HREOC Report No. 29
© Commonwealth of Australia 2005
Copying is permissible with acknowledgement of the authorship of the Human Rights and Equal Opportunity Commission, Sydney, March 2005.
The Hon Philip Ruddock MP
House of Representatives
CANBERRA ACT 2600
Pursuant to section 11(1)(f)(ii) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), I attach a report of my inquiry into complaints made by Ms Susan Campbell that the human rights of her daughter were breached by the Commonwealth of Australia. I have found that acts or practices of the Commonwealth were inconsistent with or contrary to the human rights of Ms Campbell’s daughter as provided for in Article 3(1) and 19 of the Convention on the Rights of the Child.
John von Doussa QC
Table of Contents
Under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act) the Human Rights and Equal Opportunity Commission (Commission) has the function of inquiring into acts or practices that may be inconsistent with or contrary to the rights set out in the human rights instruments scheduled to or declared under the HREOC Act.One of those instruments is the Convention on the Rights of the Child (CRC).
The Commission is required to perform this inquiry function when requested to do so by the Minister, when a complaint is made in writing to it that an act or practice is inconsistent with or contrary to any human right, or it appears to the Commission to be desirable to do so.The inquiry the subject of this report has been conducted in response to a written complaint received by the Commission.
Where the Commission is of the opinion that an act done or a practice engaged in by a person is inconsistent with or contrary to any human right it is required to report to the Attorney-General in relation to the inquiry.  Section 8(6) of the HREOC Act provides that the Commission's functions of inquiring into a complaint and reporting to the Attorney-General shall be performed by the President. These functions are outlined in more detail in Appendix A.
I have inquired into a complaint made by Ms Susan Campbell that the human rights of her daughter were breached by the Commonwealth of Australia (the Commonwealth). As a result of my inquiry I have found that acts or practices of the Commonwealth were inconsistent with or contrary to the human rights of Ms Campbell's daughter as provided for in the CRC.
Ms Susan Campbell complained to the Commission that the human rights of her daughter, Eleanore Tibble, were breached by the Commonwealth when Ms Tibble was a cadet in the Tasmanian Air Training Corps (AIRTC) or (TASAIRTC). Ms Tibble was at the time 15 years of age. The complaint relates to the treatment of Ms Tibble by certain officers of the TASAIRTC when they were dealing with an allegation of fraternisation.
The 'actions, procedures and processes' undertaken in relation to Ms Tibble and the allegations of fraternisation have been the subject of an internal investigation conducted by Group Captain (GPCAPT) C.M. Stunden of the RAAF. The report of GPCAPT Stunden outlines the factual circumstances surrounding this matter. Those factual circumstances do not appear to be disputed by the Commonwealth and a summary of them follows. Two additions, which are identified, have been added.
On 15 August 2000 a 30 year old instructor, holding the rank of Leading Aircraftsman in the TASAIRTC, informed his superior officer, the Commander of No 1 Flight (who held the rank of Flight Officer (AIRTC) and is henceforth referred to in this Report as 'the Flight Commander'), that he was resigning in view of his personal involvement with a cadet. On 16 August 2000 the Flight Commander advised the then TASAIRTC Commanding Officer of the relationship between the instructor and a female cadet. The TASAIRTC Commanding Officer advised the Deputy Director Reserve Personnel and Cadets and the Regional Liaison Officer that an instructor admitted a sexual relationship with a cadet. The Deputy Director Reserve Personnel and Cadets and the Regional Liaison Officer directed the TASAIRTC Commanding Officer to make efforts to identify the female cadet and keep them informed. The Deputy Director Reserve Personnel and Cadets and the Regional Liaison Officer were concerned the child might be under age.
On 29 August 2000 the TASAIRTC Commanding Officer learnt that Ms Tibble was the cadet in question.
On 5 October 2000 the TASAIRTC Commanding Officer instructed the Flight Commander to interview Ms Tibble and ask her what she knew about the instructor's resignation. The Flight Commander interviewed Ms Tibble that day at 8pm after Parade at Anglesea Barracks. A Leading Aircraftswoman in the TASAIRTC was present at the interview and recorded the interview. At the interview Ms Tibble informed the Flight Commander that she had a short period of fraternisation with the instructor, it was not sexual, that she brought the fraternisation to an end as she understood it was wrong and that the instructor had resigned the same day. The Flight Commander asked Ms Tibble what was the worst possible scenario for her and she replied 'being thrown out of the AIRTC'. The Flight Commander told Ms Tibble that he would speak with her again once he had spoken to his commanding officer.
I add to that summary of the interview a fact that I consider to be of importance. The record of interview, after recording Ms Tibble's statement that she had been involved in a short period of fraternisation continues:
[The Flight Commander] asked CSGT Tibble why she had not advised her FLTCDR of the event. CSGT Tibble replied that, it was in fear of threats from [the instructor] that she would be thrown out or demoted.
At the time Ms Tibble was 15 years of age and held the rank of cadet sergeant in the AIRTC. Ms Campbell had not been informed of the intention to interview her daughter.
On 12 October 2000 the record of conversation of the interview was signed by Ms Tibble, the Flight Commander and the Leading Aircraftswoman and on 17 October it was provided to the TASAIRTC Commanding Officer. The TASAIRTC Commanding Officer sought advice of the Directorate of Reserves.
On 30 October a Flying Officer in the TASAIRTC (henceforth referred to in this Report as 'the Flying Officer'), at the direction of the TASAIRTC Commanding Officer, contacted Ms Tibble and told her to either resign or face discharge. He also informed her that she could attend on Thursday night (2 November 2000) to return her kit but she could not parade in uniform. The Flight Commander contacted Ms Tibble two days later to ensure she would not be parading on Thursday. Ms Tibble informed the Flight Commander that she had not been given natural justice and would take the matter further.
On 1 November 2000 Ms Campbell called the Executive Officer (XO) of the TASAIRTC and said she would not accept the situation. On 2 November 2000 Ms Tibble delivered a letter to the Flight Commander seeking written confirmation of the two verbal communications. No response was forthcoming.
On 10 November 2000 the TASAIRTC Commanding Officer discussed the matter with the Regional Liaison Officer and informed him that he was aware of the identity of the cadet and that the relationship was not sexual. The Regional Liaison Officer concluded there were no grounds for discharge. On 12 November 2000 the TASAIRTC Commanding Officer together with the Regional Liaison Officer discussed the matter with the Deputy Director Reserve Personnel and Cadets who directed the TASAIRTC Commanding Officer that CSGT Tibble be reinstated and discharge action not be continued. The TASAIRTC Commanding Officer subsequently sought advice from the Staff Officer, Cadet Policy in the Assistant Chief Reserves.
On 27 November 2000 Ms Tibble committed suicide. At the time of Ms Tibble's death she had not been advised of the direction that she be reinstated and discharge action not be continued.
I add that Ms Tibble's death was referred to the Tasmanian Coroner. Without holding an inquest the Coroner, on 15 February 2002, reported on the cause of death. In his report the coroner noted:
Specialist evidence provided by Dr Ian SALE . . . states that 'I believe that it was the manner in which the disciplinary matter regarding Eleanore TIBBLE was managed that contributed to her committing suicide. Greater than 50% contribution'. The investigating officer's report to the RAAF . . . [the report of GPCAPT Stunden] supports [that] the disciplinary action taken by Air Training Corp was inappropriate and therefore unreasonable.
Ms Campbell alleges that the treatment that Ms Tibble received was inappropriate for someone of Ms Tibble's age and directly contributed to Ms Tibble's mental anguish and so to her death.
Whilst the possibility of conciliation of Ms Campbell's complaint was explored by the Commission, ultimately it was not the mutual wish of the parties that it should occur.
On 21 December 2001 the Delegate of the then President of the Commission, Professor Tay, wrote to the Department of Defence to advise it of the complaint. The Delegate noted that the CRC recognised a number of rights that may be relevant to the complaint and sought the Department's comments in relation to the complaint. The Delegate also invited the Department's submissions as to whether the Commission should decline to continue the inquiry because (i) another remedy has been sought in relation to the subject matter of the complaint and the subject matter of the complaint has been adequately dealt with or (ii) because some other more appropriate remedy is reasonably available to the person aggrieved.
The Department of Defence submitted that the Commission should terminate its inquiry, particularly as there had been a Defence Internal Inquiry with subsequent recommendations, it had not been established that remedies under the HREOC Act were applicable in these circumstances and because of the public interest in reaching finality. In that regard the Department noted that the matter was being or had been addressed by a number of external bodies.
Professor Tay determined to continue the inquiry, noting that: the Commission had the function of inquiring into breaches of human rights; her inquiry was to ascertain whether the alleged acts of the Commonwealth were inconsistent with or contrary to the rights contained in the CRC; and, she did not consider the other bodies had adequately dealt with the subject matter of the complaint or could more effectively deal with it. She was of the view that the Commission is the only organisation that has the power to inquire into alleged breaches of the CRC and that it was appropriate that the matter be dealt with by the Commission.
As a result of her inquiry Professor Tay provided to Ms Campbell and the Commonwealth her Report of Preliminary Findings under the Human Rights and Equal Opportunity Commission Act 1986 dated 18 March 2003.
Professor Tay was of the preliminary view that certain actions of the Commonwealth were inconsistent with or contrary to Ms Tibble's human rights under articles 3(1) and 19 of the CRC. Those articles provide:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
States parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
The preliminary views of Professor Tay in relation to articles 3(1) and 19 of the CRC are set out below.
4.1.1 Article 3(1) of the CRC
Professor Tay was of the preliminary view in relation to article 3(1) of the CRC:
Article 3(1) of [the CRC] provides that in all actions concerning children the best interests of the child shall be a primary consideration. The [CRC] committee has stated that the child's best interests must be the subject of active consideration and it 'needs to be demonstrated that children's interests have been explored and taken into account as a primary consideration'. [United Nations Children's Fund ("UNICEF") Implementation Handbook for the Convention on the Rights of the Child (1998), p, 40].
While article 3(1) outlines a general principle that underlines all the more specific provisions of [the CRC], it is clear that the provisions of article 3(1) are meant also to constitute stand alone instructions to States Parties. In its reporting, the Committee has emphasised that consideration of the best interests of the child should be built into national plans and policies for children and into the workings of parliaments and government. The Committee has also stressed that any interpretation of the best interests must be in conjunction with the rights of the child as an individual with views and feelings of his or her own and the child as subject of civil and political rights as well as special protection. While the wording of the article does recognise that the best interests of the child shall not always be the single or overriding factor to be considered, the interests of the child must be the subject of active consideration. It has also been stressed that the provision must be read expansively and not in a limited way. [UNICEF Implementation Handbook, pp 40 - 43].
I am of the preliminary view that the evidence shows that Ms Tibble's interests were not considered by the officers in their actions. There is no evidence that the officers in the AIRTC at any time in their actions towards Ms Tibble considered that Ms Tibble was a child and should have been treated with her best interests as a child in mind. The Coroner found that there was a 'failure to appreciate that a fifteen year old girl was being dealt with and in particular, to accept the vulnerability of any fifteen year old in a situation which she found herself'. I find that this is an accurate statement of the treatment of Ms Tibble in the dealings of the officers with her.
I consider that the following actions are those which in my preliminary view are inconsistent with or contrary to Ms Tibble's rights under article 3(1) of [the CRC].
i. [The Flight Commander’s] actions in the way he conducted the interview with the complainant without asking the complainant’s parent or guardian to attend, and the way that he threatened her with discharge if she did not resign
ii. The actions of [the Flying Officer] when he told Ms Tibble to either resign or face discharge on 30 October 2000.
iii. The failure of either [the Flight Commander] or [the Flying Officer] to respond to Ms Tibble’s request of 2 November 2000 for confirmation in writing.
iv. The actions of [the TASAIRTC Commanding Officer] in the manner in which he conducted the proceedings and his decision to discharge the complainant.
v. The failure of [the TASAIRTC Commanding Officer] to advise Ms Tibble in a timely fashion that the discharge proceedings were not going ahead.
