Fitzgibbon: Tensions between the Minister and the Department of Defence are inherent in the structure

If your knowledge of defence issues was confined to reading newspaper headlines, the last few weeks might give the impression that the Minister for Defence is a hopeless nong, that members of the defence force are somehow conspiring against him or that the Department of Defence is out of control. Luckily the first two are not true and the third very much exaggerated but the real state of affairs, as is usually the case, is complex, nuanced and the product of longstanding historical causes.

There are five broad aspects involved but much media and political commentary is conflating and confusing them rather than examining them separately, and in their historical contexts, using first principles: 

  • First, there is the matter of concern about any Australian citizen with access to classified information having links to persons with connections to countries known to undertake active and covert intelligence collection against Australian targets. In summary, in counter-intelligence terms there is no such thing as a friendly intelligence service but there are the intelligence services of friendly countries. There are also Hostile Intelligence Services (HIS) from countries whose overall relationship with Australia, however friendly it may appear at times, includes significant potential for military or commercial strategic competition. China is clearly one of these countries. Any member of the defence force, for example, who has close links with foreign nationals from such countries is required to declare it as these are matters of legitimate preventative security concern. Such ADF personnel may also be the subject of legitimate investigation if they have such links, particularly if they do not declare it or they do not appear aware that such links have the potential to compromise the security of, and their access to, Australian classified information. As a matter of principle and commonsense practice, at the very least, the Minister for Defence should be treated no differently from ADF personnel in this regard.
  • Second, there is the matter of Minister Joel Fitzgibbon's relationship with Mrs Helen Liu, his failure to record aspects of this in the parliamentary register of members' pecuniary interests or detail this subsequently, and whether this was serious enough to require him to stand aside (during any investigation) or resign. This was fundamentally a political matter within the Rudd Government and a controversy between the Government and the Opposition. As an independent and non-partisan organisation the ADA offered no comment on this aspect.
  • Third, is whether tensions between Fitzgibbon as the Minister and his department were individual (both in relation to this particular Minister and that point in time), were unusual – or in fact whether they were mainly structural, longstanding and unfortunately par for the course.
  • Fourth, is whether individuals or elements of the department (or the ADF) may have sought to use the Liu controversy to undermine Fitzgibbon's ministerial authority or even to try and unseat him as Minister for Defence.
  • Fifth, is the matter of whether any element of the Department of Defence actually sought to "investigate" or "spy" on their own Minister and if so at what level, and with what purported authority or propriety, such a decision to do so was taken. On the limited information available thus far, it seems if any such "investigation" occurred, it could only have resulted from a breakdown in Public Service professionalism and the chain of command/authority in the ADF and the department respectively. If it occurred and happened in the manner described, it would also have necessarily included the committal of several offences against the Public Service Act and probably wider Crimes Act and Privacy Act provisions. The ADA notes that internal Department of Defence enquiries have not found any substance in the allegations but we appreciate that this internal inquiry will not satisfy all critics. We therefore welcomed the decision by the Inspector-General of Intelligence and Security (IGIS) to also investigate this matter and expressed full confidence in the independent integrity of such an IGIS inquiry. That the IGIS inquiry also found no substance in the claims is not surprising.

Four other minor aspects are also in play:

  • Who leaked this matter to the media and why? Was it part of an internal political agenda or other tensions within the Labor Party or the Rudd Government?
  • Was this particular controversy just a side-effect of the longer-running campaign by some civilian officials in the Department of Defence to undermine its Secretary? Some senior and mid-level officials still hark back to the outmoded and destructive "divide and conquer" departmental culture of yesteryear. This sought to improperly bolster bureaucratic power by making the Services fight each other so the bureaucracy could claim to Ministers, falsely, that it was indispensible as a "neutral" arbiter. The modern integrated joint-force command structure of the ADF (which the departmental bureaucracy delayed for decades and has since sought to hamstring) means any inter-Service tensions are now resolved professionally and appropriately without any supposed bureaucratic arbiter being needed. Certain old-guard bureaucrats steeped in the outmoded cultural attitudes and practices of a previous era are therefore opposed to the current Secretary and his immediate predecessor (both outsiders from DFAT) because they have done much to reform and refresh the institutional culture of the department. These two Secretaries also both have extensive experience at actually working with the ADF on overseas operations. They have therefore actively sought to minimise the incidence of, and potential for, the poisonous Public Service–ADF rivalry and bureaucratic interference in military professional matters (and other abuses of bureaucratic power) wrongly fostered and encouraged by a generation of Department of Defence officials up until comparatively recently.
  • Most of the media coverage has come from journalists who do not normally cover defence issues. This has resulted in the conflation or over-simplification of the five broad issues above in much of the media reporting.
  • Some generalist journalists and commentators, and various academic and political barrow-pushers, unfortunately do not appear to understand or even vaguely recognise the important legal, organisational and procedural distinctions between the ADF and the Department of Defence as legally and professionally separate entities – but ones which are mutually supportive and consequently partially integrated procedurally. In particular, obvious lack of familiarity with the defence force and indeed defence matters in general has meant plentiful media repetition of myths, unfounded suspicions and other shibboleths about ADF personnel somehow not respecting the principle of civil-control-of-the-military. Unfamiliarity with defence matters has also meant that some uninformed journalists and commentators have even made silly assertions that civil-control-of-the-military is somehow a bureaucratic (and "civilian") function by public servants instead of solely a ministerial one constitutionally and procedurally.

