TheShadow
20th Apr 2005, 05:30
McCormack has a long history and this vendetta is not atypical at all.
System that failed a top gun
By Tom Allard
April 19, 2005
Air Vice-Marshal Peter Criss ... sacked in 2000 by defence chiefs and not told why.
Related
In the face of the Force (http://smh.com.au/news/National/In-the-face-of-the-Force/2005/04/18/1113676701510.html)
The Blick review (http://www.smh.com.au/reports/defence19.pdf)
Gross maladministration at the highest levels of the Defence Department has been exposed in the case of Air Vice-Marshal Peter Criss and his journey through a dysfunctional military justice system.
The air commander in the East Timor campaign was summarily removed from his post in 2000 then denied a public apology and substantial compensation even though a high-level inquiry ruled in his favour.
In a new review of Air Vice-Marshal Criss's case - the third in five years - Bill Blick, a former inspector-general of intelligence and security, outlines breaches of Defence Department rules and outright deception.
According to Mr Blick's review, a copy of which the Herald has obtained, Air Vice-Marshal Criss was sacked by the Chief of Air Force, Errol McCormack, after being told he was a "centralist" and a "control freak".
The Defence Department refused to let him see its reasons or give him a chance to rebut his accusers.
Soon after, the review said, Air Vice-Marshal Criss was told his career could be resurrected by the Chief of the Defence Force, Admiral Chris Barrie. But unbeknown to him Admiral Barrie and the Defence Secretary, Allan Hawke, planned to force him to retire within 12 months, when there would be restrictions to his eligibility for compensation.
After defence leaders quashed the findings of a 2002 internal inquiry into the sacking, Air Vice-Marshal Criss was again invited to apply for compensation.
This application was rejected last year after long delays, errors of fact by decision-makers and a "complete reversal" in reasons given by Admiral Barrie, the review said.
A spokesman for the Defence Department said Air Vice-Marshal Criss's case was "subject of an ongoing internal process" and declined to comment further. The Herald has been unable to contact Admiral Barrie and Air Marshal McCormack or Air Vice-Marshal Criss.
Mr Blick's review, which he delivered last November, lays out the facts of the case but makes no formal recommendations.
However, it criticises Admiral Barrie, Air Marshal McCormack and the then vice-chief of the Defence Force, Lieutenant -General Des Mueller. It also identifies disturbing irregularities.
The first inquiry into the case, which was conducted by a retired Supreme Court judge, Alan Abadee, and Rear Admiral Ken Doolan, criticised General Mueller for not doing proper performance assessments for Air Vice-Marshal Criss.
Even though the central findings were endorsed by an outside lawyer, James Renwick, Admiral Barrie asked General Mueller to review the conclusions.
General Mueller subsequently exonerated himself and reversed the inquiry's other positive findings for Air Vice-Marshal Criss.
The Defence Department "declined to implement many of the recommendations that were favourable to Mr Criss, using arguments that were in some respects contrary to expert external legal advice", Mr Blick said.
Mr Blick said the second inquiry into the case, completed in 2002, made decisions based on major errors of fact. The new investigators changed the initial, favourable, opinions.
Commenting on how Defence investigators went from agreeing that Air Vice-Marshal Criss had an "irresistible claim" to rejecting it entirely, Mr Blick said: "It is not possible to say to what extent this represented a strictly legal viewpoint, as distinct from an appreciation that senior people in Defence had already adopted certain positions in relation to Mr Criss's claims."
Mr Blick uncovered a document issued during this second investigation in which the lawyers Phillips Fox - contracted to provide legal oversight - sought "input" from the Defence Department on "policy/other sensitivities" in July 2003.
An email from Phillips Fox to the Defence directorate of litigation two months later expressed concerns that a big payout could lead to "potential complaints to the minister and further litigation".
Mr Blick said: "Arguments were adduced and facts were alleged in order to justify conclusions that supported that negative approach."
The Herald reported in February the case of another senior RAAF officer who was concerned with how Admiral Barrie and Air Marshal McCormack removal him from his post.
Internal documents obtained by the Herald that date from June 2003 show that the Chief of the Air Force, Angus Houston, soon to be chief of the Defence Force, told the officer that he "would not take action that would embarrass" Admiral Barrie and Air Marshal McCormack.
Air Marshal Houston denied that these comments reflected Defence policy.
