Additional comments by Senator Nick Xenophon
For the thousands of current and former serving members in the
Australian Defence Force (ADF) who alleged they have been sexually, physically
or mentally abused, the announcement by Defence Minister the Hon Stephen Smith
MP to establish the DLA Piper Review of Allegations of Sexual and Other Forms
of Abuse ('the DLA Piper Review') was long overdue. The subsequent
establishment of the Defence Abuse Response Taskforce ('the Taskforce') was a
further welcome development, however as noted by the committee, there are
several issues regarding how the DLA Piper Review was conducted, as well as
issues with the operation of the Taskforce which need to be resolved in order
for the needs of victims to be appropriately addressed.
The DLA Piper Review
1.2 The DLA Piper Review was an opportunity for
victims to report abuse and, as many thought, finally obtain some form of
justice for what they endured. Sadly this was not the case for some ADF members
who courageously spoke up, often for the first time.
1.3 One such victim is Neil Batten. Neil was a 15 year
old junior recruit at the HMAS Leeuwin training base in Western Australia in
1971 where he was violently and repeatedly raped. Neil made a submission to the
DLA Piper Review but was never contacted afterwards. As it remains unclear why
Mr Batten was not contacted I will be seeking an explanation from the DLA Piper
Review team. I am concerned the absence of follow-up in Mr Batten's case may
not be an isolated incident. However, of further concern are the number of
current and former ADF members who have not made a submission to the DLA Piper
Review or the Taskforce and are still dealing with the aftermath of the abuse
suffered on their own.
Appointment of DLA Piper – conflict
of interest concerns
1.4 DLA Piper and its predecessor Phillips Fox have
long been a preferred supplier of legal services to the ADF. It has been
reported in the 2010-11 financial year that DLA Piper received in the vicinity
of $20 million in fees from the ADF. Furthermore, DLA Piper is a member of all
15 legal panels relied on by the ADF. DLA Piper also regularly acts for the ADF
in compensation claims where the ADF seeks to challenge applicants making
claims for compensation.
1.5 Dr Ben Wadham explained the impact the perception
of a conflict of interest could have on complainants:
Given the DLA Piper (previously DLA Phillips Fox) has legally
represented the DoD in the past in this domain, some victims felt they were
reporting to the institution of complaint. I argue that claims were not
submitted because of that relationship.
1.6 It is therefore understandable that many current
and former serving member of the ADF hold serious concerns about the
appropriateness of utilising DLA Piper as the firm to advance the rights of
victims. I note the committee did not accept that the appointment of DLA Piper
to conduct the DLA Piper Review presented a conflict of interest in these
circumstances. While I still hold concerns regarding this matter I am pleased
the committee has recognised that potential claimants may have been reluctant
to come forward due to a perception of bias. I therefore share the committee's
view that it would be helpful for the Taskforce to highlight its independent
character and its arms-length relationship with Defence in its communications
with claimants and stakeholders.
Defence's apology to victims
1.7 I share the committee's view that the formal
apology to victims of abuse in Defence by the Minister and the Chief of the
Defence Force went some way to providing a sense of closure for victims. It is
disappointing however that no notice was given to the victims that the apology
was forthcoming, resulting in victims not being present for the apology. Many
victims felt insulted by that. I only hope the same mistake is not made again
in the future.
Access to Volume 2 of the DLA Piper
1.8 The committee considered the differing opinions as
to the way in which Volume 2 of the DLA Piper Review to be a 'vexed' issue. It
is obvious the Taskforce needed Volume 2 of the Review in order to carry out
its functions, therefore the delay on the part of the Minister in providing the
Taskforce with these documents is a matter for serious concern. This delay has
resulted in victims waiting longer for their claims to be assessed and left the
door open for further abuses to occur where the alleged offender has been
allowed to continue serving.
1.9 The Secretary of the Department of Defence was of
the view that the Minister made the right decision in withholding Volume 2 from
the Department due to the potential for duplication of work that could occur if
the Department and the Taskforce were both required to investigate claims.
