Additional comments by Senator Xenophon
While I support recommendations 1 to 7 in the committee's report, I
cannot support recommendation 8. It is important to set out how successive
governments, parliaments, and our Defence Force have, over half a century,
abysmally failed - boys and girls, men and women who have suffered horrendous
abuse while serving their country. The failure of the committee to call for a
Royal Commission into defence abuse is a chasm that cannot be ignored.
In relation to the Pathway to Change strategy released by Defence
in March 2012 as to the response to the Culture Reviews, it should be noted
that Volume 1 of the DLA Piper Review report
appears not have been considered in the formulation of this strategy,
notwithstanding that Volume 1 was available at the time. This is a glaring
Further to 2.51 of the committee's report related to CDF General David
Hurley's apology to the victims, it should be noted that the CDF's comments
were high-level general statements, and failed to be an adequately powerful
statement. The fact that General Hurley had not seen, at the time of the
apology, the detailed accounts in Volume 2 of the DLA Piper Review report may
explain the lack of force in his apology. General Hurley had not seen Volume 2
because the Government decided that Volume 2 not go to Defence, contrary to DLA
Piper's terms of reference.
This too is most unsatisfactory.
In relation to the ADFA 24, I am concerned that the Taskforce has yet to
provide a report on this, almost two years since the Taskforce was established.
Given the gravity of the issues raised - the alleged rape of 26 female cadets
by 24 male cadets - and recognition that there were many more similar incidents
in the years preceding 1998, this is simply unacceptable.
I am also concerned that this drawn out process in respect of the ADFA
24 will discourage victims of abuse from participating in any investigation and
may dissuade other victims from coming forward.
Further on the ADFA 24, I note that the Taskforce in its 7th report
(page 26) in September 2014, stated that in October 2013 Mr Roberts-Smith had
made recommendations to the CDF to take action in relation to at least 12 still
serving members of the ADF, and to consider further action in another 13 cases.
These are matters of great national importance, that go to the heart of the
integrity of the processes that are meant to protect ADF personnel. The fact
the outcomes of those recommendations are not yet known to the committee is
indicative of deep systemic failures within Defence and government.
In relation to the report on HMAS Leeuwin, I note that although the
Taskforce delivered a lengthy 98 page report, the Taskforce did not offer any
detailed recommendations to respond to the ongoing aspects of the abuse.
I would also note that the Taskforce acknowledged that that Defence
training establishments like HMAS Leeuwin may still have a high risk of abuse
occurring, and flagged there would be recommendations in later reports.
However, it is extraordinary that not even basic or preliminary recommendations
were included in that report, given such establishments are high risk for abuse
of the most vulnerable members of the ADF. The lack of any recommendations on
the part of the Taskforce shows an appalling lack of urgency on its part.
One of the ten recommendations set out by the 2013 Senate committee
inquiry was a recommendation that Defence should formally report on each
response to all of the systemic issues identified in the DLA Piper Review
When again asked to provide a response at the 13 August 2014 hearing, the ADF
provided a written response which was general, without stating what actual
decisions have been made. Frankly, I find this to be offensive to the Senate
and the victims of abuse.
On the topic of whether there was sufficient publicity for the
Taskforce, I note that many of the victims of abuse are so socially isolated
and marginalised that they would be unlikely to see conventional newspaper
advertising of the Taskforce.
Further I also query whether the Taskforce could have used other forms
of media including talkback radio, breakfast TV, and social media to raise the
profile of its important work and reach out to victims.
In addition, the Taskforce appears to have done nothing to inform
victims of sexual assault in the ADF, who previously were told that Defence
would do nothing with their complaints because of the former flawed DI(G),
that Defence could now consider action.
On the issue of the rank of ADF personnel participating in the
restorative engagement program, I note that Dr Rumble in his evidence raised
the legitimate concern that the program only involved senior officers and
therefore would not bring understanding of abuse impacts across the ADF ranks
Limiting the restorative engagement program to senior officer limits its
capacity to effect cultural change.
In relation to access to counselling services and other support for
victims of abuse in the ADF - the Taskforce Chair's comments beg the broader
question of the role of the Department of Veterans Affairs (DVA) in providing
ongoing support to victims of abuse.
In relation to whether Taskforce consideration of media allegations
should be dependent on a complainant opting in to the Taskforce process, I am
concerned that the narrow construction the Taskforce has taken of its role may
mean, for instance, the lack of a public Government response to unsubstantiated
allegations of a cover-up which can be republished at any time may discourage
other victims from coming forward. The fact that such allegations have been published
in the media should have triggered action from the Taskforce - and ultimately
the Government - irrespective of the specific consent of a victim. Furthermore,
some of the allegations involved allegations of Defence mismanagement which
could and should be investigated, reported on and publicly responded to by
Defence without any need to involve a victim.