How bad were relationships really?

As part of its public-interest guardian role the Australia Defence Association talks with Ministers, senior ADF commanders, senior Defence officials and others interested in defence matters regularly. Our observation is that relationship between Minister Fitzgibbon and the department, and his relationship with the CDF and the Service Chiefs, was pretty much the same as the last two ministers. It was also certainly better, say, than when Peter Reith was the Minister and embroiled the ADF in the “Children Overboard” scandal. 

Minister Fitzgibbon or his staff may have, of course, sometimes thought their relationship with the department was exceptionally rocky. But this apparent belief probably reflected their limited time in the chair since the late 2007 election and the fact that there is effectively no body of corporate knowledge passed on between successive ministers and their staffs in this regard (especially when they come from different political parties).

Each Minister tends to think their experiences are unique when this is largely not the case. This lack of long-term corporate knowledge among politicians and their staffs is one of the main reasons why the serious underlying structural problems in relation to ministerial supervision of the department are so rarely understood and even more rarely reformed. 

As with Brendan Nelson as Minister for Defence, the ADA has long noted that a lack of senior ministerial staff with departmental, defence force or other real (as opposed to say wholly academic) defence expertise also hampers effective ministerial supervision of the department and the ADF.

What any Minister's staff needs is a leavening of former ADF and departmental personnel who know where the bodies are buried and can offer frank and fearless advice. It is even better if they are people with no ambition to return to the department and therefore unlikely to temper their advice accordingly.

The absence of this expertise lessens the ability of any Minister to be pro-active in his or her relations with the department and the ADF or to adequately weigh advice from them. A staff mainly comprised of people chosen for their personal or political loyalty also tends to mean an undue focus on the politics of issues, and a short-term one at that, rather than a healthy or effective balance between party politics and actual governance in the national interest.

It can also result in somewhat of a cultural chasm in relations and mutual understanding. Many political staffers do not easily grasp or even accept that the ADF, in particular, is necessarily imbued with a constitutionally-based professional approach and focus that strives to be thoroughly apolitical. 

Even excluding the day-to-day focus on party politics by ministerial staff, there will also usually be a clash to some degree over longer-term perspectives and therefore perceived priorities.

Political staff are naturally and primarily driven by the current-year budget cycle and the three-year electoral cycle. The department and the defence force, on the other hand, are necessarily working to the government's rolling 10-year defence capability plan and the even longer strategic assessment, capability development and investment cycles used in any professional defence force or defence department. 

From our knowledge of the department, the ADF and key personalities it also appears unlikely that the motivation for the leak, or for the "investigation" (if one occurred), stemmed from widespread opposition in the department or the ADF to the Rudd Government's overall approach to managing our national defence.

It certainly would not stem from any serious or widespread objection to the principle of civil-control-of-the-military by the Minister for Defence and Parliament.

Media claims to the contrary only demonstrate a serious lack of knowledge of our defence force and its institutional and professional cultures.

Within these contexts, Minister Fitzgibbon's remark that he believed that the attacks on him come from elements of the department opposed to his "reform" measures was therefore unfortunate and unhelpful. 


Underlying structural problems

All Ministers for Defence have their ups and downs with the department. Generally the root cause of this is not personalities or personal failings (real or alleged) but the sheer size, complexity and long-term implications of the national responsibilities involved.