Defence sources said that, including the hundreds of hours of work put in by Defence personnel, the case had cost taxpayers "much more" than $1 million.
In the face of the Force
April 19, 2005
He led our air force in East Timor and organised the F-111 "dump and burn" at the Sydney Olympics. But sacked air chief Peter Criss is fighting for his future, reports Tom Allard.
They were stirring speeches, delivered in extraordinary circumstances, to the entire military community. The chief of Defence Force, Admiral Chris Barrie, and the three service chiefs had their say on that historic afternoon in February 2001. The topic - bastardisation - was deemed so important that 50,000 servicemen and women were asked to stop work for the presentation - the first "stand-down" of personnel in memory.
Graphic tales of bastardisation and rough justice in the navy and army had been aired in the media and Barrie warned the publicity was damaging the good name of the forces.
Announcing an audit of the military justice system, to be conducted by a retired Federal Court justice, James Burchett, Barrie said no one was outside the system "regardless of our rank". There could be no exceptions.
The chief of air force, Errol McCormack, added his unequivocal view. "Any suggestion that breaches of military justice have been condoned by senior leadership is wrong," he said. "Air Force abides by the military justice system, a system which all personnel must adhere, respect, honour and most importantly have faith in."
Fine sentiments, well articulated.
But as Air Vice-Marshal Peter Criss watched by video link, the speeches must have rankled, rather than comforted or inspired the former F-111 fighter pilot. Less than a year earlier, Criss had been suddenly and summarily removed from his high-profile post as air commander of Australia.
It was a very public sacking but, if Criss was upset then, it was only a taste of what was to come.
Criss, who had run the East Timor air campaign - and was the brains behind the F-111 "dump and burn" over Sydney Harbour to end the Sydney Olympics - was about to embark on a cruel odyssey through the military justice system. It has been a Kafkaesque nightmare that to this day, Criss has yet to be released from.
Canberra sources have provided the Herald with a copy of a review into his case, conducted late last year by the former inspector-general of intelligence and security, Bill Blick.
Blick\'s report details gross mismanagement, at best, at the highest levels of Defence that resulted in Criss being deceived and denied justice despite serious and acknowledged flaws in the way he was removed from his post.
The report provides a raw and unflattering insight into the power plays at the very top of the national security apparatus, as well as a deeply dysfunctional military justice system. Criss\'s progression through the ranks of the RAAF was rapid, a career crowned by his posting, by McCormack, in March 1999 to the position of air commander of Australia. It gave Criss operational command of 10,000 RAAF personnel.
The first inkling Criss had of any trouble - says Blick\'s review - was a brief conversation with McCormack in October 1999. McCormack had labelled Criss a "centralist" and a "control freak". Blick does not elaborate on the precise reasons behind Criss\'s removal and Criss declined to comment for this story.
But former senior Defence officials deeply involved in the Timor campaign\'s planning and execution say Criss performed the task with distinction.
"There was very high regard for his capabilities," said one official, who declined to be named. "I never had any sense that there were any problems at all with him as air commander during Timor. A lot thought he would go further up the ladder. It came as a huge surprise when he was sacked."
Criss sought , in vain, more details about the basis for the allegation. Under Defence Force regulations, he was supposed to have the chance to rebut adverse claims and address any flaws. But no further explanation was offered.
ON April 3, 2000, Criss\'s removal took effect. No doubt it was a body blow, but the following month, there was something to draw solace from. An apologetic Barrie told Criss he could return to headquarters in Canberra and lead a Defence study into the preparedness of the ADF, retaining his two-star rank, Blick reports.
It was not nearly as important, or glamorous, a post as air commander. But Criss was told if he did a good job, he could return to the RAAF.
The facts, as set out by the Blick review, meant this was never going to happen. Criss did not know that Barrie had been exploring how he could kick Criss out of Defence altogether.
On April 4, one day after Criss had been removed from his post, Barrie wrote to his civilian equivalent, the secretary of Defence, Allan Hawke. Barrie mentioned that Criss had been the victim of "procedural deficiencies", but told Hawke that McCormack\'s "will must prevail" as commander.
The problem? To sack Criss would "expose us to a claim for substantial compensation", Barrie said. The solution? Give Criss the study job and, by the time it was finished, he would be eligible to be forced into retirement.
"I am thinking of an alternative position for Criss until we can decide with fairness about his unsuitability for a three-star posting [promotion]," Barrie told Hawke.