It is not clear to me why the ADF have not committed to zero incidence
of sexual assault and abuse, when employers generally commit to zero incidence
of workplace injury.
I am concerned at the apparent lack of urgency in Defence introducing
the new DI(G) to replace the flawed DI(G) dealing with management of
allegations of sexual assault. The flawed DI(G) directed that if there was an
allegation of sexual assault against an ADF member no administrative or
disciplinary action should be taken. Defence had been alerted to the problems
with the DI(G) by the DLA Piper Review report of October 2011.
Vice Admiral Griggs acknowledged in his appearance before the committee that
there had been problems with the DI(G):
I would say it was fair to say that there was a period there
where we gave primacy to the investigative process, the formal police
investigative process, and there was a reluctance to take administrative action
because there was a fear that this was some sort of double-jeopardy thing. Now
it actually is not...there was a policy statement earlier this year to reinforce
The fact that it took from 2011 to 2014 for there to be any Defence
response to this disastrous DI(G) which in effect protected abusers, including
perpetrators of rape, is shameful.
I also note with concern that it seems the replacement DI(G) - DI(G)
PERS 35-4 - which was provided to the committee by Defence after the 13 August
2014 hearing, appears not to have come into force until 19 August 2014.
The committee's report has noted that in its first year of operation,
SeMPRO has not had a single report of sexual assault within 72 hours of the
I am concerned that victims therefore have not been getting prompt assistance
from SeMPRO. Further, as no forensic evidence has been collected this has
minimised the chance of effective action against perpetrators. SeMPRO has also
not been able to alert the ADF promptly of risks to serving ADF personnel.
The new DI(G) PRS 35-4 which came into effect on 19 August 2014, sets
out the basis upon which SeMPRO will refuse to accept a disclosure on a
restricted basis. Dr Rumble raised a pertinent question as to whether those
grounds of refusal are actually required by law as asserted by Defence. This
assertion based on Dr Rumble's detailed analysis is dubious at best.
If the law does prevent Defence from being able to offer victims genuine
restricted reporting then a real question is raised as to whether the law
should be changed.
The 35 systemic issues identified in the DLA Piper Review report over
two years ago are wide-ranging. It is not acceptable that all that the ADF has
told the committee is that they are taking those issues 'into account'. For
example, surely the ADF has had enough time to make a decision about Issue 16,
as set out in October 2011 in Volume 1 of the DLA Piper Review report:
The ADF should consider establishing a system for liaison
with local civilian police forces similar to the US Military's Sexual Assault
Regional Team, either dealing with ADF/civilian police interactions generally
or limited to sexual assault issues.
Surely Defence could have reached a prompt conclusion one way or the
other over such an unambiguous recommendation.
The Minister of Defence should direct Defence to report to the
committee on what specific decisions have been made by the ADF and the
Government about each of the 35 systemic issues identified in the DLA Piper
Review report within 30 days of tabling of this report.
Further to the committee's recommendation 6 in this report I make the
Over the course of this reference the Committee has heard some very
disturbing accounts of abuse, and of ADF mismanagement of abuse and abuse
allegations. Many of these accounts relate to incidents from many years back.
However, some of the accounts relate to quite recent events.
Volume 1 of the DLA Piper Report summarised many previous reports
identifying cultural pressures which have discouraged reporting in the ADF
(Chapters 4 and 5).
The committee heard consistent evidence from many witnesses to the
effect that there are still very strong cultural factors discouraging
current ADF personnel from reporting abuse.
That indicates a very serious systemic issue.
I note further that Mr Roberts-Smith has explained to the Committee that
only a small minority of individuals who have come into the Taskforce's
processes have agreed to have their matters referred to the ADF for possible
disciplinary or administrative action against the perpetrators.
This indicates a very concerning lack of confidence and trust in ADF processes.
That lack of confidence signals an underlying major systemic issue.
If ADF personnel do not report abuse and do not want to participate in
disciplinary or administrative processes to deal with perpetrators, then it
must follow that there are still perpetrators in the ADF who represent risks to
other ADF personnel. The Taskforce itself has not carried out any
It must also follow that many of these perpetrators will still be
amongst the ranks of the officers and NCOs. Officers and NCOs are the very
people who should be role models and who should be driving and entrenching
positive cultural change. Having any perpetrators serving in Defence,
particularly in these roles, is a cancer on the ADF.