In none of the above actions of the officers in the AIRTC were Ms Tibble’s best interests or rights a primary consideration or even it would appear a consideration at all. I am of the preliminary view that the actions of [the Flying Officer] and [the Flight Commander] in their failure to respond to Ms Tibble’s letter and the failure of the [TASAIRTC Commanding Officer] to inform Ms Tibble of the rescinding of the discharge order were omissions that showed that they were not considerate of her status as a child and the natural anxiety that a child in her situation would have felt. I am also of the preliminary view that the other actions were actively done to Ms Tibble, and to follow the findings of the internal inquiry, appear to be either a complete disregard for or victimisation of the complainant. Whether the acts were omissions or commissions, however, I am of the preliminary view that the actions of the respondent were inconsistent with or contrary to Ms Tibble’s human rights as provided for in article 3(1) of [the CRC].
4.1.2 Article 19(1) of the CRC
Professor Tay was of the preliminary view in relation to article 19(1):
Article 19 of [the CRC] provides that Australia must take positive steps to protect children from, among other things, physical and mental violence. ‘Mental violence’ includes humiliation, harassment, verbal abuse, the effects of isolation and other practices that may cause or may result in psychological harm. (UNICEF Implementation Handbook, p 240). It is not sufficient that there was no intention to cause or allow harm, the obligation is a positive one on the Commonwealth.
I refer to the findings of the internal investigation which found that it was not appropriate that Ms Tibble or any child in her situation did not have the opportunity to have a parent or guardian with her when being interviewed on a matter that may have led to discharge from the cadets. Further, the way that the officers treated Ms Tibble, with what appears to be disregard for the needs of a child of her age, was inappropriate and done without regard for the harm that it may cause her. I note also the inquiry officer’s observation that it appears that Ms Tibble was victimised. I am of the preliminary view that the manner in which the officers dealt with Ms Tibble was inconsistent with or contrary to her human rights under article 19(1) of [the CRC].
I am also of the preliminary view that the lack of proper procedures, as found by the investigating officer, also shows that the respondent had not taken positive steps to ensure that children were protected from mental violence. The following aspects are of particular concern:
i. The failure to allow the complainant the presence of her parent or guardian
ii. The lack of opportunity to address the accusations and provide a defence before being informed that she would be discharged if she did not resign
iii. The apparent assumption that she was guilty of fraternisation before the meeting commenced
iv. The failure to expansively define ‘fraternisation’
I am also concerned that there is no evidence to show that there was an understanding by the officers in question that there may have been an issue of child abuse if the accusations of fraternisation, and the implied assumption of a sexual relationship, were true. Ms Tibble was accused of fraternising with an adult instructor when she was fifteen years of age. A child of fifteen years of age is unable to consent to a sexual relationship with an adult in any State in Australia. I am of the view that the respondent was in loco parentis and responsible for the child’s welfare when she was at cadets. I am of the preliminary view that the respondent’s failure to address this issue either before or during its dealings with Ms Tibble shows that it did not take sufficient steps to protect Ms Tibble from harm. I am of the preliminary view that the failure of the respondent to deal with this issue is also inconsistent with or contrary to Ms Tibble’s human rights pursuant to article 19(1) of [the CRC].
I subsequently indicated to the representatives of the Commonwealth that Professor Tay's preliminary findings would by implication include a finding that the Commonwealth failed to 'take all appropriate . . administrative, social and educational measures to protect' Ms Tibble from 'neglect or negligent treatment' or 'maltreatment' while in the care of the respondent, within the meaning of article 19(1) of [the CRC].
The Preliminary Findings were provided to the complainant and the Commonwealth. Submissions were invited in response to the preliminary findings. The Department of Defence, through solicitors, made submissions on behalf of the Commonwealth and they are outlined below (with the exception of some preliminary aspects of those submissions).
4.2.1 Article 3(1) of the CRC
The Commonwealth's submissions concerning the preliminary findings in relation to article 3(1) of the CRC are:
Best interests of the child>
The AIRTC is an administrative authority for the purposes of article 3(1). The actions listed in Professor Tay's preliminary view would amount to an 'act or practice'. The issue is whether any of the actions failed to take account of Ms Tibble's best interests.
It is accepted at common law that 'best interests' of a child must take into account the child's maturity and stage of development (Gillick v Norfolk Wisbech Area Health Authority (1985) 3 All ER 402, Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (Re Marion's case) and that the maturity and competence of a child increases with age (Hewer v Bryant  1 QB 357). That fact is recognised in article 12(1) of [the CRC] which states:
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
Mature age adolescent>
At the time of the alleged mistreatment Ms Tibble was 15 years of age. She was a mature adolescent who was capable of forming a view as to her best interests. She had been found sufficiently responsible to not only join the cadets but to participate in cadet activities and be promoted to sergeant. A sergeant is three rankings above a cadet and is responsible for promotional activities. The position was the highest to which she could aspire given that she could not be promoted further until she turned 16.
She had enjoyed a brief relationship with a much older man that on the evidence available to AIRTC was condoned by her mother.Her mother must have accepted she was sufficiently mature to handle the relationship. Her maturity was also evidenced by the fact she flew to Darwin to give evidence in a domestic violence action against her father. In addition, the fact Ms Tibble did not request that her mother be present at the interview indicated she could handle the interview without such assistance.
The statements made by Ms Tibble at the interview that she had known the relationship 'was wrong and so she had ended the relationship' and that 'she understood the consequences' stating 'that she had placed herself in that position' are those of an individual who is responsible and aware that there are adverse consequences for wrongdoing.
There is no evidence from the signed notes of interview that during the interview Ms Tibble was not able to freely express her views, nor that they were not taken into account. There is also no indication on the record that had her mother been present rather than [the Leading Aircraftswoman], she would have been better able to express her views. Nor is it apparent that Ms Tibble was not given an adequate opportunity to address the matter of the alleged fraternisation with [the instructor] and to provide a defence concerning her conduct before being informed that she would be discharged if she did not resign.
Ms Tibble was asked if she knew the reason for [the instructor's] resignation and whether she wished to make a statement in relation to that matter. She freely responded and indicated, apparently honestly, that she had not divulged the matter to her Flight Commander because she understood the grave consequences. Even if there was an assumption prior to the meeting that she was guilty of fraternisation or unacceptable conduct, Ms Tibble was given a full opportunity to explain the nature of the relationship and to deny there was any sexual element. Indeed it was accepted by both [the TASAIRTC Commanding Officer] and [the Deputy Director Reserve Personnel and Cadets] that no sexual relationship had occurred. Nor had there been fraternisation given that fraternisation involves unacceptable contact in the workplace. It appears that Ms Tibble and [the instructor] had only been seen together in the street and had enjoyed one or more meals together at Ms Tibble's home.
Requests on 30 October 2000, and 2 November to resign>
Under the policies that governed the AIRTC, the action of Ms Tibble in having a close relationship with an instructor was prohibited. Ms Tibble understood that and said in her interview that she ended the relationship because it was wrong. The suggestion that a sanction be imposed for a breach of the rules was therefore neither a surprise to Ms Tibble, nor was it unexpected. Even though the request to Ms Tibble to resign was wrong in law (since it was based on the incorrect assumption that either 'fraternisation' or 'unacceptable sexual conduct' had occurred), there is no indication that the request, which relied on internal legal advice, was not made in good faith. In these circumstances to suggest that a sanction be imposed for a breach of a rule is not contrary to 'best interests'.
On 2 November, Ms Tibble wrote to [the Flight Commander] seeking clarification of his advice to her and to review her cadet file. The letter is in her hand and there is no indication that she was coerced or assisted to write the letter. These are the actions of a mature adolescent. Her mother drove her to the Barracks to deliver the letter which was received by the AIRTC and was acted upon. There is no indication she was prevented from communicating this way. No acts or practices were adopted in relation to receipt of the letter which inhibited her from sending it.
In summary, on the evidence, there was no 'lack of opportunity' for Ms Tibble to address the accusations and provide her side of the story about the alleged fraternisation and unacceptable sexual conduct nor were the processes conducted in a manner which breached Ms Tibble's best interests.
Whether the interview with Ms Tibble met her best interest and the requirements of fair process>
Article 12(2) is relevant to and should be given weight in connection with the issue of representation. Indeed the HREOC website . . indicates that article 12 informs the notions of 'best interests'. Article 12(2) states:
For this purpose [to enable the child to express his or her views], the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
The requirement in article 12(2) that Ms Tibble be given 'the opportunity to be heard in any . . . administrative proceedings' affecting her has been discussed in paragraphs 44 - 50 [submissions above in respect of the interview]. The second element of article 12(2) is whether Ms Tibble's best interests' were jeopardised by her not being able to express her views 'through a representative or an appropriate body, in a manner consistent with the procedural rules of national law'.
Ms Tibble was interviewed in the company of an adult female, her views were recorded, she signed the record of interview, and, from the evidence indicating that [the Deputy Director Reserve Personnel and Cadets] and [the TASAIRTC Commanding Officer] accepted her statement that there was no fraternisation or unacceptable sexual conduct, Ms Tibble's views were taken into account.
These findings indicate that the processes instituted by the AIRTC acknowledged Ms Tibble's right directly to express her views in a sensitive matter affecting her, and gave her views due weight in accordance with her age and maturity. She was not inhibited by the process. Her evidence was pivotal in the decision by [the Deputy Director Reserve Personnel and Cadets] to discontinue discharge action. These steps closely comply with article 12(1) and met her 'best interests'.
The administrative processes of the AIRTC, including the conduct of the interview also complied with article 12(2). The 'procedural rules of national law' appear to require a process that meets the fair hearing rule. Ms Tibble was given the opportunity in person to provide her side of the story concerning her relationship with the instructor. That opportunity met the requirements of procedural fairness. Ms Tibble wrote to the AIRTC on 2 November requesting clarification of the oral advice she had been given. That opportunity permitted her to challenge any information she had received in that oral advice and to further protect her interests. Finally, in that letter she requested a copy of her cadet file. Had she been supplied with her file she would also have seen any adverse information relating to her.
The final issue is whether, in the administrative process, namely, the interview, Ms Tibble should have been offered a representative or an appropriate body to support her. In particular should her mother have been present. Whether a mature adolescent needs such support must be decided on a case by case basis. On the evidence before the Commission such support was not necessary. Article 12 does not require representation for a mature adolescent. A child who can form her own views must be given the opportunity to express those views in person 'directly'. Ms Tibble was given that opportunity on 5 October 2000 and had the maturity to handle the interview without her mother being present.
In deciding whether a representative is required, matters to be taken into account are the age of the young person, their cognitive and emotional development, the young person's current mental and emotional state, and their general personality and character traits of the person (WJ Keough Child Representation in Family Law LBC Information Services, 2000, 143 -144).
Ms Tibble at 15 years was an adolescent, not a child. Her long membership of the cadets and promotion to the rank of sergeant indicated she was perceived as a mature adolescent. There is no indication in the evidence that the AIRTC were aware of any personal immaturity on Ms Tibble's behalf, nor of any problems with her mental or emotional state.
The fact that Ms Tibble discontinued the relationship with [the instructor], and her comments such as '[the instructor] had trouble dealing with this' implied that any emotional turmoil as a result of the broken relationship would be experienced by [the instructor], not by Ms Tibble.
There is no evidence that Ms Tibble was unhappy to proceed with the interview without her parent, nor that she was unable to present her views and feelings adequately in the interview.
There was nothing to alert the AIRTC to the fact that Ms Tibble may not have been functioning like any normal 15 year old, nor that she had particular needs or required sensitive treatment at the time. Given these circumstances there was no need for Ms Tibble to be represented by her mother or any other 'representative or an appropriate body'.
The presence of [the Leading Aircraftswoman] would appear to have been provided out of an abundance of caution. However, it does meet the requirement in Art 12(2) that a child have another representative present during an administrative inquiry. Her presence was adequate support in the circumstances.
In three recent decisions of the Federal Court it has not been found necessary to provide a tutor for a mature age adolescent facing the processes of the migration tribunals or Federal Court (Odhiambo v Minister for Immigration & Multicultural Affairs  FCAFC 19; X v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 524; Jaffari v Minister for Immigration and Multicultural Affairs  FCA 985). If foreign born adolescents, possibly with language difficulties do not require an advocate in these more complex proceedings an Australian born mature adolescent will not be denied procedural fairness by not being offered a 'representative or an appropriate body', in a much less adversarial environment like an AIRTC interview.
