April 2009 non-consensual filming incident at the Australian Defence Force Academy

Reporting of the non-consensual filming of consensual sex between two cadets at the Australian Defence Force Academy (ADFA), contrary to ADF discipline, has now evolved into incorrect assumptions and claims that affect informed public debate on defence force capability and operational matters.

The Australia Defence Association therefore enters the debate somewhat reluctantly.


The constitutional principle of civil control of the military

We remind those involved on all sides that civil control of the military by its Ministers is a longstanding tradition in Australia. It is rightly entrenched in our constitutional system, the institutional culture of our defence force and the day-to-day professionalism exhibited by ADF personnel. 

There are, however, significant reciprocal responsibilities involved.

Especially as our apolitical military are often legitimately prevented from defending themselves in public from uninformed, partisan or other biased criticism — and must rightly observe privacy restrictions and natural justice provisions when discussing individuals (and claims made by individuals). 

Moreover, the excessively rigid, non-responsive, over-centralisation of control over defence public affairs matters in the Department of Defence and the Minister’s office over the last decade or so has added new problems that could be avoided by decentralising responsibility to ADF commanders at all levels again (as largely occurred until the late 1990s).

Our defence force is now too often unable to defend its professional reputation collectively, and the reputation of its members individually, from ignorant, biased or sensationalist criticism. This is inequitable to say the least, but is also operationally and strategically stupid. 

Australians rightly expect the Attorney-General to defend judges from unfair and incorrect criticism. Similarly, given the sensationalist and highly inaccurate manner in which the media has covered the recent incident at ADFA, comments today by the Minister for Defence correcting media misinformation, and incorrect assumptions by members of the public, are to be welcomed. 


Discussion needs to be based on facts not disproven allegations

As in all such cases, there are two sides to every story.

As has occurred in many previous cases of real and supposed ADF scandals, the media has largely published and broadcast only one side. And again in this case with little or no understanding of precedents, context, nuance or the necessary professional and legal procedures of a modern defence force. 

As the Minister has now finally confirmed, a number of the allegations published and broadcast as fact about this incident are untrue.

  • The female cadet involved did receive extensive counselling from the beginning.
  • The defence force did investigate and handle her initial complaint immediatey, professionally and appropriately.
  • ADFA does have extensive and readily accessible means of lodging complaints about sexual harassment and other matters, an extensive education program about them and a long record of effectively handling such issues.
  • Contrary to her apparent claim (as broadcast), the cadet concerned was never asked to apologise to her classmates or the whole cadet body for going to the media (contrary to ADF regulations).
  • No-one at ADFA or elsewhere in the defence force has downplayed or tried to cover up that her consensual sexual intercourse should not have been filmed without her knowledge.
  • From the beginning, the ADF has considered a serious disciplinary offence occurred even though the civil police were initially unsure as to whether a civil criminal offence had been committed.
  • The Commandant ADFA has rightly noted that such a serious abuse of professional standards and trust is likely to be a career-ending one for the perpetrators. 

However, Minister Smith’s implicit refusal at a media conference to support the difficult command decisions made by the Commandant of ADFA is unfair and extremely disappointing.

Surely he could have dismissed such factually-ignorant questioning by noting that there was no evidence to suggest that anyone in the ADF chain of command had acted inappropriately. 


Ministerial confusion

The Minister’s comments on the separate and summary disciplinary proceedings also involving the female cadet are also highly unfortunate and perhaps inappropriate — just as they would be if a minister of the crown commented in such a way about similar matters before a civil court or tribunal.

Such comments have unfortunately led to false claims in the media that the separate disciplinary (not criminal) proceedings were somehow improper bullying of the cadet charged and aimed at improperly influencing her to withdraw her complaint about the filming incident.

Such allegations are clearly invalid as the ADF disciplinary investigation into the filming incident, which had already commenced anyway, would necessarily continue independent of whether she complained or not. Such outrageous and intrue allegations should be refuted by the Minister for Defence, not encouraged by him, however inadvertently. 

The cadet in question had pleaded guilty to these very minor disciplinary charges before the filming incident was known to her and publicly. After counselling and legal advice she freely chose not to request a delay in the proceedings in which she accepted her guilt anyway. She apparently wanted the minor matters out of the way so she could concentrate on the much more serious filming incident. She was also apparently concerned that her fellow cadets would think less of her if she avoided facing the minor disciplinary charges. This was a resonable decision by her in the circumstances, particularly where the group dynamics of the student body in any tertiuary institution need to be taken into account.

The charges were simple "out-of-bounds" type matters heard before a subordinate summary authority (presumably her squadron commander). It was not a “court case”, not a criminal matter nor an overly-formal proceeding, as the Minister’s comments might unfortunately lead those uninformed on defence force disciplinary law to believe. 


The constitutional principle of the separation of powers

It is also surely constitutionally inappropriate (at least) for the Minister for Defence to be perceived as interfering in defence force disciplinary proceedings.

Particularly when they were minor matters involving the lowest jurisdiction of such proceedings and when a Minister could not possibly know, or be expected to know, all the circumstances, facts and ramifications involved.

Nor indeed all the leadership, associated welfare and development issues involving the person charged. 

No minister or indeed no judge can interefere in the proceedings of a magistate's court because this would breach the principle of the separation of powers.

Those defending the minister's improper actions need to realise and respect this principle, not ignore it through political or ideological convenience.


Cultural aspects

Finally, despite the current sensationalist and invalid media clamour, the filming without consent incident at ADFA (involving cadets who have only been there some ten weeks) does not prove or even indicate a systemic cultural problem in the defence force about gender matters. Just as occasional similar incidents at other Australian tertiary institutions do not necessarily indicate systemic issues in such institutions either.

The real issues here about sexual norms and social media are surely more general ones in the wider Australian society from which our defence force is necessarily recruited and which it generally reflects. Particularly among the younger age cohorts that the ADF employs disproportionately in comparison to most other professions and industries. 


Real lessons to be drawn

The biggest lesson in this case is that the whole matter could have been resolved in much more detail, much swifter and in a much more effective manner for everyone concerned if the Commandant of ADFA had been allowed to explain the facts from the beginning.

Including when Channel 10 were first approached by the female cadet with claims about supposed ADF indifference to her situation that we now know were not correct.

Instead the Commandant has been wrongly scape-goated by the media and some comments by Minister Smith have unfortunately not helped correct such disgraceful scape-goating. 

Another lesson worth pursuing legitimately by the media is the quality of advice on defence force professional matters the Minister is receiving from his political staff.