Hawke concurred, annotating Barrie\'s minute with: "I agree with your approach."
Knowing none of this - and fortified by Barrie\'s assurances - Criss began making inquiries about his future as his defence study neared completion. He received no response, even as Barrie held meetings in December 2000 confirming Criss was to be retired early.
By early 2001 McCormack had retired but the incoming Chief of Air Force, Air Marshal Angus Houston - this week announced as Chief of Defence Force - told Barrie there was a job for Criss as head of knowledge systems. Barrie rejected the recommendation. Criss was told he would be forced into retirement in early July.
By now, sensing his unreturned calls meant that all was not well, Criss had lodged a "redress of grievance" (RoG) - the formal Defence legal process to seek restitution against mistreatment.
The process was led by Rear Admiral Ken Doolan and Alan Abadee, a recently retired NSW Supreme Court judge. It was a relatively quick but, Blick says, thorough and detailed investigation. The findings were delivered by June 29, 2001, just days before Barrie told Criss finally that he would be forced into retirement.
Mystifying as it may seem, Barrie had told the two RoG investigators that Criss had been denied natural justice - even as Barrie was laying the groundwork for Criss to be kicked out of the ADF.
Doolan and Abadee\'s findings were devastating. They found that McCormack abused his position, the proper performance assessments were not done and that the Chief of Air Force failed to follow "any" Defence regulations. In short, Criss was denied procedural fairness.
The RoG\'s chief recommendation was that Criss receive a substantial compensation and the payout, and the reasons behind it, be made public. The central recommendations were endorsed by another legal review by James Renwick.
Criss could be forgiven for feeling exultant as vindication appeared at hand. Barrie, however, ordered another investigation into the RoG - this time conducted by his deputy, the vice-chief of the Defence Force, Lieutenant-General Des Mueller.
Mueller had been criticised in the RoG for his failure to provide written assessments of Criss\'s performance.
Indeed, Renwick had cautioned that there would be an "apprehension of bias" if Mueller was involved in any further review. Mueller promptly exonerated himself, then rejected the central finding of the RoG that Criss had been denied natural justice, citing alleged oral evidence from Renwick which Renwick had explicitly rejected in writing.
Blick described Mueller\'s failure to disqualify himself from the review of the RoG as "at best, short-sighted".
As he prepared to leave the military, Criss again wrote to Barrie, expressing his deep disquiet with the affair. In reply, Barrie said he stood by Mueller\'s findings but "unreservedly" apologised for his treatment and conceded Criss was denied natural justice.
Barrie also urged Criss not to dwell on the past and craft a rewarding future for himself in his retirement.
Criss rejected the advice, seized on Barrie\'s belated admission of fault, and made a second bid for compensation.
WHAT followed was a familiar tale of raised hopes and positive feedback followed by jaw-dropping backflips.
Informing Defence lawyers of Criss\'s likely compensation bid, Barrie wrote in March 2002, in his own hand, that Criss deserved a payout. He noted that Criss had four years at two-star rank, entitling him to at least $400,000 for lost salary, plus hurt and humiliation.
By May 2002 Barrie delivered his formal direction to the lawyers on how to handle the case. The direction is an extraordinary document, at odds with what Barrie had told Criss two months earlier. It also clearly stunned Blick.
Blick described this as a "complete reversal" of Barrie\'s position of just two months prior, and of the findings of the RoG and Renwick\'s views. Barrie now ruled Criss\'s exit from the the force had nothing to do with his removal as air commander by McCormack.
Barrie said Criss\'s dismissal came because the new RAAF chief, Houston, could find no work for Criss. It had been only nine months since Houston had suggested to Barrie that Criss head up the knowledge systems division.
Six months after Criss\'s claim was lodged in October 2002, the ADF hired a private law firm, Phillips Fox, to oversee an investigation. Another barrister, Geoffrey McCarthy, was also brought in to work on the matter.
This phase of the Criss saga comes in for some of the most strident criticism from Blick. There were unnecessary delays and decisions made on the basis of incorrect and incomplete information, he concluded.
Moreover, there was a puzzling about-face in thinking from those handling the investigation. At the outset, they thought Criss had an "irresistable claim" for compensation. In the end, Defence gave him nothing.
