Chapter 3
Mechanisms to support victims of abuse in Defence
Introduction
3.1
This chapter focuses on mechanisms to provide support to victims of
sexual and other abuse in Defence. This includes: a background of key Defence
funded support options for victims of abuse; issues raised by submitters to the
inquiry; the establishment of SEMPRO; and the introduction of restricted
reporting.
Background
3.2
A number of support options have potentially been available to victims
of abuse in Defence. For example, Annex C to DI(G) PERS 35-3, titled Defence
Funded Support Options for Unacceptable Behaviour Management lists a number
of support options that can be offered to complainants, respondents and witnesses
of unacceptable behaviour. These include:
-
the Equity Advisor Network—Equity Advisors provide information,
options and support for the resolution of workplace equity and diversity
issues;
- the Defence Equity Advice Line—a confidential, toll-free telephone
line for those who consider they have been subjected to, accused of, or
witnessed any form of unacceptable behaviour;
- a case officer—a case officer may be appointed at the discretion
of the commander or manager to assist the complainant and the respondent during
the complaint management process;
- psychological counselling and support—these include Defence
medical support, psychological support, the services of the Defence Community
Organisation, the ADF Mental Health Strategy All-hours Support Line and military
chaplains;
- the Employee Assistance Program (EAP)—the EAP counselling service
is available for Defence APS employees;
- Defence Legal Support—both complainants and respondents may seek
legal advice, though from separate legal officers; and
-
Peer support—'[t]he complainant, respondent and witnesses may be
provided with moral and social support from their peers during the course of
any inquiry and judicial proceedings, and after the incident has been
resolved'.
3.3
Annex C to DI(G) PERS 35-3 also lists temporary transfers and the
granting of leave as options at the commander or manager's discretion and lists
factors which should be considered in making decisions on these options.
3.4
Annex B to DI(G) PERS 35-4 Management and Reporting of Sexual
Offences lists the Defence funded support options for sexual offence management.
In addition to many of the support options for unacceptable behaviour, it
includes referral to a Defence medical centre for consultation and an assessment
of workplace where a 'complainant may feel unsafe as a result of a sexual
offence complaint'. It notes that:
Commanders and managers must maintain an environment where
complainants, respondents and witnesses to sexual offences are confident that
they can access a range of support services. Complainants, respondents and
witnesses to incidents of sexual offences must be provided with all practicable
and reasonable support.[1]
Issues
Support for victims of abuse
3.5
The DLA Piper Review Volume 1 report identified an absence of positive
support for those who report abuse, either as a witness or victim, as an
indicator of risk of abuse. It commented that '[a]s far as the Review is aware,
there was not any such support in the ADF over most of the 60 years considered
by this Review'.[2]
It noted that a recurrent theme in the allegations considered by the Review was
a perception that 'even where Defence's initial response to an allegation of
sexual abuse seems to have been appropriate, the victim then perceives that the
positive support fades away very quickly'.[3]
The Review considered that 'Phase 2 should consider the quality and provision
of ongoing support to ADF members who have made an allegation of abuse or who
have been abused'.[4]
3.6
At Supplementary Estimates in October 2012, the Department of Defence
confirmed that from the outset of the DLA Piper Review 'counselling and crisis
intervention support' was established which remains available 'to existing ADF
and APS personnel as well as former ADF personnel and their families'.[5]
It also noted that 'DLA Piper has reviewed its records and has confirmed that
737 of the 775 [complainants] have been provided with details of counselling
services'. While noting that it did not know who the 775 complainants are, the
Department told the committee that 18 persons who identified themselves as having
DLA Piper related matters had accessed support services which Defence managed,
including: the employee assistance program; the Defence Community Organisation;
and the support telephone line.[6]
3.7
The Department of Veterans' Affairs (DVA) noted that eligible
individuals could receive assistance from the Veterans and Veterans Families Counselling
Service (VVCS), a free and confidential service available 24 hours a day across
Australia:
Although part of the DVA portfolio, for privacy reasons the
VVCS is organisationally separate from the Department, maintaining its own
systems and separate client data repositories. The VVCS advise that they have
received a total of 12 calls or contacts from clients identified as being
related to the DLA Piper Review.[7]
3.8
The referral of victims of abuse to counselling is one of the key
functions of the Defence Abuse Response Taskforce. The Taskforce noted that:
Case coordinators in the Taskforce work closely with
complainants as their matters are dealt with by the Taskforce. If psychological
support is required, case coordinators will refer complainants to registered
external counselling providers. Taskforce psychologists and case coordinators
will not provide counselling to complainants, rather they will assess whether
complainants require counselling and refer the complainant to an appropriate
external provider.[8]
Support mechanisms
3.9
The Alliance of Defence Service Organisations (ADSO) highlighted the
issues involved in appointing a 'case manager' in relation to a complaint under
the current Defence Instruction (General).
