Duncan Kerr (Denison, Australian Labor Party) Share this | Hansard source

I congratulate the Parliamentary Secretary to the Minister for the Environment and Heritage for an interesting and committed speech, but the fairy tale of Liberal administrations making greater investments in public infrastructure is so beyond all plausibility that I suggest he refrain from the political point scoring and focus on the substantial task in front of him, which I do not doubt his zeal to perform. He does himself greater justice when he focuses on those matters rather than on representing a party that was at the forefront of the privatisation of the public sphere and making complaint about its reduction.

In addressing the Appropriation Bill (No. 3) 2005-2006 and the Appropriation Bill (No. 4) 2005-2006, I wish to speak about military discipline and the manner in which the defence forces deal with people against whom allegations of misconduct are made and instances in which military personnel are injured. We are facing what can only be described as a crisis in our capacity to attract into the military new recruits and retain those that have been attracted. It is no exaggeration to say that, without substantial increases in the attractiveness of the armed forces, the kind of speculation that was recently put forward by a former commander of the defence forces, which was that we would need to reintroduce national service, would become more commonly spoken. That would be a very retrograde step and not one I support at all. I went through the experience of the Vietnam years, when compulsory military service created great controversy at a time when Australian forces were engaged in a war on which the community was divided, and I would hate us to go back to that point.

Secondly, the military does not want a reintroduction of national service. It wants to be a volunteer force. It wants to be a streamlined, effective and professional military force. The idea of universal military service, which would be the only fair basis for its implementation, would place strains on those objectives. Imposing on them an obligation to train universal entry recruits into the military services for a relatively short period of time—insufficient time to train those recruits into effective components of the military service—would be difficult to make compatible with the streamlined, professional highly trained military using high-level technology that we are seeking to build.

If we were not to have a universal system and it was to be on the basis of random selection or some other mechanism, then it would suffer from the defects that the recruitment suffered from when people’s fates were determined by the draw of marbles out of a barrel, which led to great controversy and dissatisfaction. I do not want to go back to a situation where we have to contemplate military conscription. I do not think the government wants to go back to a situation where it has to bring in such conscription in order to fill places in the military. But that then leads us to the significant question of how we will recruit and retain people in the military if we do not have a fair system of military justice and if we do not find means of dealing fairly with those who are injured or incapacitated through their service and make claims against the Commonwealth.

I want to give three instances to highlight the difficulties of which I speak. The first instance relates to the very junior entrant—a person in the cadets. The second instance relates to a very senior person who was removed from command without explanation and without natural justice. The third instance is the long-lasting and longstanding problem of the Voyager survivors.

Going to the first instance, that of the cadet, I recently appeared in the Federal Court as part of a legal team which came together to press the case of the mother of a former Air Force Cadet, Eleanor Tibble. Eleanor Tibble entered the cadets with the objective of ultimately becoming a member of the Air Force. It was her life dream, and her passion was service in the cadets. Unfortunately, allegations of the following nature emerged. A youngish, 29-year-old senior instructor who was in part responsible for training developed a regard for young Ms Tibble. We understand that that regard was reciprocated. They went out to the movies together and they went to Ms Tibble’s family home—Mrs Campbell invited this young man into her home—but the young man realised, I think quite correctly, that his fondness for Eleanor Tibble was inappropriate in the case of somebody who was an instructor of a 15-year-old in the cadets. Although I do not purport to represent his exact words, he quite properly made it plain to his seniors within the cadets that he thought he could no longer remain because he had developed an inappropriate attitude towards or relationship with a 15-year-old cadet.

Were this to have happened in a school situation or at the Boy Scouts or what have you, we would have an instinctive reaction to any impropriety. Let me say that my understanding of the circumstances—and there may still be some distance to travel in terms of the ultimate determination of all the facts—is that there was no impropriety other than the fact that too great a fondness had developed between these two young people, a 29-year-old man and a 15-year-old girl. He recognised the inappropriateness of that and reported it. It did not go beyond that. But had it been a situation that occurred in the schools or the Boy Scouts or some situation of that kind, the instinctive reaction would have been that if there was any impropriety it would have been on the part of the 29-year-old adult, not on the part of a 15-year-old girl. But, sadly, a decision was taken which required her to resign from the cadets on the basis that she was unfit to continue as a cadet.

That was a disgraceful and grossly wrong decision. She was given no opportunity to contest it. She did complain, and ultimately the complaint wended its way up the military command. Ultimately, a decision was taken that the decision to require her resignation should be reviewed, and her commanders were told to reinstate her. But there was still delay. They did not pass on that information. About 10 to 14 days later—I do not pretend to be specific about dates—still unknowing that she had in fact been reinstated, she took her life. That in itself is tragic, but what is sadder is that the military thenceforth has done everything possible to prevent Mrs Campbell, the mother, from pursuing her claim in the Anti-Discrimination Tribunal of Tasmania to get redress.

The proceedings I was involved in in the Federal Court were resisting an application for the Commonwealth to dismiss those proceedings on the basis that the Anti-Discrimination Tribunal lacked jurisdiction to hear the mother’s complaint. Fortunately, that decision is now concluded and the matter will go back to the tribunal for ascertaining the necessary facts and to determine whether within the jurisdiction of the tribunal findings an order should be made. So those proceedings are not yet completed. You would understand my concern that any parent who has heard this story and hears the continuing resistance of the military to the open inspection and examination of these matters in a tribunal of a state should say, ‘Why the heck should I subject my child to procedures of that nature if I cannot be satisfied that the military will resolve these problems and it won’t happen again?’ The jury is still out on that question, but it is a crucial one, because unless people will enter the cadets and work their way up—and that is an attractive process of entry into the military—then we will have further difficulty with recruitment, notwithstanding all the personal tragedies that the obvious facts of that case suggest to anyone listening to it.

