This chapter will consider some of the other key issues raised during
the inquiry. These issues included:
access to veterans' entitlements and support services;
the release of Volume 2 of the DLA Piper report;
the need for a Royal Commission; and
the Commonwealth's model litigant obligations.
Access to veterans' entitlements and support services
The access of victims of abuse to veterans' entitlements and support
services was a particular area of concern raised during the inquiry. DVA is
required to apply specific legislative requirements and a standard of proof to
claims. Benefits are usually only accessible where a diagnosed medical
condition can be linked to a service-related incident. Mr Shane Carmody from
DVA is required by legislation to provide compensation for
diagnosed injuries or illnesses that were caused by an event linked to service
in the ADF. Under our legislation—the Veterans' Entitlements Act [VEA]; the
Safety, Rehabilitation and Compensation Act [SRCA]; and the Military
Rehabilitation and Compensation Act [MRCA]—before determining whether an injury
or illness is related to service a delegate is required to satisfy themselves
that the facts of the case are true, including whether the alleged abuse
occurred. Under the SRCA this is done in accordance with 'reasonable
satisfaction', known as the 'balance of probabilities' standard of proof. Under
the VEA and the MRCA—the other two acts—this is done in accordance with the
'balance of probabilities' standard of proof for peace-time service, or the
'reasonable hypothesis' standard of proof for warlike, non-warlike or
These tests must be applied in establishing that an event
occurred, that a medical condition exists and that the condition was caused by
service in the ADF.
Between 1 January 2011 and 31 July 2014, DVA completed 259 claims which
wholly or partly related to sexual or physical abuse. These completed claims
involved 522 separate conditions. Around half of these claimed conditions (222)
were refused. DVA noted:
Conditions have been refused for a number of reasons,
- the assault occurred whilst the member was not on duty, or not undertaking
required ADF duties, i.e. the circumstances of the incident did not support a
link to service, as required under the relevant legislation;
- there was no diagnosis to support the claimed condition;
- for Veterans' Entitlements Act 1986 (VEA) / Military Rehabilitation and
Compensation Act 2004 (MRCA) claims only – the condition did not meet one or
more factors in the Statement of Principles (SoPs) for that condition. The SoPs
are legislative instruments that set out the factors which can connect particular
injuries, diseases or death with a person's Australian Defence Force service.
DVA also outlined that where 'a claim cannot be accepted on the
available evidence, the client is provided with the following options':
to have the claim rejected so that it can be taken to the review
to take the opportunity to submit more evidence to support the
if the client has a claim with the DART, to seek additional
information held by the DART that may support the DVA claim.
DVA noted that, in August 2012, it established a dedicated team in
Melbourne to receive and manage all new claims relating to sexual and other
forms of abuse following the release of DLA Piper Review report. This included
the engagement of a social worker to provide assistance to DVA clients who can,
'when agreed to by the client, act as the single point of contact'.
Concerns regarding DVA assessments
Concerns were raised regarding the treatment by DVA of victims of abuse
in Defence who often had limited documentation or evidence to support their
claims. For example, the Association of Victims of Abuse in the ADF highlighted
the hurdles that victims of abuse in Defence can have in proving to DVA that
abuse occurred. These hurdles included:
victims discharging at own motion due to abuse;
having inaccurate medical and military service records; and
having insufficient periods of service to qualify for benefits.
Due to the many challenges involved in proving that abuse in Defence
occurred, the Association of Victims of Abuse in the ADF recommended that 'the
various Acts under which the Department Of Veterans Affairs operates under have
the threshold test for Victim Claims...reduced to that of “Plausibility”'. It
also recommended the three year service requirement not be applied to victims
of abuse in Defence.
Similarly, Mr Barry Heffernan considered that DVA assessments in cases
such as HMAS Leeuwin 'should work on a plausible basis the same as the DART'.
