Over the last few days some of the media and others have been calling for the resignation or sacking of Defence Minister Stephen Smith over the defence force Skype sex tape scandal. Yet they have failed to call for the same from the Chief of Defence General David Hurley and the commander of the Australian Defence Force Academy Commodore Bruce Kafer.
Criminal offences have taken place in their attempt to cover up criminal offences in the defence force and there needs to be a Royal Commission as the cover-up is being directed by the highest levels of the defence force.
I have written about this a number of times but just a quick background to what has happened to date. In a previous post on the 11th of April 2011 titled “Pigs On The Run – The Australian Federal Police” I said the below:
Australian Defence Force sex tape scandal
The Australian public have seen the Federal Police’s cover-up tactics in full flight in the last few days with the Australian Defence Force sex tape scandal involving the 18-year-old girl. The Federal Police initially swept it under the carpet and only decided to investigate when Channel 10 ran an interview with the girl on the nightly news or at least that is what the Australian Defence are implying by their public statements. Both Defence and the Federal Police are have been contradicting each other all over the place with their public statements.
A quick overview is that an 18-year-old female cadet at the Australian Defence Force Academy was secretly filmed having sex with a male cadet using the telecommunication service Skype. The male cadet had set up the video unknown to the girl and six other cadets were in another room watching and two were under the age of 18. Still photographs were also taken on mobile phones and distributed around the base.
Another cadet was shown the photos and was disgusted and made a complaint to defence force officers.
The 18-year-old female was told by defence that Federal Police had told defence force investigators that it was not a crime in the ACT like other jurisdictions (other states). She was told that all that would happen is that the cadets involved would have leave stopped and a restriction of privileges.
The day that Channel Ten ran the story they contacted the Australian Defence Force Academy for a response and were told that the Federal Police had changed their initial advice because it happened on federal property and it is covered by Commonwealth Laws and that they would now investigate.
The problem with this is that the ADF (Australian Defence Force) has a very large and well resourced legal department and would have been well aware right from the start that a crime had been committed and that is was covered by Commonwealth Law. The General Counsel for Defence, David Lloyd would have been aware without a doubt but as you can see from a previous posting he has no hesitation in covering up corrupt and criminal conduct at the ADF. (The previous posting is titled “How the Defence Minister Stephen Smith and others cover up the sexual abuse of women”) (Click here to read previous posting)
The so-called initial advice that it was not covered by ACT laws and that they only decided to investigate when they realised it happened on federal property and is covered by Commonwealth Laws is one of the most stupid things I have ever heard. It does not matter whether it is on federal property or not to be covered by Commonwealth laws and the original Federal Police officer who gave the advice would have known this the same as David Lloyd General Council for Defence would have known. The whole of Australia is covered by Commonwealth Laws no matter where you are in the country.
I really have to wonder if the ADF ever contacted the Federal Police in the first place and only did when the media became involved.
This is what Commissioner Tony Negus has been quoted as saying in the last few days:
Australian Federal Police commissioner Tony Negus said the original information provided by defence to police related to a very bare set of circumstances.
‘That advice that was provided by defence didn’t really fully comprehend the magnitude of what we now know to be the case,’
Defence sought advice from the AFP and was initially advised it did not appear any offences had been committed.
Mr Negus said defence conducted some original inquiries and some preliminary legal advice was provided on the basis of that information.
‘But then again the circumstances came out more fully later on,’ he said.
Asked if he thought this was intentional, Mr Negus replied: ‘No, there was preliminary advice sought on a particular question, that advice was provided and the circumstances then grew from there.’
Sounds like total crap coming from Tony Negus’s mouth to me.
Just for the record what happened is a clear breach of section 474.17 of the 1995 Criminal Code:
474.17 Using a carriage service to menace, harass or cause offence
(1) A person is guilty of an offence if:
(a) the person uses a carriage service; and
(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
Penalty: Imprisonment for 3 years.
