A number of other matters were raised during the inquiry that, while not
specifically mentioned in the terms of reference, were considered by the committee.
- the delay in the government's response and communication with
- the definition of 'abuse' and 'out-of-scope' claims;
- allegations of conflicts of interest and/or perceptions of bias;
the access to Volume 2 of the DLA Piper Review report by Defence;
- the response to systemic issues in the DLA Piper Review report.
Delay in government response and communication with victims of abuse
Several submitters highlighted the personal consequences of the abuse
which they had suffered during their time in the ADF. Reflecting the findings
of the DLA Piper Review report, these consequences included difficulties
with ongoing employment, substance abuse, mental illness and, in some
instances, suicidal ideation or suicide attempts. Several victims of abuse in
Defence indicated that the abuse that had been inflicted on them in the past
continued to affect them.
A number of submissions expressed their frustration with the delay in
the government's response to the DLA Piper Review report. These submissions
were received by the committee prior to the Minister's announcement of the
government's response on 26 November 2012. For example, Mr Paul Hazel
More than a year ago, I submitted my story to DLA Piper.
Since then there has been a distinct lack of communication from the government
and the Department of Defence. Initially, I did not even know and was not
informed that I should put forth a claim for compensation through the
Department of Veterans' Affairs.
In particular, Ms Angela Ballard highlighted the potential impact of
long delays in the government response on victims of abuse:
Those 847 individuals have submitted a grievance or raised
their concerns and are waiting on a decision from government how they will
proceed. I am concerned at what support they have or have not been provided with
since coming forward and reporting their issue to the DLA Piper team. I am
concerned that old wounds have been opened and concerned if they have not been
addressed what additional grief some of these complainants have subsequently
endured. Likewise, I imagine the ADF and those in Command, are ready to respond
or act as directed by the government of the day in putting closure on this
issue for all involved and moving forward with cultural change.
Dr Gary Rumble was also concerned that the government's lack of action
and decision making in relation to reported incidents of abuse may have:
- distressed individuals who were hoping for some response to their
- worn down the willingness of those who told their stories to the
Review in Phase 1 to continue to be involved in Phase 2;
- discouraged others who were watching to see whether there would
be any effective action from coming forward to Phase 2; and
- encouraged perpetrators and potential witnesses to think that
they can wait out the current attention on abuse.
The definition of 'abuse' and 'out of scope' claims
The DLA Piper Review Volume 1 report noted that the Review had taken a
'practical rather than legalistic approach' to developing a working definition
of abuse drawing on Defence's current definitions and categories of
However, the report indicated that not all 'unacceptable behaviour' constituted
'abuse'. For example, the report outlined that while discrimination would be
considered 'unacceptable behaviour', it would not, by itself, be considered
'abuse' falling within the scope of the Review. The Review report stated:
In making its assessment of what is in or is not in scope,
the Review has taken a conservative approach and has kept some marginal matters
within the initial assessment and recommendation processes. Some workplace
personality conflicts are in this marginal category.
Some submissions received by the committee argued the definition of
'abuse' used by the DLA Piper Review should be extended more broadly to include
other forms of unacceptable behaviour. For example, Mr Chris Mills sought to
raise the issue of 'blacklisting' of companies by Defence.
Similarly, Dr Ben Wadham argued that the DLA Piper Review had not
achieved a genuine picture of 'defence abuse':
There is far more to this matter that is evident through an
investigation into sexual and physical abuse. There is a foundational element to
military culture that runs through these kinds of practice to many other forms of
Others expressed their concerns that the unacceptable behaviour that
they claimed to have suffered had been determined by the DLA Piper Review to be
For example, Mr Peter Goon argued:
[D]espite the sensationalism-driven attraction of the Media
and others to focus on sexual abuses which, not surprisingly and no doubt
intentionally on the part of some, distracts from and diminishes the importance
of 'the other abuses', there is a need to maintain a searing focus and
ever present vigilance on 'the other abuses' for a very simple but
extremely important reason.
The perpetration of abuses through the misuse and abuse of
power, authority and trust as well as their perpetuation through the same means,
along with the abuses of 'denial of a fair go' and 'ignoring the message
and shooting the messenger' are the engines that drive inappropriate
behaviours in Defence, particularly at the senior levels in the Canberra based elements.
The Supplement to Volume 1 noted that 190 people who raised matters with
the Review raised allegations that were determined to be entirely 'out of
These were dealt with by a process which 'involved the Review reporting to
Defence Legal (representing the Minister) any matter which the Review assessed
to be out of scope so that the Minister could consider what if any further
action should be taken'.
Where Defence Legal did not agree with the Review's assessment, communications
were returned to the Review for consideration.
Conflicts of interest and/or perceptions of bias
Concerns regarding the appointment of Review leaders were raised in
submissions. For example, Dr Ben Wadham claimed that 'given the DLA Piper
(previously DLA Phillips Fox) has legally represented the [Department of
Defence] in the past in this domain, some victims felt they were reporting to
the institution of complaint'. He argued that some claims regarding abuse were
not submitted to the Review because of this relationship.