A case manager is to be appointed at the discretion of
the commander or manager to assist the complainant, respondent and witnesses
during the complaint management process. In particular, the case manager is
required to explain the support services available to the parties to the
complaint, and facilitate access to these services.
The case manager is to be a compassionate but impartial
person, and the role is not to be linked to a specific workplace position. The
case manager is not to be, or likely to be, a person involved in the inquiry or
disciplinary aspects of the complaint.[9]
3.10
In the view of ADSO, this was 'a very good example of an instruction
that should give no latitude – whatsoever'.[10]
It considered a case manager should be appointed at the first opportunity and
it should be mandatory that case managers are appointed. While a case manager
should be a 'compassionate but impartial person', not involved in the inquiry
or disciplinary aspects of the complaint, the ADSO noted that 'regrettably
within the Services, most personnel are either friendly with or know each other
in some way or another'.[11]
Consequently, the ADSO supported the establishment of a specialist Sexual Abuse
Unit with Defence, 'preferably within the ADFIS'.[12]
3.11
LtCol Paul Morgan, who is employed in Joint Health Command of Defence,
stated that he had seen no improvement in this area:
Defence has made no explicit effort to provide support to
victims of sexual and other abuse in Defence. There have been no additional
resources applied to this area. There has been little to no effort to train the
care providers in abuse related issues. It simply does not rank as a priority
for Defence to improve this area, through any kind of specific focus on this
issue. Commanders use the ADF health service to 'handball' off their
responsibilities. There has been little or no additional effort to train commanders
in the specifics of supporting victims of abuse. I have seen no effort by Defence
Health Services to plan or implement any improvements in the support services
for victims of sexual and other abuse.[13]
DVA support
3.12
DVA provides support to current and former ADF personnel who have suffered
injury or conditions related to their service. As previously noted, counselling
is available to eligible ADF members and their families through the Veterans
and Veterans Families Counselling Service (VVCS) a free and confidential
service. The DVA website states:
VVCS staff are qualified psychologists or social workers with
experience in working with veterans, peacekeepers and their families. They can
provide a wide range of treatments and programs for war and service-related
mental health conditions including post traumatic stress disorder (PTSD).[14]
3.13
DVA's submission outlined the steps it had taken to support those
contacting the DLA Piper Review who required DVA assistance, including the
establishment of a specific team in Melbourne:
Specialised training on sexual and other abuse was provided
to DVA staff. To further ensure support for those claiming compensation as a
result of sexual and other forms of abuse, policy and procedural guides were
updated to emphasise the need for sensitivity when liaising or requesting
information from clients, and when referring clients for specialist medical
examinations, etc.[15]
3.14
DVA noted that following the release of the DLA Piper Review further
arrangements have been introduced for dealing with claims relating to sexual
and other abuse.
Where the claim can be accepted it will be. Where the claim
cannot be accepted on the basis of the available evidence, it is sent to the
Melbourne team who contact the client to advise them of this. The team offers
the client the following options:
- having the claim determined,
- taking the time to submit more evidence, or
- asking DVA to hold the claim in case further evidence is available as a
result of the response to the DLA Piper Review...