It took me all of 15 minutes to skim through the 1995 Criminal Code to find a section that covers the exact situation. Are we really to believe the ADF and Federal Police did not know? (Click here to read the full post) Two males were subsequently charged. At least one with the above law and which is due to go to trial next year.
Under pressure from Stephen Smith the defence force stood down Commodore Bruce Kafer and set up an inquiry headed by Andrew Kirkham, QC into the defence forces handling of the Skype sex tape. It must be noted that Mr Kirkham is an ex-defence employee and has continued to work for them on a regular basis since he left the force so he is hardly independent.
Mr Kirkham’s edited findings were presented to the media last Wednesday by Stephen Smith and General Hurley. The impression was clearly given that Commodore Bruce Kafer had been cleared by the Kirkham report of doing anything wrong and it was announced that he would be reinstated last Friday.
It was also stated that defence had legal advice that if they did not reinstate Commodore Kafer they ran the risk of Kafer instituting legal proceedings to be reinstated. Well, Kafer was never going to do this because his criminal conduct would come to light. What more than likely happened is that Kafer said to Hurley “if I go down I will be taking others down with me” so he was reinstated.
Mr Smith also said words to the effect that a number of things that the 18 female claimed happened had been found to be untrue by the Kirkham report. The net effect is that Kirkham has called the 18 female a liar and a fabricator. I know who I believe and it is not the defence old boy Kirkham and his cronies at the ADF. Kirkham is a disgrace bludging off the taxpayer and who does not want to upset his cash cow which is the ADF. He should never have been appointed with such a conflict of interest and was never even close to being independent.
Within 24 hours of the edited Kirkham report being released by Smith and Hurley Channel 10 was given at least some unedited parts of the report which showed amongst other things:
“a leaked document revealed a senior defence official was strongly criticised and found to have acted inappropriately.”
and ”Commodore Kafer could and should have foreseen that [disciplinary charges would be served on Kate] at a time when [she was receiving] medical treatment and had recently been advised of the Skype incident, and further that such service could cause her upset.”
“Mr Kirkham’s report also found that Kate suffered unnecessary distress because of Commodore Kafer’s actions and that he failed to inquire as to whether Kate wanted the disciplinary matter to be delayed.”
”The inquiry finds this failure unfortunate … such inquiries would have been a sensible and appropriate course of action.” (Click here to read the full story)
It seems the whole unedited report has not been leaked but only parts of it. But just based on the parts that have been leaked General Hurley and Smith were clearly and deliberately lying to the Australian public and attempting to cover up the real report at least in relation to the actions of Commodore Kafer.
It does not matter how you look at it Commodore Kafer has to resign or be sacked and the same can be said for General Hurley.
The full report has to be released and an open and public inquiry into Mr Hurley’s conduct needs to be forthcoming. And who were the people who originally lied to the female cadet and said what happened was not illegal in the ACT.
A separate inquiry was also commissioned last year by Stephen Smith. I said in the post titled “Going Jack – Air Chief Marshal Angus Houston”:
“At the time of writing this over 1000 people have made complaints of abuse in the Defence Force to the law firm DLA Piper who is investigating and doing up a report for the Defence Minister Stephen Smith.” (Click here to read the full post)
Also, last Wednesday Stephen Smith released the DLA Piper report which in The Australian said:
“THE Australian Defence Force faces years of investigations into hundreds of allegations of violence and psychological abuse in its ranks, with some claims involving serious criminal offences.”
and ” A national law firm’s initial review of more than 1000 complaints of abuse in the ADF has found that at least 775 were “plausible allegations of abuse”. Its recommendations for action include a possible royal commission, a national apology to victims and the likelihood of millions of dollars in compensation being paid.” (Click here to read the full article)
If defence is able to sweep the Skype sex tape scandal under the carpet what hope have the 775 people who have “plausible allegations of abuse” of ever getting justice.
General David Hurley has been caught out for being a disgrace to his uniform and like his predecessor going jack on his soldiers. If he had any self-respect he would resign summarily. What he has done is what only the low of the low would do. The same can be said for Commander Bruce Kafer.