The next instance is in relation to Wing Commander Robert Grey. Wing Commander Robert Grey was formerly the senior officer responsible for the Air Force in my state of Tasmania, based in Hobart. For reasons that he is not aware of, and certainly I am not aware of, he was effectively removed from that senior role. There may be good reasons for that but, if so, they have not been disclosed. Wing Commander Grey, for the last four years at least to my knowledge, because he has sought my assistance, has been pursuing a request for review so that he can know the basis upon which his removal was effected and he can be accorded natural justice. The saddest thing about this is that, just as in the Tibble case, the 15-year-old girl, where the most vulnerable but the most junior of persons might be said to be subject to the military system—of course, cadets are not formally part of the defence forces and they are not part strictly of the military justice system but we would expect their treatment always to be fair—Wing-Commander Grey, somebody who rose through the ranks to a very senior position, was told effectively in correspondence, which has gone as high as the Prime Minister and still awaits final resolution, that he was not entitled in the determination of whether to hold a particular command to the application of natural justice such that he needed to be told what it was that he had done wrong and why his removal was required.

That is a dreadful situation. I understand that, in times of war, military command will be conditioned by circumstances that will sometimes require immediate judgments to be made. In those circumstances we would normally say that the niceties of civilian life have to be bypassed in requiring reasons why somebody loses confidence in a junior officer. In times of active service, when those decisions have to be taken in life or death moments, nobody expects a judicial-like process to occur.

But where in peacetime a senior commanding officer of a state is removed effectively from that office, and when reasons or opportunities for redress of grievance are requested and no opportunity is allowed, it must also enter the minds of people who might enter the military, ‘I have a career system here, but capricious and arbitrary decisions could cut short my opportunity to serve my Australian community.’ If the military at the highest levels say, ‘When we are making these command decisions, we have no obligation to accord such senior officers natural justice,’ again it must hang in the mind of any person who is thinking of re-enrolling or re-enlisting after a period of time to build their career, ‘Look, I might be better off doing something else entirely different where that kind of unfairness is not permitted.’ The military is a very large organisation, and facilitating decent treatment of those at the lowest and the highest levels is absolutely crucial.

Wing Commander Grey still has significant correspondence awaiting final determination. He has been promised review and an opportunity to have his matters considered, and he has correspondence yet to be answered. But years and years have passed and the buck has been passed from one level to another, back and forth, including from the Prime Minister’s office. It is a most unsatisfactory situation and one which leads me to be very critical. I hope in the end he does get what he has wished for—that is, an explanation for why he was treated in the way he was and an opportunity to at least put on the record his account in relation to those matters. He believes his reputation was effectively publicly trashed. It was a matter which got public attention; it was not a private matter. When you remove a commanding officer from a state such as Tasmania it does carry a very public awareness in the community. It is not simply a private matter within the military.

The third point I want to mention relates to the Voyager cases. A number of efforts have been made to find resolution in the Voyager cases, but there still remains outstanding litigation. Where that litigation is premised on disputed understandings of fact, I have no objection. If it is truly the military’s view that some people’s claims are not based on injury or effect caused as a result of the Voyager and they are contesting on those grounds, on the merits, no-one can object. Of course, it is something that the claimants would wish to be resolved as quickly as possible, and I share that desire.

But, sadly, what we find now is every technical legal point being taken. Years, decades, after the Voyager disaster we are still seeing the meanest, most technical of points that can be taken in relation to that litigation being taken. One of the practices that now often happens—and it has certainly happened in the Tibble and Voyager cases—is that the litigation is briefed out to major commercial firms. The old framework of litigation that the Commonwealth used to employ—that is, of a model litigant, where as a public litigant representing the public interest the ethical responsibilities of the Commonwealth were always placed in the highest spectrum and unmeritorious technical points were not taken—seems to be less influential as a doctrine. I think there are some serious questions that we will have to examine in due course about the consequences of the shift towards privatisation of public litigation. It has not been an altogether successful process, in terms of both its ultimate cost and the ethical environment in which that litigation is conducted.

Returning to the Voyager cases, the fact that these matters are not necessarily being examined and contested on their merits but on these very technical points must leave a sense of concern that, if you rise through the military but some misadventure occurs and you need to address the problem at a later stage, you may well be confronted by a litigant on the other side that is remorseless in its utilisation of the most technical defences available. And that of course is not the most attractive thing to somebody who might be contemplating a long-term career in the military.

So, to conclude where I started, these issues all go back to the desirability of having an all-volunteer Defence Force: one in which morale is high; one in which people who want to gain some military experience can do so; one in which parents of kids who want to join the cadets can be confident that they are placing their children in a safe environment where they will be treated fairly; one where, if someone rises through the military and reaches relatively high office, notwithstanding that, they will be treated fairly, unless warlike situations require decisions to be made in circumstances where natural justice cannot be afforded; and one where, if they are injured, they will be treated fairly through the litigation that occurs. These are important principles that we should never forget.

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