After Dinner Speech delivered at the Army Administrative Inquiries Cell Annual Conference Dinner
The Honourable Justice Logan RFD
On 23 December
1916, during the closing phase of the Battle of Magdhaba, in the Sinai Peninsula, 29 year old Captain Mervyn Bournes
Higgins, Adjutant of the 8th
Light Horse Regiment, was killed in action.[1]
Captain Higgins was the only child of Mr Justice Henry Bournes Higgins of the
High Court of Australia and his wife, Mary Alice.[2]
He was an Oxford University graduate (BA) and a member of the Inner Temple and the Victorian Bar.[3] He was also one of the few officers to have survived the valiant but
disastrous dismounted charge of the Light Horse at The Nek at
ANZAC Cove on 7
August 1915.[4]
Captain Higgins
was but one of over 60,000 Australian servicemen who were killed during World
War 1. Nor was Mr Justice Higgins
unique amongst the Australian judiciary in
the loss of a son. For example, of the then 8 New South Wales Supreme Court
judges,
6 had sons who enlisted. Of these, almost all were wounded and 3 were
killed.[5]
On 28 March 1917,
Higgins J had occasion to write from his Melbourne chambers to the Officer in
Charge of the AIF Base Records Office,
also located in Melbourne.[6]
The exact successor to that office is the Central Army Records Office within
the Soldier Career Management Agency. In the letter
and in response to a
telephone call from his wife, Higgins referred to advice from that official,
which had evidently come to his
wife's attention, that his son's effects from Egypt had been sent to Dromana. Higgins maintained a seaside home, "Heronswood"
at Dromana
on the Mornington Peninsula. He stated, "The position is very painful; ordinary
care would have shown my ordinary
residence as being at 'Doona', Glenferrie Road, Malvern. As matters stand, I don't know to whom to address myself to get
the goods.
Perhaps your officers will know. An early correction of the mistake
will be appreciated by us."
The response
from the Base Records Office of 2 April 1917[7]
was defensive, although not uncaring. The author stated and regard to Captain
Higgins' enlistment paper[8]
confirms that the only next of kin address which he had given was care of his
father at the High Court in Melbourne. The author
continued that "all
communications from you" have dated from 'Heronswood'" and that, consequently, when
the effects
came to hand, this is where they were sent. He concluded by
advising that arrangements had been made for the effects to be collected
from
there and returned to Melbourne for delivery to Doona. Higgins' comment
concerning "ordinary care" was not unreasonable.
An exercise of common sense,
certainly in 1917 and probably even now, tells against the likelihood of that a
High Court judge would
daily commute from a locale on the Mornington Peninsula into inner city Melbourne.
In the meantime
and before he had received this response, Higgins J wrote on 31 March 1917,
again from his Melbourne chambers, to
the then Minister for Defence, Senator
Pearce.[9]
He writes on a "matter painful to myself and my wife, because other parents of
deceased soldiers may be treated similarly".
Twice in the letter he refers to
Captain Higgins as "my boy". His grief is truly palpable. He relates being
informed
by "base records people" that Dromana is his registered address and
that it is not, or at all events that he has not registered
it. He records that
two of the four boxes of effects did arrive there and asks rhetorically why
should he have the "painful
duty" of casting about for the others?
Senator Pearce
annotated the letter with a request to the Secretary, "For inquiry and report".
Captain Higgins' file discloses
that there was no elaborate inquiry, only
careful, urgent and sympathetic attention by the Secretary and staff officers
whose rectification
actions overtook that proposed in the Base Records Office
letter of 2 April 1917.
There is no
record on Captain Higgins' file of any formal investigation into his death,
only a "killed in action" annotation
on his record of service form and a
completed pro forma field service death report, the military equivalent of a death
certificate.
Greater detail concerning the circumstances of his death is
provided by the records of the Australian Red Cross Society Wounded
and Missing
Enquiry Bureau files. In response to questions from relatives or friends, Red
Cross volunteers made inquiries concerning
the fate of a soldier from those
members of his unit passing through hospitals or consequential inquires of
other soldiers based
on leads provided by this initial means.