And as for Stephen Smith there was a great article in the SMH on the weekend by recently retired major-general John Cantwell who said:
“It’s all about respect. Does the Defence Minister, Stephen Smith, respect the men and women of the Australian Defence Force? Regrettably, the answer appears to be ”no”.”
and this “I provided a frank assessment of the quality of Afghanistan security forces we were training. Throughout, Smith sat immobile, taking no notes, making no comment. At the conclusion of this briefing, to which the then chief of the Defence Force Angus Houston added his insights, I asked if he had any questions. There were none. It must have been a cracking brief.” (Click here to read the full article)
I doubt that abuse in the defence force is any higher than in the greater community as a whole and even though cover-ups go on in general society I have no doubt the level of cover-ups is significantly higher in the defence force as the above shows.
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Categories: Lieutenant-General David Hurley, Stephen Smith
Whilst most of your posts have substance and are generally on the mark I think this particular effort is close to being a rant. It would appear that the crux of your argument is that Channel 10 were miffed at some point.
ADFA is located in the ACT and is therefore under the aegis (in the first instance) of the ACT legislation and police force. Advice sought (initially) regarding ACT law and (subsequently) commonwealth law was in my opinion correct in process. As I understand the situation, the male perps have/are being taken care of under ACT legislation and should it be suspected that an offence under commonwealth law (communications act) was made then further action may be warranted. Therefore the process thus far is sound. If “Kate” in a civilian context was scheduled to appear in another place, say before a magistrate, the day after a particular stressful event then her legal representative would have grounds to apply for a stay of proceedings. As I understand it, even under military law and for relatively trivial offences, defence personnel have representation: was such an application forthcoming? If not, there’s your target and not a general spray about the perceived inadequacies of military justice
Your understanding of the process and facts are wrong and you have left out a couple of key points. The ACT police are the federal police. The ACT do not have their own police force. The federal police are contracted to do it for the ACT. They are well aware of the federal laws. Police anywhere in the country do not first look at the state laws then at a later date look at the federal laws to see if a crime has been committed. They do it at the same time and in the first instance.
And why the stupid excuse from the federal police that in further reflection that because it happened on federal land it is covered by federal laws? Like I said everywhere in the country is covered by federal laws whether the land is owned by the federal government or not. The stupid excuse only happened after the media became involved, say no more.
You say that “As I understand the situation, the male perps have/are being taken care of under ACT legislation and should it be suspected that an offence under commonwealth law (communications act) was made then further action may be warranted.”
Well if that is true then why was “Kate” originally told it was not an offence in the ACT. From what I have read at least one of the charges relates to the Commonwealth law which is in the post.
You say she should have asked for a stay of proceedings in relation to the issue against her. Any manager with half a brain would have done it without asking “Kate” which Kafer did not. I notice how you put it back on her.
To my knowledge she did not have representation when she met with Kafer either which you allude to.
Thanks Shane, for keeping us up to date on these crimes which the Federal depts. of all types seem to consider best hidden from the public. It is a disgrace that the Federal Police have lost the respect of many and now the Australian Defence Force, through its LEADERS, including Smith, have brought shame to Australia and the Govt.
I don’t know about this one. There needs to be discipline in our armed forces. I am a woman, so don’t pull the sexist card on me. Are they creating social workers or army officers to defend our county? Life is tough, Australia needs defending. Stupid girls and boys do stupid things. If you can’t handle the heat get out of the kitchen.
On the face of it some people could say it was a minor issue. But there are two key problems.
1. The Skype sex tape issue above is good in the context that the whole country can see how they cover it up. The problem being is that there are other alleged crimes that are a lot greater than that which are covered up aw well. In a previous post I said this “There are numerous examples of this, the latest being a report on the ABC program Four Corners titled “Culture of Silence” The program relates to three people one being a female who was raped in the navy and the cover up, another being a male who was raped and bashed at the ADFA and the third being a male who was severely bashed by members of his battalion. A story on news.com.au gives an overview of the Four Corners report which is titled “Navy forced me to ‘keep rape quiet’, former cadet tells ABC’s Four Corners” which is at http://kangaroocourtofaustralia.com/2011/07/03/going-jack-air-chief-marshal-angus-houston/
2. The Skype sex tape scandal happened at the ADFA which trains people to become officers in the defence force. What have they learnt? How the senior officers in the defence force do not take responsibility for their actions and are happy to cover it up. Lesson? You do not have to take responsibility either if you do want to.