[W]hen the minister announced the setting up of the DART
initially, it should have been better thought through. The DVA should have been
more a hand-in-hand thing from week one, day one. For people now...talking to
DVA, and having them say: 'Well, there is no documentation'. When you think of
the situations that these victims have been in—being assaulted and all that—the
last thing they are thinking of doing, at 15 years old and fearing for their
lives at, say, HMAS Leeuwin, is writing a report. They feared for their safety,
so they would not have reported it higher up. Then, through no fault of their
own, they are told: 'Sorry, there is no documentation. We can't do anything
Dr Rumble noted that many of the DART complainants 'could well be
entitled to DVA benefits and assistance which they are not receiving'.
He considered that DVA seemed to be 'profoundly, deeply and entrenchedly
unaware... [of] the line of Defence reports that say there is a culture which
On the DVA checklist, there is 'Did the person report promptly?'.
If they say no, that is strike 1. That goes to credibility. They must have it
explained to them—and it is in Defence reports and plenty of other places—that
if you are a 13-, 14-, 15or 18-year-old leaving Defence because you have been
abused, you are not going to report. You are leaving to get out. You are not
going to report at the doorstep so they keep you there while they run a
One of his recommendations was that DVA be asked to commence
consultation with veterans' representative organisations:
- on what legal and practical barriers there are to victims
of abuse in the ADF succeeding in establishing the facts necessary to make out
entitlements to DVA benefits;
- what Defence and DVA could do and what resources they will
require to gather and share information which could assist such individuals to
establish those facts to the satisfaction of DVA and tribunal decision-makers;
- on what can be done in liaison with Veterans' groups, other
Government agencies and community groups and what resources will be required to
reach out to individuals affected by abuse who may be eligible for DVA benefits
– including individuals who have previously applied and been rejected.
The Defence Abuse Support Association believed that victims who had been
found to have suffered the worst forms of abuse by the Taskforce 'should have
their applications to the DVA streamlined to avoid putting them through the
trauma of reliving their abuse again'. It stated:
DVA needs to look at how it can provide short and long term
support to victims of abuse in the ADF as required, both past and present. It
is a long and very difficult process victims of abuse that have come forward to
the DART have gone through, causing enormous mental anguish and anxiety. Many
victims also suffer from [post-traumatic stress disorder] as a direct result of
the abuse they suffered in the ADF.
The DVA commented on this issue:
It is important to be clear that a decision by the DART
regarding a person's entitlement to a Reparation Payment will not lead to
automatic acceptance of a compensation claim by DVA. The assessment of claims
for Reparation Payments is separate from any assessment of claims for compensation
payable by DVA and different standards of proof are used in these assessments
by the DART and DVA.
DVA also noted:
Compensation claim decisions are not affected by the reason
for discharge. All claims are investigated and determined on their merits.
However, DVA is notified of all medical discharges and engages with members to
ensure that, where possible, such members have a continuation of care when
transitioning out of the ADF. 
DVA reiterated that eligibility for compensation requires a diagnosed
medical condition to be linked to a service-related incident. Under
DVA-administered legislation delegates must be satisfied on the 'balance of
probabilities' that the facts of the case are true and supported by sufficient
evidence before determining whether an injury, illness or death is related to
service. This was a higher evidentiary standard than 'plausibility' used by the
Taskforce. DVA acknowledged that these differences in the assessment of claims
by DVA and DART are not well understood by claimants:
[T]his is being addressed by both agencies through several channels,
including the provision of factsheets to all DART applicants, discussions
between DART case co-ordinators and Reparation Payment applicants and
discussions between DVA staff and compensation claimants.
In February 2014, DVA obtained agreement from the Chair of
the DART...that all DART applicants will be provided with an explanatory
factsheet outlining the key differences between claims which are assessed by
DVA and the DART. This factsheet was developed jointly by both agencies.
Information sharing and clusters of
Dr Rumble also noted that Defence has been gathering and centralising
records through Plan Millennium which included closed cases involving sexual
assault. He considered if these reports were de-identified it would assist
decision makers assess people for DVA benefits.
Dr Rumble criticised inaction by DVA in examining what would be required 'to
analyse its own material for clusters and patterns of abuse'.