There is no evidence that the Family Court did not consider her mature enough to represent herself in the domestic violence matter scheduled for 24 October 2000.
Nor is there an absolute rule that a parent or guardian must be present if a young person agrees to be interviewed. In R -v- Crawford  Qd R 22 the Court of Criminal Appeal considered the validity of a police interview of a sixteen year old without a parent or guardian present. The Court took into account the maturity and experience of the child in question and said: 'Each case of this kind has to be examined in light of its own facts and circumstances'.
All this evidence disproves the statement in the preliminary findings that 'There is no evidence that the officers in the AIRTC at any time in their actions towards Ms Tibble considered that Ms Tibble was a child and should have been treated with her best interests as a child in mind'. On the contrary, the processes adopted by the AIRTC were sensitive to Ms Tibble's 'best interests'. Given her age and maturity, and the acknowledgment in article 12 of the CRC that a child's autonomy and maturity also play a part in deciding what processes should be adopted when interviewing the child her 'best interests' have been met.
Inaction by [the TASAIRTC Commanding Officer] >
On 12 November 2000 [the Deputy Director Reserve Personnel and Cadets] instructed [the TASAIRTC Commanding Officer] to discontinue discharge action against Ms Tibble. That step had not been implemented by 27 November when Ms Tibble committed suicide. The issue is whether the inaction was contrary to Ms Tibble's best interests. The delay, although regrettable was not heinous. A 'normal' 15 year old cadet would be unaffected by a short delay.
The evidence gives no indication that the AIRTC was aware of Ms Tibble's medical or psychological history. Indeed, as a cadet Ms Tibble had to be medically fit to the standards detailed in Chapter 10 (D1(AF) AAP 5110.001 [702(d)]). In that respect the position is different from the HREOC 'Report of an inquiry into a complaint by Mohammed Badraie on behalf of his son Shayan regarding acts or practices of the Commonwealth' (2002) as that report pointed to a considerable amount of medical and psychological evidence concerning the child that was known to the authorities. Further, the child was only five or six years old at the time.
The only evidence of Ms Tibble's psychological state is provided by a report made by a psychiatrist after her death and apparently without having seen her. The report of the Coronial Inquiry notes there was no medical practitioner treatment of Ms Tibble prior to her death. Given those circumstances the AIRTC had no information about her psychological state.
A delay of just over a fortnight to inform her of the outcome is not unreasonable. There is no evidence that the delay was contrary to her best 'interests' nor that there was a causal connection with the delay and Mrs Tibble's death. The coronial investigation found that 'it is impossible to isolate precisely any single cause that gave rise to the degree of depression that she had reached in the early evening of 27 November'. Given the absence of evidence of what else was occurring in Ms Tibble's life at that time there is no indication other than a temporal connection, that it was her anxiety about possibly being discharged that led her to her take her life. Indeed on 22 November Ms Tibble completed an Australian Cadet enrolment form, indicting her belief that she remained eligible to join the AAFC (formerly the AIRTC).
In these circumstances it was simply an hypothesis that her potential dismissal from the AIRTC was the principal cause of her death. A hypothesis formed at an inquiry which is not bound by the rules of evidence (Coroners Act 1995 (Tas) s 51) and which is not tested by cross-examination, is of limited value. The opinion of the psychiatrist that the concern about dismissal as responsible for a 'greater than 50%' contribution to her death is also speculative, and coloured by the fact that it was an opinion made in support of a benefit under the Military Compensation scheme.[15
4.2.2 Article 19(1) of the CRC
The Commonwealth's submissions concerning the preliminary findings in relation to article 19(1) of the CRC are outlined below. They are in two parts. The first relates to the issue of possible 'mental violence, injury or abuse'. The second concerns the issue of 'neglect, negligent treatment or maltreatment'.
'mental violence, injury or abuse'
By way of introduction to its submission the Commonwealth states:
There is no direct medical evidence to indicate that in the period immediately following her 5 October interview, Ms Tibble sought or received medical treatment for depression or any other psychological condition. Indeed, the Coroner's findings indicate to the contrary. Nor is there evidence that Ms Tibble was suffering any particular adverse reaction to the interview. There is no indication that she suffered psychological harm from the actions or delayed action of the AIRTC after 5 October 2000. The statement by the psychiatrist, Dr Sale, in his report following Ms Tibble's death, that in his opinion the AIRTC was 50 per cent to blame for the mental turmoil which led her to take her life, is an assertion which is no more than speculative.
The Commonwealth's submissions continue:
Failure to have a parent/guardian at interview.
The question whether Ms Tibble should have had a parent or guardian present at the interview with [the Flight Commander] was considered at paragraphs 57 - 68 [that part of the submission set out above dealing with the issue of representation].
It could not be expected that the AIRTC would take steps, in addition to those it instituted, to ensure that Ms Campbell was present. Those in loco parentis, such as the AIRTC do owe duties to protect a child while the child is under the care of the organisation. However, those in loco parentis cannot be expected to have the same understanding of the requirements for support of the child as a parent or guardian. The level of awareness of support needs of those who are not parents depends on the degree of knowledge of the personality, stage of development and circumstances of the child.
There is evidence from one psychiatrist that Ms Tibble was a 'troubled youngster'. The quality of that evidence is affected by the fact that the psychiatrist was not Ms Tibble's treating psychiatrist, and apparently provided the report after her death, based on information provided by Ms Tibble's mother. In any event Ms Tibble's acceptance into the AIRTC and her successful progression within that organisation belie any awareness by the AIRTC of her psychological history. The evidence of her apparent maturity and competence was outlined at paragraphs 54 - 68. Further, Ms Tibble was sufficiently in control of herself that on 24 October, nearly three weeks after the interview with [the Flight Commander], to fly to Darwin to give evidence at a hearing.
On all the evidence the AIRTC had no knowledge of any special vulnerability or susceptibility of Ms Tibble. The AIRTC was aware of the sensitive nature of the alleged allegation. On that basis, the AIRTC met any obligations by providing Ms Tibble with the support of an adult female. Such support would be sufficient for a 'normal' 15 year old and on the information available to the AIRTC it was appropriate to meet her needs.
The lack of opportunity to redress grievance
This issue has also been discussed at paragraphs 53 - 56 [being part of the submissions set out above dealing with the issue of representation]. Ms Tibble was able to seek clarification of the telephone conversations concerning her future in the AIRTC, as was her mother. Again, it is difficult to see how the steps taken by the AIRTC in these matters could amount to 'mental violence, injury or abuse'.
Assumption that Ms Tibble was guilty of fraternisation prior to her interview
Whether or not the assumption was made, Ms Tibble was able to report during the interview that no unacceptable sexual behaviour had occurred in her brief relationship with the instructor. In those circumstances it is not easy to see how article 19 could have been breached, much less that the assumption could amount to 'mental violence, injury or abuse'.
The failure to define fraternisation and to examine issues of child abuse
It is difficult to see how the failure to define fraternisation with any particularity constitutes a failure to take 'appropriate measures to protect the child' and in particular that it amounted to 'mental violence, injury or abuse'. In particular, it is difficult to argue that the failure to better define a word in a policy could be regarded as actual 'mental violence, injury or abuse'.
The real issue here is whether 'fraternisation' which is not defined in the Service Knowledge Basic Australian Air Training Corps Cadet-Instructor Notes (2nd ed 1997) could encompass a close, but apparently non-sexual relationship between a cadet and a cadet instructor. The absence of a definition of the term was the subject of a finding in the Stunden report. Nonetheless, the meaning of the term was well understood by the AIRTC staff, some of whom are reserve officers, since it is defined in DI(G) PERS 35-3, the policies governing the handling of unacceptable behaviour in the Australian Defence Force.
Fraternisation is prohibited in ADF workplaces. Prohibited fraternisation includes: (a) voluntary sexual behaviour between members, including sexual behaviour not amounting to intercourse; (b) a close and exclusive emotional relationship involving public displays of affection or private intimacy; (c) a relationship which involves, or gives the appearance of involving partiality, preferential treatment or improper use of rank; and (d) the public expression of intimate relations between members. (DI(G) PERS 35-3, ).
It is also significant that the concept as understood refers to unacceptable behaviour in uniform.
Nor is it open on the evidence to assert (Commission letter of 18 March 2003) that the acts and practices were 'either a complete disregard for or victimisation of the complainant'. An independent female would not have been present at the interview if victimisation was intended. Nor would steps have been taken to discontinue discharge action and to inform Ms Tibble if there had been complete disregard for her interests on the part of the AIRTC.
The principal issue is whether the delay was not in her 'best interests'. Ms Tibble delivered her letter on 1 November; Ms Campbell telephoned the Barracks on 1 November. Ms Tibble committed suicide 26 days, or three and a half weeks later. In that period there is no evidence before the Commission of what other events were occurring in Ms Tibble's life. (The statements in the report of the coronial investigation that 'in the intervening period between the 2nd of November and her death those close to Eleanore noted a marked change in her behaviour and observed that she felt shame in relation as to what impact the decision of the Air cadets would have upon her Grandmother' are made by those with an interest in the outcome, have not been tested with any rigour . . . , and are not before the Commission. In addition, an absence of contact or inaction cannot be said to amount to mental violence, injury or abuse'. That requires positive action. In those circumstances, there is no breach of Ms Tibble's 'best interests'.
'Neglect, negligent treatment or maltreatment'
The Commonwealth provided detailed submissions in relation to 'neglect, negligent treatment or maltreatment'. Those submissions are outlined below:
Legal liability for negligence
Although the words of article 19(1) include references to 'negligent treatment' that expression does not necessarily have the meaning given to negligence in Australian domestic law. In any event, it is clear that the TASAIRTC was not negligent in their dealings with Ms Tibble.
For a successful action for negligence under Australian tort law, it would be necessary to establish that the TASAIRTC owed a duty of care to Ms Tibble; that it breached that duty; that her death was caused by that breach; and that her suicide was a foreseeable result of that breach.
In its dealings with Ms Tibble TASAIRTC undoubtedly owed her a duty of care.
However, they were not in breach of that duty. The standard of care owed by the TASAIRTC to Ms Tibble was the standard owed by a largely voluntary organisation to youth in its occasional care taking into account her age and personal characteristics of which the TASAIRTC was aware that might impinge on its duty to Ms Tibble. The TASAIRTC, on the evidence, had no knowledge of Ms Tibble's psychological vulnerability, history of self harm, and previous attempts at suicide. Even granted that a person must take a person or child as he or she finds them, it cannot be argued, in the absence of evidence specific to Ms Tibble, that the standard for establishing breach of the duty of care should be lower than is normal for a 15 year old.
On grounds of medical fitness, maturity and competence, in the eyes of the TASAIRTC Ms Tibble needed no specially sensitive treatment. The standard of care owed to her was the same as any other 15 year old in their occasional care.
In those circumstances the standard of care required of the TASAIRTC was as set out in the Conditions of Service for Cadets. Those requirements included a prohibition on 'fraternisation' by a cadet, being under 18 years, with an instructor and where such conduct was admitted was to be treated as a breach of discipline. By suggesting that, in light of Ms Tibble's relationship with the instructor, she should resign or be dismissed the TASAIRTC was doing no more than was required under the Conditions of Service of Cadets. Administrative deficiencies in the making of the request and delays in implementing the reversal of those steps did not amount to a breach of the standard of care.
In any event, for a finding of negligence, there would need to be a finding of a causal link between the administrative acts of the TASAIRTC and Ms Tibble's death. Such a link flowing either directly or indirectly from the actions of TASAIRTC is strenuously denied.
Little weight can be attributed to the opinion of Dr Sale that Ms Tibble's death was at least 50 per cent due to the actions of the TASAIRTC. He was Ms Campbell's doctor, not Ms Tibble's doctor, he had not met Ms Tibble and the report was prepared to support a compensation claim by Ms Campbell to the Military Compensation and Rehabilitation Service. The Coroner relied heavily on the report of Dr Sale in coming to his findings. On that basis the Coroner's findings on causation suffer the same deficiencies as the report of Dr Sale.
There is no objective evidence that it was wholly or even partly the actions of the TASAIRTC that led Ms Tibble to take her life. The report of Dr Sale demonstrates a pattern of behaviour by Ms Tibble that predates the involvement of TASAIRTC and unknown to them in their limited contact with her.
