office (not Moore's) had assessed that as the media and public have no interest in the Warren case the minister need not do anything and there would be no political repercussions. A second reason is because Defence's cultures of abuse of power and cronyisms are incapable of self-reform. Hence there is the public's need for this DS-C Inquiry.

27. Attached is a copy of 'Ministerial Representation - ex-Major A K Warren' of 22 November, 1998 to the Minister for Defence, Mr John Moore. He did not bother to reply to it, even to acknowledge his receipt of it. On 30 July 1999 Warren again sent it to Mr Moore and got the same non-response. The content of this representation is highly relevant to the issues now under examination by this DS-C Inquiry.

28. The Government's efforts to keep this case closed and unredressed have been vicious. The cover-ups of cover-ups have been incessant. Each sequel to the case became more putrid then the one before. Progressively the case took on board most, if not all, of the characteristics of systemic abuse of power. These were naked and made known to the responsible minister(s). The cover-ups continued.

29. Warren has been left with no options but to continue with his efforts to expose the lies and make public the truth of these systemic failures in Defence reporting and abuses of power by higher military leadership in military justice procedures. This is the only path available to Warren towards a fair and honest redress of wrongs through the Westminster system of ministerial power and responsibility and for the public to protect the rule of law as the underpinning principle of a civil state.

30. Even an incompetent responsible minister, if honest, could have by trail and error, progressed towards a proper finding in this case. For God's Sake, collectively they have been at the Warren case for 18 years! They have had control of the bureaucrats; have had the resources; have controlled the records and have had the might of the legal mechanisms of government to competently handle this case. Above all they have had and still have the power.

31. So with the substantive evidence of how the ex-Major Warren case has been treated politically, how can the public believe in or trust parliamentarians who claim they intent to examine causes of failures in military justice issues and the Defence Department's reporting of equity? The causes of the "unfortunate" performance of such parliamentary inquiries, as found by Salmon, are in all probability the same as those causing systemic failures in Defence reporting - self-interest, cronyism and careerism. In the case of Defence, both Liberal and Labor ministers have been duchessed by the generals' skill in Canberra’s 'small-p' politics. The ex-Major Warren case is testimony to that. Parliament’s ignorance of this process is servitude to it and is a primary cause for the erosion of the rule of law.

32. It is an important matter of public interest that this DS-C Inquiry might wittingly or unwittingly jeopardise its duty to the civic body through its seemingly inadequate Terms of Reference. In Submission No. 5 to the 1998 Military Justice Procedure Inquiry Warren wrote:

"Terms of Reference can be misused to evade, omit or misdirect and inquiry or investigation away from the real issues.... Flawed Terms of Reference can often be a vital sign to institutional improbity rather than incompetence, or to be generous, inexperience." - 1998 DS-C Inquiry Vol 1 page 110

While this current Inquiry rightly seeks "to determine if the policies, procedures and programmes of the Department are functioning as reported" the concern here is that it is not these mechanisms of government that cause systemic failures in reporting of equity and military justice issues. As stated in para 15 above these are mostly the deliberate failures of the individuals who control these processes.

33. The risk to, or the duplicity of, this DS-C Inquiry is that it may lead the public to be told that "the system" is to blame for the dysfunctions of Defence's performance and that military officials are blameless. In Warren's submission of 26 September, 2000 to this Inquiry he set out his concern how Defence's cant is attempting to disassociate military command and leadership from its responsibility and accountability by substituting "the system." This is nothing short of a Machiavellian grab at dutiless power in office.

34. Defence's falsity that "the system is to blame" is shallow and does not withstand scrutiny. But it does reflect the hollowness of military leadership. Defence in 2000 cannot move forward if its command is defiant in entrenching itself in its corrupt practices of the past. There is no such thing as "the system". It is an illusion promoted by those who seek to exercise power without responsibility.

35. Defence, like other departments or organisations, is nothing more or less than the collection of individuals who are members of it. These individuals are divided into many groups separated from each other by power, tasks and organisation. They are united by common purpose, ethos and policies. The only dynamics within Defence, or within other organisations is the collective power of the individuals within in.

36. All government mechanisms, operations and procedures are controlled by individuals who derive their powers and responsibilities from the relevant legislation. The command hierarchical structure to which they belong has superior officers with the rank and power to supervise the checks and balances that discourage, detect and arrest errors in and abuses of the exercise of authority. This preserves the public's trust and reliance in our institutions of state and prevents these institutions sliding into administrative and financial chaos.

37. Several times in recent years Parliament has put Army on notice that higher military leadership has failed to meet acceptable standards of performance. There has been little or not improvement in these standards and hence the public has yet another inquiry. It would be "unfortunate" if this Inquiry was to tacitly acquiesce in Defence's political agenda to "blame the system" in an attempt to disassociate identities and culture from the fact of systemic abuses of Defence's reporting and military justice issues. Under these types of political examinations or inquiries there can be no solutions to Defence's dysfunctional behaviour. And there can be no accountability to the Minister, Parliament or the Crown.

38. It is requested that this DS-C Inquiry recommend to the Government that the Minister for Defence deliver an honest and fair redress of wrongs to Mr Warren in response to his letter to the Minister of 22 November 1998. To date what the army generals have failed to learn in the Warren case is that if they substitute their political investigation of this equity case for a rule of law investigation of it then they are replacing civics with their deliberate and irrational chaos and violence.