DVA outlined that it had been in ongoing consultation with the Taskforce
since the Reparation Payment Scheme was established. In 2013, DVA and the
Taskforce formalised a Memorandum of Understanding (MoU) to allow the
reciprocal sharing of personal information with the consent of the claimant to
assist with the investigation of claims relating to allegations of abuse.
However DVA noted:
Notwithstanding that a formal MoU is now in place, the
information provided to DVA by the DART may be redacted in certain areas to
protect the privacy of some individuals and due to the sensitive nature of the
information collected by the DART. Consequently, DART claimants are given the
option of either providing particularly sensitive information to DVA themselves
or expressly requesting the DART to provide this information directly to DVA.
As at 12 May 2014, DVA has submitted 13 requests for claimant
information to the DART and the DART has made one request for information from
DVA. To date, all requests for the provision of information have been produced
within the agreed timeframes prescribed in the MoU and all are supported by a
consent provided by the individual concerned.
In its submission, the Taskforce also noted that its Compliant Support
Group 'provides each complainant with information on whether a reparation
payment could have implications in relation to any current or potential claim
lodged with the Department of Veterans' Affairs'.
However, the Chair of the Taskforce indicated the privacy legislation 'has been
a big obstacle to quite a lot of the work'.
The Taskforce indicated that it recognised that its work may potentially
be of assistance to DVA in its consideration of applications from claimants for
pensions or other entitlements and could minimise the distress experienced by
claimants endeavouring to substantiate their claims of abuse where they have
To date, the Taskforce has begun to provide DVA with
statistical information outlining the locations with the highest incidents of
abuse, the types of abuse and date ranges during which the abuse occurred. This
information is presented in a manner that ensures it does not identify any
personal information or breach any obligations required by the Privacy Act
1988. This statistical information may assist in streamlining DVA's evidence
gathering process for liability and compensation claims. The Taskforce
acknowledges that it is a matter for DVA whether or not they take account of
this information in their assessment process, noting that its process is separate
to that of the Taskforce and underpinned by different standards of proof.
The Chair also highlighted that the Taskforce's databases of complaints
now allowed them to 'run quite a lot of analytical programs' about particular
types of abuse which the Taskforce has identified 'as coming out of particular
institutions at particular times'.
The Chair also noted that Defence's Plan Millennium project to digitise service
police records has allowed it to identify 'a number of people against whom
multiple allegations of abuse had been made by different people, different
DVA noted that the Military Rehabilitation and Compensation Commission
has formally requested information from the Chair of the DART regarding ADF
bases and locations where clusters of abuse are known to have occurred
(including timeframes and types of abuse), with a view to possibly using this
information as part of the DVA claims assessment process to support abuse
claims. It indicated that the first tranche of the information has been
received and is being analysed.
However, DVA also stated that:
Where claims are attributable to service at ADF
establishments which are not identified as part of the cluster information, or
where the 'cluster' information does not support the contention, the usual DVA
process, which relies upon available medical and other corroborating evidence,
would need to be followed and claims would be considered on a case by case
This includes establishing a connection between the person's
claimed conditions and the acknowledged incident, whether by application of the
Statements of Principles regime (for Military Rehabilitation and Compensation
Act 2004 and VEA cases) or via specialist medical opinion (for claims under the
Safety, Rehabilitation and Compensation Act 1988).
Mr Carmody from DVA also advised:
Some submissions to this inquiry argue that individuals
approaching DVA may not have any evidence to support their claim, the
implication being that the claim would therefore be rejected. It is important
to note that DVA delegates are not bound by formal rules of evidence which
would apply during a hearing conducted by a civil court. Therefore they can
take into account all available evidence regardless of origin. This could
include information used by the DART in its assessment of an alleged abuse
claim. This is why we work closely with DART to obtain as much information as
possible to support the claim, with the consent of the client. This is also why
DART has undertaken to provide DVA with additional data, when available, on
clusters of abuse which may have occurred, say in a particular location or over
a particular period of time.
However, Mr Mark Harrigan also from DVA cautioned that where a claimant
was '[p]urely relying on cluster information in the absence of any other
information...it would be difficult to satisfy the balance of probabilities test
or the reasonable hypothesis tests that exist in legislation'.