This must represent a threat to the culture of the ADF and has the
potential to undermine the Pathway to Change strategy for cultural
change. That signals another underlying major systemic issue.
I note that Mr Roberts-Smith in his recent appearance before this
Committee on 26 September 2014 stated that:
We have seen so many cases where it would have taken just one
person in the chain of command to do the right thing to either stop an incident
of abuse or at least deal with it and hold the abuser to account immediately.
That raises very serious issues about the adequacy of ADF's response to
abuse over time.
That is yet another major systemic issue.
There is no doubt - over the last few years - the ADF has moved to
change culture at many levels. However, the ADF has shown a reluctance to
change in some other ways which are directly relevant to the welfare and safety
of ADF personnel. For instance:
In its first year of operations, the version of 'restricted
reporting' which Defence has introduced through SeMPRO failed to attract a
single report of sexual assault within the first 72 hours after an incident.
The Vice Chief of the Defence Force told the Committee that the
ADF refuses to commit to zero incidence of abuse in the ADF 'because 'We will
never get to zero incidence'.
Defence has refused to seek to identify areas where unreported
abuse may be occurring.
It took Defence three years to amend the defective DI(G) which
told Commanding Officers that they should not take any administrative action on
allegations of sexual assault. That signals a breathtaking complacency and
lack of urgency on the part of Defence to deal with sexual assault issues.
These failures approach culpable negligence in relation to the safety
and welfare of ADF personnel.
These decisions are very bad news for individual ADF members affected by
abuse. These decisions also very bad news for the integrity of the ADF.
We have also seen that individuals who were damaged by abuse in the ADF
face considerable barriers to making out their eligibility for DVA benefits and
Serious questions have been raised about whether the Commonwealth
through Defence and DVA has fulfilled its model litigant and moral obligations
to these individuals and their families.
The fact that there is this institutional resistance to change
demonstrates why the important systemic issues can only be attacked effectively
by a well-resourced body with authority and standing to apply rigour and
intensive investigation. Only a Royal Commission can do this.
That there be a Royal Commission to inquire into:
the adequacy of Defence and Government responses to abuse in the
the adequacy of Defence and Government responses to support all
victims of abuse in the ADF – not just those who have come into the Taskforce's
what can be done to improve rates of reporting of abuse in the
what can be done to improve confidence of ADF personnel in ADF
processes for responding to allegations of abuse; and
whether there are still perpetrators of abuse in the ADF and if
so what to do about that.
It has been suggested that a Royal Commission would in some way be
unfair to suspected perpetrators. To this I say:
ADF personnel are used to requirements of vetting for national
security and other issues. There are some roles for which people need to be
No doubt a Royal Commission would be sensitive to the need to
provide procedural fairness in the conduct of its investigations.
A Royal Commission need not be and should not be the only response.
There should also be assistance for victims – such as the assistance which has
been offered by the Taskforce and DVA – in parallel with the Royal Commission's
work. There is no reason why a Royal Commission could not coordinate its work
with processes providing such assistance.
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
Taskforce offered – to come forward and to enable informed and convincing
resolutions on the systemic issues.
The Royal Commission into Institutional Response to Child Sexual Abuse
provides a model of how a Royal Commission can be conducted in a manner which
takes into account the sensitivities and needs of victims of abuse and which
actually empowers and assists victims of abuse including many who had not
previously told their story to anyone.
The Royal Commission into Institutional Response to Child Sexual Abuse
is demonstrating the impact which contemporaneous media reporting of real
people's stories told to the Commission can have in raising understanding of
the issues amongst the institutions and amongst the general community.
I note there have not been many voices to date calling for such a Royal
Given the strong cultural factors which discourage members of the ADF
from reporting even within ADF processes it is not surprising that members of
the ADF have not been stepping out of the ranks to make that call.
However, there have been two individuals who have deep knowledge of thse
issues who have supported the establishment of a Royal Commission.
One of these individuals is Colonel (ret) Ken Northwood who conducted
the investigations of the ADFA 24 in 1998 and who worked with the Taskforce on
these issues again in 2013. On a recent Four Corners program, Colonel Northwood
called for a Royal Commission.
Dr Gary Rumble who led the DLA Piper Review has also called for a Royal
Commission and has supported that call with his detailed submissions to the
I give weight to the fact that these two individuals who have deep
knowledge of the issues and of the ADF's and successive Governments' responses
to these issues have supported a Royal Commission.
I also give weight to the submission to this committee of Mr Neil Stuart
who went through a Restorative Engagement session. His submission includes
these powerful perspectives:
I have been reflecting on my perspective since approaching
DLA Piper and what I've heard of abuse experience of other people in Defence.
