Stephen Smith and the ADF: Slow-marching to a constitutional and institutional crisis

Since June 2011 ("Defence Brief" 144 refers) the Australia Defence Association - as the relevant independent, non-partisan, public-interest watchdog - has been warning of a burgeoning problem with Stephen Smith’s approach to his responsibilities as Minister for Defence.

In the February 2012 edition of our bulletin Defence Brief we again warned that Australia was still slow-marching to a constitutional and institutional crisis unless the PM stepped in to counsel, reprimand or move Smith.

Civil-control-of-the-military is an essential Westminister-system principle but it must be exercised constitutionally, legally and properly.

No Minister in any portfolio has untrammelled power just because he or she is a Minister.

The importance of this principle goes back centuries.

“Civil” means by Ministers on behalf of Parliament and according the relevant constitutional heads of power and the laws derived from them.

It embodies Parliament’s necessary ultimate control over our defence force and also the necessity to keep the ADF apolitical institutionally and uninvolved in politics professionally.

Civil-control-of-the-military therefore incorporates reciprocal obligations between Australia’s government and our defence force.

Where the reciprocity breaks down (as with Smith’s attitudes and capricious actions), the professional confidence of the defence force is badly shaken.

In my 40 years in the ADF as a regular and a reservist I have only seen the defence force lose professional confidence in a Minister, on moral grounds, twice.

With Peter Reith over “children overboard” and with Stephen Smith over his scape-goating of Admiral Crane, Commodore Kafer and others.

Some confusion about the relevant constitutional principles arises, however, through careless use of the incorrect term “civilian control of the military”.

There is no such thing.

This term misrepresents the principle really concerned and has been occasionally used, wrongly, to justify unwarranted Public Service interference in military professional matters or in biased political commentary on defence matters generally.

Moreover, history shows that the ADF has invariably obeyed even silly or partisan decisions by Ministers for Defence because of its engrained cultural and professional adherence to the principle of civil control.

The current problem is not caused by ADF Chiefs somehow resisting such civil control. It is because of the exact opposite.

The CDF and Service Chiefs are having to insist civil control be exercised properly. And — in regard to the treatment of ADF personnel — that it be exercised lawfully and in accordance with the principles of natural justice, administrative law and the separation of powers (and not in response to misinformed public hysteria).

Naturally they cannot say this in public. Indeed their professionalism and respect for the principle is shown by the way they have bent over backwards to help the Minister from further embarrassing himself.

Smith seems oblivious to such loyalty, just as he seems oblivious to the need to defend the ADF from inaccurate and unfair criticism because it is not allowed to defend itself.

Smith’s general indecisiveness, marked sense of “amour propré”, future leadership ambitions and his related tendency to prioritise partisan actions over good governance in the portfolio, greatly exacerbate the problem.

Several myths underlie public confusion about this issue and probably much of the misplaced public support for Smith’s claimed stance.

  • This is not a case of Smith versus the “top brass". The loss of confidence in Smith, on moral grounds, is widespread throughout the defence force — certainly among NCOs and officers.
  • It is not just about Smith’s scape-goating of Commodore Bruce Kafer over the ADFA scandal last April. The mistreatment of Kafer is just one in a long series of incidents with the common thread of natural justice and common decency being subsumed to Smith’s personal ambitions.
  • Nor is this a case of the defence force “resisting reform” from a supposedly “crusading minister”. The defence force has thoroughly supported the few attempts at administrative reform attempted by Smith and, more importantly, the comprehensive efforts of recent genuine reformers like John Faulkner.
  • This is not because of the ADF objecting to Smith because of past and looming budget cuts. The defence force has long been subject to fluctuating levels of defence investment by governments of all political persuasions. Robert Ray’s widely acknowledged record as the best defence minister in living memory is despite the Keating Government slashing defence investment far too much and causing long-term problems the department and the ADF are still grappling with.
  • This is not the ADF somehow seeking to “decide who their Minister should be”. This is always the PM’s prerogative even when — given three bungled reshuffles of ministerial responsibilities within the portfolio in a row — it seems she is oblivious to the corporate governance problems caused and too distracted to notice how badly Smith is performing.
  • Nor is this “yet another Minister being forced out of the portfolio by the ADF”.
    • It is in fact yet another case of prime-ministerial inattention to the long-term public interest when allocating the Defence portfolio.
    • Of the seven Ministers since 1997 only one (Robert Hill) has served for more than two or so years.
    • The short terms have been instead due to party-political priorities or elections.
    • Three (McLachan, Moore, Reith) were in their last term in the ministry and/or Parliament.
    • Nelson retired when an election was lost.
    • Fitzgibbon resigned for reasons unrelated to the portfolio.
    • Faulkner retired for personal reasons and the seventh is Smith.
    • Moreover, the three long-serving Ministers in the last three decades (Ray, Hill, Beazley) are all highly regarded for their service in the portfolio.
    • Of the shorter terms, only Nelson and Faulkner are highly regarded, both left the portfolio for reasons unconnected with their performance, and both were not in their last term in Parliament anyway.
  • This is not a case of Smith “confronting” supposedly systemic and ADF-wide institutional cultural dysfunction. Every independent inquiry into incidents of misbehaviour by ADF personnel has concluded that no systemic or widespread cultural dysfunction exists. Despite this fact, deficient and sensationalist media coverage generally, and often biased editorial commentary, has led the public to incorrectly believe otherwise. This is naturally exploited by Smith and his apologists.
  • Nor is “denial” by the ADF involved. The defence force has freely admitted where things have gone wrong about the incident at ADFA and elsewhere. It is instead a case of denial about the actual facts by those criticising the ADF through insufficient investigation of the facts or bias.
  • Finally, this is particularly not the "straw-man" case of Smith somehow “standing up for the victim” of the ADFA filming incident. In fact his actions, in whipping up misinformed public hysteria last year, and since, have made the ADF’s duty of care for the victim much harder.

Recent political criticism of Smith by the Opposition will not help resolve the problem because the Gillard Government will just dig in.

What will help is calm and rational discussion of the immediate problem — essentially one of (Smith's) personality — and the underlying one, low political and community interest in defence issues and henceforth generally low levels of public knowledge about defence matters and consequently high levels of public confusion about them.

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