DVA has been contacted by 22 people who have identified
themselves as having contacted the DLA Piper Review. Seventeen of those people
have also submitted a claim for compensation. In addition, DVA has around 83
claims currently being investigated, that appear to involve abuse.[16]
3.15
In his supplementary submission, Dr Gary Rumble noted that while
compensation and common law actions had been a focus during the committee's
public hearing, there was little attention to the fact that there are already
developed 'current mechanisms' administered by DVA providing support for
veterans 'who have physical and/or mental problems associated with their
service in the ADF'.[17]
He stated:
DVA benefits include counselling and medical treatment as
well as direct financial support and respond to individuals' circumstances as
they change over time. Accordingly DVA benefits could be of much more
importance to people affected by abuse in the ADF in the past than a one-off
payment under either common law or under the new capped compensation/reparation
payment scheme.[18]
3.16
Dr Rumble understood that some victims of abuse in the ADF had accessed
DVA benefits. However, he cautioned that 'although establishing an entitlement
to DVA benefits should be less difficult than succeeding in a common law claim
for damages, individual claimants seeking access to current DVA benefits for
current health problems related to past abuse often face significant evidentiary
barriers in proving that they were abused in the ADF many years ago'.[19]
Sexual Misconduct Prevention and Response Office
3.17
As outlined in Chapter 2, the establishment of a SEMPRO in Defence was a
key recommendation made in the Review of Treatment of Women in the ADF.
The recommendation included:
As a priority, [the Chiefs of Service Committee] should
establish a dedicated Sexual Misconduct Prevention and Response Office (SEMPRO)
to coordinate timely responses, victim support, education, policy, practice and
reporting for any misconduct of a sexual nature, including sexual harassment
and sexual abuse in the ADF. This Office is to be adequately and appropriately
staffed, including with personnel that have experience in responding to people
who have been subjected to sexual harassment or abuse and is to be headed by a
senior leader (of no less than one star rank or at SES level) and located at
Defence Headquarters.[20]
3.18
The recommendation proposed that SEMPRO would perform a number of roles
in supporting victims of sexual misconduct (as well as education, training,
outreach, and data collections roles). These roles included:
-
to respond to complaints of sexual harassment, sex discrimination
and sexual abuse including ensuring the immediate safety and well-being of the
complainant;
- to provide a 24 hour/seven day a week telephone hotline and
online service (click, call or text access) that is staffed by personnel with
expertise in responding to complainants—female and male—who report sexual
harassment, sex discrimination and sexual abuse; and
- to enter into appropriate arrangements with expert external
service providers so as to offer complainants an alternative avenue for support
and advice if the complainant does not wish to engage with the ADF's internal
complaints system.[21]
3.19
At the public hearing Defence provided some information about the
proposed SEMPRO and confirmed that the focus of SEMPRO will be on sexual
misconduct. The CDF commented:
Essentially the organisation is there to ensure that there is
a point of contact for either members of the ADF to contact themselves or a
route for those who have incidences reported to them to come in and then be
pointed in the right direction and connected with the support mechanisms that
exist in the organisation and to grow some of those mechanisms to exist in the
organisation to support those people.[22]
3.20
While SEMPRO will not be launched until July 2013, it has been announced
that the office will be headed by Air Commodore Kathryn Dunn. At the public
hearing, Defence noted that:
It is a relatively small unit but at the moment we have 14
positions. Importantly we are going to leverage from existing mechanisms within
the organisation to facilitate support and also have in place mechanisms to, as
the office gets up to speed, make referrals to rape crisis centres and those
sorts of external support. That will be very much focused on the victim and
their needs.[23]
Restricted reporting
3.21
The government's response to the Review of Treatment of Women in the
ADF agreed with the recommendation that:
As a matter of urgency, the ADF should investigate mechanisms
to allow members to make confidential (restricted) reports of sexual
harassment, sex discrimination and sexual abuse complaints through SEMPRO.[24]
3.22
The DLA Piper Review Volume 1 report also specifically commented
on the reporting of sexual assaults, noting that ADF processes require all
sexual assault allegations to be immediately reported to local State and
Territory police:
This can place victims in an invidious position at a time
when they are likely to be traumatised. If they report the matter, they will be
exposed to the further trauma and stress of the civilian criminal justice
system which seems to be very ineffective in calling perpetrators of sexual
assault to account and which is—at best—very slow moving...Furthermore, the
requirement of immediate reporting to Police can result in no reporting
occurring.[25]
3.23
The DLA Piper Volume 1 report noted that some overseas military forces
have implemented a 'restricted reporting' regime, where the victim of a sexual
assault can make a restricted report to designated personnel who can provide
support to the victim. However, the report is not disclosed within the command
structure or investigated by disciplinary authorities, 'unless and until the
victim consents to that occurring'.[26]
The DLA Piper Review identified a number of advantages to restricted reporting:
The purpose of the restricted report is to encourage quick
reporting of assault even where the person affected does not want it to be
pursued for criminal or disciplinary prosecution. The perpetrator is not identified.