Examination of
the file concerning Captain Higgins[10]
discloses:
(a) Differing accounts of his cause of death - gunshot wound to the head in
most versions but one account states that he was shot
in the chest;
(b) Differing accounts as to whether he was killed instantly or died about
half an hour after being wounded, on a stretcher in
the course of being
evacuated; and
(c) Differing accounts as to what he was doing at the time of his death -
observing with two senior officers the final phase of
the assault from a
rampart in most; leading his men in another and bringing up ammunition in yet
another.
Reading the
accounts together, it is tolerably clear that Captain Higgins was killed
instantly by a gunshot wound to the head while
observing the last phase of the
attack but the version which has passed into the Official History[11]
is that he was killed leading his men.
Captain Higgins
was buried in the field by a military chaplain the day after he was killed.[12]
Almost 90 years
later, on 21 April 2006, also in the Middle East, 25 year old Private Jacob
Kovco also died from a gunshot wound
to the head.[13]
He was a member of 3rd Battalion, The Royal Australian Regiment,
deployed to Baghdad as part of a combat team protecting Australian Embassy
officials
in Iraq. He was buried not in the field but at Sale in Australia following a funeral attended by the Prime Minister and Senator Pearce's
successor
as Minister for Defence, The Hon Brendan Nelson MP, the Chief of the Defence
Force, the Chief of Army, a 300 person honour
guard drawn from his unit, his
grieving family and hundreds of other mourners. There was a 3 gun salute as
well as a fly past by
military aircraft.
On this
occasion, the Australian military misplaced not the deceased soldier's personal
effects but the deceased soldier's body.
Private Kovco's funeral was delayed
because the body initially repatriated to Australia was not his but that of a
Bosnian civilian
contractor. In the days immediately following the incident,
the Defence Minister gave 3 differing accounts as to how Private Kovco
had
died. Recalling the accounts of Captain Higgins' death, such confusion is not
unknown but the fog of war was surely much fainter
in Iraq in 2006 than in the Sinai in 1916.
There were two
formal inquiries into his death; initially, by a board of inquiry under the Defence
(Inquiries) Regulations and, following a complaint by his grieving mother
alleging a cover up, by the New South Wales Coroner. The conclusion of each
inquiry
was broadly the same - death by misadventure while mishandling a
service pistol.
There was a
separate inquiry by the then most senior female officer in the Australian Army,
Brigadier Elizabeth Cosson, into how
it was that the Army repatriated the
incorrect body. She mislaid a draft of her report at a Melbourne airport
passenger lounge
from whence it apparently came into the possession of the
radio journalist, Mr Derryn Hinch with much attendant publicity. Brigadier
Cosson was later promoted, recognised in National Honours and now holds a
senior position in the Department of Veterans' Affairs.[14]
The contrasts
and similarities between these two active service deaths and the sequels to
those deaths are stark and say much about
how our society and its Army have
changed over the last century. Time and perhaps also judicial reticence does
not permit me to
reflect in detail on how much they say, so I shall confine my
reflections just to some which relate to the occasion for this gathering.
A body such as
an Army Administrative Inquiries Cell (AAIC) was not to be found in the Order
of Battle of the AIF or in the Australian
Military Forces during the First
World War. The ability competently to conduct an investigation, formal or
otherwise, was then
expected to be a skill required to be possessed by every
general service officer. Routine inquiries were the province of a junior
officer with the more detailed and intricate being the province of field rank
and senior officers. Some sixty years after Captain
Higgins' death, when I
undertook my initial general service officer training at an Officer Cadet
Training Unit (OCTU), this remained
the case. I was recently reminded of that
when moving house when I came across my old OCTU Investigations Study Guide,
carefully
filed away against the contingency, happily one which never came to
pass, of being needed one day.