"It is not possible to say to what extent this represented a strictly legal viewpoint, as distinct from an appreciation that senior people in Defence had already adopted certain positions in relation to Mr Criss\'s claims," Blick said. "There is some evidence, however, that both he [Mr McCarthy] and Phillips Fox were conscious of this."
Phillips Fox sought input on "policy/other sensitivies" and emailed Defence\'s litigation directorate - as the case was being considered - noting a big payout could lead to potential complaints to the minister and further litigation.
The change in view came after McCarthy advised that the payout was likely to be large and would have "to be defendable on the public record, both as to basis and amount".
Blick doesn\'t make any explicit criticism of the lawyers and he doesn\'t go into any more detail about who the "senior leaders in Defence" with the "negative" views were, or how their influence was exercised.
But, by this time, Houston was Chief of Air Force and General Peter Cosgrove was Chief of Defence Force.
The Herald reported in February a similar case of another senior air force officer removed from his post by McCormack. A Defence minute obtained by the Herald revealed Houston had told the officer he "would not take action that would embarrass" Barrie and McCormack, although he later denied this was Defence policy.
IN the middle of last year, Criss was asked to put in yet another claim. Almost a year later, and despite the Blick review, no compensation has been made and no apology issued.
Burchett\'s military justice audit has been and gone. Yet another inquiry into military justice, this time by the Senate, is expected to report next month.
It will be up to Houston, the incoming chief of Defence Force to implement its recommendations, a man with a reputation for integrity after he told the truth about the "children overboard" claim.
He is also intimate with Air Vice-Marshal Criss\'s case, and others just like it.
http://smh.com.au/articles/2005/04/18/1113676701510.html
http://smh.com.au/articles/2005/04/18/1113676706563.html
http://smh.com.au/ffximage/2005/04/18/petercriss2_ent-lead__200x248.jpg
Pete Criss is certainly not the first to be shafted by the Old Boy Net at the top echelons of the RAAF. They\'ve always been a law unto themselves and laugh at the Defence Force Disciplinary Act (as it applies to their responsibilities in dealing with the rights of others)
A piece of advice. Any Senior Officer who mishandles a Redress of Grievance (or delays it, sits on it) can be jailed under the DFDA. Keep that in mind.
Court martial yourself - one way to get fair hearing
By Tom Allard
April 20, 2005
Related
System that failed a top gun
In the face of the Force
The Blick review
The difficulty obtaining justice in the military against false claims by superior officers was so bad that defence personnel should be able to court martial themselves so they get a fair hearing, the Australia Defence Association said yesterday.
The radical solution to a deeply entrenched problem in the defence force came as the association joined a chorus of concern about the treatment of Air Vice-Marshal Peter Criss.
He was the former Air Commander of Australia summarily removed from his post but still looking for the apology and compensation, despite a review recommending it four years ago.
His case, outlined in yesterday\'s Herald, involved Air Vice-Marshal Criss\'s superiors overturning independent findings that reflected adversely on themselves and their colleagues.
It also showed that Air Vice-Marshal Criss was deceived, told he could resurrect his career when his future had already been decided.
Air Vice-Marshal Criss yesterday refused to comment in detail on his case - the subject of a third investigation in five years.
"Patience is a virtue," he said. "This is not just about Pete Criss. I am but one of many - the good men and women of the ADF deserve better."
The association\'s executive director, Neil James, said: "There continue to be major problems with the military justice system. The complaints by Peter Criss are not an isolated event."
The problem with people clearing their names when the accuser was a senior officer was "serious", particularly when it was caught up in the defence\'s internal bureaucratic justice system, he said.
Only a superior officer can order a court martial in the event of serious allegations against a subordinate but, Mr James said, they can choose not to because it might come back to bite them.
"Some senior officers misuse their authority by proceeding against people administratively so they won\'t be subject to being cross-examined on oath under the disciplinary act," he said.
Labor\'s defence spokesman, Robert McClelland, said recruitment in the military would be seriously damaged if the military did not operate a fair justice system.
"Our servicemen and women need to be confident ... that wrongs discovered will be put right. Recruitment and personnel shortages are one of the most acute challenges faced today by the ADF," Mr McClelland said.
"If it is perceived as a place of injustice, as an unattractive place for potential recruits - we\'re going to have a big problem."
