Within a few hours, the chiefs were gone and behind closed
doors the committee began hearing from a second group of soldiers,
victims of those beatings. Among them sat a military-police
bodyguard assigned to protect one of the witnesses, who had
allegedly been threatened with violence in an attempt to secure
his silence. Hearing the contrasting testimony of the two
sets of witnesses, an observer might have been forgiven for
thinking that in the Australian Army, the bonds of obligation-the
lines of responsibility from top to bottom, bottom to top-had
completely broken down.
What began as a probe into the culture of the 3rd Battalion,
Royal Australian Regiment in the late 1990s has become more
substantial and more disturbing. The military's award-winning
system of equity and anti-harassment measures, and its procedures
for bringing wrongdoers to justice, are not working. With
reports of sexual assault on the rise, a record sum awarded
in a harassment case last month, and recruitment and retention
on the wane, the Australian Defence Force's credibility is
under question. According to some familiar with the military
justice system, promised reforms do not address the real problem-a
recalcitrant military mindset. "The system is O.K.," says
one senior military legal officer. "But it's not being followed
through."
In August, Time revealed that a "culture of violence" had
existed within 3RAR; that military police had investigated
and recommended charges against 14 men; and that well-intentioned
intervention by Cosgrove had been ruled unlawful, causing
the first of the prosecutions to be aborted. As a result,
the defense subcommittee of the Joint Standing Committee on
Foreign Affairs, Defence and Trade launched its inquiry.
As this fresh investigation progresses, it is 3RAR's past
command that is coming under scrutiny. Evidence now coming
to light suggests that key staff within the élite paratroop
battalion knew of the rough justice and failed to act. A platoon
commander claims he told his commanding officer he had been
illegally subjected to torture training, only to be told:
"I can't let one of these incidents get outside the unit."
Soldiers have similar allegations, and a civilian doctor has
claimed he too spoke to a commander about the violence. Noting
that the incidents formed a pattern, military investigators
asked the unit's leaders whether this reflected a "systemic
cultural problem." Everything was denied. But the evidence
warrants further inquiry-as it did in April 1999, when the
original investigation was halted. "I was given the direction
Š it had to be wound up reasonably quickly, to get a resolution
on it," military police officer Maj. Sean O'Connell told the
inquiry. "I believe there were questions being raised in parliament
at that time."
The ADF will now hold an inquiry of its own, to be headed
by Federal Court judge James Burchett; it will also create
an Inspectorate-General to act as an internal affairs bureau.
"My reaction to these events in 3RAR," said Cosgrove, "is
to quickly do what I can to prevent this from occurring again."
But while it's stories about battered diggers that grab the
headlines, investigations by Time and the secret testimony
given to the committee point to a deeper malaise: that of
a military culture that fails to react adequately when violence
appears in its ranks, a culture in which victims are terrified
and whistleblowers feel vulnerable. And, says Roger Price,
Labor M.P. and deputy chair of the defense subcommittee: "For
a culture of violence to exist, you need someone's approval."
Cosgrove told the committee that for the Army, the most serious
allegation to emerge from the 3RAR affair was that "such activity
may have been condoned." But he said the investigation was
not widened in 1999 to examine that possibility for fear of
losing focus on the assaults. Admiral Barrie said the forthcoming
ADF inquiry would "look at that cultural issue."
It's an issue most soldiers can readily explain. Says Squadron
Leader Alistair Twigg, who has served since 1969 first as
a navigator and then as a reservist lawyer: "The attitude
is still that you have to break people down and remodel them
into those who will follow orders, and die on command, without
thinking. That doesn't sit well with the developments in human
rights and discrimination law since 1975."
Part of the problem is the military's reluctance to rebuke
its own. Says Commander Geoff Vickridge, a senior naval reserve
lawyer and defense counsel in the 3RAR prosecutions: "They've
split up our defendants [the men were charged together], changed
the charges, brought in a Q.C. to prosecute in front of the
commanding officer, and they still haven't got the people
they should be going for." Says another reserve lawyer: "The
only time they prosecute an officer is when there's no choice."
But a Department of Defence insider says that is unfair. "We
can't win," he says. "If we don't charge someone it's a whitewash,
if we do they're a scapegoat." When officers are found to
be negligent, insiders say, rather than charging them the
ADF uses early retirement to let them leave quietly.
On the face of it, the military provides an aggrieved soldier
with many opportunities for justice. He can rely on the chain
of command, reporting to his immediate superiors or a company
commander and eventually to the commanding officer. If that
route is blocked, the soldier can approach the unit's equity
officer, the padre, the regimental medical officer, or a complaints
hotline. All of these options were allegedly tried by frustrated
paratroopers: none of them worked. "Every lever was pulled,
but nothing happened," says a subcommittee member who asked
for anonymity.
In 3RAR's case, it was only after the mother of Private Jacob
Nishimura wrote to then junior Defence Minister Bronwyn Bishop
("It is imperative that I speak with you urgently," implored
one letter), and Corporal Craig Smith produced evidence that
a senior NCO had forced soldiers to give false testimony,
that an investigation was launched, in September 1998. Captain
Helen Marks, the ADF's Director of Discipline Law, says "it's
a great concern" that things came to that pass. Asked at the
inquiry on Oct. 6 why ordinary soldiers should retain confidence
in the military justice system, Commodore Raydon Gates, the
ADF's Director General of Career Management Planning, said:
"I believe the system is working. I personally have confidence
in what we've laid down here."
Some senior officers cite the growing number of complaints
as proof that soldiers trust the system. Reports of sexual
assault in the ADF have increased 175% in the past year. In
the Air Force, complaints of sexual harassment are up 162.5%;
in the Army they're up 30%. But not all soldiers are happy
about the results. One servicewoman says she was inspired
to train as an equity officer by the inadequate response her
claims of sexual harassment received-and found three other
harassment victims in the same course. Gates told the inquiry,
without a hint of irony, that the woman's experiences would
make her a better equity officer.
Last month the Human Rights and Equal Opportunity Commission
awarded $130,000-Australia's highest sexual harassment payout-to
former Air Force leading aircraftwoman Katherine Williams,
saying that despite the Air Force's network of counselors,
there had been "no real investigation" of Williams' complaints.
All the right measures are there; it's the will to implement
them that is lacking. "The problem is not so much that we
lack the guidance," Cosgrove told the inquiry. "We have got
to digest it and believe it." Air Force lawyer Twigg says
it isn't just a matter of having enlightened officers at the
top: "If each level erodes [policy] a little bit, by the time
it gets down to the privates' rank it looks nothing like how
it began."
In early 1999, as it was winding up its original inquiry,
the parliamentary committee considered establishing a Directorate
of Military Prosecutions, akin to that in the United Kingdom.
The ADF rejected the proposal, saying it would threaten commanders'
control of their units. If the facts about 3RAR had been known
then, says a source, the committee would almost certainly
have recommended an independent prosecutor. When it finally
heard from the victims, it learned that one had moved interstate
after threats against his family, only to have his attacker
posted to his new unit. The second man's move "would appear
more than coincidental," said the victim's bodyguard. If the
ADF is unable to prevent coincidences like that from recurring,
parliament may yet conclude that the military cannot be trusted
to protect its own.