Command is at least made aware that there may be a problem within the area
affected and can take steps to reduce the possibility of further events
occurring without involving the victim. It also ensures that there is a record
of the event and that the person affected receives immediate assistance.[27]
3.24
The DLA Piper Review considered that 'Phase 2 should undertake further
examination of the establishment of a system for permitting the restricted
reporting of sexual assaults in Defence with particular regard to the
availability of such a system for the receipt of allegations arising from the
distant or even middle distant past'.[28]
This drew on one of the recommendations made by Ms Angela Ballard in her 2009
Churchill fellowship paper on 'Sexual Assault Prevention and Intervention in a
Military Environment':
[A] 'Restricted' and 'Unrestricted' option for disclosure should
be provided to ADF victims, allowing them to access medical and mental health
services without law enforcement involvement. This will provide Commands with
environmental knowledge to ensure future risk reduction measures could be put
in place.[29]
3.25
Ms Ballard's paper noted that there was value in command and policing
agencies being initially less visible to victims of sexual assault via a
restricted reporting option. She noted 'there is a likelihood that as the
victim becomes more empowered and confident in being supported, they will
change to "Unrestricted" reporting and the organisation can regain "control"
of the situation' and that this had been seen in the United States where a
system for restricted reports was in place.[30]
In Australia, she highlighted that 'counsellors, psychologists, medical staff
and Chaplains invoking privacy/confidentiality privileges of their profession,
permits ADF victims of sexual assault to access the medical and mental health
support they require without reporting the incident to military or state
policing agencies'.[31]
3.26
The Inspector-General ADF noted that his office had been consulted in
the policy development in relation to this area and would be a keen observer of
its implementation.[32]
While he acknowledged the restricted reporting system has the potential to
encourage the reporting of abuse that might otherwise go unreported, he also
outlined several concerns. These concerns included:
- care to ensure restricted reporting will not be inconsistent with
State criminal law dealing with obligation to report offences;
- ADF obligations under the workplace, health and safety
legislation may be hard to achieve if restricted reports become
'mainstream rather than exceptional'; and
- a consequence of maintaining confidentiality of a restricted
report is that alleged perpetrators will not be the subject of investigation
and may reoffend.[33]
3.27
Dr Rumble also noted that it not clear whether the announced restricted
reporting measure is intended to be available only to current Defence personnel
or will also be available to former Defence personnel for incidents which occurred
when they were in Defence. He recommended that this be clarified.[34]
3.28
At the committee's public hearing, Defence indicated that details of the
restricted reporting system were still being developed. General Hurley, the
CDF, informed the committee that Defence leadership had not settled on the
manner of the restricted reporting processes which could be implemented:
We are looking very seriously through SEMPRO at introducing
restricted reporting of sexual offences in the ADF. There are pros and cons to
doing that in terms of support for the victim on the one hand but not then
disclosing offenders who could then repeat before we move. So we have a duty of
care in relation to that as well. Again, that is an issue that is being very
seriously looked at in the present time and we will settle on a point somewhere
on that continuum and put that into effect...[35]
We will have more restricted reporting, but where on the
spectrum from going and finding the guilty person to no reporting until the
victim is well and truly ready do we want to sit? We are just thinking that
through because there are risks in those positions for both other individuals
in the organisation and the institution.[36]
3.29
The Inspector-General ADF's Review of the Management of Incidents and
Complaints in Defence including Civilian and Military Jurisdiction noted
apparently conflicting advice in DI(G) 35-4 Management and Reporting of Sexual
Offences regarding a victim or complainant's wishes. Annex C to DI(G) 35-4
contained form AC875-4 'Record of complainant's wish not to officially report a
sexual offence to the police'. While this seemed to imply a complainant could
indicate they did not want to report an allegation, there was provision that
the commander or manager still had 'a responsibility to ensure that a sexual
offence complaint is notified to State/Territory or relevant Defence
Investigative agency'.[37]
In an answer to a question on notice, Defence noted that DI(G) 35-4 has been
amended to permanently remove the requirement for form AC875-4.[38]
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