The evidence is unclear as to the impact the family situation was having upon Ms Tibble at the time. The Commission cannot look at the acts of TASAIRTC in isolation but must have regard to the whole context of events that occurred. Studies of suicidal behaviour generally point to a complex mix of factors that might impact on the individual, rarely is there one precipitating event.
Nor can it be established that the form of damage was foreseeable. Not only was the AIRTC not aware of Ms Tibble's particular vulnerability, nor could it be foreseen that the officers' actions could lead to such damage to any adolescent, much less someone of Ms Tibble's apparent competence.
Consideration of the applicability of article 19(1)
Meaning of terms in article 19: general
The Convention was designed principally to apply to families and to proscribe the more serious forms of abuse, neglect and harm of children. The obligations imposed on persons or bodies other than families is less demanding, based in part on their less extensive knowledge of the circumstances of the child in their care.
The meaning attributed to article 19 by an Ad Hoc NGO Group at the time the article was drafted:
In A Commentary on the United Nations Convention on the Rights of the Child by Sharon Detrick (Martinus Nijhoff, Hague 1999) the author notes:
'During the course of the drafting of article 19, the Informal NGO Ad Hoc Group on the Drafting of the Convention on the Rights of the Child suggested that the phenomena in question should be defined more accurately' and proposed the following formulation:
[A]ll acts or omissions that are, or are likely to be detrimental to the child's present or future welfare and development, including cruelty, injury, exploitation, discrimination and humiliating or degrading treatment, whether physical, psychological, emotional or sexual in nature, perpetrated by the child's parent(s), guardian or any other individual or social welfare institution responsible for the child's well-being.
The issue is whether the TASAIRTC's treatment of Ms Tibble could be considered to be 'cruelty, injury, exploitation, discrimination and humiliating or degrading treatment, whether physical, psychological, emotional or sexual in nature'.
Cruelty - None of the four acts or practices identified in the preliminary report amounted to cruelty in the sense [described in the Macquarie Dictionary] of active infliction of, or indifference to, suffering. There were administrative delays and communication mishaps as chronicled in the report of the Stunden Inquiry but that report does not indicate a positive desire to hurt her, an indifference to her distress or deliberate cruelty.
'Physical injury', 'exploitation'; 'treatment . . sexual in nature'- There is no indication, on the evidence, that the TASAIRTC caused any physical injury to Ms Tibble. Nor were the four actions or practices referred to in the preliminary findings exploitative in the sense of taking advantage of Ms Tibble to her detriment. The facts also do not indicate any 'injury, exploitation, discrimination and humiliating or degrading treatment' which was 'sexual in nature'.
'Discrimination' - There was no discriminatory treatment of Ms Tibble in the sense of treating her differently from another cadet in the same situation. The application to Ms Tibble of the policy proscribing fraternisation or unacceptable sexual conduct applied to all cadets. The treatment of her - calling her for an interview - and advising her that she might have to resign was consistent with the sanctions in the policy relating to an inappropriate relationship with her instructor. Once TASAIRTC was advised there was no basis for discharge it took steps to inform her that the sanction would not be imposed.
'Humiliating or degrading treatment' - The [Macquarie Dictionary] definitions involve a requirement of severity in treatment for 'humiliating or degrading treatment' to be established. The conjunction of 'humiliation' with 'degrading' treatment reinforces this interpretation. The requirement of severity is also consistent with the associated actions which are prohibited in article 19, namely, cruelty, injury, exploitation and discrimination, each of which involves some degree of conscious mistreatment. Under the NGO's redefinition of article 19, 'humiliating or degrading treatment' must occur in addition to 'cruelty, injury, exploitation and discrimination.'
Such a reading of article 19(1) is also consistent with other articles with which article 19 is associated, namely articles 24(3), 28(2) and 37(a), (c).
To illustrate the need for an element of severity, it is likely in many instances in which a cadet is corrected for wrongdoing, the cadet could experience [in terms of the Macquarie Dictionary definition] a 'lowering of pride or self respect' or that the correction 'caused a painful loss of dignity'. The nature of chastisement is that a person's self esteem suffers. Correction for wrong doing by someone in authority does not amount to humiliation in article 19(1) terms.
In the context of the other proscribed treatments in article 19, degrading treatment is . . likely to mean 'deprave or debase' or 'to lower in dignity or estimation; bring into contempt'. There is an element of public notoriety in these definitions. Ms Tibble was still parading as usual apparently as late as the end of October. In other words, the request that she resign was not publicly known at the end of October nor, since she paraded as normal, was any distress she was feeling then apparent. Hence until the end of October 2000 there was no public notoriety or treatment of Ms Tibble liable to bring Ms Tibble's reputation into contempt and hence no humiliation or degrading treatment of her.
The report of the Stunden Inquiry indicates at least one individual, [the Flight Commander], may have been aware of Ms Tibble's distress as he informed the investigating officer that the first time she had been emotional was when he telephoned her on 1 November to advise her not to parade. Whether the TASAIRTC could be said to be 'indifferent' to her distress following this interview is doubtful in view of the following chronology of events that took place after that conversation: On 2 November Ms Tibble's letter was passed to [the TASAIRTC Commanding Officer] who ordered [the Flight Commander] to deal with the matter; [the Flight Commander] went on leave on 6 November; [the TASAIRTC Commanding Officer] and [the Regional Liaison Officer] discussed the situation on 10 November; on 12 November [the Deputy Director Reserve Personnel and Cadets], [the TASAIRTC Commanding Officer] and [the Regional Liaison Officer] had a further discussion and [the Deputy Director Reserve Personnel and Cadets] directed [the TASAIRTC Commanding Officer] to 'reinstate' Ms Tibble; on 15 November [the TASAIRTC Commanding Officer] contacted Anglesea Equity Officer for assistance and was referred to the Vic/Tas Equity Coordinator; on 15 November [the TASAIRTC Commanding Officer] attempted to contact the Vic/Tas Coordinator; on 17 November the Vic/Tas Coordinator returned [the TASAIRTC Commanding Officer's] calls; on 22 November [the Flight Commander] phoned [the TASAIRTC Commanding Officer] seeking an update but no action was taken because [the Flight Commander] is on leave.
The acts might disclose an administrative inefficiency but not indifference. On balance there is insufficient evidence of humiliating or degrading treatment of Ms Tibble by the TASAIRTC, especially when that treatment must be in addition to 'cruelty, injury, exploitation, [and] discrimination' none of which have been established on the facts.
The meaning of 'neglect, negligent treatment or maltreatment' in article 19 based on limited domestic judicial interpretation:
Consideration of the meaning of these words in Australian case law is minimal. There had been some judicial consideration by the Family Court in . . B & B v Minister for Immigration  FamCA 451, but its status is equivocal at best.
The majority found that the parliament in passing s 67ZC of the Family Law Act 1975 (Cth) relating to welfare of children, implemented the relevant parts of [the CRC] into the Act and referred to article 19(1) in reaching this conclusion. The Court did not consider whether the best interests of the applicants were being met and did not consider the relevant parts of article 19(1).
The Court referred briefly to a psychologist's report relied on by the applicants at first instance when seeking orders under s 67ZC, and the majority extracted part of the report, dealing with maltreatment, in their judgment.
The terms of the B & B decision suggest that 'maltreatment' can include instances of psychological neglect, not just physical or sexual maltreatment. The treatment by the TASAIRTC of Ms Tibble does not fall within the descriptions in the report as unlike that situation there is no previous trauma caused to Ms Tibble by the TASAIRTC on which the events of October/November 2000 are superimposed. Nor was Ms Tibble in detention. Because of the different circumstances, such as these, the interpretation of maltreatment in B & B is of limited value in interpreting article 19 in the different context relating to Ms Tibble.
The meaning of the terms informed by domestic child welfare legislation:
In the B & B decision the majority referred to the definitions section of the South Australian Children's Protection Act 1993 (SA) to assist with its understanding of the terms of article 19. The Tasmanian legislation in force in November 2000 (the Children, Young Persons and their Families Act 1997 (Tas)) is in similar terms to the South Australian Act considered by the Court in B & B and s 3(1) defines 'abuse or neglect' as:
(a) sexual abuse; or
(b) physical or emotional injury or other abuse, or neglect, to the extent that –
(i) the injured, abused or neglected person has suffered, or is likely to suffer, physical or psychological harm detrimental to the person’s wellbeing; or
(ii) the injured, abused or neglected person’s physical or psychological development is in jeopardy
There was no question of sexual abuse of Ms Tibble; 'emotional injury or other abuse or neglect' will only amount to 'abuse or neglect' 'to the extent that' the person suffered or is likely to suffer harm; the words 'to the extent that' indicate there must be a causal link between the actions and the harm; for the TASAIRTC's actions or inactions to 'be likely' to lead to harm the TASAIRTC must have been able to foresee that its administrative deficiencies, on the balance of probabilities, would lead her to commit suicide. This cannot be supported on the evidence.
On balance, even if the meaning of article 19 were to reflect the terms 'abuse or neglect' in the relevant Tasmanian children's protection legislation, it is unlikely that maltreatment based on administrative inefficiency could be established.
The meaning of the terms based on a related World Health Organisation Report of the Consultation on Child Abuse Prevention:
The World Health Organisation Report of the Consultation on Child Abuse Prevention of March 1999, whilst not specifically directed to the Convention, gave some guidance as to possible definitions of 'neglect', negligent treatment', and 'maltreatment. Child abuse and maltreatment are treated as synonymous and include emotional abuse which could include 'acts involving restriction of movement, patterns of belittling, denigrating, scapegoating, threatening, scaring, discriminating, ridiculing or other non-physical forms of hostile or rejecting treatment'.
The administrative practices referred to in the preliminary findings do not fall within these strongly worded descriptions of actions which constitute emotional abuse. In particular there is no pattern of harmful treatment.
The WHO Report also defines 'neglect and negligent treatment'. On the evidence, the TASAIRTC did not fail to provide 'health, education, emotional development, nutrition, shelter and safe living conditions . . [which] causes or has a high probability of causing [damage/harm] to the child's health, or physical, mental, spiritual, moral or social development'. These are far more serious deficiencies in treatment than the actions of the TASAIRTC. Nor can the necessary causal link between the treatment of the TASAIRTC of Ms Tibble and her death be made.
The meaning of the terms based on comments in HREOC Report No 25 (the Badraie matter)
The report notes of article 19(1) that it is to an extent elucidated by article 19(2) (referring to protective measures mandated by article 19(1)).
The Commission found that Shayan Badraie witnessed acts of physical violence and/or was exposed to acts or practices that caused psychological harm so as to constitute mental violence; and there was insufficient evidence to satisfy [the Commission] that the respondent [the Department of Immigration and Multicultural and Indigenous Affairs] took all appropriate measures to prevent Shayan's exposure to that physical or mental violence.
There is no suggestion that Ms Tibble was exposed to physical violence. It is difficult to see that the acts or practices of the TASAIRTC exposed Ms Tibble to mental violence in article 19(1) terms. Neither the interview, conducted with propriety, the two telephone conversations, nor a lack of contact for about three weeks could amount to 'mental violence' even if that expression is to be given a 'wide definition' (a matter . . that is not authoritatively settled). This was a disciplinary matter. The TASAIRTC was following existing procedures as required for the good order of the organisation. Further Ms Tibble indicated in her interview that she 'understood the consequences' and that 'she had placed herself in this position' (record of interview with Ms Tibble, 12 October 2000).
In addition, unlike the position in relation to Shayan Badraie the TASAIRTC was not aware of any significant distress on the part of Ms Tibble so as to be put on notice that special measures might be required. One emotional occasion, as reported by [the Flight Commander] to GPCAPT Stunden, bears no similarity to the continuing treatment of Shayan Badraie at the Woomera Detention Centre.
There is in the case of Ms Tibble, no comparable failure to put in place suitable protective 'administrative measures'. Unlike Shayan who was only 5 or 6 years old Ms Tibble was a competent 15 year old. In the interview which she was asked to attend, there were several persons present, including an impartial female . . who was taking notes but who was also present as a 'responsible female' because her presence was required as a support person for Ms Tibble.