The point is why cover it up and victimise the victim! They should have had their backside kicked and the lot of them booted out. If they are going to allow woman in combat roles the culture has got to change!
Women should not have combat roles. Simple. This problem can never be stopped while there are women in the military.
Robert J Lee
Personally I believe the army would be better off without men.
They fight too much.
Robert J Lee, surely you cannot be serious. “This problem cannot be stopped” what the hell?, so does this mean men are UNABLE to act in a decent manner at any time? Why are they then allowed to “Care-take” our country’s people? Unbelievable!
My eldest daughter joined the army at 17 to be a clerk, she served 8 years left, married, had a child and worked in the public service for many years.
Her husband died 14 years ago, since then, she had raised their child on her own. Looking for stability and because she enjoyed her previous time in the army, she re-joined.
She was surprised at how much the army had changed in the16 years or so she’d been out. No more women’s corp. not only was she a clerk again, but the main priority was to be a ‘soldier’.
She has since left after doing her time as has no interest in the combat roles they forced her to participate in. The comradeship and respect for each other the army personal once had has long gone.
The army needs administration staff but to be a combat soldier as well is just silly..each to his own job for goodness sake, now it’s soldier first and every other job such as mechanic, cook or admin second.
It doesn’t work as nothing gets done properly.
Some of the many stories she has told me just makes me sad, the millions of $ of waste, the disrespect for each other etc etc. I would not recommend the army to any young person considering their career choices.
She was stalked and sexually harassed by a senior officer and she was the one they sent for counselling telling her she had a vivid imagination…..please explain?
I’m sorry that your daughter had such an unpleasant experience. There are actually good people in the Army who are respectful, friendly, caring, compassionate, diligent, professional and so on.
Internally, there is always pressure for resources, promotion and appointments, etc, where the quest to ‘look good’ or achieve the aim is paramount. Narcissistic people can do very well in this environment while leaving a wake of disaster as they fuel their ego.
At the organisational level, there are some unhelpful Government pressures such as unreasonable cost reductions, unfunded tasks, etc, that are genuinely challenging, yet attract some questionable decisions by people who like to think they know what they are doing.
Then again, there are also corrupt people at many levels, complex redress processes that can be ignored or dealt with in a feint manner, institutionalised victimisation of people who complain and other realities that are difficult to overcome, if not impossible. This is an ugly side that unfortunately prevails.
All the same, thanks to your daughter for her two periods of service and the good things that she achieved in her role as a clerk.
What is truly astonishing in all this is many versions of the truth which is supposedly arrived at by our transparent government institutions.
It’s about time that the word independent is actually used in the right context for an independent body instead of siding with the organisation that hires them.
Really it’s the best we can expect from a corrupt government, government bureaucrats and the media pressing their own agendas to eliminate any wrong doing.
Incidents like this and others that are being swept under the thick carpets of the Defence Force tells volumes of an organisation that is decaying within the ranks of metal, brass and polish. It sets a precedent. Not a good one. Very demeaning for women, respect is lost.
Women have no place in combat fighting roles, this is not going to stop here and in the places they are going to be posted, the long wars and the long absences away from home and family is going to get worse.
Sad, that a fighting force is displaying weakness and is in denial. Hopefully, like the misdeeds of the catholic church, it will all come out in the open one day for everyone to see.
How odd then that they would argue there is no offence in some jurisdictions for this matter.
What about the Surveillance Devices Act 2007 (A Federal and as such National Act above others) that stipulates a penalty of 110 penalty points or 5 years imprisonment for such acts.
Does this Act only affects members of the public or is it truly comprehensive and therefore military personnel are also subject to it?