He said he was eagerly awaiting the outcome of a Senate inquiry into the military justice system, expected next month.
link (http://www.smh.com.au/news/National/Court-martial-yourself--one-way-to-get-fair-hearing/2005/04/19/1113854201841.html)
System that failed a top gun
By Tom Allard
April 19, 2005
Air Vice-Marshal Peter Criss ... sacked in 2000 by defence chiefs and not told why.
Related
In the face of the Force (http://smh.com.au/news/National/In-the-face-of-the-Force/2005/04/18/1113676701510.html)
The Blick review (http://www.smh.com.au/reports/defence19.pdf)
Gross maladministration at the highest levels of the Defence Department has been exposed in the case of Air Vice-Marshal Peter Criss and his journey through a dysfunctional military justice system.
The air commander in the East Timor campaign was summarily removed from his post in 2000 then denied a public apology and substantial compensation even though a high-level inquiry ruled in his favour.
In a new review of Air Vice-Marshal Criss's case - the third in five years - Bill Blick, a former inspector-general of intelligence and security, outlines breaches of Defence Department rules and outright deception.
According to Mr Blick's review, a copy of which the Herald has obtained, Air Vice-Marshal Criss was sacked by the Chief of Air Force, Errol McCormack, after being told he was a "centralist" and a "control freak".
The Defence Department refused to let him see its reasons or give him a chance to rebut his accusers.
Soon after, the review said, Air Vice-Marshal Criss was told his career could be resurrected by the Chief of the Defence Force, Admiral Chris Barrie. But unbeknown to him Admiral Barrie and the Defence Secretary, Allan Hawke, planned to force him to retire within 12 months, when there would be restrictions to his eligibility for compensation.
After defence leaders quashed the findings of a 2002 internal inquiry into the sacking, Air Vice-Marshal Criss was again invited to apply for compensation.
This application was rejected last year after long delays, errors of fact by decision-makers and a "complete reversal" in reasons given by Admiral Barrie, the review said.
A spokesman for the Defence Department said Air Vice-Marshal Criss's case was "subject of an ongoing internal process" and declined to comment further. The Herald has been unable to contact Admiral Barrie and Air Marshal McCormack or Air Vice-Marshal Criss.
Mr Blick's review, which he delivered last November, lays out the facts of the case but makes no formal recommendations.
However, it criticises Admiral Barrie, Air Marshal McCormack and the then vice-chief of the Defence Force, Lieutenant -General Des Mueller. It also identifies disturbing irregularities.
The first inquiry into the case, which was conducted by a retired Supreme Court judge, Alan Abadee, and Rear Admiral Ken Doolan, criticised General Mueller for not doing proper performance assessments for Air Vice-Marshal Criss.
Even though the central findings were endorsed by an outside lawyer, James Renwick, Admiral Barrie asked General Mueller to review the conclusions.
General Mueller subsequently exonerated himself and reversed the inquiry's other positive findings for Air Vice-Marshal Criss.
The Defence Department "declined to implement many of the recommendations that were favourable to Mr Criss, using arguments that were in some respects contrary to expert external legal advice", Mr Blick said.
Mr Blick said the second inquiry into the case, completed in 2002, made decisions based on major errors of fact. The new investigators changed the initial, favourable, opinions.
Commenting on how Defence investigators went from agreeing that Air Vice-Marshal Criss had an "irresistible claim" to rejecting it entirely, Mr Blick said: "It is not possible to say to what extent this represented a strictly legal viewpoint, as distinct from an appreciation that senior people in Defence had already adopted certain positions in relation to Mr Criss's claims."
Mr Blick uncovered a document issued during this second investigation in which the lawyers Phillips Fox - contracted to provide legal oversight - sought "input" from the Defence Department on "policy/other sensitivities" in July 2003.
An email from Phillips Fox to the Defence directorate of litigation two months later expressed concerns that a big payout could lead to "potential complaints to the minister and further litigation".
Mr Blick said: "Arguments were adduced and facts were alleged in order to justify conclusions that supported that negative approach."
The Herald reported in February the case of another senior RAAF officer who was concerned with how Admiral Barrie and Air Marshal McCormack removal him from his post.
Internal documents obtained by the Herald that date from June 2003 show that the Chief of the Air Force, Angus Houston, soon to be chief of the Defence Force, told the officer that he "would not take action that would embarrass" Admiral Barrie and Air Marshal McCormack.
Air Marshal Houston denied that these comments reflected Defence policy.
Defence sources said that, including the hundreds of hours of work put in by Defence personnel, the case had cost taxpayers "much more" than $1 million.