1.10 However, the following interchange I had with the
Chief of the Defence Force, General David Hurley, at the committee's public
hearing revealed that he did not necessarily agree with this position:
Senator XENOPHON:...What I am trying to nail down is
that the DLA Piper review a process in itself. It was an extensive process; it
cost $10 million or thereabouts. Should that in itself, should the DLA Piper
review, if it contains information of allegations about current members of the
Defence Force – is that something you ought to be cognisant of as a matter of
Gen. Hurley: I would like to know if there are
currently serving members who have serious allegations being made against them
that need to be dealt with.
1.11 Dr Gary Rumble, one of the heads of the DLA Piper
Review expressed his concerns in relation to Volume 2 not being shared with the
Secretary of Defence of the Chief of the Defence Force in no uncertain terms:
Obviously, that represents a very significant shift away from
our terms of reference, which required us to report to and make recommendations
to the secretary as well as to the minister. I am, frankly, astonished that the
government considers that it is not appropriate for the secretary, the CDF and
the service chief to be provided with details of allegations of abuse in
1.12 Dr Rumble continued:
Further, people came to the review because they wanted action
and/or because they wanted their stories heard. Most of them consented to
disclosure to Defence so that there could be action and so their stories could
be heard. Further, even where there was no consent to disclosure, or limited
consent to disclosure, there were still aspects of the redacted report which we
recommend be drawn to the attention of service chiefs in some instances. The
fact that the working version of volume 2 did not go the secretary has
prevented the secretary, the CDF and the service chiefs from being informed
about situations needed response and about the individual matters underpinning
the findings, issues, option and recommendations in volume 1.
1.13 Dr Rumble also explained the effect of the delay on
victims, witnesses and perpetrators:
Furthermore, I am deeply concerned that the government's lack
of action and decision last year may have distressed these individuals who were
hoping for some response to their issues, worn down the willingness of those
who told their stories to the review in phase 1 to hang on and participate
further in phase 2, discouraged others who were watching to see whether there
would be any effective action from now coming forward and possibly encouraged
perpetrators and (potential) witnesses to think that they can just wait out the
current attention on abuse issues. So, I would see value, even now, in letting
the working version of volume 2 go to the secretary.
1.14 While the contents of Volume 2 are now being
examined by the Taskforce, unfortunately the impact of the confusion and the
delay in disseminating this material cannot be undone. It is vital that lines
of communication between the Federal Government and the Taskforce are improved
in order for any deeper systemic issues identified as part of the Taskforce's
work to be acted on quickly and effectively. This is particularly so given Dr
Rumble's warning that there is potential for some of these issues to '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'.
In the interests of transparency, Volume 2 of the DLA Piper
Review be released publicly with the appropriate redactions at this stage to
avoid compromising any likely future action.
The Defence Abuse Response Taskforce
1.15 Victims of abuse can often be vulnerable and deserve
to know that when they make a complaint, this complaint is being investigated
and taken seriously. I acknowledge the Taskforce is handling approximately 2410
complaints and that with such a high number of cases there will be challenges
in terms of communicating effectively. However I support the committee's
suggestion that the Taskforce could take steps to refine and enhance its
communication with complainants, especially by providing updates as to the
status of their claims.
The Repatriation Scheme
1.16 The Taskforce has been clear that payments made
through their process are to be characterised as repatriation payments rather
Repatriation 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
1.17 Some submitters were concerned by the payment cap
being set at $50,000. For example, Ms Jennifer Jacomb compared this amount with
compensation that has been awarded to prisoners in Victorian jails for injuries
they suffered while incarcerated. Ms Jacomb noted that some of these prisoners
received in excess of $100,000.
It is understandable that victims of abuse feel aggrieved by the payment cap,
particularly when comparisons such as the one above are made.