In relation to its information sharing procedures, Defence stated that 'DVA
may seek to clarify or confirm details in relation to members' claims for
compensation with Defence and may request further information through a formal
process known as the Single Access Mechanism' which 'provides a single point of
access for the transfer of records between the departments and is managed by
the Defence Community Organisation'. Further, Defence noted that a SeMPRO
client could 'request a copy of their SeMPRO file or can ask that their SeMPRO
file be released to a third party' including DVA.
Non-Liability Health Care
DVA highlighted recent legislative changes in relation to the
Non-Liability Health Care arrangements which would potentially assist victims
of abuse in Defence:
Non-Liability Health Care (NLHC) arrangements are prescribed
in the [Veterans' Entitlements Act] and provide eligible veterans and ADF
members with access to treatment for certain specified conditions, irrespective
of whether or not these conditions are related to service. Treatment that can
be provided under the NLHC arrangements is also independent of any claims which
may be lodged for specific conditions with DVA...
Subject to legislative amendment (that will also remove the 7
April 1994 cut-off date), eligible DART recipients will have access to
treatment for conditions including anxiety, depression, post-traumatic stress
disorder and alcohol and substance use disorders from 1 July 2014, regardless of
whether or not those conditions are deemed to be related to service.
Mr Carmody commented that claimants eligible for non-liability health
care may be able to access treatment and counselling 'virtually immediately':
We also pay for treatment for certain conditions without the
need to establish that they are service related. This is important and it is
called non-liability health care—health care in circumstances where we have not
accepted liability. The conditions which can (from 1 July 2014, when the
legislation was changed) be treated under non-liability health care include
post-traumatic stress disorder, anxiety, depression, and alcohol and substance
However, Mr Carmody also indicated that if a person has less than three
years service, and did not leave on medical grounds, they are unable to access
non-liability health care.
Delays in assessment
Other issues with DVA processes for assessment compensation claims were
also raised during the inquiry. For example, Ms Rachael James from Slater and
Gordon Lawyers outlined the frustration of some of her clients in relation to
the delays in decision-making in relation to military compensation schemes:
Unlike other schemes, such as the seafarer scheme, the
Commonwealth compensation schemes do not have legislative time frames for the
making of decisions. Therefore, there is no recourse available to injured
personnel in the event a decision is not made with respect to their claim
within a timely period or a decision is not made at all. We have long argued
that time frames for decision making should be introduced into the compensation
The information provided by DVA indicated that there may be significant
delays in the processing of claims for compensation. These included for the
last financial year average waiting times of 75 days for claims under the Veterans'
Entitlements Act; 144 days for claims under the Military Rehabilitation and
Compensation Act; and 160 days under the SCRA.
However, Mr Shane Carmody from DVA provided further information on these
[T]he challenge with measuring the claims times that we
mentioned is that the clock starts ticking as soon as we receive a claim. The
claim may not have very much detail in it at all or no detail—no diagnosis. It
might just be the name and address of the person saying, 'I have an injury or
illness.' We have then to send them to a doctor and work out what we are going
to do from there. So the claims process is quite protracted because claims are
not complete when they arrive. Therefore, to even get to that liability stage,
it takes some time.
Suicide by persons who have suffered abuse in Defence but who had not
yet received assistance was also raised during the inquiry. DVA outlined the
practical difficulties in assessing deaths by suicide in the veteran community.
While DVA indicated that it was working with other agencies to improve understanding
of the prevalence of suicide among ex-serving personnel, it acknowledged that 'DVA
is unlikely to ever obtain complete information in relation to the prevalence
of suicide amongst all those who have served with the Australian Defence Force'.
Release of redacted version of Volume 2
A range of views were expressed during the inquiry regarding access to,
and the release of, Volume 2 either redacted or in summary form.
Supporting further release of
The Defence Force Welfare Association considered that 'unless there is
the fullest possible disclosure of all volumes of the report and findings
compiled by DLA-Piper that lead to this Taskforce being created, then there
will inevitably be questions left in the eyes of the general public concerning
the veracity of both the inquiry and the response by the ADF'.