In the face of the Force
April 19, 2005
He led our air force in East Timor and organised the F-111 "dump and burn" at the Sydney Olympics. But sacked air chief Peter Criss is fighting for his future, reports Tom Allard.
They were stirring speeches, delivered in extraordinary circumstances, to the entire military community. The chief of Defence Force, Admiral Chris Barrie, and the three service chiefs had their say on that historic afternoon in February 2001. The topic - bastardisation - was deemed so important that 50,000 servicemen and women were asked to stop work for the presentation - the first "stand-down" of personnel in memory.
Graphic tales of bastardisation and rough justice in the navy and army had been aired in the media and Barrie warned the publicity was damaging the good name of the forces.
Announcing an audit of the military justice system, to be conducted by a retired Federal Court justice, James Burchett, Barrie said no one was outside the system "regardless of our rank". There could be no exceptions.
The chief of air force, Errol McCormack, added his unequivocal view. "Any suggestion that breaches of military justice have been condoned by senior leadership is wrong," he said. "Air Force abides by the military justice system, a system which all personnel must adhere, respect, honour and most importantly have faith in."
Fine sentiments, well articulated.
But as Air Vice-Marshal Peter Criss watched by video link, the speeches must have rankled, rather than comforted or inspired the former F-111 fighter pilot. Less than a year earlier, Criss had been suddenly and summarily removed from his high-profile post as air commander of Australia.
It was a very public sacking but, if Criss was upset then, it was only a taste of what was to come.
Criss, who had run the East Timor air campaign - and was the brains behind the F-111 "dump and burn" over Sydney Harbour to end the Sydney Olympics - was about to embark on a cruel odyssey through the military justice system. It has been a Kafkaesque nightmare that to this day, Criss has yet to be released from.
Canberra sources have provided the Herald with a copy of a review into his case, conducted late last year by the former inspector-general of intelligence and security, Bill Blick.
Blick\'s report details gross mismanagement, at best, at the highest levels of Defence that resulted in Criss being deceived and denied justice despite serious and acknowledged flaws in the way he was removed from his post.
The report provides a raw and unflattering insight into the power plays at the very top of the national security apparatus, as well as a deeply dysfunctional military justice system. Criss\'s progression through the ranks of the RAAF was rapid, a career crowned by his posting, by McCormack, in March 1999 to the position of air commander of Australia. It gave Criss operational command of 10,000 RAAF personnel.
The first inkling Criss had of any trouble - says Blick\'s review - was a brief conversation with McCormack in October 1999. McCormack had labelled Criss a "centralist" and a "control freak". Blick does not elaborate on the precise reasons behind Criss\'s removal and Criss declined to comment for this story.
But former senior Defence officials deeply involved in the Timor campaign\'s planning and execution say Criss performed the task with distinction.
"There was very high regard for his capabilities," said one official, who declined to be named. "I never had any sense that there were any problems at all with him as air commander during Timor. A lot thought he would go further up the ladder. It came as a huge surprise when he was sacked."
Criss sought , in vain, more details about the basis for the allegation. Under Defence Force regulations, he was supposed to have the chance to rebut adverse claims and address any flaws. But no further explanation was offered.
ON April 3, 2000, Criss\'s removal took effect. No doubt it was a body blow, but the following month, there was something to draw solace from. An apologetic Barrie told Criss he could return to headquarters in Canberra and lead a Defence study into the preparedness of the ADF, retaining his two-star rank, Blick reports.
It was not nearly as important, or glamorous, a post as air commander. But Criss was told if he did a good job, he could return to the RAAF.
The facts, as set out by the Blick review, meant this was never going to happen. Criss did not know that Barrie had been exploring how he could kick Criss out of Defence altogether.
On April 4, one day after Criss had been removed from his post, Barrie wrote to his civilian equivalent, the secretary of Defence, Allan Hawke. Barrie mentioned that Criss had been the victim of "procedural deficiencies", but told Hawke that McCormack\'s "will must prevail" as commander.
The problem? To sack Criss would "expose us to a claim for substantial compensation", Barrie said. The solution? Give Criss the study job and, by the time it was finished, he would be eligible to be forced into retirement.
"I am thinking of an alternative position for Criss until we can decide with fairness about his unsuitability for a three-star posting [promotion]," Barrie told Hawke.
