Associate Professor Noah Riseman gives himself the brief of addressing an apology and redress scheme for ex-Defence members discharged under historic rules banning lesbian, gay, bisexual and transgender service. This brief will be sent to the new Defence Minister, Shadow Defence Minister, Veterans’ Affairs Minister, Shadow Veterans’ Affairs Minister, Greens spokesperson for Defence and Veterans’ Affairs, openly LGBTI members of the Australian Parliament and the author’s local Member of Parliament.

Purpose

This advice is about how best to right past wrongs perpetrated under Australian Defence Force (ADF) policies banning lesbian, gay, bisexual and transgender people from serving, in order to achieve the policy aim of promoting diversity and inclusion in the ADF.

Background

Australia had longstanding bans against lesbian, gay, bisexual and transgender (LGBT) service, but it was not until 1944 – at the behest of the American military – that the Australian Army developed an explicit policy against homosexuality. From 1954 the Royal Australian Navy adopted rules from the British Royal Navy against ‘Unnatural Offences’, and these rules outlined harsh investigation procedures including invasive anal or penile exams in search of physical evidence. These orders were updated to prohibit ‘abnormal sexual behaviour’ in 1969. Until 1974 these bans on gay, lesbian and bisexual service were inconsistently implemented, but oral history interviews and quantitative evidence from the ADF Provost Marshall’s Office suggest that authorities tended to target lesbian and bisexual women disproportionately more so than gay or bisexual men.

While there was no formal policy relating to transgender people, those individuals who sought to transition or who were caught for behaviour such as cross-dressing would also be dismissed under rules such as ‘conduct to the prejudice of good order and military discipline’. There was never a formal policy on intersex people and depending on a person’s intersex variation they may have been allowed to serve. For those intersex people who did have to discharge, they were treated as medical situations and there was a perception that they were ‘innocents’, unlike LGBT people whose ‘behaviour’ made them unfit for military service.

From 1974, under direction from the Defence Minister, the Defence forces (known as the ADF from 1976) adopted a consistent tri-service policy that built on earlier policies and practices. The policy indicated that any case of suspected homosexuality was to be referred to the relevant service police to investigate. Only cases that involved non-consensual behaviour, a significant rank imbalance or minors would be considered disciplinary matters; the rest would be dealt with administratively. Those who were found to be ‘confirmed homosexuals’ would be given the option to request their own honourable administrative discharge or else would receive a dishonourable discharge ‘services no longer required’.

The orders on homosexuality were updated routinely (most prominently in 1985, promulgated as DI(G)(PERS)15-13), but the policy and procedures were generally unchanged for eighteen years. The policies all said that homosexuals should be treated ‘sympathetically’ and ‘with discretion’, but internal Defence documents and interviews with LGB ex-service members indicate that this was rarely the case. Service police practices when investigating LGB members included:

  • Intimidating interviews that could go on for hours or days, usually only ending when the suspect confessed;
  • Intense questioning about very intimate and graphic details relating to service members’ sex lives;
  • Compelling those who confessed to name other LGB people in the ADF, sometimes misleading suspects to believe that the outcomes of their cases would be more favourable if they cooperated;
  • Surveillance of suspected LGB members outside their houses, following them, secret searches of their homes, and sometimes secretly questioning their friends and colleagues;
  • Sending undercover police into LGB establishments or photographing suspects outside LGB venues or their lovers’ houses;
  • These investigations, the nets they cast and ripple effects became colloquially known as witch-hunts.

In late 1990 a lesbian servicewoman challenged her dismissal in the Commonwealth Human Rights and Equal Opportunity Commission (HREOC). Her case sparked a series of negotiations between the ADF and the HREOC that terminated in early 1992 when the ADF refused to lift the ban on LGB service. The Attorney General, the Honourable Michael Duffy, then challenged the ban on the grounds that it violated Australia’s international obligations under the International Covenant on Civil and Political Rights. The government commissioned an inquiry and finally the LGB ban went to Cabinet. On 23 November 1992, Cabinet overturned the ban on LGB service, effective immediately.

The informal ban on transgender service continued until 2000, when the ADF adopted a formal rule as DI(G)(PERS)16-16. Under this policy, any Defence member considering or undergoing transition would have to discharge from the ADF. They could, theoretically, reenlist if they had gender reassignment surgery (which is not the outcome for all transgender people).

In early 2010, two ADF members who were facing dismissal in line with DI(G)(PERS)16-16 challenged this policy. One of them lodged a complaint with the Australian Human Rights Commission, and the ADF entered a conciliation process. In July 2010 the ADF withdrew that person’s discharge and in September 2010 rescinded DI(G)(PERS)16-16. Since then, transgender Australians have been allowed to enlist and transition openly in the ADF.