Similarly, the Association for Victims of Abuse in the ADF argued that a
de-identified version of Volume 2 should be released as it would allow
Parliament and the electorate to understand the 'extent of the problem', the
'failure of Defence to deal with it' and take 'the appropriate action based on
the true facts'.
The Defence Abuse Support Association wished to see Volume 2 of the DLA
Piper report released and hoped it would negate the need for a Royal Commission
on abuse within Defence. It believed that 'perpetrators of abuse in the ADF and
their protectors should be named and shamed for their actions'.
Mr Brian Briggs, from Slater & Gordon Lawyers also supported the
release of Volume 2 in redacted form or '[a]t least a comprehensive summary
with examples of the nature of complaints should be provided'. He argued the
release of Volume 2 would 'enable the nature of some of the allegations
considered by DLA Piper to be transparent and ensure the response by the ADF
can be considered for its adequacy in a transparent environment'.
Against further release of Volume 2
In contrast, Dr Gary Rumble, the former leader of the DLA Piper Review,
noted that many details of the contents of Volume 2 were already available in
Volume 1 and consequently believed 'it would not be desirable to try to
publish a summarised or redacted form of Parts 1-23 of Volume 2'.
He noted that any redacted version or summary released would need to remove
information that may identify complainants, accused perpetrators and individuals
accused of mismanaging abuse incidents. This action would 'require a lot of
resources and would in many cases not leave enough coherent information to
convey the substance of the individual's experience'.
In particular, he highlighted the potential for the release of Volume 2
to negatively impact victims of abuse:
If there was to be any publication of a redacted or
summarised version of Parts 1-23 of Volume 2, there would need to be
well-publicised support available for victims who may be distressed by seeing
aspects of their story being publicised even if they have consented to the
Similarly, Mr Adair Donaldson of Shine Lawyers noted that Volume 1
'effectively' already provided a summary of Volume 2 and highlighted that while
'it would be desirable for this information to be released the paramount concern
should be the protection of an individual's privacy'.
The Inspector General ADF, Mr Geoff Earley AM, flagged that it would be
unlikely that a comprehensive investigation of all the allegations would be
possible. In the context of the further release of Volume 2, he commented
Persons named or identified as respondents to such unproven
allegations may therefore be left in the invidious position of either not
knowing that such allegations about them have been made or alternatively, not
being given an opportunity to contest the allegation.
Defence noted that as the information in Volume 2 had been provided by
victims of abuse to the DLA Piper Review on the strict condition of
confidentiality, 'Defence has not been provided a copy of the Volume Two
In a response to a question on notice Defence discussed some of the issues in
relation to the release of Volume 2:
Volume 2 documents specific incidents and identifies victims
and alleged perpetrators, public release poses very considerable risks to both
victims and perpetrators. Redactions for privacy reasons may in any case be
likely to render the document virtually meaningless. Anything less by way of
redaction is likely to lead to an avalanche of speculation in which neither the
interests of the victims nor the alleged perpetrators are likely to be well
The nature of the alleged abuse suffered by victims has
already been widely publicised in general terms; in particular, through the
release of a redacted Volume 1. It is not apparent what greater public interest
would be satisfied by the disclosure of additional detail of these allegations
where they remain unproven or where victims have expressly indicated they do
not support more general disclosure of their suffering. The risk to these
victims is that their trauma will be revisited. The risk to alleged
perpetrators is that their lives, families and reputations are likely to be
irrevocably damaged whether or not the allegations against them are proven.
Victims who seek accountability on the part of their perpetrators can be
informed of the outcome after due process has been followed.
The Defence Abuse Response Taskforce considered that the question of
'[w]hether or not to release Volume 2 [was] a matter for the Minister for
Defence, not the Taskforce'. However, it noted that information or
recommendations in relation to specific allegations set out in Parts 1-23 of
Volume 2 are taken into account as part of the Taskforce's assessment
[T]he Taskforce notes that Volume 2 of the DLA Piper Report
contains detailed personal information and specific recommendations dealing
with individual complaints of abuse. For privacy and fairness reasons, any
published summary or redaction would need to remove information which could
identify complainants and alleged abusers, together with information on
individuals accused of mismanaging abuse incidents.