The overall ministerial workload is now effectively unmanageable despite attempts to cope through an ever-burgeoning bureaucracy, various procedural steps and both sound management principles and useless fads adopted from commercial practice. 

As the biggest department, the fourth biggest government spender and third largest employer in the country Defence is also somewhat different from most other governmental responsibilities.

The nature of its core business is, or should be, above party politics and the transient political trends of the current electoral cycle.

The core business of the Department of Defence involves long-term and deep thinking about the unpleasant and even the unthinkable.

It means, if necessary, the deliberate risking or taking of human life. At the ultimate extreme it means planning and preparing for our national survival.

Finally, very few Australians think deeply enough about our defence to change their vote because of a defence matter. This means governments are prone to neglect defence investment unless they receive a strategic shock that focuses their attention. 

We need to help any Minister cope with all this by bolstering their ability to provide ministerial supervision and effective civil political control of the military.

The ADA has long argued for the portfolio minister to be assisted by two full-time junior ministers, one for  DSTO and DMO and one for the ADF (on a similar model to the UK). The Minister also needs at least one full-time parliamentary secretary and probably two. 

When the Rudd Government, on assuming office, appointed two full-time ministers and two full-time parliamentary secretaries the ADA applauded the increase in ministerial oversight from the one and a half ministers and one parliamentary secretary of the Howard Government. 

Recently however, on the same day the Opposition moved a censure motion against Minister Fitzgibbon relating to his ministerial supervision, Prime-Minister Rudd removed one and a half of his two parliamentary secretaries to reinforce Penny Wong politically.  The irony of this dilution of ministerial supervision was not lost on anyone familar with the entrenched structural problems of the Department of Defence.

This purloining of the parliamentary secreatries might have seemed a good political management idea at the time but has undoubtedly been at the cost of good governance of the Department of Defence.

At the very least it smacks of a serious right-hand-left-hand disconnect within the Rudd Government.

It has also tended to further politicise the matter of ministerial supervision of Defence (rather than tackle the actual structural problems). It also no doubt sparked the interest of any keen political journalist but without necessarily interesting (or educating) them in the overall issue. 


Media coverage not helping 

The problem is also again due in part to most media reporting of defence issues now being done by political journalists rather than defence specialists.

Even if only unconsciously, this means a domestic political focus often intrudes on matters that have little or no party-political implications – or that the political aspects get too mixed up with the (non-political) governance ones.

It also often means reporting by journalists unfamiliar with defence issues or the constitutional and professional principles underlying the structure and practise of our national defence efforts. A lack of long-term knowledge of defence matters and their context also plagues much of the reporting. 

Hence the use of emotive headlines such as "dirt file" or “snooping” and loose or incorrect terminology such as “spying”, "military intelligence" or "defence chiefs".

A great deal of the media reporting on the relationship between Minister Fitzgibbon and his department, for example, lacked adequate context, was exaggerated or was overly devoted to peripheral issues.

Too much has been devoted to chasing red herrings, conspiratorial fantasies and even Vietnam-era student prejudices about the military.

Much of the reporting has appeared simply plain wrong. 


Alleged "investigation" of Minister Fitzgibbon

On the specific matter of elements, a rogue individual or a small group of such individuals within the Department of Defence allegedly “investigating” their own Minister several points are worth noting. 

First, no matter how harmless a relationship may appear at first glance, there is nothing intrinsically wrong in checking a close financial link between a Minister and a foreign-born Australian resident from a country known to mount extensive intelligence gathering, propaganda and counter-émigré activities in Australia.

No professional counter-intelligence authority, for example, could afford to ignore the many historical examples where pressure was applied on extended family members still resident in the old country in order to suborn residents who have emigrated to a new one. This begs the question why ASIO was unaware of the matter, even in general, before it was publicised in the media. 

Second, any such investigation would, however, have to be authorised and undertaken properly. 

Third, on the description provided, it would not appear that Minister Fitzgibbon or Mrs Helen Liu have done anything illegal. In any event, the publicity would tend to preclude the potential for the Chinese regime to now try and manipulate Mrs Liu and her extended family in China in any way. 

Fourth, any “investigation” of Minister Fitzgibbon by elements of the Department of Defence, if it occurred, was clearly unauthorised.

