Undiplomatic, but Smith's call on Kafer was right

THE head of the Australian Defence Force Academy, Bruce Kafer, has been reinstated after being stood down a year ago for his handling of the Skype sex scandal. It came on the back of a report into the scandal conducted by Andrew Kirkham QC that concluded Kafer's handling of the affair was reasonable.

The scandal, for those who don't remember it, involved allegations that male cadets set up and watched video of one of their mates having sex with a female cadet who had no idea what was going on. It may not technically constitute sexual assault but it is hard to think of a more outrageous violation of a woman's right to privacy.

At the time Defence Minister Stephen Smith was irate with a decision the head of ADFA took to proceed with a disciplinary hearing against the young female cadet on unrelated and relatively minor matters involving alcohol consumption for the following day. Smith described Kafer's decision as "stupid", "inappropriate, insensitive and wrong". He added that "it's almost certainly faulty at law".

It was quite an intervention by the minister.

This is the heart of the matter as to whether Smith should resign, something the opposition is calling on him to do. On this score I don't think that he should resign, and I suspect most Australians would agree. How could anyone be stupid enough to think it appropriate to go ahead with disciplinary charges on an unrelated matter the day after the explosive revelations about non-consensual broadcasting of sex acts was made public? Who cares if a QC thinks it reasonable?

While I can understand some in the military would rather their minister didn't call one of their own stupid, if truth is a defence in rhetoric as it is in law, Smith made the right (albeit undiplomatic) call. Stupid is as stupid does.

On Wednesday at a press conference, when asked about his strong attacks on Kafer last year, Smith responded: "I don't resile one iota from anything I said or did at the time."

The opposition jumped on Smith's refusal to back down, demanding that he apologise to the head of ADFA, who Tony Abbott said had been "revealed to have acted in an exemplary fashion at all times".

There is a lot of grey between Kafer being cleared by a QC's report and concluding that he "acted in an exemplary fashion at all times". If Abbott is doing more than playing politics he should demand the former chief of the Defence Force, Angus Houston, and the incumbent chief, David Hurley, also apologise because both at the time agreed with Smith that Kafer had made an error of judgment (even if they didn't publicly describe his actions in colourful terms such as stupid).

Let's test Abbott's assertion of exemplary conduct, putting to one side that the Opposition Leader hasn't seen the report he relies on to form his judgment.

Kafer's conduct was assessed by Kirkham, himself a very senior officer in the reserves. It is hard to understand why the military didn't appoint a more arm's-length individual (preferably a woman) to head up the inquiry, if only to avoid speculation (like mine now) that the military was looking to keep this whole mess in-house, but hey.

Kirkham may have suggested that Kafer's decision to proceed with a disciplinary hearing was reasonable, but he also made two other very important findings. One was that it would have been reasonable not to proceed with the unrelated disciplinary hearing (Smith's view), the other that it was "unfortunate" that military brass didn't check with the young female cadet as to how she felt about proceeding, given the circumstances.

"Unfortunate" is one hell of an understatement. Let's put the decision to haul the violated young female cadet before a disciplinary hearing into a civilian context. Would anyone seriously think it appropriate that the victim (that is exactly what she is) of a sexual assault or violation of some kind be expected to front up the following day before a magistrate to face unrelated drunk and disorderly charges? Of course not. They should be put off for a later date. Common sense dictates as much.

That the disciplinary hearing was planned to go ahead speaks volumes about the need for cultural change within Defence. I find this debate difficult because nothing irritates me more than lefties who use isolated examples of misconduct to bash an institution they loathe that defends our way of life. But, unfortunately, there is a consensus between political, military and departmental leaders that the defence force's culture needs to change.

Only Abbott disagrees with this notion, again without being across his brief. "I am very reluctant to conclude that there is anything fundamentally wrong with Defence culture," Abbott told reporters on Thursday.

That contrasts with the commentary in the report Pathway to Change: Evolving Defence Culture, authored by none other than Hurley and Defence Department secretary Duncan Lewis.

Not buried in the report, but highlighted on page one, it notes: "It is all too apparent that we are not uniformly good. We do not consistently meet these high standards and more worryingly our culture has tolerated shortfalls in performance.We cannot be entirely satisfied with all aspects of our current culture. There are parts that serve us poorly which limit our performance, hurt our people and damage our reputation."

Importantly, on page 23, the report says: "We will also take actions and shift attitudes and willingness to speak up when we become aware of inappropriate behaviour by a colleague in Defence." Surely the best way to encourage willingness to speak up is to create a welcoming climate after somebody does speak up?

Admittedly the young female cadet stepped outside of the chain of command when she went to the media. But she did so because she was unhappy with a process top military brass now admit needs reform.

Smith as Defence Minister has made his fair share of mistakes. He should have kept his bush-lawyer instincts to himself when suggesting the disciplinary hearing was "almost certainly faulty at law", because it wasn't. Reports that he wanted out of the portfolio to shift to foreign affairs damage the military's confidence in their minister.

And Smith should have thought twice before agreeing to launch Karen Middleton's (albeit very good) book on the conflict in Afghanistan, given its title An Unwinnable War. I don't think a Defence Minister should do that when our troops are still fighting the war at the government's behest.

But strongly condemning Kafer's decision to proceed with a disciplinary hearing the day after the Skype scandal went public was no mistake. It was the right thing to do.

Peter van Onselen is a Winthrop professor at the University of Western Australia.