Current Situation

The ADF has come a long way since the LGB ban was lifted in late 1992 and the transgender restrictions rescinded in 2010. In late 2005 the ADF amended its policies to recognise same-sex partners in de facto relationships. Since 2013 the ADF has permitted LGBTI members to march in uniform in the Sydney Gay & Lesbian Mardi Gras, and the ADF has endorsed other initiatives to support LGBTI members such as Wear it Purple Day and sending recruiters to LGBTI festivals. Indeed, one key objective identified in the 2012-17 Defence Diversity & Inclusion Strategy is to “Position Defence as an employer of choice for Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) persons, and as an organisation that respects and supports the inclusion of sexuality and gender diverse persons.” [1]

While the present situation is much better for LGBTI service members, many of those who were discharged or otherwise experienced hardship under the earlier policies against LGBT service are still suffering. The stress of hiding their authentic selves and the traumatising experience of the investigations, interviews and discharges have left ongoing mental health problems for some ex-service personnel. We also know that there were LGBT members under investigation who suicided. For those who rebuilt their lives after discharging, still there is the feeling that the ADF abandoned them and there has never been a proper reconciliation.

An apology and redress scheme can send the message that the ADF and Commonwealth Government recognise that what happened to LGBT service members in the past was wrong and will go a long way towards strengthening the ADF’s commitment to the inclusion of LGBTI members.

Key Considerations

There is significant precedent both within Australia and overseas for issuing apologies and redress schemes, including in relation to LGBTI matters:

  • Governments in Victoria (2016), South Australia (2016), Western Australia (2017), Tasmania (2017) and the Northern Territory (2018) have issued public apologies to LGB people for historic discrimination and convictions relating to then-unlawful same-sex activity;
  • The NSW Government issued an apology (2016) to the 78ers for the police brutality they experienced at the first Sydney Gay & Lesbian Mardi Gras;
  • Victoria (2014), NSW (2014), the ACT (2015), Queensland (2017), Tasmania (2017) and Western Australia (2018) passed laws allowing those people convicted under historic laws against homosexuality to apply to have to have their records expunged. Similar legislation is currently being considered in the Northern Territory. South Australia passed legislation in 2013 that allowed such convictions to ‘expire’;
  • The Commonwealth Government made public apologies to the Stolen Generations (2008), Forgotten Australians (2009) and for Forced Adoption (2013). These apologies recognised that even though the historic policies were legal, they were morally wrong. The Commonwealth Government also announced that, following the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, it will issue a public apology to survivors, victims and families of institutional child sexual abuse in October 2018;
  • Canadian Prime Minister Justin Trudeau delivered an apology in the Canadian House of Commons to those LGBT people dismissed from the public service and the military before their ban was lifted in 1992. In his apology, Trudeau said: “You were not bad soldiers, sailors, airmen and women. You were not predators. And you were not criminals. You served your country with integrity, and veterans you are. You are professionals. You are patriots. And above all, you are innocent. And for all your suffering, you deserve justice, and you deserve peace.” [2]

ADF leadership in recent years has made public statements apologising for some of the past policies, practices and behaviour in the services. Testifying before the Royal Commission into Institutional Responses to Child Sexual Abuse about abuse that happened in the 1960s-70s at HMAS Leeuwin, the recently retired Vice Chief of the Defence Force, Vice Admiral Ray Griggs, stated: “People and systems have failed you and they have put others at risk and that is simply not good enough. I am deeply sorry for what has happened to you.” [3] In 2012, both the Chief of the Defence Force and the Defence Minister issued public apologies to victims of sexual abuse in the ADF. [4]

In relation to LGBTI discharges, while there has been no formal apology, leadership within the ADF has acknowledged that the ban was discriminatory. In November 2012, then-Chief of the Defence Force, General David Hurley, said “We have progressed beyond outdated thinking on homosexuality to give all ADF members the same access to the range of service benefits regardless of their sexual orientation or gender.” [5] Data compiled by the Provost Marshall’s Office and released under Freedom of Information reveals that between 1953 and 1992, the service police investigated at least 489 men and 165 women across the three services (and note that this is incomplete data because some records were lost or destroyed, especially from the RAAF).

While such acknowledgements are of course important, they are not the same as a formal apology. Moreover, the apologies for abuse in the ADF were part of a much larger redress scheme. The Defence Abuse Response Taskforce (DART) operated from 2011 to 2016 and provided an opportunity for abuse survivors to apply for restorative justice and compensation. Indeed, some LGBTI ex-service members who were also subjected to abuse went through DART and reported favourably on the process and outcomes. Some cases involved compensation; other restorative justice packages included personal apologies from high-ranking officials within the ADF, including the service chiefs. The general consensus has been that DART was a fair, respectful process that produced positive outcomes for abuse survivors.

Recognising that there was ongoing need for redress for those abuse survivors who missed the DART deadlines or for new cases, in 2016 the Commonwealth Parliament amended legislation to grant the Defence Force Ombudsman (DFO) powers to investigate allegations of abuse, past and present, and to make recommendations for redress. While the DFO does not have the same powers as DART, the ADF has been cooperating and responsive to DFO recommendations for restorative justice.

The Commonwealth Government and ADF need to take a similar approach for the past mistreatment of LGBT Defence members: offering formal apologies, and preparing a redress scheme that centres restorative justice and healing for those who have been wronged.

