Reparation and compensation
The framework of responses available to the Defence Abuse Response
Taskforce broadly reflects the recommendation made by the DLA Piper Review that
a 'suite of options should be adopted to provide means for affording reparation
to persons affected by abuse in Defence'.
However, witnesses and submitters raised several concerns with the specifics of
the Defence Abuse Reparation Payment Scheme (Reparation Scheme) which was
subsequently announced as part of the government's response and other related
The Interim report of the Defence Abuse Response Taskforce
provided additional detail regarding the Reparation Scheme. The stated purpose
of the scheme is to provide recognition that abuse in Defence is 'unacceptable
and wrong'. The reparation payments would be provided to victims who have made
plausible allegations of being subjected to sexual or other forms of abuse in
Defence as a 'broader acknowledgement that such abuse should never have
This would include individuals who reported abuse and whose cases were
mishandled by Defence management. The Taskforce's report clarified:
Reparation payments are not intended as compensation. They
are a way of enabling people to move forward. Payments to individuals will be
capped at $50,000, with the amount provided to each complainant determined on a
case by case basis taking into account the individual circumstances of the
The Interim report noted the Taskforce had provided detailed
advice to assist ministers to settle on an approved scheme and that the
proposed scheme was now 'with the Government for consideration and approval'.
On 10 April 2013, the proposed Reparation Scheme was officially approved by the
Under the Reparation Scheme, a number of categories of Reparation
Payment are specified:
Category 1 (Abuse): $5,000;
- Category 2 (Abuse): $15,000;
- Category 3 (Abuse): $30,000;
- Category 4 (Abuse): $45,000; and
- Category 5 (Mismanagement by Defence): $5,000.
The Scheme Guidelines provide that a Reparation Payment may only consist
of one the amounts under Categories 1 to 4, or the amount available under
Category 5 (Mismanagement by Defence), or one of the amount under Categories 1
to 4 and the amount under Category 5.
The Scheme Guidelines note Category 4 (Abuse) is intended to provide reparation
for the most serious forms of alleged individual or collective abuse.
Effectively, this means the maximum Reparation Payment under the Scheme
Guidelines is $50,000 ($45,000 plus $5,000), in instances where a person in
Defence has suffered the most serious forms of abuse and Defence has mismanaged
The Interim report noted that the making of a Reparation Payment
to a person under the Scheme is not intended to affect the statutory, common
law or other legal rights of the person; however, a court or tribunal may, if
it thinks fit, take the making of a Reparation Payment into account in
assessing the amount of any damages or compensation otherwise payable to a
person under common law or statute.
On 12 April 2013, the Chair of the Taskforce provided further details on
the eligibility of claims of abuse under the Scheme Guidelines:
Under the Guidelines if a complainant makes an allegation to
either DLA Piper or the Taskforce, prior to 31 May 2013, that they allegedly
suffered abuse in Defence which occurred before 11 April 2011, they may receive
a reparation payment of up to $45,000.
A separate additional reparation payment of $5,000 may be
available under clause 3.1.4(d)(ii) of the Guidelines to a complainant who
alleges (prior to 31 May 2013) (i) that they made a verbal or written report or
complaint about the alleged abuse to Defence or otherwise prior to 11 April 2011
(notwithstanding that the mismanagement by Defence may have occurred after 11
April 2011), and (ii) that the verbal or written report or complaint that the
person made was then allegedly mismanaged by Defence.
A number of compensation issues were raised in relation to the
Reparation Scheme as well as broader compensation issues for victims of abuse
Prior to the announcement of the Taskforce and the Reparation Scheme, Ms Jennifer
Jacomb outlined a number of problems she argued existed with the current avenues
for compensation through common law actions including: the hurdles of producing
corroborating evidence; the misleading nature of service records; the distress
of coming forward as a victim; and the difficulties of funding litigation for
compensation. She proposed a new compensation system should have a number of key
- not be time limited;
- recognise the hurdles that confront the victims;
- recognise the trauma of the victim and the reasons for delay;
- take account of the misleading nature of service records;
not affect any pension paid for by the DVA;
- take account of income foregone; and
- not worry about any income that the victim has made in the
Ms Jacomb calculated a fair figure for compensation to victims of abuse
in Defence would be 'at a bare minimum' around $3.7 million.
In her supplementary submission, Ms Jacomb was highly critical of the $50,000
cap on reparations through the Defence Abuse Response Taskforce process.
While based in the Attorney-General's Department, the estimated $37.1 million
cost of the Taskforce over two years will be met from within the existing
resources of the Department of Defence.