The only acts or practices for which the TASAIRTC is responsible are those which occurred while Ms Tibble was in their care. In Shayan's case, his entire daily routine was the responsibility of the agency whereas the TASAIRTC had no role in [Ms Tibble's] life after she left TASAIRTC premises.
In that context it is significant that no evidence has been provided by Ms Campbell as to the events occurring in Ms Tibble's life outside the AIRTC.
The AAFC Policy Manual AAP5110.001 (POLMAN) which sets out AAFC policy with respect to the management of Cadets, demonstrates the Commonwealth (AIRTC) has [at that time] taken 'positive steps' and measures to protect children who are cadets. Chapter 7 deals with enrolment, discharge and unacceptable behaviour by Cadets (and which may warrant discharge) including unacceptable fraternisation, and Chapter 8 deals with redress of grievance.
In relation to the interview, there is no requirement at law that a parent be present if a young person agrees to be interviewed.
There were policies and procedures in place to govern the treatment by the TASAIRTC of adolescents in its care. They were inadequate. However, that inadequacy does not establish mental violence in article 19(1) terms.
Nor can mental violence be established by the actual treatment of Ms Tibble by the TASAIRTC. . . Nor given the absence of evidence of what was happening in Ms Tibble's life outside the TASAIRTC in October/November 2000, and the inability of the existing evidence to show a clear positive link between the acts or practices of the TASAIRTC and Ms Tibble taking her own life, could it be established, on the balance of probabilities that there has been a breach of article 19(1).
On 24 August 2004, I issued a notice to the respondent under section 29(2)(a) of the HREOC Act setting out my findings and reasons for them. Those findings and reasons appear in section 7 below.
Pursuant to s 29(2)(b) of the HREOC Act, I may include in a notice issued under s 29(2)(a) any recommendations for preventing a repetition of the act or a continuation of the practice. I may also recommend (i) the payment of compensation to, or in respect of, a person who has suffered loss or damage, and (ii) the taking of other action to remedy or reduce the loss or damage suffered by a person. My recommendations appear in section 8 below.
Under section 29(2)(e) of HREOCA, I must state in this report whether, to the knowledge of the Commission, the respondent has taken or is taking any action as a result of my findings and recommendations. I therefore invited the respondent, to advise the Commission of those matters. The Commonwealth's response to that invitation is contained in section 9 below.
When the response from the Commonwealth was received it became apparent that the TASAIRTC Commanding Officer had not been consulted by the Commonwealth about the content of the response. As adverse findings about his conduct are made in the s 29 Notice, a copy was forwarded to him. On 24 November he responded, saying that before the report is made to the Attorney-General the extent that reliance is to be placed in the Stunden Report should be carefully assessed taking into account the advice his solicitors had provided him. That advice accompanied his response. The advice argued that the Stunden Report is a nullity as there were substantive errors of law in the appointment of GPCAPT Stunden as Investigating Officer, and as there had been a number of procedural errors in carrying out the inquiry, including breaches of natural justice and an apprehension of bias as GPCAPT Stunden was a friend of one of the officers whose conduct was the subject of the investigation.
Many of the arguments put forward in the solicitors' advice had been raised and considered in a Legal review of the Stunden Report carried out by COL Boyd on 31 May 2001. The review concluded that there had been a number of procedural irregularities, but
The lapses of procedural fairness are not such, however, as would necessitate the report be set aside. Overall the process has been fair and it is unlikely that if the RIO had strictly complied with all procedural requirements different findings or recommendations would have been reached.
Although some procedural issues were overlooked, the findings and recommendations of the RIO were consistent with and supported by the evidence. There are no legal matters arising from the report of the RIO which would require the inquiry to be reopened .
As the response from the TASAIRTC Commanding Officer again raises the issues considered on the Review, and other alleged procedural errors as well, I have carefully reconsidered the findings of fact made in the s 29 notice in light of the arguments in the submission. Whilst there may have been procedural errors in the conduct of the Inquiry by GPCAPT Stunden, the submission does not advance any additional evidence contrary to any of the findings made in the s 29 Notice. I agree with the reviewing officer that the findings made in the Stunden report are consistent with the evidence gathered by GPCAPT Stunden. In so far as those findings have been relied on as part of the material taken into account in reaching the findings set out in the s 29 Notice, and now in this final Report to the Attorney-General, I do not think the matters raised by the TASAIRTC Commanding Officer in his response requires them to be altered or qualified.
I accept the factual circumstances relating to this matter are those set out in GPCAPT Stunden's report with the additions I have made. They are summarised at the commencement of this Report.
One observation of central importance needs to be made about the submissions of the Commonwealth before addressing the many detailed arguments contained in them. Although the submissions run into some 36 pages, single line spacing, they fail to come to grips with the fundamental concern raised by Professor Tay's preliminary findings. That concern is that the facts raise the inference that there was no understanding by the officers involved (and I would add, the lawyers who apparently gave legal advice that "Ms Tibble should be asked to resign") that there may have been an issue of child sexual abuse. That likelihood was plainly raised by the initial belief that there had been a sexual relationship involving a 15 year old girl, and then by her statement in the Record of Interview, that she had not reported the relationship because of fear of threats from her superior.
Instead of immediately taking steps to ensure the protection of the child, the likely victim of a situation which those in loco parentis had the obligation to prevent, the processes which took place sought to discipline the victim. This is the serious human rights failure which occurred.
It is one thing that the failure occurred in the first place, perhaps as a consequence of inadequate guidance in policy manuals and inexperience and lack of relevant training of the officers concerned. It is quite another thing that long after the event, after investigation and time for consideration and change of policies, that formal submissions directed at minimising and trivialising the failures should be made which still fail to recognise and acknowledge the significance of what happened. It is reasonable to assume that formal submissions made by lawyers in a matter of the seriousness of this one would be thoroughly considered submissions made on instructions from a senior level in the Department of Defence. I return to this aspect of the inquiry later in the report when considering recommendations.
I now turn to issues canvassed by the Commonwealth's submissions.
Article 3(1) of the CRC relevantly provides that the best interests of the child shall be a primary consideration in all actions concerning children undertaken by administrative authorities.As mentioned at 4.1.1 above the CRC committee has stated that the child's best interests must be the subject of active consideration and that it 'needs to be demonstrated that children's interests have been explored and taken into account as a primary consideration'. Similarly, Professor Alston comments in relation to 'primary consideration':
While ['consideration'] has the same meaning as 'element' or 'factor' it also has the additional significance of emphasizing that the child's best interests must actually be considered. Such consideration must be genuine rather than token or merely formal and must ensure that all aspects of the child's best interests are factored into the equation.
It was the preliminary view of Professor Tay that certain actions of the AIRTC were inconsistent with article 3(1) because in none of those actions were Ms Tibble's best interests a primary consideration or even, a consideration at all.
The Commonwealth submits, in response to the preliminary findings, that in determining the 'best interest' of a child, account must be taken of the child's maturity and stage of development, and in that regard Ms Tibble was not a child but a mature adolescent and her best interests, as a mature adolescent, were met by the AIRTC.
In this regard the Commonwealth refers to article 12 of the CRC and asserts that article 12(1) explicitly recognises that maturity and degree of competence increases with age. It also submits that the processes instituted by the AIRTC (the interview in the company of an adult female, the recording of Ms Tibble's views, and taking those views into account) closely complied with 12(1) and met Ms Tibble's 'best interests'.
The Commonwealth also asserts that it complied with article 12(2) by giving Ms Tibble the opportunity to be heard, by meeting the requirements of procedural fairness, and, as Ms Tibble did not require a representative, by giving her the opportunity to express her views directly.
Issue of maturity
The reasons advanced by the Commonwealth for asserting that Ms Tibble was of such maturity that the AIRTC's actions did meet her best interests are unconvincing. In particular, the Commonwealth asserts that the fact that Ms Tibble did not request that her mother be present at the interview indicated that she could handle the interview without such assistance. However, this assertion implies that Ms Tibble was in a position to make such a request. In reality, it appears that after Ms Tibble had completed a Parade on the evening of 5 October 2000 she was called, without notice, to an interview attended by two superior officers. Neither Ms Tibble nor her mother was informed, in advance of the interview, that it was going to take place, what its purpose was or of its possible ramifications. I note that at that time the Policy Manual did not provide for any involvement by parents in disciplinary matters. It would seem unlikely that in those circumstances a 15 year old, once she learnt of the reason for the interview, would have the initiative or self-confidence to request that a parent be in attendance.
Nor does the fact that Ms Tibble joined the cadets, was made sergeant, flew to Darwin to testify in a domestic violence action against her father, had a brief relationship with an older man, or that she stated that she knew the relationship was wrong and ended the relationship mean that she was of such maturity that she did not require the special care and attention that an adolescent child requires.
It was a finding of GPCAPT Stunden that 'TASAIRTC did not exhibit any appreciation that they were dealing with an adolescent and that the circumstances required special skills and attention.' The Commonwealth's submissions in relation to the maturity of Ms Tibble reflect the approach that was criticised by GPCAPT Stunden.
The officers concerned should have recognised the need to consider the interests of the child as paramount. They should have identified the situation as one raising the likelihood of child sexual abuse and an interview of the kind which occurred should not have taken place.
Article 12 of the CRC
The Commonwealth's submissions place much emphasis on the fact that its actions complied with article 12 of the CRC. The submission of the Commonwealth suggests that as it has met the requirements of article 12 it has complied with article 3 in respect of Ms Tibble.
Article 12 is concerned with the issue of the views of a child being heard and taken into account. Hearing and taking into account the views of a child can assist in giving effect to or determining the best interests of the child. However, it does not follow that compliance with article 12 would mean that in the present circumstances that is the end of the matter as far as article 3 is concerned. Van Bueren states,
The list of factors competing for the core of best interests is almost endless and will depend on each factual situation. These include the opinions of the child and members of the child's family, the child's sense of time, the need for continuity, the risk of harm, and the child's needs (footnotes omitted).
The Preliminary Findings were that, contrary to article 3(1), in certain actions of the AIRTC in its management or administration of the fraternisation allegations against Ms Tibble, her best interests were not a primary consideration. In the management or administration of these allegations, the hearing and taking into account the views of Ms Tibble was only an aspect of ensuring that her best interests were a primary consideration.
Consequently, the Commonwealth's assertion that Ms Tibble, in view of her maturity, did not require the representation of her mother at the interview, and that the presence of the Leading Aircraftswoman met 'the requirement in Art 12(2) that a child have another representative present during an administrative inquiry' essentially misses the point. The role of a parent in circumstances such as these is to listen to the allegations that are made, provide support and guidance to their child, and, subsequently to take whatever action is necessary to ensure the well being of the child.
In any event, it is doubtful that the Commonwealth's actions did meet the requirements of article 12. Article 12 requires a State to ensure that a child is able to freely express their views and that those views are taken appropriately into account.
The UNICEF Implementation Handbook makes the following comment in relation to article 12(1):
It should be emphasized that article 12 implies no obligation on the child to express views. 'Freely' implies without either coercion or constraint: 'The child has the right to express views freely. He or she should therefore not suffer any pressure, constraint or influence that might prevent such expression or indeed even require it.' (Manual on Human Rights Reporting 1997 p.426)
The UNICEF Implementation Handbook says in relation to article 12(2):
The Manual on Human Rights Reporting 1997 comments at p 429, 'the child may be heard in various ways according to this paragraph: directly, through a representative or through an appropriate body. All these forms are possible alternatives, each and every one of them designed to provide the child the best possible way of expressing his or her views in a free and informed manner'. (Manual p.429)
As discussed below the circumstances of the interview of Ms Tibble and the subsequent actions of the AIRTC do not suggest she had the opportunity to express her views without pressure and in a free and informed manner or that they were appropriately taken into account.
Were Ms Tibble's best interests a primary consideration?
In response to Professor Tay's preliminary findings the Commonwealth asserts that, bearing in mind Ms Tibble's maturity, the processes conducted by the AIRTC did not fail to take account of Ms Tibble's best interests.
In essence, the Commonwealth states that:
- Ms Tibble was able to freely express her views in the interview and she would not have been better able to express her views had her mother been present rather than the Leading Aircraftswoman;
- she was given adequate opportunity to address any assumption that she was guilty of fraternisation and or unacceptable sexual conduct;
- her views were taken into account - the discharge action was discontinued;
- she had an adequate opportunity to provide a defence before being informed that she would be discharged if she did not resign;
- the decision to discharge her was made in good faith; and
- the delay in informing Ms Tibble of the discontinuance of the discharge action 'although regrettable was not heinous'.