Options

The nature of an apology and redress scheme can take multiple forms. These options are all based on the precedents set in relation to state expungements of convictions, ADF and government apologies to abuse survivors, and the DART and DFO redress schemes:

Apologies:

  • The Defence Minister and/or Prime Minister can deliver a formal apology in the Commonwealth Parliament for past policies and practices discriminating against LGBTI service members.
  • The Chief of the Defence Force can deliver a public policy as a speech with related media releases for past policies and practices discriminating against LGBTI service members.

Redress scheme:

  • Ex-service members who were dishonourably discharged because of their sexuality or gender identity may apply to have the discharges changed to honourable. Evidence that the discharge was related to gender identity or sexuality may be contained in the Provost Marshall’s police files, individual service records, or may be presented by a statutory declaration made by the relevant ex-service member.
  • Those service members who received dishonourable or honourable discharges may apply for a personal letter of apology signed by the relevant service chief. Evidence that the discharge was related to gender identity or sexuality may be contained in the Provost Marshall’s police files, service records, or may be presented by a statutory declaration made by the relevant ex-service member.
  • LGBTI members who suffered physical or mental distress as consequence of police investigations and/or their discharge may access an expanded DFO scheme to apply for compensation or other redress.

Recommendations

  • The Prime Minister and Defence Minister should both deliver formal apologies in the Commonwealth Parliament, and the Chief of the Defence Force should deliver a separate apology as well. In preparation for these apologies, the ministers and Chief of the Defence Force should meet with some of the LGBT ex-servicemen and women who were discharged under the respective bans. Learning about what happened to them will better inform the tone, wording and delivery of the apologies and give them sincere meaning.
  • Any LGBT ex-service member who was dishonourably discharged because of their gender identity or sexuality should have the right to request for their service records and discharge certificates to be amended to an honourable status. In most instances there should be evidence in either the Provost Marshall’s police records or the relevant member’s service record that the discharge was related to their sexuality or gender identity. In cases where the records cannot be found, the applicant may produce other evidence such as statutory declarations attesting to how/why they were discharged.
  • The DFO’s remit should be expanded to allow those members who suffered during their service because of their sexuality, gender identity or intersex variations to apply for a restorative justice package. This includes individuals who were discharged and those who went through investigations but who retained their jobs. Restorative justice may take many forms ranging from apologies from the service chiefs or other high-ranking officers, to amended medical discharges that facilitate the Department of Veterans’ Affairs to cover costs for ongoing medical or psychological problems, to financial compensation. Financial compensation should only be reserved for cases when the physical or mental distress suffered because of the investigation and/or discharge process had enduring impacts on the Defence member. This would require evidential support from relevant psychological or medical authorities. Further Reading: Noah Riseman, Shirleene Robinson and Graham Willett, Serving in Silence? Australian LGBT Servicemen and Women (Sydney: NewSouth, 2018).

Further Reading: Noah Riseman, Shirleene Robinson and Graham Willett, Serving in Silence? Australian LGBT Servicemen and Women (Sydney: NewSouth, 2018).

Contact Officer:   A/Prof Noah Riseman

                                      School of Arts

                                      Australian Catholic University

                                      Noah.Riseman@acu.edu.au

 

[1] Defence Diversity and Inclusion Strategy 2012-2017, “Our Identified Priorities: LGBTI,” available from http://www.defence.gov.au/Diversity/strategy/priorities.asp.

[2] Prime Minister Justin Trudeau, “Formal Apology to Canada’s LGBTQ Community,” 28 November 2017, available from https://www.ctvnews.ca/politics/read-trudeau-s-full-apology-to-members-of-the-lgbtq-community-1.3697975.

[3] “Case Study 40: Australian Defence Force,” Royal Commission into Institutional Responses to Child Sexual Abuse, Attach B to the Submissions in reply on behalf of the Commonwealth of Australia – VCDF letter (PDF), available from https://www.childabuseroyalcommission.gov.au/sites/default/files/file-list/Case%20Study%2040%20-%20Submission%20-%20Australian%20Defence%20Force%20-%20Attach%20B%20to%20the%20Submissions%20in%20reply%20on%20behalf%20of%20the%20Commonwealth%20of%20Australia%20VCDF%20letter.pdf.

[4] Elizabeth Broderick, Sex Discrimination Commissioner, “Advice to the Minister for Defence The Hon. Kevin Andrews,” 24 June 2015, available from http://www.defence.gov.au/FOI/Docs/Disclosures/MINDEF-001-1617-Document.pdf, p. 48.

[5] Benn Dorrington, “Gay Defence Ban 20 Years On,” 21 November 2012, Star Observer, available from http://www.starobserver.com.au/news/gay-defence-ban-20-years-on/89677.

 

* Associate Professor Noah Riseman specialises in the history of marginalised social groups in twentieth century Australia, especially Aboriginal, Torres Strait Islander and LGBTI Australians. He co-authored Defending Country: Aboriginal and Torres Strait Islander Military Service Since 1945 and authored Defending Whose Country? Indigenous Soldiers in the Pacific War. Riseman is currently conducting projects on LGBTI military service since the Second World War and the history of transgender Australians.