How the Australian Defence Department Misuse Previous Reviews

The Nature of Service Branch, Department of Defence, (NOSB), in their “Background Paper Parliamentary Petition Dated 3 March 2014 Rifle Company Butterworth 1970-1989”, refer to a number of reviews into conditions of service in their attempts to downplay service at Butterworth during the Insurgency. The following comments are relevant to 3:

• The Report of the Committee of Inquiry into Defence Awards, March 1993 (CIDA).
• Review of Service Entitlement Anomalies in Respect of South-East Asian Service 1955 – 1975, February 2000, conducted by Justice Mohr (Mohr).
• Review of Veteran’s Entitlements, conducted by Justice Clarke, January 2003 (Clarke).

The dates of these reports are highly significant. Australian law grants access to those archived Government records that are in the open access period. In May 2010 the law was changed to grant access to most documents after 20 years instead of the previous 30. Exceptions are Cabinet notebooks, which are now available after 30 years instead of the previous 50, and census records which remain closed for 99 years (National Archives Fact Sheet 10). Access may be denied to documents beyond the 20 or 30 year mark if they are still considered sensitive.

Each of the above reviews received submissions from veterans who believed they had a case for service reclassification. Each review looked for evidence to support the claims made and decisions were made on the evidence available. Because of the 30 rule crucial evidence regarding Butterworth service during the 1970s was not available to these reviews. Knowing this, one must question the ethics of Defence to support their position knowing that new evidence is now available.

While referencing these reports to support their position Defence ignore the precedents established by them.

CIDA established 10 principles which they applied to their work. Principle 8 states:

Recognising that its work requires viewing past service through the eyes of 1994, the Committee believes that an appropriate benchmark in considering hitherto unrecognised service between 1945 and 1975 is the terms and conditions that are currently attached to an award of the Australian Active Service and Australian Service Medals. Service rendered during this period which generally meets those terms and conditions should receive retrospective and comparable recognition.

Clarke at paragraphs 13.36 to 11.38 points to the inconsistencies inherent in the system of determining service classification prior to the adoption of the warlike and non-warlike criteria in 1993. Clarke is also clear that to address anomalies in his review of post WW2 service, as required by his Terms of Reference, he applied the warlike and non-warlike criteria (14.1; 14.2; 14.13-14.16) established in 1993 (10.9).

NOSB ignore this, stating at paragraph 108:

All nature of service reviews are considered in the context of the legislation and policies that applied at the time of the activity or operation under review. In the case Of ADF service at RAAF Base Butterworth from the end of Confrontation in 1966 to the end of the infantry rifle company's quick-reaction role in December 1989, the applicable legislation is the ‘Repatriation (Special Overseas Service) Act 1962 (Act) and the Veterans' Entitlements Act 1986 (VEA)’.

This means, of course, that a different standard is used to assess service at Butterworth than that applied to the service of other veterans.

At paragraph 153 of their report, NOSB state: “… Defence also contended that the likelihood of hostile action may well have been overstated to the soldiers in order to ensure that training was as realistic as possible, and that this may be the cause of the misconceptions about the role of the infantry company and the hazards faced.”

Mohr, at pages 8-11, discusses the ‘incurred danger test’, stating that this danger must be an ‘objective’ one. First, he states, an ‘objective danger’ exists ‘where an armed enemy’ is clearly proven ‘to have been present’. This condition is met at Butterworth.

But, more relevant to the statement above made by NOSB, Mohr states:

On the assumption that we are dealing with rational people in a disciplined armed service (i.e. both the person perceiving danger and those in authority at the time), then if a serviceman is told there is an enemy and that he will be in danger, then that member will not only perceive danger, but to him or her it will be an objective danger on rational and reasonable grounds. If called upon, the member will face that objective danger. The member's experience of the objective danger at the time will not be removed by 'hindsight' showing that no actual enemy operations eventuated.

In other words, if the troops were told there was an armed enemy present in order to make training ‘as realistic as possible’, the troops had every right to believe there was an enemy present. To them, it was an ‘objective danger’.

Clarke picked up on Mohr’s comments at paragraphs 11.59 and 11.60:

11.59 Because the term ‘danger’ connotes risk, or possibility, of harm or injury, there is necessarily an element of subjective belief involved. In a declared war, no one would doubt that to carry out operations against the enemy at a place under risk of attack exposes those in the operations to danger. Yet who at the time would actually know, rather than perceive, that the place is at risk? The enemy might have no intention of attacking there, but assessments have to be made, or beliefs formed, by military authorities as to whether the place is at risk and needs defence by armed forces.

11.60 If then, the military authorities consider that a particular area is vulnerable to attack and dispatch armed forces there, they are sending forces into harm’s way, or danger. This was the second point made by Mohr - that veterans ordered to proceed to an area where they are endangered by the enemy will not only perceive danger, but to them the danger will be an objective one based on rational and reasonable grounds. In these circumstances, what the historian says he or she has learned since the war about the actual intention of the enemy is hardly relevant.

Evidence that was not available in 2003 but has since been accessed by veterans clearly demonstrate that military authorities in the 1970s considered that Butterworth was ‘vulnerable to attack’. Therefore, consistent with Clarke, they were exposed to danger and eligible for appropriate recognition.

One final point. NOSB argue that as Butterworth was not attacked at any time during the Insurgency, normal peacetime conditions must have existed. Clarke could not be clearer. Regardless of what transpires, it is the ‘assessments’ and ‘beliefs formed’ by the authorities at the time that determine the danger to which the troops are exposed. What the historian determines subsequently is ‘hardly relevant.’

While Defence use the above reports to support their position that normal peacetime service existed at Butterworth, knowing that the ‘assessments’ and ‘beliefs formed’ by authorities at the time was not available when these reports were unavailable to those making submissions at the time, they ignore the clearly articulated principles that the reviewers used. Why?