The Act states that Police are also required to comply and only authorised people or those acting on an appropriately authorised warrant are able to operate outside these rules.
Doug
Any device deployed for the purpose of covert video or audio or both surveillance is or should be regarded as a surveillance device.
Any such transmission to other is a retransmission or sharing of said information without the proved consent of a primary party involved is in any real terms a break of the Act.
Now here is an extract of the Act pertinent to this matter:
Part 2 – Regulation of installation, use and maintenance of surveillance devices
Offences in this Part must be dealt with on indictment (see section 5 of the Criminal Procedure Act 1986). However, those listed in Part 10 of Table 2 of Schedule 1 to that Act may be dealt with summarily.
7 Prohibition on installation, use and maintenance of listening devices
(1) A person must not knowingly install, use or cause to be used or maintain a listening device:
(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or
(b) to record a private conversation to which the person is a party.
Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).
(2) Subsection (1) does not apply to the following:
(a) the installation, use or maintenance of a listening device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation,
(b) the installation, use or maintenance of a listening device in accordance with the Telecommunications (Interception and Access) Act 1979, or any other law, of the Commonwealth,
(c) the unintentional hearing of a private conversation by means of a listening device,
(d) the use of a listening device to record a refusal to consent to the recording of an interview by a member of the NSW Police Force in connection with the commission of an offence by a person suspected of having committed the offence,
(e) the use of a listening device and any enhancement equipment in relation to the device solely for the purposes of the location and retrieval of the device or equipment,
(f) the use of a listening device, being a device integrated into a Taser issued to a member of the NSW Police Force, to record the operation of the Taser and the circumstances surrounding its operation.
(3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:
(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or
(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:
(i) is reasonably necessary for the protection of the lawful interests of that principal party, or
(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.
(4) Subsection (1) does not apply to the use of a listening device to record, monitor or listen to a private conversation if:
(a) a law enforcement officer is a party to the private conversation, and
(b) the law enforcement officer is a participant (within the meaning of the Law Enforcement (Controlled Operations) Act 1997) in an authorised operation (within the meaning of that Act) who is using an assumed name or assumed identity.
8 Installation, use and maintenance of optical surveillance devices without consent
(1) A person must not knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves:
(a) entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle, or
(b) interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object.
Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).
(2) Subsection (1) does not apply to the following:
(a) the installation, use or maintenance of an optical surveillance device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation,
(b) the installation, use or maintenance of an optical surveillance device in accordance with a law of the Commonwealth,
(c) the use of an optical surveillance device and any enhancement equipment in relation to the device solely for the purpose of the location and retrieval of the device or equipment,
(d) the installation, use or maintenance of an optical surveillance device by a law enforcement officer in the execution of a search warrant or crime scene warrant (including the use of an optical surveillance device to record any activity in connection with the execution of the warrant), See also section 255 of the Children and Young Persons (Care and Protection) Act 1998.
(e) the use of an optical surveillance device, being a device integrated into a Taser issued to a member of the NSW Police Force, to record the operation of the Taser and the circumstances surrounding its operation.
(3) In this section:”crime scene warrant” has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.”search warrant” means a search warrant issued under:
(a) any of the following provisions of the Law Enforcement (Powers and Responsibilities) Act 2002:
(i) Division 2 (Police powers relating to warrants) of Part 5,
(ii) Part 6 (Search, entry and seizure powers relating to domestic violence offences),
(iii) Division 1 (Drug premises) of Part 11, or
(b) section 40 of the Independent Commission Against Corruption Act 1988, or
(c) section 11 of the New South Wales Crime Commission Act 1985, or
(d) Division 2 or 3 of Part 4 of the Criminal Assets Recovery Act 1990,
(e) section 45 of the Police Integrity Commission Act 1996.
So;
Why are not the guilty parties prosecuted?
Why also are not those governing parties who choose to water this down also prosecuted?
Doug
Two people have been charged. It is still dragging through the courts. Highly likely more should have been.