In the recently
furnished report of the HMAS Success Commission of Inquiry under the presidency
of my former and much respected
Federal Court colleague, the Honourable Roger
Gyles AO, QC, the following observations are made:
3.4 I can
see the benefit of having a pool of trained, accredited and experienced inquiry
officers available to be appointed
to conduct Inquiry Officer Inquiries into
serious or complex incidents and complaints. I can also see that there might be
occasions
when it would be useful to have individuals not subject to ordinary
command available for the purpose. Once detached from active
duties, however,
these individuals would become increasingly out of touch with operational
circumstances, and that would affect
their capability and the credibility of
the result. Both direct costs and indirect costs would be incurred in removing
experienced
personnel from active duties. I have assumed that the pool would
not consist of lawyers. There is an ample supply of external lawyers,
including
Reserve Officers, capable of conducting inquiries where the choice of a lawyer
is appropriate. Furthermore, an external
lawyer can act as an inquiry
assistant, as was the case in the Wark inquiry.
3.5 There
are distinct strands in the Working Group's proposals for change. One is
expertise. Another is administrative convenience.
Another is independence. It
is the last of these that is prompting the proposal for external control of
inquiries. The reaction
to such a proposal will be influenced by the philosophy
of the audience. Some will be instinctively against the military investigating
the military; others will be instinctively against civilian interference in
military affairs.
3.6 I am
not able to judge whether the deficiencies in the present arrangements are
sufficient to justify such a policy change.
A word of caution might not be out
place. Much of the impetus for change of this kind has come as a result of
agitation by those
who claim to have been badly treated and who have persuaded
others outside the military to take up their cause. It is possible that
undue
attention to such cases skews proper perspective: the squeaky wheel usually
receives the oil.[15]
I respectfully agree with each of
these observations, most especially the last.
I would add
this.
The opportunity
cost of inquiries such as those conducted into the death of Private Kovco is
considerable, never more so than at
a time when our national defence budget as
a proportion of GDP is as low as it was during what, in hindsight and even in
prospect,
was a period of wilful neglect in the years immediately preceding the
Second World War.[16]
We delude ourselves if we think that such types of inquiry, whatever their
virtues, may never also contain an element of societal
self-indulgence or that
they are in any way apt, during a period of more intensive and pervasive
conflict, for inquiries into subjects
such as the death of Private Kovco or a
succession of Defence Department matters since then.
There is, I
respectfully suggest, a risk with bodies such as the AAIC that they may
generate both at a political level and within
general service officer ranks the
notion that the conduct of difficult inquiries concerning sensitive issues of
public interest
is something that can be "contracted out". That carries with it
a further risk of creating a most undesirable "them
and us" divisiveness within
the officer corps. There are singular risks with any such divisiveness,
especially if the "them"
becomes civilians and the "us" the armed forces. The
subjects concerning inquiries and administrative decision-making
which you are
covering in your conference are most worthwhile but they are also subjects, I
respectfully suggest, which, in degrees
of detail related to prospective rank,
need to form part of the syllabus for first appointment and at Staff College.
In truth, in the
profession of arms, as with all learned professions, there must be an ethos
that difficult inquiries and related
difficult decisions concerning peer conduct
are a particular responsibility of those holding rank within the profession. In
the
profession of arms this is a function of command. Leadership in a disciplined
force requires an intolerance of unacceptable professional
conduct and a proactive,
rigorous assertion, throughout the chain of command, of the importance of the
societal expectation that
officers will faithfully translate that ethos into
practice without fear, favour or affection. None of this is to deny the
fundamental
feature of civilian control over the military, which is the only
basis upon which a standing army is permissible under our system
of government.[17]
But that control must encourage and insist upon that ethos, not subvert or
diminish it.
For the
judiciary who, by virtue of Chapter III of the Constitution, form part of the
system of civilian control, that translates into a principled restraint in
relation to the judicial review of
any decision entailing a value judgement
made in the command and control of the Australian Defence Force.