Moreover, it is simply very difficult to believe that any proper investigation would, could or should be undertaken without the authority of the Prime-Minister and the involvement of key agencies such as ASIO.

If, on the other hand, this matter was properly raised with the Prime-Minister's staff and nothing was done, as some believe, this would constitute a serious breakdown in governmental responsibility for national security. 

From the cursory and vague assertions and descriptions given in the media, there has been no detail provided that confirms, or indicates with any authority, that personnel from the Department of Defence or the defence force were even involved.

Based on the media claims, and professional knowledge of counter-intelligence doctrine and practice, it appears that one of four things may have occurred in probable order of likelihood: 

  • the whole story is a mistake, hoax and/or media beat-up;
  • a preliminary check was undertaken by someone to see if a formal (and duly authorised) detailed investigation should be conducted (after authorisation by the Prime-Minister and consultations with the Attorney-General and ASIO);
  • a preliminary check was done (perhaps misguidedly but for genuine motivations) by someone acting without due care and authority and it went too far; or
  • enquiries were done improperly and illegally by someone motivated by party-political and/or bureaucratic biases.

There is also the possibility that discovering a connection between a Minister and a foreign-born Australian resident with extensive Chinese connections arose through other (and legal) intelligence gathering activities overseas or from a wider counter-intelligence review of the Chinese government's extensive clandestine activities in Australia. It is also possible that the story was leaked using an alleged "Department of Defence" source as cover for actual leaker(s) elsewhere.

Why this matter was leaked to the media, and by who, is essentially a separate issue. It is not clear who gained from such a leak, certainly not Minister Fitzgibbon and probably not the hierarchies of the Department of Defence or the ADF (despite much shallow and erroneous media speculation to the contrary).

One possibility is that this was leaked by elements of the Department of Defence (or elsewhere in the government) after consultations with Prime-Ministerial staff about a potential security breach led nowhere.

Another possibility is the leak came from Fitzgibbon's opponents within his own party.

A third is it stemmed from old-guard bureaucrats in the Department of Defence seeking to undermine the Secretary as discussed above.

The odds of the latter being the case is perhaps strengthened because these elements have been particularly busy spreading misinformation and even fantasy in the media about the extent, nature and motivation of supposed bureaucratic and military opposition to recent and projected government policy on key defence matters. 


Constitutional principles and conventions

Finally, there is, of course, the general principle that no Australian is above the law or their citizenship responsibility to help defend Australia and protect its secrets and people. 

With two practical exceptions, all persons having access to classified information or secure areas are therefore vetted to the degree necessary to allow and control the access they need to do their job.

In recent years the threat of terrorist attack has broadened the application of this principle. Everyone working airside at an airport or on the docks, for example, is now vetted (including police record and often ASIO checks). Everyone, without exception, is also subject to lawful investigation. 

Vetting processes are not foolproof because they are always a compromise between the time available, the expense involved and the risk management consequences if the person concerned is only vetted to the degree possible or affordable. Often the deterrent value of vetting far outweighs its ability in detecting existing or potential vulnerabilities. 

National defence matters are obviously ones requiring the highest levels of protection and individual conduct. All public servants, ADF personnel and civilian commercial contractors involved with our defence efforts are vetted to the degree necessary. 

Ministerial political staff are also vetted to the same degree as their Public Service equivalents. This was resisted by some for narrow ideological reasons when the Whitlam Government was first elected, but the policy has been universally accepted by both sides of politics since the mid 1970s. 

The two exceptions to vetting before appointment are the Governor-General and Ministers of the Crown.

By convention, they are not vetted on the commonsense assumption that a Prime-Minister would be unlikely to appoint an unreliable person or potential traitor as a Minister.

They are also not vetted to avoid the potential for a minor constitutional crisis should a nominee Minister be found wanting in this regard and a Prime-Minister still insistent on his or her appointment. 

The convention regarding vetting does not provide absolute security but it is preferable to any realistic alternative.

In practice, the career development and election of a Prime-Minister to lead a government constitutes a form of vetting involving the establishment of fundamental trust.

At the apex of our constitutional system the trust implicit in this convention helps preserve the key principle of civil-control-of-the-military (and the security intelligence services) by the government elected by the Australian people. 

Every Australian (including Ministers), however, is subject to lawful investigation – but they also enjoy the presumption of innocence and have the right that such investigations are duly authorised and conducted legally and professionally.