In light of the events that took place, it is difficult to see how the submission can be made that the actions of the AIRTC did not fail to take account of Ms Tibble's best interests. On 29 August 2000 the TASAIRTC Commanding Officer learnt that Ms Tibble could be the female cadet who was allegedly involved in an improper relationship with an adult instructor. Bearing in mind that Ms Tibble was 15 years of age (and under the age of consent), and that the relationship was initially assumed to be sexual in nature, had Ms Tibble's best interests been a primary consideration steps would have been taken at that stage in relation to Ms Tibble's welfare.  In those circumstances the 'best interests' of Ms Tibble, as a 15 year old, required the immediate notification of her parent so that the parent might take any appropriate action for Ms Tibble's welfare. However, no action was taken by the TASAIRTC until 5 October 2000 when the TASAIRTC Commanding Officer directed the Flight Commander to interview Ms Tibble.
On 5 October 2000, without notice and without the opportunity for parental support, Ms Tibble was called to an interview with the Flight Commander and the Leading Aircraftswoman. The Leading Aircraftswoman was present not as a representative for Ms Tibble, as the Commonwealth submits, but to act as an appropriate adult female to attend as witness and to record the conversation. The Flight Commander invited Ms Tibble to relate any information she might have regarding the resignation of the instructor. Ms Tibble stated the relationship was brief and not sexual. She said she knew it was wrong. The Flight Commander asked Ms Tibble what was the worst possible scenario for her and she replied 'being thrown out of the AIRTC'. The Flight Commander advised her that he would be obliged to share the information with the Commanding Officer and would speak with her after that. It would seem from the discussion at the interview that, despite the surrounding circumstances, Ms Tibble's welfare was not a matter for consideration or a purpose of the interview but that its purpose was to gain information about the alleged fraternisation in relation to possible disciplinary action.
The next contact the AIRTC had with Ms Tibble was on 30 October 2000 to inform her that she must resign or she would be discharged. She was also advised she could return her kit but not parade on the following Thursday night. On that Thursday she was contacted again by the AIRTC to ensure she would not parade that night. Ms Tibble wrote on 2 November 2000 to the AIRTC seeking written confirmation. No reply was forthcoming.
The peremptory nature of this process, in which Ms Tibble by means of a telephone call was instructed to resign or be discharged without having been informed of what she had done wrong and without being invited to respond to this drastic action, clearly did not take into account the best interests of Ms Tibble as a 15 year old child. As GPCAPT Stunden found, there was no appreciation by the TASAIRTC that they were dealing with an adolescent and that the circumstances required special skills and attention. That lack of appreciation is further reflected by the fact that Ms Tibble was telephoned again by another officer shortly after to ensure that she would not parade. The natural vulnerability, sensitivity and lack of self esteem of a 15 year old were not considered in this process. The fact that the request to Ms Tibble to resign was taken on legal advice and in good faith does not, as the Commonwealth suggests, mean that that sanction was not contrary to Ms Tibble's best interests. It is evident Ms Tibble's best interests were not considered.
That this was a situation where the best interests of the child required that she be supported and protected from further emotional harm should have been so obvious to the officers concerned that their failures cannot be excused by the receipt of bad legal advice. To say the least, it is a matter of concern that legal advice should be given that failed to recognise the obligations of the AIRTC to a 15 year old person.
Having regard to Ms Tibble's age, her relationship with an instructor (initially assumed to be of a sexual nature) culminating in the instructor's resignation and the apparent possibility of serious disciplinary ramifications for Ms Tibble, it is evident that to best ensure the protection of Ms Tibble's welfare her parent should have been informed of the matters at an early stage and been involved by the AIRTC in the ongoing administration of the matter. However, Ms Campbell was not advised of the interview nor was her involvement in the matter sought by the AIRTC at any stage.
In relation to the preliminary finding concerning the failure to respond to Ms Tibble's request of 2 November 2000 for confirmation in writing the Commonwealth submits the letter 'was received by the AIRTC and acted upon'. Whilst the letter was received, there is no evidence that any response to that letter would be forthcoming. It was the finding of GPCAPT Stunden that, '[t]here is no evidence that either [the TASAIRTC Commanding Officer] or [the Flight Commander] took any action to respond to [Cadet Sergeant] Tibble's letter'.
In relation to the preliminary finding concerning the failure to advise Ms Tibble in a timely fashion that the discharge proceedings were not going ahead the Commonwealth submits that, '[t]he delay although regrettable was not heinous'. However, in the circumstances of the AIRTC having peremptorily required a 15 year old to resign or be discharged, to not turn up to parade and then not respond to her request for written confirmation, the delay in notifying her of the recision showed the AIRTC was not considerate of her status as a child and the natural anxieties of a child in her situation.
Actions that did not take into account as a primary consideration, if at all, Ms Tibble's best interests were:
- the conduct of the interview;
- the failure to ask a parent to attend;
- the requests to Ms Tibble to resign or face discharge;
- the failure to respond to Ms Tibble's request for written confirmation;
- the conduct of the matter by the TASAIRTC Commanding Officer;
- the decision to discharge Ms Tibble; and
- the failure to advise Ms Tibble in a timely fashion of the recision of that decision. Actions that did not take into account as a primary consideration, if at all, Ms Tibble's best interests.
Accordingly, I confirm the Preliminary Findings of Professor Tay and find the above actions of the TASAIRTC were inconsistent with or contrary to Ms Tibble's human rights as provided for in article 3(1) of the CRC.
7.2.1 Mental violence
The UNICEF Implementation Handbook states that 'mental violence' in article 19 includes 'humiliation, harassment, verbal abuse, the effects of isolation and other practices that cause or may result in psychological harm'.
The Commonwealth refers to the expression 'humiliating or degrading treatment' which is contained in the suggested redrafting of article 19 by the Informal NGO Ad Hoc Group and submits that that expression involves an element of severity. By way of illustration, it asserts that whilst a correction for wrong doing by someone in authority may well result in humiliation for the person corrected that does not amount to humiliation in terms of article 19(1).
Clearly, 'humiliation' for the purposes of coming within the meaning of 'mental violence' must involve some element of severity. In terms of the wording of article 19(1) it would need to be of a severity that causes or may result in psychological harm. Having regard to all the circumstances this matter does involve an element of severity. Ms Tibble was called without notice to an interview with a superior officer concerning the resignation of an instructor. The interview, which concerned her relationship with the instructor was by its nature, very personal. When Ms Tibble offered the view that she had acted wrongly she was asked what the worst result might be. When she said the worst she feared would be to be 'thrown out' of the AIRTC she was not disabused of that possibility. In circumstances where she should have been offered support none was offered. The AIRTC's next contact with her was to advise her that she must resign or she would be discharged. She was not invited to contest that decision. That message was repeated shortly after. It would seem on its face that those circumstances would have been very humiliating for a 15 year old.
I do not agree with the Commonwealth's assertion that 'humiliation' should be defined by reference to the formulation proposed by the Informal NGO Ad Hoc Group and accordingly such treatment must be in addition to 'cruelty, injury or exploitation, [and] discrimination'. The wording of article 19 does not require such additional circumstances.
The issue is whether the humiliation was such that it caused or might result in psychological harm. The preliminary findings do not include a finding that the actions of the AIRTC officers caused psychological harm. I accept the submissions of the Commonwealth in relation to the weight that might be attached to Dr Sale's report.
I do not think the evidence before me is sufficient to make positive findings about the extent, if any, which the failings of AIRTC officers caused Ms Tibble's suicide. To make such findings more information about Ms Tibble's background and life experiences would be necessary. I have not pursued those facts as the complaint before HREOC concerns the quality of the acts and practices of the AIRTC and its officers. Ms Campbell has taken other steps to pursue remedies and compensation in respect of Ms Tibble's death, and if thought appropriate by her, the relationship between what happened at the AIRTC and Ms Tibble's death can be explored elsewhere. I am able to report on the relevant acts and practices without determining that relationship.
The evidence does however, overwhelmingly support a finding, which I make, that the acts or practices of the AIRTC failed to protect Ms Tibble from humiliation that might result in psychological harm.
7.2.2 'Neglect or negligent treatment' or 'maltreatment'
The UNICEF Implementation Handbook discusses the meaning of neglect. This discussion indicates that 'neglect' should be interpreted broadly. It says:
Neglect may be deliberate or it may be caused by the inability of the parent/family/community/State to provide appropriately for the child. Child neglect exists in various forms and to varying degrees in all societies. For example, some countries with highly developed economies and social systems in which employment of women has reached the same level as employment of men are now preoccupied with the neglect of very young children by their working parents and with the self reported 'loneliness' of many children.
The Macquarie Dictionary defines neglect as 1. to pay no attention to; disregard; 2. to be remiss in the care for or treatment of; 3. to omit (doing something) through indifference or carelessness; 4. to fail to carry out or perform (orders duties etc); 5. to fail to take or use; 6. the act or fact of neglecting; disregard; 7. the fact or state of being neglected; negligence.
Article 19(1) requires state parties to protect the child from 'all forms' of neglect.
I am of the view that 'neglect' in article 19(1) is wide enough to cover aspects of the treatment of Ms Tibble by the TASAIRTC.
From 16 August 2000 to 5 October 2000, the TASAIRTC believed there was a sexual relationship between an adult instructor and a cadet (and from 29 August 2000 the TASAIRTC was aware of the name of the cadet and thus her age), yet it failed to take proper steps to address this issue and the harm that might flow from it. I have already noted that no support was offered to Ms Tibble. The TASAIRTC, which was in loco parentis and responsible for Ms Tibble's welfare whilst at cadets, failed to ensure a parent would be present during the interview to provide her with the appropriate guidance and care despite the circumstances giving rise to the interview and to the likely impact of those circumstances on Ms Tibble's welfare (and this includes the failure to provide for the parent's ongoing involvement). Despite the seriousness of the inappropriate disciplinary action to be imposed by the TASAIRTC, and the natural humiliation and distress that would flow to a 15 year old from such action, the TASAIRTC failed to provide a proper opportunity for Ms Tibble to address the allegations and provide a defence before informing her that she would be discharged if she did not resign. In this context it neglected to properly inform Ms Tibble of the allegations, discuss the ramifications of the allegations with her and allow her to respond to the allegations in a manner appropriate for a 15 year old.
I am of the view that the failure to implement these procedures or undertake these actions meant, in terms of the definition referred to above, that the TASAIRTC was 'remiss in its care for or treatment of' Ms Tibble and 'omitted through indifference or carelessness' to have proper regard for Ms Tibble's welfare.
As discussed above in relation to article 3(1), I do not accept the Commonwealth's assertions that the presence of the Leading Aircraftswoman at the interview or Ms Tibble's particular maturity negated the need for a parent to be involved in the process. Nor does the evidence indicate, as the Commonwealth suggests, that Ms Tibble had any real opportunity to challenge the decision that she was to resign or be discharged.
The UNICEF Implementation Handbook states that:
Reference to 'negligent treatment' raises the issue of accidents to children (also raised in article 24(2)(e), see page 357). The developmental state and physical vulnerability of children makes them particularly prone to accidents. While the primary responsibility may be that of parents, state actions are also required to prevent many types of accidents. Article 3(2) gives States an over-arching obligation to provide care and protection necessary for the well being of the child.
The Macquarie Dictionary defines 'negligence' as 1. the state or fact of being negligent; neglect. 2. an instance of being negligent; a defect due to carelessness 3. Law the failure to exercise that degree of care which, in the circumstances, the law requires for the protection of those interests of other persons which may be injuriously affected by the want of such care.
The Macquarie Dictionary defines 'negligent' as guilty of or characterised by neglect, as of duty.
I am of the view that the circumstances outlined above that gave rise to my finding of neglect on the part of the TASAIRTC would also support a finding of 'negligent treatment'. That is, as discussed above, by failing to have in place the proper procedures or to take the appropriate action, the TASAIRTC was negligent in its treatment of Ms Tibble. I do not agree with the Commonwealth's submission that for negligence to be established there would need to be a finding of a causal link between the administrative acts of the TASAIRTC and Ms Tibble's death. An ordinary reading of the term 'negligent treatment', as distinct from the meaning given to 'negligence' in Australian tort law, does not require a finding that a breach of the duty of care caused actual physical or mental illness. In this case the evidence is clear that the breach of duty caused Ms Tibble considerable distress.
