Releasing the Kirkham Report into the April 2011 incident at ADFA is now well overdue

The attitude and consequent behaviour of the Minister for Defence unfortunately remains the biggest obstacle in achieving justice for both victims of last year's scandal at ADFA. He can, however, easily fix this.

Tuesday, 03 January 2012
Letter to The Canberra Times
(not published)

Releasing the report into the offensive sexual incident at the Australian Defence Force Academy last April needs to be put in context. 

A general “warts and all report” by the federal sex discrimination commissioner (a statutory officeholder independent of ministerial influence) has already concluded that ADFA is, overall, an impressive and well-run institution. 

If, as reported in the media, the inquiry by Andrew Kirkham QC has effectively exonerated the specific actions of the commandant and his staff, then duly reinstating Commodore Bruce Kafer should be done before the new ADFA training year starts later this month. 

But this is only part of the solution. 

The ADF also needs to continue protecting the stalled potential career of the other victim of the incident, the young cadet filmed without her consent.

And where the group dynamics of the cadet body have led many to blame her, however unfairly, for the subsequent public hysteria fed by the extensive and mostly inaccurate media coverage that so unfairly traduced all their reputations. 

Then there are the likely consequences of an objective report reflecting poorly on the judgement and actions of the Minister for Defence (even though Kirkham’s terms of reference prevented him examining such actions). 

It is not in the national interest for there to be further tension between this Minister and the defence force.

Alleviating this is no doubt concentrating the minds of the ADF and departmental hierarchy, especially if the report is likely to embarrass him politically and personally. 

A personal and public apology to Commodore Kafer from the Minister would undoubtedly help. 

As would his admission that, as widely acknowledged among administrative law experts, the Minister’s attempted interference in an unrelated defence force disciplinary proceeding concerning the female cadet should not have occurred.

Being contrary to the principles of administrative law in particular and the separation of powers between executive and judicial (and quasi-judicial) functions generally. 

Civil-control-of-the-military by Ministers (on behalf of Parliament) is engrained in the institutional and professional cultures of our defence force, the Constitution, and the necessary separation of civil political control from military command in the Defence Act.

But such civil control must be exercised properly, lawfully and carefully.  

Now, the Minister’s spokesman claims that the Kirkham Inquiry “was formally requested by the Chief of the RAAF [sic]… and is not for the Minister to release”.

But the Minister directed the Service Chiefs to hold the inquiry (as is his right) and would have approved the terms of reference. 

Its formal institution by the Chief of Air Force only reflected the longstanding constitutional and statutory separation of military command from ministerial control. 

Whoever is responsible for the report’s release this should occur now.