Similarly, Dr Carlo Kopp raised his concerns regarding the involvement of
Defence Legal in the terms of reference for the DLA Piper Review. He stated:
The Defence legal organisation has frequently been a party to
these manifold problems, tying up cases of abuse in litigation, arbitration or
ineffective negotiation intended to delay resolution. The involvement of this
entity in the process was clearly a conflict of interest and should never have
The DLA Piper Review Volume 1 report included a disclaimer relevant to
The opinions expressed in the 'Report of the Review of
allegations of sexual and other abuse in Defence' (Report) are solely those of
Dr Gary A Rumble, Ms Melanie McKean and Professor Dennis Pearce AO. The
opinions expressed in the Report do not necessarily represent the views of
other contractors to the Review, nor of DLA Piper Australia.
In his submission, Dr Gary Rumble noted that the DLA Piper Review had
released a statement when doubts were expressed regarding the independence of
the Review. The statement noted that the 'Minister expects the Review to
provide our own honest assessment and recommendations, regardless of whether or
not doing so may involve criticism of aspects of Defence's response to
allegations'. It also asserted that the members of the Review 'would not be participating
in the Review if [they] thought it was a sham'.
Further, Dr Rumble stated that, while the Review could not claim, and had not
claimed, complete independence from Defence, his belief was that the Review
members did 'bring the rigour which the Minister asked for to the Review
process and to the Report'.
A perception of bias issue was also raised in relation to the
appointment of the Hon Len Roberts-Smith QC to head the Defence Abuse Response
Taskforce. Ms Jennifer Jacomb commented:
He is one of the club, a club that has unbroken record of
failing to deal with Sexual and other abuse in the Defence Force...He should step
aside. Also given that his son was awarded a Victoria Cross, a reasonable lay
bystander might conclude that he would take an unsympathetic view of the
Access to Volume 2 of the DLA Piper Review report and response to
As noted in Chapter 2, Volume 2 of the DLA Piper Review report contained
the individual allegations received by the Review, and included the recommendations
for dealing with each allegation. Dr Rumble noted that Volume 2 consisted of 23
Parts—large ring binder folders—containing the Review's initial assessments and
recommendations on around 1100 specific allegations from 775 sources. It also
included three Parts reporting on Fairness and Resolution Branch database
matters and one Part dealing with ADFIS matters.
Volume 2 was delivered to the Minister for Defence on 17 April 2012. At
the public hearing on 14 March 2013, the Defence Abuse Response Taskforce
tabled correspondence from DLA Piper to the Taskforce indicating that all the
folders comprising Volume 2 had been received by the Taskforce on 27 February
Dr Rumble noted that the terms of reference of the DLA Piper Review 'did
not expressly state which part or parts of "Defence" the Review was
to report or make recommendation to'. The Review sought clarification on this
By email of 15 July 2011 the Minister's office informed the
Review that – as well as reporting to the Minister - we were reporting to the
Secretary of the Department but we were not reporting to the CDF.
The fact that we were preparing our Report and
recommendations for the Secretary as well as for the Minister was an important
consideration in the processes which we developed for the Review including the
processes we developed for ascertaining the extent to which people making
statements to the Review consented to disclosure to Defence.
Dr Rumble indicated that he held several concerns regarding how Volume 2
of the Review had been distributed, and the subsequent response to the initial
assessments and recommendations made by the Review regarding individual
allegations. In particular, he noted that:
We had made arrangements with the DLA Piper team working with
us on the Review to provide a Working Version of Volume 2 – with appropriate
redactions settled by us the Review leaders – to go to the Secretary of the
Department of Defence as soon as we got clearance from the Minister to provide
that Working Version. The Minister has not given that clearance.
Dr Rumble raised his concerns with the Minister of Defence and received
a written response on 8 March 2013. In relation to the decision not to provide
a copy of Volume 2 to the Secretary of Defence, the Minister stated:
It was the Government's strong view that an independent
process was the most appropriate way forward for responding to individual
allegations of abuse in Defence.
It would not have been appropriate for the Secretary, the
Chief of the Defence Force and the Service Chiefs to be provided with details
of allegations of abuse in Defence.
At the public hearing, Dr Rumble told the committee he was 'astonished
that the government considers it is not appropriate for the Secretary, the Chief
of the Defence Force and the Service Chiefs to be provided with details of
allegations of abuse in Defence'.
Response to systemic issues in the DLA Piper Review
Dr Rumble also highlighted his concern that, following the government's response
to the DLA Piper Review report, it was unclear who 'would be considering and
reporting' to government on almost all of the systemic issues identified in the
Volume 1 and the Supplement to Volume 1 reports. Dr Rumble sought clarification
from the Minister regarding this matter. The Minister responded:
Noting your concerns that systemic issues are important for
responding to cases of past abuse, I have as well asked that the Taskforce
Chair, the Hon Len Roberts-Smith QC, consult with the Secretary of the
Department of Defence and the Chief of the Defence Force on options for responding
to those systemic issues.
Dr Rumble commented:
There is some risk with so many processes going on in parallel
that some issues will 'fall through the cracks' and not be considered because
the entities involved in carrying out consideration of some issues will assume
that some particular issues are being considered by other entities and/or do
not fall within their area of responsibility.
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