Mark Bishop (WA, Australian Labor Party, Shadow Minister for Defence Industry, Procurement and Personnel) Share this | Link to this | Hansard source

I rise this afternoon in a rare mood and offer some form of commendation to the Department of Defence. I have been pleasantly surprised at the speed with which it has settled two high-profile cases of military justice. For more than six years, Lieutenant Commander Robyn Fahy fought to clear her name after having been stood down. Remarkably, little more than six weeks after Senate estimates, her case was settled. So too was the case of the mother of Air Cadet Eleanore Tibble. Her fight for justice lasted some 5½ years, following her daughter’s tragic death. Again, after a protracted legal battle, her case has been dealt with expeditiously. Could this cherry-picking of high-profile cases be at the behest of a red-faced defence minister? Was he embarrassed into swift action after Senate estimates, when his department’s officials were caught on the hop. This followed the public airing of Lieutenant Commander Fahy’s case. There too, Air Chief Marshal Houston, Chief of the Defence Force, called for a speedier resolution of military justice cases.

Today I would like to heed his call for urgent action. I would like to call for other less high-profile cases to be resolved expeditiously, this time with constructive mediation. The department’s cherry-picking approach to resolving high-profile cases might offer sweet success to Dr Nelson but it fails to stem the root cause of military injustices. There are still a number of cases before the Senate Foreign Affairs, Defence and Trade Legislation Committee review of reforms to the military justice system. It is still receiving complaints. Ten in particular have been brought to the committee’s attention. There are also numerous submissions highlighting scores of complaints about various issues relating to military justice. Even now, the committee has before it 10 specific pieces of correspondence from different complainants seeking the resolution of a range of matters.

In calling for constructive mediation to resolve such cases, I am seeking a win-win outcome not only for Dr Nelson and his department but also—and more importantly—for those victims seeking long-term redress from pain and suffering. The constructive mediation to which I refer is often used successfully to resolve matters before the civil courts. It seeks the settlement of a case as a priority, it allows closure of a case for the claimant and it has often restored faith in the justice system. Such constructive mediation usually takes place before a senior, possibly retired, judge. It is held in easily accessed facilities and works to a specific time frame, so ensuring that agreement is reached and a satisfactory settlement is made. Moreover, the fees for this mediation process should be paid by the department.

What is the buy-in for Defence? Its win is that natural justice is seen to be done. An approach of constructive mediation in matters of military justice will help to allay the fears of young people who are eager to enlist but are weary of Defence’s perceived attitude of bullyboy behaviour. Such young people are keen to enlist but are deterred by being caught up in cases such as those of Lieutenant Commander Fahy and Cadet Sergeant Eleanore Tibble, should they run foul of the system. Restoring their and the public’s faith in military justice would ultimately show that Defence is an employer without peer.

I would like to compare the government’s current approach to military justice with my proposed approach of constructive mediation. Let us look at the case involving Lieutenant Commander Robyn Fahy. Lest we forget, she was Australia’s first female naval officer. She topped her class in the late 1980s, but her brilliance failed to shield her from the ongoing brutality dished out by some of her peers. Lieutenant Commander Fahy’s nadir came in 2000, while serving at Stirling naval base. An apparent personality clash with her superior led to her suspension from duties. This was backed up by spurious medical reports indicating that the fault lay with Fahy. An attempt was then made to cashier her from the Navy on medical grounds. The first ground was a back injury sustained at sea previously. The second was a trumped-up and false diagnosis of mental illness. This second charge received widespread publicity. Indeed, an inquiry by the Medical Board of Western Australia found that the referral to a private psychiatrist by a Navy doctor not only was misleading and incorrect but also was made without examination and was simply plain wrong.

It was on the basis of this psychiatric report that Lieutenant Commander Fahy was to be discharged as unfit for duty. She remained suspended for 6½ long years on full pay. That was 6½ years in which there was nothing but delay and procrastination from Defence—for that is how it dealt with this case of military justice: in its business as usual, bullyboy way. At every move it challenged Commander Fahy’s attempts to seek redress. It fought her through the chain of command. It fought her before the courts. It even fought through mediation.

Not until the glare of the public spotlight became too intense did Defence decamp and concede defeat. This admission, by the way, came just after 6 pm on a Friday, by way of a media release circulated to the press gallery. That was interesting timing, considering most journalists would have clocked off by 6 pm on a Friday. Again, could it be that Defence was trying to hide, for whatever reason, this apparent capitulation?

Let us look at an approach of constructive mediation. I will pose several questions. How much would have been saved in legal bills had Defence taken this alternative course six years ago? How much pain and suffering could have been avoided had this battle of attrition not been waged? It was a six-year battle which ultimately saw no winner—the losers being the victim, the taxpayer and the reputation of the department. This is not a one-off case.

I next turn to Mrs Susan Campbell’s fight for justice, following the death of her daughter Eleanore Tibble. At about the same time that Lieutenant Commander Fahy was starting her battle with Defence, Cadet Sergeant Tibble took her own life. She did so even though she had been cleared of some serious allegations. Again, when Cadet Sergeant Tibble’s mother sought redress, Defence went on the defensive. It spent the next 5½ years trying to thwart Mrs Campbell’s call for justice for her daughter. How many countless days of grief and frustration could have been avoided had Defence played it straight from the start and entered into constructive mediation? How much taxpayers’ money could have been saved with an initial round of mediation?

Let us look again at the cases of Fahy and Tibble, two bright, attractive women—one senior and proven, one junior and waiting to be tested—their careers in the military cut short, their plight attracting the spotlight of the media. Is it mere coincidence these cases were resolved only after they proved too embarrassing for the minister and his department? I would like to remind the chamber, in this context, of the valuable role Senate estimates played in outing the truth in the Robyn Fahy matter. I also remind my colleagues here how the government has tried to shut down this invaluable process whereby senators can seek the truth from government officials. Now budget estimates have been whittled down. It is a shame we will never know the details of how Defence settled these two high-profile cases. The minister has used secrecy as a subterfuge to settle them. This may protect the department from further scrutiny, but it fails to compensate victims for the invasion of privacy suffered while trying to achieve military justice.

What about those cases that never come under the glare of the media spotlight? As shadow minister for defence industry, procurement and personnel, I have seen many of these victims pass through my door in their attempts to find military justice. The first question I ask of them is whether they are prepared to stand outside the chain of command to seek this justice. Most put their careers first and justice on hold. It is with these people I remain most concerned. While it is good that Defence has settled the cases of Lieutenant Commander Fahy and the mother of Air Cadet Eleanore Tibble, albeit five or six years too late, I am here to represent all those whose complaints go unheeded, who seek justice and seem permanently denied redress. That is why I offer constructive mediation for these outstanding cases—to have Defence behave in a rightful fashion when a perceived wrong first appears and not behave with might, and an almighty legal budget, when the culture is threatened.

Military justice continues to haunt this government. It has seen six inquiries into the matter since gaining power 10 years ago. I believe the Senate committee which handed down the latest report, earlier this year, has set a precedent. For the first time, it will meet regularly to ensure its recommendations for reform, or government decisions on reform, are implemented meaningfully. I keenly await the next time we meet, and I will be raising with the committee a number of these other, less high-profile cases for resolution. Perhaps then justice will be seen to be done. Then, too, the public’s confidence will be restored in the system. Only then will Defence be able to attract the bright young people it desperately needs in its forces.