Hawke concurred, annotating Barrie\'s minute with: "I agree with your approach."
Knowing none of this - and fortified by Barrie\'s assurances - Criss began making inquiries about his future as his defence study neared completion. He received no response, even as Barrie held meetings in December 2000 confirming Criss was to be retired early.
By early 2001 McCormack had retired but the incoming Chief of Air Force, Air Marshal Angus Houston - this week announced as Chief of Defence Force - told Barrie there was a job for Criss as head of knowledge systems. Barrie rejected the recommendation. Criss was told he would be forced into retirement in early July.
By now, sensing his unreturned calls meant that all was not well, Criss had lodged a "redress of grievance" (RoG) - the formal Defence legal process to seek restitution against mistreatment.
The process was led by Rear Admiral Ken Doolan and Alan Abadee, a recently retired NSW Supreme Court judge. It was a relatively quick but, Blick says, thorough and detailed investigation. The findings were delivered by June 29, 2001, just days before Barrie told Criss finally that he would be forced into retirement.
Mystifying as it may seem, Barrie had told the two RoG investigators that Criss had been denied natural justice - even as Barrie was laying the groundwork for Criss to be kicked out of the ADF.
Doolan and Abadee\'s findings were devastating. They found that McCormack abused his position, the proper performance assessments were not done and that the Chief of Air Force failed to follow "any" Defence regulations. In short, Criss was denied procedural fairness.
The RoG\'s chief recommendation was that Criss receive a substantial compensation and the payout, and the reasons behind it, be made public. The central recommendations were endorsed by another legal review by James Renwick.
Criss could be forgiven for feeling exultant as vindication appeared at hand. Barrie, however, ordered another investigation into the RoG - this time conducted by his deputy, the vice-chief of the Defence Force, Lieutenant-General Des Mueller.
Mueller had been criticised in the RoG for his failure to provide written assessments of Criss\'s performance.
Indeed, Renwick had cautioned that there would be an "apprehension of bias" if Mueller was involved in any further review. Mueller promptly exonerated himself, then rejected the central finding of the RoG that Criss had been denied natural justice, citing alleged oral evidence from Renwick which Renwick had explicitly rejected in writing.
Blick described Mueller\'s failure to disqualify himself from the review of the RoG as "at best, short-sighted".
As he prepared to leave the military, Criss again wrote to Barrie, expressing his deep disquiet with the affair. In reply, Barrie said he stood by Mueller\'s findings but "unreservedly" apologised for his treatment and conceded Criss was denied natural justice.
Barrie also urged Criss not to dwell on the past and craft a rewarding future for himself in his retirement.
Criss rejected the advice, seized on Barrie\'s belated admission of fault, and made a second bid for compensation.
WHAT followed was a familiar tale of raised hopes and positive feedback followed by jaw-dropping backflips.
Informing Defence lawyers of Criss\'s likely compensation bid, Barrie wrote in March 2002, in his own hand, that Criss deserved a payout. He noted that Criss had four years at two-star rank, entitling him to at least $400,000 for lost salary, plus hurt and humiliation.
By May 2002 Barrie delivered his formal direction to the lawyers on how to handle the case. The direction is an extraordinary document, at odds with what Barrie had told Criss two months earlier. It also clearly stunned Blick.
Blick described this as a "complete reversal" of Barrie\'s position of just two months prior, and of the findings of the RoG and Renwick\'s views. Barrie now ruled Criss\'s exit from the the force had nothing to do with his removal as air commander by McCormack.
Barrie said Criss\'s dismissal came because the new RAAF chief, Houston, could find no work for Criss. It had been only nine months since Houston had suggested to Barrie that Criss head up the knowledge systems division.
Six months after Criss\'s claim was lodged in October 2002, the ADF hired a private law firm, Phillips Fox, to oversee an investigation. Another barrister, Geoffrey McCarthy, was also brought in to work on the matter.
This phase of the Criss saga comes in for some of the most strident criticism from Blick. There were unnecessary delays and decisions made on the basis of incorrect and incomplete information, he concluded.
Moreover, there was a puzzling about-face in thinking from those handling the investigation. At the outset, they thought Criss had an "irresistable claim" for compensation. In the end, Defence gave him nothing.
"It is not possible to say to what extent this represented a strictly legal viewpoint, as distinct from an appreciation that senior people in Defence had already adopted certain positions in relation to Mr Criss\'s claims," Blick said. "There is some evidence, however, that both he [Mr McCarthy] and Phillips Fox were conscious of this."