Given the fact that the majority of the content of Volume 2
is personal information, a redacted version would contain little information of
substance, while still potentially risking the privacy of people who made
complaints to DLA Piper.
Redacting Volume 2 in its entirety would be a significant
undertaking in terms of time and resources.
The need for a Royal Commission
One of the Taskforce's terms of reference is 'to advise whether a Royal
Commission would be merited into any categories of allegation raised with the
DLA Piper review of the Taskforce, in particular the ADFA 24 cases'. A Royal
Commission is a formal public inquiry established by the Governor-General on
the advice of the government and formally appointed by Letters Patent. A Royal
Commissioner has considerable powers in conducting his/her inquiry, but is
restricted to the terms of reference of appointment.
Following the ABC Four Corners report on abuse in Defence titled Chamber
of Horrors in June 2014, the Chair of the Taskforce made a statement which
included commentary on the need for a Royal Commission:
The question whether a Royal Commission is needed to deal
with abuse in Defence is one that will attract serious consideration and
ongoing discussion both within the Government and in the public at large. I
have expressed some concerns about whether a Royal Commission is the most
appropriate way of responding to allegations of abuse in Defence. In
particular, I am concerned about the impact that a Royal Commission may have on
victims of abuse, if they are compelled to talk about the abuse they suffered,
and whether there are practical outcomes that could be achieved from the
However, I still believe that it is premature to express a
final view on this matter until the Taskforce has finished its work. Our
priority remains providing tailored outcomes to people who have made complaints
of abuse in Defence.
At the public hearing on 13 August 2014, the Chair told the committee:
At the moment, however, I have difficulty in seeing what a
royal commission could do in this space presently which the Taskforce is not
doing and which would achieve what it seems to me people who are advocating for
it are claiming—namely, to hold people to account.
In its seventh interim report, the Taskforce provided an update on
complaints in relation to the 'ADFA 24'. It indicated the Taskforce had
received complaints from 11 women who allege they had experience sexual abuse
at ADFA in the mid-1990s and been contacted by three others who were
considering whether they will make a complaint. Overall the Taskforce had
received 72 complaints relating to abuse which occurred at ADFA. It noted a de-identified
public report regarding abuse alleged to have occurred at ADFA, including the
cases of sexual abuse in the mid-1990s, would be released later in the year.
Several witnesses and submissions put forward positions in relation to
the creation of a Royal Commission to investigate incidents of abuse in the Defence.
In particular, Dr Rumble supported the creation of a general Royal
Commission in relation to abuse in Defence and highlighted the need to address
deficiencies in relation to the response to the 'ADFA legacy issues'. He argued
that '[m]ale on male sexual assault at ADFA – as well as male on female assault
– should be within the scope of inquiry set for a Royal Commission':
An appropriately commissioned and resourced Royal Commission
would be best placed to encourage individuals who have relevant information –
including victims who have not yet spoken about their experience to anyone
and/or victims who had no interest in the range of outcomes for complainants
which the DART offered – to come forward and to enable informed and convincing
resolutions on the systemic issues.
At the hearing on 13 August 2014, Dr Rumble stated:
I recommend that this committee call for the government to
establish a royal commission to inquire into the ADFA legacy and what can be
done about it. That should be an open ended inquiry and not limited to options
available to the ADF under its current procedures.
A royal commission generates its own publicity and would have
the real prospect of attracting a lot more people. The more information that is
gathered the more prospect there is of realistic action against individual
We need to have a high level of confidence about our
leaders—and our leaders include our officers and our NCO leadership. There are
some things where you need to be above suspicion. If there were a royal
commission which was supported by the Defence leadership, and that is crucial,
then if people who have witnessed things which they previously have not spoken
about believe there is a serious inquiry—people who may have been victims who
have not previously spoken but who have confidence that the Defence leadership
is actually interested in knowing who is fit to be in the Defence Force, who is
fit to lead, who is fit to be the next Chief of Army and who is fit to be the
next Chief of the Defence Force—I believe they will step forward.