Mr A K Warren

8 Yulong St
Bateau Bay
NSW 2261

22 November 1988

Mr John Moore
Minister for Defence
Parliament House
Canberra ACT 2600

Dear Minister,

Ministerial Representation - ex-Major A K Warren

1. This representation requests a fair and proper redress of wrongs by the Minister because of:

i) the corruption of military justice and procedural fairness deliberately used to bring about Major Warren's forced resignation and

ii) the abuse of power by the Department of Defence in its violation of a transparent accountability to its responsible Minister thereby perpetuating continuing harm and injury to Warren 1981 to date and

iii) an unacceptable offer in 1995 of $4,500 for loss of career, reputation and service entitlements.

2. Past responsible minister have not taken this scandalous case seriously. Ministerial protection of the civic order principles of the rule of law and natural justice ought now be sufficient reason for the Minister for Defence to urgently and honestly finalise this case.

3. It would seem that military command has become too morally weak and too systemically dishonest to fulfill its public duty to maintain and protect the rule of law within Army. Under the notion of a command driver organisation it has nurtured a military leadership demand and expectation for authority without responsibility. In practise that command has evolved an unchallenged right of dutiless authority over military justice procedures. Consequently a culture of deceit and improbity now has an unfit influence over Army's legal and administrative mechanisms of investigation, justice procedures and for advice to the responsible minister. There is ample evidence of this corruption of due process, including destruction of government records and improper advice to the responsible Minister for decision-making in the Warren case.

4. It is this unfit influence with its self-interest, cronyism, careerist intrigues and subversion of law that has covered up the improbity and maladministration involved in the ex-Major Warren case 1981 to date. Grave damage has been inflicted on Warren before and after 1981 because of military motives of ongoing omissions and failures. Both are actions and give rise to responsibility and accountability to the Minister for Defence.

5. Under poor ethical standards of military leadership subordinate officers are forced to decide their public duty, morals and priorities. Through fear they must measure the protection of their self-interest and career opportunities against the scale of moral weakness and improper conduct of superior officers who write annual performance assessment reports on them. This Defence Law report system is the genesis of military leadership's abuse of power. Through it dishonest senior officers are as much able to reward a subordinate officer for complicity in their improbity or penalise a disfavoured officer for a job well done.

6. The officer report system is the most powerful Defence Law tool that senior officers can use to generate the fear necessary to intimidate subordinates to act improperly. Corruption of this report system is totally repugnant to the rationale that military duty is tempered by obedience to and trust in military leadership. Such corruption of the report system and military justice procedures as manifested in the ex-Major Warren case to date, is nothing more than a demand for and exercise of dutiless-power for improper purposes. Under these conditions the military simply cannot deliver competent or trustworthy leadership. It cannot deliver military justice or accountability to the responsible minister. Hence it cannot fulfill its duty to the civic order.

7. In the ex-Major Warren case senior military officers and their legal officers continue to cause perverse and exceptional harm to the integrity of military law, military justice and military leadership. Their knowledge of and education in the evidence of this case is not being used to resolve the grave injustice done or to correct the long term and systemic maladministration involved. Instead their knowledge and education is being used to cover-up and maintain the intense abuse of authority that has plagued this case 1981 to date.

8. It is both disturbing and dangerous that there are no genuine or workable government checks and balances against the subversion of authority by senior military officers. Nor does there appear to be any ministerial will to impose appropriate sanctions against their improper or corrupt conduct, irrespective of how repugnant or blatant it is. This ministerial omission, misjudgment or incapacity is a serious dimension that has emerged in the Warren case 1981 to date.

9. The military as a whole has both a legal and moral duty to protect itself from any improper and or corrupt behaviour by a senior officer. If not then the military as an institution of state stands in contempt of the responsible minister's duty to protect the community and its civic order.

10. It becomes painfully obvious to the civic body that the moral obligation and the accountability of senior military officers' authority and influence over military justice procedures are made more obscure, less ethical and more incompetent when the responsible minister demonstrates indifference to or acquiesces in their systemic abuse of power. There is ample evidence of this in the ex-Major Warren case to date.

11. Any self-sustaining solution by the responsible minister, or by parliament to protect military law and military justice procedures against the private agenda of military commanders for their self-interest must first competently identify and acknowledge that improper conduct by senior officers is the crux of these systemic failures.

12. To date military leaders and their senior legal officers continue to act with impunity and with corrupt intent to thwart due process and to cover-up dishonest military advise for ministerial decisions against ex-Major Warren. Army has continued to base this advice on its lie that there was no improper military conduct or corruption of the officer report system involved in the willful destruction of Warren's career, reputation and livelihood.

13. There is also a substantive and obvious risk that the Joint Parliamentary Defence Sub-Committee Inquiry analysis of the rational, moral and legal necessity for upholding and protecting military justice procedures risks being forfeited to the duplicity and evasions of senior military officers and some of their legal officers who have made submissions to parliament on this subject. Yet it is cases like the Warren case that has given rise to this very sub-committee inquiry.

14. Senior military officers have abdicated their fidelity to duty and risk making untenable public trust in military leadership. By not exercising due and prudent responsibility and authority over the military, past Ministers for Defence have allowed greater evil-doings to arise from Army leadership's willful and malicious perversion of military justice procedures resulting in the several corrupted ministerial decisions against ex-Major Warren 1981 to date. It is up to the Parliament to now take control of those who manage the Australian Defence Force. Evidence to date in the Warren case demonstrates the minister cannot.

Yours sincerely, 

Mr A K Warren