I find the Commonwealth failed to 'take all appropriate . . administrative, social and educational measures to protect' Ms Tibble from 'neglect or negligent treatment' while in the care of the AIRTC, within the meaning of article 19(1) of the CRC.
The UNICEF Implementation Handbook states, 'Maltreatment or exploitation covers any other adverse treatment not necessarily involving physical or mental violence or defined as abuse'.
The Macquarie Dictionary defines 'maltreat' as to treat badly; handle roughly or cruelly; abuse.
Having found that Ms Tibble was the subject of neglect and negligent treatment I do not need to consider the issue of maltreatment.
Submissions were made by the parties in relation to recommendations. Ms Campbell submitted that the Commission should review the Department of Defence's policy and procedure manuals to ensure they do not breach the CRC or any other legislation to which Australia is a signatory. Ms Campbell also made submissions concerning monetary compensation. The Commonwealth has submitted that if the preliminary findings are affirmed no further action is needed by the Commission. In support of this submission the Commonwealth submits that steps have been taken to remedy the administrative deficiencies highlighted in the report of GPCAPT Stunden. Those steps are outlined below.
The Commonwealth submits the following steps have been taken in response to GPCAPT Stunden's report:
- the two flying officers involved have been counselled;
- the TASAIRTC Commanding Officer was removed from his position, placed on the unallotted list and required to respond to a Show Cause Notice as to why his appointment should not be terminated; and
- the Air Force Cadets Policy Manual has been revised to include Codes of Behaviour for Cadets and Staff that specifically detail the administrative procedures and practices to be followed when dealing with minors.
It also advises that a Personnel Management Training Program has been introduced for all Australian Air Force Cadets Staff. This is an ongoing program covering topics such as Equity and Diversity, Legal Principles and Implications for AAFC members, Psychology of Adolescent Behaviour, Management of Behaviour Modification and Management of Due Process.
8.2.1 The Air Force Cadets Policy Manual
At the time of Ms Tibble's interview the policy that existed in relation to fraternisation and unacceptable behaviour provided that a cadet could be discharged at any time if the 'member is unsuitable to be a cadet' and that, 'unhealthy or unacceptable fraternisation with other members' is an example of 'unacceptable behaviour that is to be reported to the Commanding officer and an assessment to be made of the individual to determine his suitability for retention in the AIRTC'.  A cadet was not to be discharged on the above ground 'unless he has been notified in writing by his CO of the reason for intended discharge and been given the opportunity to contest it'.
As GPCAPT Stunden noted in his report 'a major policy deficiency' of the Policy Manual as it then stood was that 'the policy does not provide for communication with parents or guardians as part of an administrative censure process'. He also identified the failure of the policy to provide for a counselling and warning process as a deficiency in the policy. He was also critical of the fact the policy did not provide a definition of fraternisation 'in a way that adolescent cadets can relate to and understand'.
The Policy Manual has been significantly revised to include a compulsory role for parents in the disciplinary process (in the case of a serious breach), a counselling and warning process and a far more detailed account of what constitutes unacceptable behaviour, including what constitutes unacceptable fraternisation.
The current policy in relation to standards of behaviour is set out in Chapters 20 and 19. Chapter 20 sets out standards of behaviour for cadets that 'cadets can reasonably be expected to conform to',  explains why standards of behaviour should be met, and details how failure to maintain the required standard of behaviour is to be dealt with.
The manner in which a breach of a standard of behaviour is to be dealt with is set out in paragraphs 10 to 13 of Chapter 20. Those paragraphs provide:
10. Failure to maintain the required standard of behaviour is to be dealt with in the first instance by cadet unit staff.
11. Breaches may be dealt with by the methods ranging from counselling through to administrative measures such as a reduction in rank. However, before any measures are applied, the matter must be thoroughly considered by the unit commander to ensure the Cadet understands why the measure is warranted and invite the Cadet to comment before any action is taken. Where a serious breach occurs, the parents are to be made aware of the situation and every opportunity to resolve the breach examined prior to any further action being taken.
12. The following measures are to be considered when dealing with Cadets:
b. first warning and letter to parents;
c. second warning and letter to parents;
d. exclusion from participation of specific activity;
e. reduction in rank;
f. suspension from the unit for 1, 2 or 3 months; and
g. termination of enrolment.
13. Under no circumstances is mental or physical abuse to be applied as a disciplinary measure.
The standards of behaviour to which cadets are expected to conform is set out in paragraph 7. They include to 'abide by and apply the AAFC harassment and discrimination policy and to bring breaches of policy to the attention of their superiors'. 
The harassment and discrimination policy is set out in detail in Chapter 19. In the section headed 'Statement of Policy' it states, 'the AAFC is in "loco parentis" with respect to minors who are members of the AAFC. This means that the AAFC accepts the role and responsibility of parents of the cadet while in the care of the AAFC'.
In addition to detailing behaviour that constitutes harassment (including sexual harassment) and discrimination, Chapter 19 also sets out the policy on fraternisation and, in that regard, it details the type of behaviour or type of relationship that is unacceptable.
Chapter 19 sets out how a complaint of harassment, discrimination or other unacceptable behaviour is to be managed and resolved. It discusses internal resolution through 'self resolution' or through the 'chain of command'. It notes, '[w]here a formal complaint is made, use of the chain of command is likely to be the most effective option, as there is an unequivocal responsibility on the superior to provide advice or seek assistance and act on a complaint sensitively, swiftly and confidentially'.
In a paragraph headed 'Conflict Resolution' the Policy states:
36. Anyone in the chain of command who has been advised of an allegation of unacceptable behaviour must manage the complaint. Care must be taken to listen to everything that is said and to treat the allegation seriously. It may have taken a great deal of courage to come forward. The method of resolution adopted and the outcomes sought should take into account the wishes of the complainant.
Paragraph 37 refers to Annex C which provides a detailed checklist of action that is to be taken when harassment of a cadet is suspected.
The Policy also notes the complainant's right to use external avenues including police, the Ombudsman and the Commission. 
In relation to 'incidents involving sexual offences involving a minor' the Policy states that the matter must be reported to the police and relevant state authority. 
Annex B to Chapter 19 provides a table and definition of sexual offences which 'are not to be investigated by the AAFC chain of command. Instead the complainant is to be assisted to report the matter to civil authorities'. Amongst these matters are 'an adult maintaining a sexual relationship with a person who is under the age of 16 years'.
Chapter 19 also sets out 'Standards of Behaviour for Adult Staff (Civilian and ADF)' which primarily includes a Code of Conduct, and a list of practices adult staff are encouraged to adopt to protect themselves from a misconstrued act. It provides advice in relation to discipline and management which includes:
Do not abuse your position. Be clear that when a cadet is difficult, it is the behaviour that is 'Not OK' and that the child is 'OK'. Attack the problem not the person. The task is to build self esteem not to shatter it.
Chapter 19 concludes with statements of: 'AAFC Rights and Responsibilities', Officers of Cadets/Instructors of Cadets Rights and Responsibilities; and 'Cadet Rights and Responsibilities'. There is a particular emphasis in these statements on the issue of child protection.
8.2.2 The training program
The Commonwealth advises that personnel management training is incorporated into the standard staff training at a number of levels, namely:-
- Induction Training for Instructors of Cadets and Officers of Cadets;
- In-Service training for Instructors of Cadets; . In-Service training for Officers of Cadets; Command Training for Officers selected for command appointments as Squadron COs, Wing HQ executives, etc.
The material provided by the Commonwealth indicates, for example, that the 'Societal & Legal Responsibilities' syllabus is part of both the 'Recruit Training Programme for Officers and Instructors' and the 'Command Training Programme (Squadron Leader and above)'. The Commonwealth states this syllabus is designed to instruct staff as to their responsibilities across a broad range of personnel management issues.
The 'Societal & Legal Responsibilities' syllabus comprises the following units: 'Equity and Diversity'; 'Occupational Health and Safety'; 'Legal Issues'; 'Adolescent Behaviour'; 'Behavioural Management'; and, 'Code of Conduct'.
Issues covered in 'Equity and Diversity' include: what constitutes unacceptable behaviour; resolution of complaints of unacceptable behaviour; and, the procedures for reporting an incident involving unacceptable behaviour.
Issues covered in 'Legal Issues' include: the duty of care affecting AAFC staff; the requirements and principles of natural justice, including its application to AAFC staff with respect to (i) questioning (ii) interviewing (iii) counselling (iv) taking statements, and (v) duress.
Issues covered in 'Adolescent Behaviour' include: the behavioural attributes of a leader according to the 'new culture' as contrasted to the 'old culture'; problems of adolescents; adolescent depression; and, the issue of appropriate counselling.
Issues covered in 'Behavioural Management' include distinguishing between the individual and their behaviour; dealing with inappropriate behaviour; and changing behaviour.
The 'Obligatory Code of Conduct' unit deals largely with how staff should relate to cadets in the context of their teaching and leadership role. The code includes a prohibition of intimidation, harassment, victimisation of trainees and subordinates, the illegal punishment of trainees and subordinates and the ill treatment or abuse of trainees and subordinates.
The Commonwealth advises that a road show program was instigated in direct response to the issues raised by GPCAPT Stunden in his report. The material provided to the Commission indicates the program covers: 'Legal issues', 'Adolescent Behaviour'; 'Behavioural Management' and 'Code of Conduct'.
The Commonwealth states that the aim of this program is to provide a 'back fill' capability, in which any gaps in training for those staff who have not taken up senior appointments over the last several years will be exposed to the 'new' training approach. It says that given the size of the Defence organisation and its geographic distribution, it has not been possible to extend the road show approach to all 1,200 staff of the AAFC but the inclusion of all relevant material in the standard compulsory in-service training means that over time everyone will be covered.
The Commonwealth states the 'Societal & Legal Responsibilities' syllabus has drawn material from other programs and can be used 'stand alone'. It notes that its elements are included in other programs as well and that a staff member progressing through the normal training stages will cover all of this material over a period of time but Defence can, if needed, re-introduce 'gap' training at any time using this particular syllabus.
8.3 Whether further action is required to prevent a repetition of the act or continuation of the practice.
Extensive and appropriate changes have been put in place by the AAFC in relation to the management of a child who is thought to have breached the standards of behaviour.
The Policy Manual sets out:
- the rights and responsibilities of the AAFC, its officers and instructors and of the cadets;
- the standards of behaviour to be met by cadets and adult staff;
- the process for managing a breach of those standards by a cadet;
- detailed policies on harassment and discrimination including the process for managing and resolving a complaint; and
- a statement of what amounts to unacceptable fraternisation.
The Policy Manual also requires that:
- every opportunity be examined to resolve a breach of the standards of behaviour by a cadet before action is taken;
- parents are to be involved where there is a more serious breach;
- the cadet is to understand why the measure is warranted before any action is taken and that the cadet be invited to comment; and
- that there is provision for warnings and counselling when dealing with a breach.
The training program with its coverage of matters such as duty of care, natural justice, problems of adolescents and behavioural management and the manner in which staff should relate to cadets appropriately complements the Policy Manual.
All these changes appear to be well considered and appropriate, and so far as they go, appear to address in detail shortcomings which were identified by GPCAPT Stunden. However, I consider that in one important respect the Policy Manual and training program requires further consideration and addition.
I do not consider that the Policy Manual gives adequate guidance to officers that situations can arise, particularly where sexual impropriety is suspected, where the primary interest of cadets make it inappropriate that any of the disciplinary measures contemplated by Chapter 20 be undertaken. The Manual should advise those who have the responsibility of dealing with cadets that they should always be alive to the possibility that inappropriate behaviour by a cadet may be the result of influence or pressure from a superior to which the cadet has succumbed. In those situations the primary interest of the cadet require sympathetic support and protection - not warnings or counselling that is predicated on blameworthy conduct having occurred. In this report I consider that paragraphs 10 - 13 of Chapter 20 which set out the disciplinary measures to be considered when dealing with cadets (set out above) should be prefaced with advice that situations of this kind may arise, and that before any disciplinary steps are taken, the officer concerned should be satisfied that the conduct in question is a breach that should be sanctioned by one of the measures set out in paragraph 12.
