Edward Santow: moving on from a corrosive culture of silence


Ministerial furores have challenged Defence’s cultural change efforts before, but were uneventful when implemented. Human Rights Commissioner Edward Santow reflects on on the commission’s work with Defence to make it inclusive.

This is an edited extract from Human Rights Commission Edward Santow’s address to the Military Pride Ball, September 23, 2017, celebrating 25 years of open service for lesbian, gay and bisexual personnel in the Australian Defence Force.

Some of the qualities that unite members of the ADF are a love of this country and its values; a commitment to something bigger than yourself; and a capacity to know and understand fear, but not to be diminished by it. Those are precisely the qualities exemplified by those who, over the last quarter century, have pushed to remove discriminatory restrictions from our military.

Tonight, I honour you. And I’d like to do so by reflecting a bit on our history, as well as the distance left to travel on the ADF’s cultural reform journey.

Historical context

Standing here among friends, it’s easy to forget that long before the ban on open service was formally put in place, many members of the ADF were treated very badly because of their sexual orientation.  This treatment often took the form of administrative or medical discharge or various forms of harassment.

But equally corrosive was a culture of silence. This extended to one of the most sacred dates in the Australian calendar. On Anzac Day in 1982, five members of the Gay Ex-Services Association – a precursor to the Defence LGBTI Information Service – arrived at the Shrine of Remembrance in Melbourne to lay a wreath commemorating the fallen.  They were stopped from entering the shrine by the RSL state president. After a brief altercation, they were led away by police.

That these men could be turned away on a day of remembrance tells us a great deal about the historical context from which the ban emerged.

This story also has echoes of other discriminatory practices in the ADF. For example, in the aftermath of World War 2, a number of Australian servicemen stationed in Asia met and wanted to marry Japanese women. They were denied permission to do so. Those who ignored this edict were barred from returning to Australia with their wives.

ADF ban on lesbian and gay personnel

Returning to the ADF’s approach to the LGBTI community, the most recent chapter of our story begins in 1985 when the Defence Force Discipline Act ‘introduced a rewritten, streamlined military code across the ADF’.  This had the effect of applying the ACT’s Criminal Code to the ADF.  In 1985, the ACT had fully decriminalised homosexual acts.

In the spring of 1986, the Chief of the Defence Force implemented a Defence Instruction that said: “when [an ADF] member admits to or is proven to be involved in homosexual conduct, consideration is to be given to the termination of that member’s service.” This effectively banned gay and lesbian personnel from serving openly in the military.

This ban remained in force until 1990 when a junior Naval officer, Anita Van Der Meer, catapulted the issue onto the public agenda. When one of her peers reported her for being in a same-sex relationship, the Navy threatened Van Der Meer with discharge.

Van Der Meer brought a complaint against the ADF to the Australian Human Rights Commission. While the Commission didn’t have the legal authority to lift the ban, this complaint provided a platform for the Commission to advocate overturning the ban.

In June 1992, Minister for Defence Senator Robert Ray announced a new policy on unacceptable sexual behaviour.  In preparing this policy, the Senator consulted closely with the Human Rights Commission. That policy sought to take the ADF out of the bedrooms of its personnel by making clear that lawful sexual activity by its members was not a matter of concern for the ADF.  However, when he announced the policy, Senator Ray also made clear that the ban would continue.

Unsurprisingly, this did not settle the issue. Within days of the Minister’s announcement, there was growing dissent from within Cabinet. Attorney-General Michael Duffy led the charge to abolish the ban. A central issue, and one raised explicitly by the Human Rights Commission and others, was that the ban contravened Australia’s obligations under the International Covenant on Civil and Political Rights.

There was further consultation within government. On 23 November 1992 – after heated debate – the Keating Government announced the repeal of Defence Instruction 15-3, thus ending the ban on open service.

An ongoing project

As we mark the silver anniversary of this milestone, we can see the lengths Defence has gone to in order to be an employer of choice for LGBTI people, and to be an organisation that respects and supports inclusion more broadly.

Organisations like our hosts tonight can be rightfully proud of the progress that has been made and the role you have played in improving inclusiveness in the ADF.  I know that it was at the Military Pride Ball in 2015 that Defence launched their own Pride Network.  That year, Defence also ranked equal 17th in the Australian Workplace Equality Index awards.

However, progress is not always linear – and it doesn’t always occur at the speed we’d like. For example, it wasn’t until 2010 that the ADF cancelled the Defence Instruction on the employment of transgender personnel. It was five more years before Defence released a health directive outlining medical care considerations for personnel with gender dysphoria.

It’s clear that cultural change is an ongoing project, particularly in an organisation as large and complex as Defence.

Australian Human Rights Commission’s reviews

Two decades after Anita Van Der Meer’s complaint, the Human Rights Commission continues to play a role in the ADF’s cultural reform journey.

In 2011, after the ADF Academy Skype scandal, the then Sex Discrimination Commissioner Elizabeth Broderick led an independent review of the treatment of women both at ADFA and across the ADF.  In making the case for change, the Review drew a strong connection between gender diversity and capability.

The Commission’s report, Treatment of Women in the ADF, called for sweeping reforms to the recruitment and retention of women, their opportunities to rise to leadership positions, the prevention of sexual harassment, sexual abuse and rape, and improved responses to victims of abuse.

The Chief of the Defence Force and the three Service Chiefs accepted all 21 recommendations in the report. Audit reports in 2013 and 2014 showed significant progress. This was the first time anywhere in the world that a national human rights institution and a military organisation worked in such close partnership.

Ongoing collaboration

Under the leadership of my colleague, Sex Discrimination Commissioner Kate Jenkins, we continue to work with Defence to embed cultural change.

However, the scope of the Commission’s collaboration with Defence is broader than just gender. It also encompasses issues including sexual orientation, cultural diversity and unacceptable behaviour.

At the heart of the Commission’s work with Defence is an understanding that diversity increases capability. In particular, diversity initiatives allow Defence to draw from the widest possible talent pool.

While progress has been made, our work continues. And so does yours.

Conclusion

Tonight we celebrate a particular moment in Australia’s military history. But, we also reaffirm our commitment to promote inclusiveness within the ADF.

It is worth remembering that – for all the political furore – the transition to open service in Australia was largely ‘uneventful’.  There were no significant increases in harassment and unit cohesion reportedly improved when gay and lesbian personnel were able to serve openly.

While pockets of resistance remain in the ADF, a number of personnel now recognise diversity as ‘business as usual’. We all want the best and most talented Australians to be able to serve in our armed forces and for Defence personnel to reach their full potential.

Embracing diversity will not only allow the ADF more effectively to meet the challenges of modern warfare, but will also allow it to live up to the expectations of the communities they defend – and the principles of equality and fairness that we as a country have always been guided by.