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Wednesday, 9 November 2005
Page: 39

Senator MILNE (12:11 PM) —I rise today to comment on the Defence Legislation Amendment Bill (No. 2) 2005 and, in so doing, I would like to quote what Senator Hill, the Minister for Defence, had to say in response to various reports on military justice. He said:

... a modern and professional force deserves a modern and effective system of military justice. With the reforms I have announced today, the government will provide a system that will better ensure impartial and fair outcomes, and strike an effective balance between the need to ensure effective discipline within the Australian Defence Force and to protect individuals and their rights.

It is in that capacity that I rise today to say that I do not believe that the changes in this bill are going to make for significantly more impartial and fairer outcomes that will protect individuals and their rights. That is specifically with regard to the position of the Inspector-General of the ADF because, in developing this position for the inspector-general, the government has made it clear that the inspector-general must have knowledge of and experience in military justice issues and an understanding of their relevance to the role of the Defence Force.

The requirement for the minister to have regard to the CDF’s recommendation and the military experience requirements for the position of inspector-general may bring the independence of the position into question, especially in light of submissions to the Senate Foreign Affairs, Defence and Trade References Committee regarding the independence of the inspector-general and his office. I note here that the Senate report specifically questioned the need for the inspector-general to have military knowledge because the Defence Force Ombudsman has been able to perform his administrative review functions for many years without that military background.

So, in summary, I think it is fair to say that this bill addresses some of the shortcomings in military justice that have been identified in the inquiries over the past decade, but it does not seek to clearly distinguish between the military justice system and the military. In that respect, I think this bill is reactive and somewhat piecemeal. What was being sought by all these inquiries was a clear differentiation between the military justice system and the military.

I rise to speak on these issues of fairness and separation, specifically in relation to a young Tasmanian, Eleanore Tibble, who took her own life because of what had happened to her in the Australian Defence Force Cadets. Her case was examined at length in the course of the Senate inquiry. It is a tragic case in which a young woman took her own life because of the way in which the complaint against her was handled.

It is very clear, from all the evidence she gave, that the concerns her mother expressed were confirmed by the investigating officer. Indeed, the Human Rights and Equal Opportunity Commission tabled a report which dealt with the circumstances of Eleanore Tibble’s dismissal. It considered whether the Commonwealth had breached her rights under the Convention on the Rights of the Child. In its findings the commission said that the AIRTC officers failed to recognise the need to consider the interests of the child as paramount, failed to take into account as a primary consideration Ms Tibble’s best interests, failed to protect Ms Tibble from humiliation that might result in psychological harm, and failed to take all appropriate administrative, social and educational measures to protect Ms Tibble from neglect or negligent treatment. That is pretty strong in terms of what happened to that young woman. But the ultimate tragedy is that she took her own life because of the bungled management by authorities that should have had her best interests at heart.

I acknowledge that Eleanore’s case has been looked at and that some of the recommendations for change, particularly those in relation to the Australian Defence Force Cadets, are going to come through in regulations. To that extent, at least some of it has been dealt with. But to my absolute horror I discover that the Commonwealth is not assisting as it might with getting justice for Eleanore Tibble and, more particularly, her mother, who is attempting to bring this matter to a logical conclusion and to prove that discrimination has gone on. I understand that a Federal Court hearing is set down for 5 and 6 December. In effect, the issue is that Eleanore Tibble’s mother, Ms Campbell, had brought a matter before the antidiscrimination tribunal in Tasmania, which had set down a date for a directions hearing. But, before the antidiscrimination tribunal could hear the matter, the Commonwealth intervened and took the matter to the Federal Court, arguing under section 109 of the Constitution that the antidiscrimination tribunal in Tasmania is not a duly constituted court, that Commonwealth law takes precedence over state law and that therefore the directions hearing should not be able to proceed. The Commonwealth is effectively blocking Ms Campbell and forcing her to go to the High Court, because that will be her only option if the Federal Court upholds the contention of the Commonwealth in the proceedings there.

The tragedy is that this family have suffered already. They have suffered appallingly. They have lost a child as a result of the bungling of the so-called military justice system. That child’s mother, Eleanore’s mother, has had to put her own home on the market to try to raise money. Just this week she received a letter from the minister, Mr Ruddock, asking that she provide details as to why she cannot afford to pay for her part of the cost of the proceedings. It is the Commonwealth that has brought those proceedings in the Federal Court to try to prevent the directions hearing from proceeding.

Senator Johnston —That is a distortion and you know it.

Senator MILNE —It is not a distortion. Perhaps the government would like to tell me whether it is true that the minister, Mr Ruddock, has sent a letter to insist that Ms Susan Campbell explain why she cannot afford to pay for her part in the proceedings in the Federal Court. I understand that it is true that that letter has been sent. I find it appalling that the Commonwealth continues to keep blocking and making the bar higher for ordinary people seeking the justice they want as a result of what has occurred.

This is a tragic case, and it has gone on for years and years. How many more years do this family have to suffer? How many more years do ordinary citizens in Australia have to put everything they have on the line in order to seek justice through the appropriate processes? If Ms Campbell has to go to the High Court then the Commonwealth will certainly be advantaged, because taxpayers pay the money for any proceedings that the Commonwealth might be involved in. But who is to pay for her part in the proceedings? Who is to pay for her lawyers? How is she meant to deal with this? Ordinary citizens in this country can no longer take on the government because of these processes.

It is appalling that the Commonwealth has intervened in this way to block the hearing of this matter in the antidiscrimination tribunal in Tasmania. I would like an explanation from the government as to why they have taken that stand. I would like an explanation as to why, when it is the Commonwealth that has instigated these proceedings, costs are being questioned in terms of Ms Campbell. I would like an assurance from the government that she will not be pursued for costs in relation to the Federal Court hearing. The hearing is testing a point of principle under section 109 of the Constitution and the issue of whether or not the antidiscrimination tribunal in Tasmania is a duly constituted court. It does not pertain to Ms Campbell’s core issue, which is seeking justice on behalf of her daughter, Eleanore Tibble.

To the extent that the Commonwealth is testing jurisdictional issues and taking Ms Campbell to court on that basis, the Commonwealth should pay for the proceedings and not further disadvantage a family that has already suffered beyond what most of us ever have to endure—that is, the death of a child. For this young woman to have taken her life because of what happened to her as a result of her experience in the Australian Defence Force Cadets ought to make every one of us do everything we possibly can to facilitate Ms Campbell getting justice and appropriate recompense because of what has happened to her and her family. I put on the record that it seems to me that the Commonwealth should meet any expenses in the Federal Court. More particularly, it should withdraw from that hearing and allow the antidiscrimination tribunal in Tasmania to carry on with the directions hearing that was set down for 22 November, had the Commonwealth not intervened.

The Commonwealth will probably argue that precedence is involved, but equally there is the argument that people who are watching this in their lounge rooms will note the failure of this legislation to draw a clear distinction between the military justice system and the military, that this is just another example of a small bit of reform and that, ultimately, the military are protected from the level of scrutiny that the community would want. That forms the basis of all these investigations, hearings, Senate committee reports and other reports into the military justice system. What people want is separation. People want the capacity to go to the civil courts. People want openness and transparency and not, ultimately, small changes which still allow the military to control their own destiny in relation to the military justice system. I would appreciate hearing the government’s response, especially on this issue of the Federal Court hearing which will occur in December, and on the matter of costs.