Phillips Fox sought input on "policy/other sensitivies" and emailed Defence\'s litigation directorate - as the case was being considered - noting a big payout could lead to potential complaints to the minister and further litigation.
The change in view came after McCarthy advised that the payout was likely to be large and would have "to be defendable on the public record, both as to basis and amount".
Blick doesn\'t make any explicit criticism of the lawyers and he doesn\'t go into any more detail about who the "senior leaders in Defence" with the "negative" views were, or how their influence was exercised.
But, by this time, Houston was Chief of Air Force and General Peter Cosgrove was Chief of Defence Force.
The Herald reported in February a similar case of another senior air force officer removed from his post by McCormack. A Defence minute obtained by the Herald revealed Houston had told the officer he "would not take action that would embarrass" Barrie and McCormack, although he later denied this was Defence policy.
IN the middle of last year, Criss was asked to put in yet another claim. Almost a year later, and despite the Blick review, no compensation has been made and no apology issued.
Burchett\'s military justice audit has been and gone. Yet another inquiry into military justice, this time by the Senate, is expected to report next month.
It will be up to Houston, the incoming chief of Defence Force to implement its recommendations, a man with a reputation for integrity after he told the truth about the "children overboard" claim.
He is also intimate with Air Vice-Marshal Criss\'s case, and others just like it.
http://smh.com.au/articles/2005/04/18/1113676701510.html
http://smh.com.au/articles/2005/04/18/1113676706563.html
http://smh.com.au/ffximage/2005/04/18/petercriss2_ent-lead__200x248.jpg
Pete Criss is certainly not the first to be shafted by the Old Boy Net at the top echelons of the RAAF. They\'ve always been a law unto themselves and laugh at the Defence Force Disciplinary Act (as it applies to their responsibilities in dealing with the rights of others)
A piece of advice. Any Senior Officer who mishandles a Redress of Grievance (or delays it, sits on it) can be jailed under the DFDA. Keep that in mind.
Court martial yourself - one way to get fair hearing
By Tom Allard
April 20, 2005
Related
System that failed a top gun
In the face of the Force
The Blick review
The difficulty obtaining justice in the military against false claims by superior officers was so bad that defence personnel should be able to court martial themselves so they get a fair hearing, the Australia Defence Association said yesterday.
The radical solution to a deeply entrenched problem in the defence force came as the association joined a chorus of concern about the treatment of Air Vice-Marshal Peter Criss.
He was the former Air Commander of Australia summarily removed from his post but still looking for the apology and compensation, despite a review recommending it four years ago.
His case, outlined in yesterday\'s Herald, involved Air Vice-Marshal Criss\'s superiors overturning independent findings that reflected adversely on themselves and their colleagues.
It also showed that Air Vice-Marshal Criss was deceived, told he could resurrect his career when his future had already been decided.
Air Vice-Marshal Criss yesterday refused to comment in detail on his case - the subject of a third investigation in five years.
"Patience is a virtue," he said. "This is not just about Pete Criss. I am but one of many - the good men and women of the ADF deserve better."
The association\'s executive director, Neil James, said: "There continue to be major problems with the military justice system. The complaints by Peter Criss are not an isolated event."
The problem with people clearing their names when the accuser was a senior officer was "serious", particularly when it was caught up in the defence\'s internal bureaucratic justice system, he said.
Only a superior officer can order a court martial in the event of serious allegations against a subordinate but, Mr James said, they can choose not to because it might come back to bite them.
"Some senior officers misuse their authority by proceeding against people administratively so they won\'t be subject to being cross-examined on oath under the disciplinary act," he said.
Labor\'s defence spokesman, Robert McClelland, said recruitment in the military would be seriously damaged if the military did not operate a fair justice system.
"Our servicemen and women need to be confident ... that wrongs discovered will be put right. Recruitment and personnel shortages are one of the most acute challenges faced today by the ADF," Mr McClelland said.
"If it is perceived as a place of injustice, as an unattractive place for potential recruits - we\'re going to have a big problem."
He said he was eagerly awaiting the outcome of a Senate inquiry into the military justice system, expected next month.
link (http://www.smh.com.au/news/National/Court-martial-yourself--one-way-to-get-fair-hearing/2005/04/19/1113854201841.html)