A royal commission generates its own publicity. A royal
commission is a very strong signal that this is a serious matter and that
serious action is going to be taken. The more people you have telling stories
of consistent conduct against one person the more likely it is that you will be
able to take some definitive action against that person, be it criminal
prosecution or be it administrative. As I say, beyond that, a question for the
royal commission should always be: if there is nothing available on the current
book of remedies, is that appropriate? As I said before, there are some
positions where it is not good enough for people not to be proven guilty. There
are some positions where we have to have a high level of confidence in the
fitness of people for those positions.
In particular Dr Rumble emphasised that Lieutenant Colonel Ken
Northwood, who originally drew attention to the serious sexual assaults at ADFA
as part of the Grey Review, had publicly supported the establishment of a royal
commission into abuse in Defence.
Mr Neil Stuart's submission to the inquiry highlighted his experiences
with DLA Piper review and Taskforce processes, in particular what he perceived
as a lack of genuine commitment to institutional reform in Defence and a
'culture of silence' concerning abuse. He stated:
I need for there to be a process which enables me, as a
person who has experienced sexual abuse within Defence, to make common cause
with others who have experienced like abuse. Maybe the process needs to be
widened to provide for something like a Royal Commission so that the secrecy
and silence are blown away and Defence is held publicly accountable for how it
However, Mr Brian Briggs from Slater and Gordon Lawyers noted:
Whilst there is an invitation with the DART to request a
possible referral to a Royal Commission in the areas of the ADFA 24 and HMAS
Leeuwin, it is my belief that given the enormous expense of a Royal Commission,
the money would be better invested on support for the victims utilizing current
schemes. In addition, Volume 2 of the DLA Piper Review and the information
provided to DART, we expect has already resulted in sufficient information to
Government and the current leadership of the ADF.
It would appear that many of the ADFA 24 have not come
forward to DART. A Royal Commission may prompt them to do so, alternatively it
Similarly, Mr Barry Heffernan considered a Royal Commission 'would be a complete
waste of time'. He considered that it was clear there was ongoing abuse in
abuse in ADF and stated '[w]e do not need a royal commission to tell us that'.
The Taskforce report on HMAS Leeuwin noted that in relation to incidents
of abuse at that training establishment while 'the powers of a Royal Commission
may lead to a more comprehensive understanding of the institutional response to
abuse...a Royal Commission may not necessarily result in a broader understanding
of the nature or extent of abuse at HMAS Leeuwin'. Further, many of the
incidents of abuse at HMAS Leeuwin could be investigated by the existing Royal
In the seventh interim report of the Taskforce, it noted that '[t]he question
whether a Royal Commission is warranted for any other categories of complaints
received by the Taskforce, including those relating to abuse at ADFA, will be
considered in the next Taskforce report'.
Model litigant obligations
The Legal Services Directions 2005 are a set of binding rules about the
performance of Commonwealth legal work.
Under the Directions, Commonwealth agencies have various obligations, including
an obligation to act as a model litigant. Some witnesses considered that the
Commonwealth was not acting in accordance with these model litigant obligations
in relation to claims for compensation for abuse in Defence. For example,
Ms Rachael James described litigation as being 'conducted in a very
aggressive and adversarial way'. Mr Adair Donaldson also commented:
[T]he Australian government, as that model litigant, has
obligations which stipulate that it should not put claims to proof on matters
it knows to be true and not to rely on technical defences. The duty to act as a
model litigant goes beyond the requirement for lawyers to act in accordance
with ethnical obligations. Put bluntly, the government and its legal advisers
have a higher duty than religious or private organisations and, accordingly,
they should be held to a higher standard.
Dr Gary Rumble also considered that there was a real risk that the
Commonwealth was in breach of its model litigant obligations. He believed the
Commonwealth had both moral and model litigant obligations 'to individuals
affected by abuse in the ADF to bring into DVA processes relevant information
which is currently scattered in Defence and DVA files'.
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