The syllabuses for training programs for officers and instructors should be checked to ensure that instruction is given on what is required and when to ensure that the best interests of cadets who are minors are the primary consideration when dealing with allegations of inappropriate conduct.
The precise alterations to the Policy Manual and the conduct of training instruction are matters upon which expert advice should be sought including from an expert in the human rights of children. I so recommend.
Earlier in this report I expressed concern the submissions of the Commonwealth to HREOC failed to recognise and acknowledge that the process which took place in dealings with Ms Tibble sought to punish, not protect, the victim. Those submissions as well as the internal legal advice that was apparently given at the outset to the officers dealing with Ms Tibble, fail to reflect that in child abuse cases, especially child sexual abuse, the fundamental first consideration must be protection of the victim, and that disciplinary measures may be quite inappropriate. There appears to be a continuing need for appropriate awareness training. I recommend the Defence Department consider how this be implemented.
The Senate Foreign Affairs, Defence and Trade References Committee currently has terms of reference:
To inquire into and report on:
1. (a) the effectiveness of the Australian military justice system in providing impartial, rigorous and fair outcomes, and mechanisms to improve the transparency and public accountability of military justice procedures; and
(b) the handling by the Australian Defence Force (ADF) of:
(i) inquiries into the reasons for peacetime deaths in ADF (whether occurring by suicide or accident), including the quality of investigations, the process for their instigation, and implementation of findings,
(ii) allegations that ADF personnel, cadets, trainees, civilian employees or former personnel have been mistreated,
(iii) inquiries into whether administrative action or disciplinary action should be taken against any member of the ADF, and
(iv) allegations of drug abuse by ADF members.
2. Without limiting the scope of its inquiry, the committee shall consider the process and handling of the following investigations by the ADF into:
(a) . .
(c) the suspension of Air Cadet Eleanore Tibble;
3. The Committee shall also examine the impact of Government initiatives to improve the military justice system, including the Inspector General of the ADF and the proposed office of Director of Military Prosecutions.
In evidence to that Committee on 1 March 2004, Air Marshal Houston, Chief of Air Force, Royal Australian Air Force referred to the changes in the administrative support manuals and guidelines and noted that 'the cadet policy manual has been revised and now includes codes of behaviour for staff that clearly detail the administrative procedures and practices to be followed when dealing with minors, including mandating occasions when communication is required with parents or guardians'. He also referred to the training program and noted that the 'Air Force has implemented a training program for cadet officers and instructors that places particular emphasis on developing their skills to work effectively with adolescents'. He said that 'the training is now included in cadet recruitment, promotion and command courses to ensure ongoing awareness at all stages of the training and development continuum'.
Air Marshal Houston stated that Ms Campbell assisted the Air Force staff by reviewing the proposed changes in policy and training from a parental perspective.
In his evidence he stated, 'I firmly believe we have learned from our mistakes. I am sorry it took the death of Eleanore Tibble for the Air Force to realise things were not right'. Reports of Ms Campbell's evidence to the Committee on 22 April 2004 indicate that Air Marshall Houston has also written to Ms Campbell to express regrets. The report also indicated Ms Campbell had initiated a negligence claim against the Australian Defence Force in the Tasmanian Supreme Court.
Having regard to the changes already put in place in the Policy Manual, the training now provided to cadet staff and the recommendation made in the preceding section of this Report, I consider the wishes of Ms Campbell for changes in administrative processes have been addressed.
It may be that once the Senate Committee has concluded its hearing it will make its own findings or recommendations in relation to these administrative processes.
I do not consider this is a matter where I should recommend any payment of monetary compensation. Ms Campbell's claim for funeral and medical expenses has already been accepted under the Safety, Rehabilitation and Compensation Act 1988. She was not dependant on Ms Tibble and for this reason it appears that she has no other monetary claim for compensation under that Act. The limited information that has been given to HREOC in relation to Ms Campbell's loss does not identify an entitlement to common law damages. In my opinion the provisions of the HREOC Act that permit a recommendation for payment of monetary compensation to be made do not authorise a recommendation for payment of monetary compensation unless the loss or damage which has been suffered sounds in monetary damages of a kind that is recognised under the general law. Moreover I note that Ms Campbell has taken steps to seek a remedy at law and I consider that if there is an outstanding possible claim for monetary compensation that should be pursued through the ordinary legal processes.
By letter dated 5 November 2004 the solicitor for the Commonwealth responded that:
I am instructed that the findings and recommendations set out in the President's notice dated 24 August 2004 have been fully considered by the Department of Defence. As you are aware many changes were made to the Airforce Cadets Policy Manual as a result of the findings and recommendations of the Stunden Report. As a result of the President's further recommendations set out in paragraph 6.4 [of the Notice issued to the respondent under s 29(2)(a) of the HREOC Act] the contents of the Air Force Policy Manual are being revisited.
I report accordingly to the Attorney-General.
John von Doussa QC
Functions of the Human Rights and Equal Opportunity Commission in relation to human rights
The Commission has specific legislative functions and responsibilities for the protection and promotion of human rights under the HREOC Act. Part II Divisions 2 and 3 of the HREOC Act confer functions on the Commission in relation to human rights. In particular, s 11(1)(f) of the HREOC Act empowers the Commission to inquire into acts or practices of the Commonwealth that may be inconsistent with or contrary to the rights set out in the human rights instruments scheduled to or declared under the HREOC Act.
Section 11(1)(f) of the HREOC Act states:
1. The functions of the Commission are:
(f) to inquire into any act or practice that may be inconsistent with or contrary to any human right, and:
(i) where the Commission considers it appropriate to do so - to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and
(ii) where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement - to report to the Minister in relation to the inquiry.
Section 3 of the HREOC Act defines an 'act' or 'practice' as including an act or practice done by or on behalf of the Commonwealth or an authority of the Commonwealth.
The Commission performs the functions referred to in s 11(1)(f) of the HREOC Act upon the Attorney-General's request, when a complaint is made in writing or when the Commission regards it desirable to do so (s 20(1) of the HREOC Act).
In addition, the Commission is obliged to perform all of its functions in accordance with the principles set out in s l0A of the HREOC Act, namely with regard for the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights.
The Commission attempts to resolve complaints under the provisions of the HREOC Act through the process of conciliation. Where conciliation is not successful or not appropriate and the Commission is of the opinion that an act or practice constitutes a breach of human rights, the Commission shall not furnish a report to the Attorney-General until it has given the respondent to the complaint an opportunity to make written or oral submissions in relation to the complaint (s 27 of the HREOC Act).
If, after the inquiry, the Commission finds a breach of human rights, it must serve a notice on the person doing the act or engaging in the practice setting out the findings and the reasons for those findings (s 29(2)(a) of the HREOC Act). The Commission may make recommendations for preventing a repetition of the act or a continuation of the practice, the payment of compensation or any other action to remedy or reduce the loss or damage suffered as a result of the breach of a person's human rights (s 29(2)(b) and (c) of the HREOC Act).
If the Commission finds a breach of human rights and it furnishes a report on the matter to the Attorney-General, the Commission is to include in the report particulars of any recommendations made in the notice (s 29(2)(d)) of the HREOC Act) and details of any actions that the person is taking as a result of the findings and recommendations of the Commission (s 29(2)(e) of the HREOC Act). The Attorney-General must table the report in both Houses of Federal Parliament within 15 sitting days in accordance with s 46 of the HREOC Act.
1. 'Act' and 'practice' are relevantly defined in s
3 as an act done or a practice engaged in by or behalf of the Commonwealth.
2. Section 11(1)(f).
3. On 11 December 1992 the Attorney-General declared under s47(1) of the HREOC Act that the Convention on the Rights of the Child was an international instrument for the purposes of the HREOC Act.
4. Section 20(1).
5. Section 11(1)(f)(ii).
6. The AIRTC (which is now known as the Australian Air Force Cadets (AAFC)) is not part of the Australian Defence Force but is however subject to the Minister and the Chief of Air Force (s 8, Air Force Act 1923). (Letter from the Defence Legal Service to the Commission, 8 July 2002).
7. Inquiry into the Administrative Processes and Procedures Surrounding the Suspension of CSGT Eleanore Tibble G1465. - Investigating Officer's Report.
8. The Report of GPCPT Stunden indicates that the chain of command proceeds upwards from the Flight Commander to the Commanding Officer (TASAIRTC) to the Deputy Director Reserve Personnel and Cadets (paragraph 58). GPCPT Stunden notes that the 'Regional Liaison Officer is not part of the Air Training Corps command chain. Rather the RLO deals with the CO to facilitate support to TASAIRTC from external sources' (paragraph 59).
9. My predecessor, Professor Alice Tay AM, had the carriage of this matter until my appointment as President on 1 May 2003.
10. Section 20(2)(c)(iii) and (iv).
11. Referred to subsequently as the 'UNICEF Implementation Handbook'. Article 45 of the CRC recognises the special competence of UNICEF and other United Nations organs to "provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates" (UNICEF Implementation Handbook) page 40.
12. This statement may be referring to the Instructor's Letter of Resignation, an attachment to GPCAPT Stunden's Report, in which he says his involvement with the cadet had the blessing of her parents. Ms Campbell does not agree.
13. As set out above, what the Record of Interview records is that she did not report the matter to the Flight Commander for the reason that "it was in fear of threats from (the instructor) that she could be thrown out or demoted".
14. I note her intended role in the proceedings was only as a witness, not as a party.
15. A claim was made by Ms Tibble's mother, and accepted, under the Safety, Rehabilitation and Compensation Act 1988. The benefits under that Act were limited to the funeral and medical expenses.
16. This letter provides Professor Tay's preliminary view.
17. Since these submissions the decision of the Court has been overturned on appeal by the High Court: Minister for Immigration and Multicultural and Indigenous Affairs v B and B  HCA 20.
18. Section 29(2)(c).
19. It is accepted by the Commonwealth that the AIRTC is an administrative body for the purposes of article 3(1) of the CRC. (Submission from the Department of Defence to the Commission of 13 May 2003).
20. The Best Interests of the Child, edited by Philip Alston, Clarendon Press, Oxford 1994, p13.
21. It is accepted by the Commonwealth that those actions amount to 'act or practice' for the purposes of the definition in s 3 of the HREOC Act. (Submission from the Department of Defence to the Commission of 13 May 2003).
22. Paragraph 84(dd) of GPCAPT Stunden's report.
23. Van Bueren, The International Law on the Rights of the Child, Martinus Nijhoff Publishers, Dordrecht, 1995, p47.
24. UNICEF Implementation Handbook p164.
25. UNICEF Implementation Handbook p.166.
26. In his report at paragraph 25 GPCAPT Stunden comments that the TASAIRTC commanding officer should have advised [the Flight Commander] immediately he became aware of the cadet's identity and initiated the appropriate administration process.
27. In his report at paragraph 32 GPCAPT Stunden comments that the Leading Aircrafts woman "was an appropriate female adult to attend as a witness to and record keeper of the meeting. However, an appropriate person was not in attendance to provide CSGT Tibble with support during the interview and her mother was unaware that the interview was to take place".
28. It was a finding of GPCAPT Stunden at paragraph 84 (ee) that "TASAIRTC officers showed no obligation to explain to 15 year old [Cadet Sergeant] Tibble what she had done wrong".
29. Paragraph 45 of GPCAPT Stunden's report.
30. UNICEF Implementation Handbook p.240.
31. UNICEF Implementation Handbook p. 264.
32. 3rd edition at p 1441.
33. UNICEF Implementation Handbook p. 264.
34. 3rd edition at p 1441.
35. 3rd edition at p 1441.
36. UNICEF Implementation Handbook p. 264.
37. 3rd edition at p 1306.
38. Chapter 7, paragraph 709.a.
39. Chapter 7, paragraph 709.f.
40. Chapter 7, paragraph 711.
41. Paragraphs 7 and 8.
42. Paragraph 6.
43. Paragraphs 10 to 13.
44. Paragraph 7.m.
45. Paragraph 28.
46. Paragraph 29.
47. Paragraph 25.