Mr Peter Goon questioned the approach taken by the Minister in drawing the cost
of the Taskforce and the Reparation Scheme from the Defence budget:
Paying the costs out of the Defence Budget, as proposed by
the Defence Minister, is a triple jeopardy and detriment on the people of Australia.
Firstly, there are all the costs associated with the
perpetration and perpetuation of the abuses, in the first place, combined with
the costs of the moribund and dysfunctional way the resulting complaints were mishandled.
Secondly, there will be the costs associated with the DART's and Department of
Attorney General activities and all that will entail. Finally, if these costs
are to come out of the Defence Budget, only, then there is the commensurate
reduction in the Defence Department funding for ensuring and assuring the
defence and security of our sovereign nation and its people.
Shine Lawyers provided the committee with general commentary on an appropriate
compensation framework for victims of abuse. It highlighted that traditional compensation
structures are generally not appropriate for victims of sexual abuse and
focused on the need for flexible compensation structures and frameworks. For
example, it noted:
In compensation claims for physiological injuries, assessment
is a reasonably standard process whether it be via a statutory framework or a
common law framework. In the case of sexual abuse claims, we would suggest that
the same standardization simply does not exist given the nature of the claims.
It has been our experience that in the area of assessment, flexibility and
agility is indeed the most significant criteria required in a compensation
framework of this type.
Shine Lawyers made a number of recommendations for the characteristics
of an appropriate compensation framework. These included:
- independent representation of claimants;
- a simple lodgement process;
- a process for parties to agree to a single medical expert; and
- settlement of compensation through a negotiated process.
Shine Lawyers noted that 'existing statutory frameworks included in the Military
Rehabilitation and Compensation Act 2004, are limited in their scope to
allow for a flexible model' of compensation:
Alternatives available to government would be amendment of
existing legislation to provide appropriate statutory power to develop such
structures, or alternatively to call on ministerial powers to effect ex gratia
payments to claimants with appropriate processing models to be determined
A capped reparation scheme
At the public hearing, Mr Stephen Roche for Shine Lawyers expanded on a
number of the above arguments noting that victims of abuse have been 'unrepresented'.
He considered that 'no input from any victim in relation to this as a
stakeholder has been sought'.
He highlighted that, while the DLA Piper Review report had recommended 'a
capped compensation scheme' which was agreed as part of the government's
response, the Taskforce was implementing a reparation scheme and '[r]eparation
payments are not intended as compensation per se'.
He also opposed a capped scheme 'because of the specific nature and
features of these types of claims': Mr Roche did not consider the compensation
for victims of abuse in Defence should be open ended but 'it should be
adequate'. He argued that the 'scheme proposed will be inadequate for the upper
end of those more serious cases'.
In my experience, these types of schemes result in a much
lower payment of around $5,000 to $10,000. What you will have is DLA Piper
having been paid more money to produce to the report than you will pay out to
The Chair of the Taskforce, the Hon Len Roberts-Smith QC also commented
on the Reparation Scheme:
These are reparation payments; they are not intended to be
compensation. Quite clearly, we would have to accept the proposition that, for
example, somebody whose allegation involved, perhaps, being pack raped on more
than one occasion and suffering all of the consequences that one would expect
from that, would, in some other legal environment, be looking a significantly
greater sum by way of damages than the maximum of $50,000.
Time limitation issues
Mr Roche listed time limitations as a potential obstacle for victims of
abuse pursuing common law claims for compensation. He was unaware of any
communication from Defence which indicated that the limitation period on claims
would be waived. He noted:
The problem with a victims of crime type capped scheme that
purports to leave open other options is that it does not bring finality to the
victims. It is an attempt to get a quick result for perhaps the department but
not the victims. To say that the victim can then go and exercise their legal
rights elsewhere is, with respect, trite.
In a response to a question on notice the Department of Defence noted it
was bound to comply with Legal Services Directions 2005 in relation to time
limitation periods. Under these rules 'Defence would be required to plead a
defence based on the expiry of an applicable limitation period unless
exceptional circumstances existed and the Attorney-General consented'. These
exceptional circumstances 'would include where Defence has through its own
conduct contributed to the delay in the claimant bringing the claim'.
Similarly, consent from the Attorney-General, where there was a claim for an
extension to the limitation period, would normally only be given in exceptional
circumstances which would justify not pleading a limitation defence or where it
was expected that the application would succeed.