1.18 Shine Lawyers also expressed to the committee their
Given the sensitivities of abuse claims, we strongly
recommend a process that allows negotiated rather than arbitrary decisions to
bring about the conclusion of claims.
1.19 It is therefore vital that the Taskforce is clear as
to how they have determined the amount of compensation payable in each instance
so that victims are not left with any doubt as to how their particular payment
amount was arrived at.
Previously settled matters
1.20 I share the committee's view that the Repatriation
Scheme should be considered an entirely separate process from any other
mechanism in Defence through which compensation can be obtained. The Taskforce
has stated they will ask the 'Commonwealth to grant a limited waiver of confidentiality
obligations and/or deeds of release and indemnity to complainants who wish to
report allegations about abuse to the Taskforce'.
The Commonwealth should confirm as a matter of urgency that they will provide
such a waiver in order to give complainants confidence their matters can be
investigated by the Taskforce.
Lack of legal advice to claimants
1.21 Victims and advocates were dismayed to learn that
claimants would not be entitled to legal advice to assist them prepare their
claims for the Taskforce. This is particularly concerning given the legal
resources available to Defence. Mr Roche, Executive Director of Shine Lawyers
told the committee:
Victims are significant stakeholders in this, and they are
the only stakeholders who have been unrepresented.
1.22 Mr Roche further explained the importance that
victims received legal advice:
First and foremost, victims must be given access to their own
independent legal advice. You cannot have a situation where the victim has to
go to the boss's lawyer. DLA 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 independent advice.
1.23 As the cut-off date for receiving complaints has
been passed it is too late for complainants to seek legal advice in relation to
claims they have already submitted. I am deeply concerned by this absence of
legal advice. For many victims the Taskforce process may be the only viable way
for them to seek redress for the abuse they endured, particularly if it
occurred decades ago. There will inevitably be difficulties for such claimants
making out the required evidentiary standard of proof in order to bring a claim
through Defence's other compensation mechanisms.
'Out of scope' claims
1.24 I note that some submitters considered the scope of
the terms of reference for the DLA Piper Review and for the Taskforce to be too
narrow and as a result, did not take into account other unacceptable behaviour.
For example, Mr Peter Goon told the committee that the focus on sexual abuses 'distracts
from and diminishes the importance of "the other abuses"... 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...'.
1.25 Despite the prevailing view these 'other abuses'
fall outside the terms of reference for the DLA Piper Review and the Taskforce,
consideration should be given to establishing a similar process through which
victims of other abuses can have their claims investigated, assessed and
addressed. Such a process would address the serious claims that there are 'engines
that drive inappropriate behaviours in Defence'.
1.26 Unfortunately there is a long history of abuse in
the Australian Defence Force, with some cases occurring over 50 years ago.
Recent reports in the media that inappropriate material was disseminated by
members of Defence using Defence communication systems demonstrates how despite
numerous reviews, findings and reforms, a culture still exists today whereby
inappropriate behaviour continues to occur.
1.27 The Taskforce presents an opportunity for those who
suffered abuse prior to 11 April 2011 to achieve some form of closure
for what has occurred. However, consideration should be given to establishing a
permanent mechanism with similar functions and powers as the Taskforce so that
those who have suffered abuse after 11 April 2011 are provided with
the same opportunity for closure. I fully support the committee's
recommendation in that respect.
1.28 In closing I wish to acknowledge the tireless work
and dedication of Mr Barry Heffernan, Welfare Coordinator for the South
Australian branch of the Vietnam Veterans' Association. It was through Mr
Heffernan's selfless work and the cases that he bought to me that I was
prompted to move for this inquiry. For that, I and many victims of abuse are
1.29 Mr Heffernan has spent the past two years speaking
with victims of abuse, often taking the time to visit them face to face because
he recognises conversations over the phone or via letters is not enough. Mr
Heffernan has performed these duties on an entirely voluntary basis, funding
his trips himself. He should be applauded for his selfless and invaluable work.
for South Australia
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