As I'm seeing it, the Response (the institutional response) has been to focus
on the individuals who've told their stories and to offer some balm and quieten
them down. So all my energy and input has been contained and channelled into
the four sets of responses determined by DART. It is as if I am one of a list
of cases and one by one they are being methodically ticked off. Now I've been
...I submit what we are faced with is an institution which has
systematically insulated itself from knowing about the intentional sexual abuse
which has happened and is happening. The silence, the failure to talk openly
about what happens or might (page 5) happen fosters secrecy, putting it out of
sight or hearing. Men do rape men, soldiers rape fellow-soldiers – that has to
be said, not just in counselling, not just in the CO's office, not just in the
restorative engagement conferences but out there in the public arena.
The DART processes have placed much emphasis on
confidentiality. For instance, at the end of the Restorative Engagement
Conference, I was asked to sign an agreement that I would not disclose what
took place in that Conference. Perhaps there are times for confidentiality. My
sense is that what happened is that I have become confined and isolated. My
sense if that the practices of secrecy and silence are being reinforced. I have
nothing to hide. Does DART? Does Defence?
Restorative Engagement hasn't changed/restored what happened
and can't change/restore what's happened. That's an illusion. I haven't (page
6) bought into that illusion. Nothing makes up for what has been broken... My
life, the lives of others abused, aren't going to be restored. The main good
thing, I was thinking, is that my story had been truly listened to and seems to
have been believed. Now, having read about the experience of Aaron Frazer...I
wonder just how fair dinkum is the statement that my story is believed. If it
is to be fair dinkum there's got to be more that individual solace. That
listening has to come out of the confessional/clinical reporting process, the
Restorative Engagement Conference, into which it's been channelled and into the
wider culture of Defence which permits these abuses.
There has to be more than treating the hurt of the injured
individuals – which is akin to keeping everything within the confessional or
within the treatment room or within the family, which is the way the DART
casework approach has been shaped. I'm not a case – it's bigger than me or any
I challenge the Committee to understand Defence's
responsibility for an institutional culture which permits, maintains and maybe
even rewards silence around rape and other sexual abuses within Defence. I
challenge (page 7) the Committee to understand how stigma works as a tool of
silencing and of removal of freedoms, especially freedom to speak. I challenge
the Committee to break open the culture of silence. I don't need pity. I have
never needed pity. What I need is to see emerge a culture which permits, even
celebrates, my right and the rights of others to speak of what we have
experienced. I need and end of silence. If the Committee does not understand
these things, then it understands very little.
I need for there to be a process which enables me, as a
person who has experienced sexual abuse within Defence, to make a 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 the silence are blown
away and Defence is held accountable for how it must change.
Another victim – a woman who experienced two years of abuse and bullying
at ADFA pre-1998 – told Dr Rumble:
It is time that the ADF was held to account. A Royal
commission would be the most powerful statement that this is not an acceptable
part of Australian society. I feel also feel that ADF needs to weed out the bad
eggs, if for no other reason than that the decent people of the ADF do not have
a shadow caste over their careers. They should also ensure that people who have
been abused are cared for, as not everyone is OK.
I agree. If a Royal Commission is not established, I fear this
Parliament may well revisit these issues again in the next few years, when the
next scandal of abuse in Defence surfaces.
I acknowledge that the Government and the Opposition do not support
calls for a Royal Commission - yet my plea to any member or former member of
the ADF reading this who has experienced or knowledge of abuse, particularly
victims of the ADFA 24, to speak out in support of such a Royal Commission. I
understand that survivors of abuse may not wish to speak out publicly. However,
if survivors wish to meet with members of the Government and Opposition to tell
them face-to-face of what happened to them, I am prepared to assist personally
to facilitate any such private and confidential meeting. To para-phrase Edmund
All that is necessary for the triumph of evil is that good
men, and women do nothing.
I can be contacted at Senator.Xenophon@aph.gov.au or on 08
Finally, I dedicate these additional comments to Neil Batten who had the
enormous courage to come and see me over three and half years ago (with the
tremendous assistance and advocacy of Barry Heffernan from COMBADAS). His
recounting of the abuse he suffered over 40 years ago as a 15 year old naval
junior recruit at HMAS Leeuwin still shocks and appals me. The dreams of a boy
wanting to proudly serve his country were destroyed in a disgusting and brutal
manner. However, what is even worse is that the perpetrators went on to pursue
successful careers in the Navy, whilst Neil's life was deeply traumatised. This
is for you Neil, and so many others like you.
Senator Nick Xenophon
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