The Reparation Scheme Guidelines provides that legal or any other costs
will not be paid under the Scheme 'in respect of any costs associated with
preparing, or pursuing, an Application for Reparation Payment, under the
Guidelines, nor in relation to the making of a complaint in relation to the
handling of an Application for Reparation Payment under the Guidelines'.
The importance of independent legal representation of claimants was highlighted
by Mr Roche at the public hearing:
You cannot have a situation where the victim has to go to the
boss's lawyer. DLA [Piper] are conflicted. They act for the Department of
Defence; they do not act for victims. This is an emerging issue. Forms have
been filled in and information has been collected, but no independent advice about
what their rights are, what their options are, have been provided. Neither, as
I understand it, have they ever been warned or advised to get their own
Compensation for abuse in Defence
The limited options for compensation for abuse in Defence (outside of
the Taskforce process) were also highlighted in submissions. DVA outlined that
all claims for compensation relating to service in the ADF will be assessed
under one of a number of different statutory compensation schemes, 'depending
on the time and/or the type of the service, with different liability tests
applying'. It noted that '[t]hese statutory compensation schemes will not provide
equal access and outcomes for victims of alleged abuse'.
The long period of time over which allegations have been made
means that claims lodged with DVA will be subject to the [Veterans'
Entitlement Act 1986, the Safety Rehabilitation and Compensation Act
1988 or the Military Rehabilitation and Compensation Act 2004].
Different tests for liability and assessment apply, but each Act requires that
there is sufficient evidence that a particular incident occurred and that the
incident resulted in a diagnosed condition. The passing of time means that this
evidence may not be available and claims may be unsuccessful. Further, claims
will result in different compensation outcomes, even in claims where there are
similar medical conditions.
The Inspector-General ADF also pointed out that the only 'in-house'
avenues for victim compensation presently available to ADF members are through
the Compensation for Detriment caused by Defective Administration (CDDA) scheme
and mechanisms for ex gratia payments under the Chief Executive Instructions.
He considered these schemes were not appropriate for compensating an ADF member
in relation to sexual or other abuse in Defence, as the CDDA scheme in
particular relies on administrative error as a prerequisite for the scheme to
The Inspector-General ADF noted that the establishment of a new
compensation avenue, specific to the military environment had been recommended
by a review of the military justice reforms in 2009.
He supported the establishment of 'a purpose-designed compensation scheme for
the ADF which clearly sets out the circumstances in which it would have
application'. He suggested the financial compensation arrangement announced as
part of the government's response to the DLA Piper Review report 'could be
adapted for ongoing use'.
LtCol Paul Morgan argued that it was essential that 'the system for
support rehabilitation, treatment and compensation for victims in Defence be
reconsidered'. He stated:
Victims cannot be seen to seek any kind of compensation for
career detriment or career problems caused by their abuse, because to do so [would]
lead to derogatory characterisations of their motives. Compensation planning
need[s] to be actively managed by an agency external to Defence.
Moreover, government often only changes when it is force[d]
to recognise the monetary cost of its actions. It is clear that were an
independent agency to actively manage the costs of abuse, and were these costs
to be public and affect Defence, that stopping abuse would be a higher priority
for ADF commanders. Where the career and health costs are borne by victims of Defence
abuse, little intrinsic motivation has been shown by ADF commanders.
The Alliance of Defence Service Organisation (ADSO) highlighted the
difficulties for victims of abuse in Defence could have in making a claim for
compensation under the Military Compensation and Rehabilitation Act 2004.
In order to achieve any rehabilitation, support or treatment
or compensation for sexual abuse whilst serving, the claimant will need to
firstly, make a claim. After the claim is made, a reasonably lengthy investigation
of the claim will take place involving administrative, medical, psychological
and other examinations together with the compilation of all the 'evidence' to
support a claim.
This process can take several months and may take a very long
time depending on where the claim is assessed. In some cases the assessor in
the Department of Veterans’ Affairs, responsible for its progress, may simply
be slow or the quantity of claims being dealt with at any given time may slow
down determination of a particular claim. No rehabilitation or compensation
will be provided unless the claim is accepted.
The ADSO considered that a parallel system should be established within
DVA to deal exclusively and specifically with sexual abuse claim cases due to
the personal nature of claims and the need to reduce stress on victims. In view
of ADSO, the specialised unit created by DVA to process claims from the DLA
Piper Review should be established as a specialised area to 'to enable it to
respond to any sexually related claim for compensation, rehabilitation or
treatment in an expeditious manner'. It strongly recommended that DVA be solely
responsible for administering claims received in respect of Defence personnel.
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