Minister for Defence – Government response to the review into allegations of sexual or other forms of abuse in Defence

Minister for Defence Stephen Smith today announced the Government’s response to the Report of the DLA Piper Review into allegations of sexual or other forms of abuse in Defence (‘the Review’) received in April this year.

The Review into allegations of sexual or other forms of abuse in Defence received allegations from over 1,000 people. 

The Review identified a range of allegations from 775 people which fell within the Review’s Terms of Reference, the overwhelming majority of which are said to be plausible allegations of abuse.  These involve allegations across every decade from the 1950s.  The earliest date of alleged abuse is 1951. 

The individual allegations, findings, issues and recommendations included in the Report are serious and concerning.  They involve complex and sensitive matters which have required very careful consideration.

The Government’s response to the Review is guided by the Recommendations in the Review and will ensure that people who have alleged past abuse in Defence receive a response which is tailored to their individual circumstances and the nature of their experiences.

The Response includes:

  • A general Apology to members of the Australian Defence Force or Defence employees who have suffered sexual or other forms of abuse in the course of their employment, to be delivered in the Parliament by the Minister for Defence Stephen Smith. 
  • The establishment of an independent Taskforce to assess the individual complaints and any wider systemic issues to be headed by the Hon Len Roberts‑Smith QC.  The Taskforce will include:

o       A Deputy Chair, Mr Robert Cornall AO, former Secretary of the Attorney-General’s Department;

o       Ms Susan Halliday, former Federal Sex Discrimination Commissioner;

o       Australian Federal Police Assistant Commissioner Rudi Lammers APM as an ex-officio member; and

o       subject to any request by the Chair of the Taskforce, additional members with relevant expertise as required.

  • access to a capped compensation scheme; and
  • a free telephone hotline (already established) so that complainants can from today access information about the Government’s response (1800 424 991). 

The independent Taskforce will have responsibility for liaising with those who have made allegations of abuse to determine an appropriate response in individual allegations, which can include:

  • restorative justice/conciliation processes where a victim and alleged perpetrator are brought together in a facilitated process;
  • referral to counselling (with the Taskforce being funded to provide counselling services beyond those generally available to Defence personnel or veterans) and health and other existing services;
  • compensation, to a maximum of $50,000;
  • referral of appropriate matters to police for formal criminal investigation and assessment for prosecution; and
  • referral of appropriate matters for disposition by the military justice system or other Defence process (for example, considered under the Public Service Act). 

The Taskforce will now commence the process of working with those who have made allegations to determine the best course of action based on their individual circumstances.

  • For people who have questions or information for the Taskforce, the telephone hotline number is: 1800 424 991 (free call).  There is also a website: www.ag.gov.au/defenceabusetaskforce. 

The Government’s response today focuses on handling the individual allegations made to the DLA Piper Review, and subsequent allegations of sexual and other abuse in Defence, up to the date the DLA Piper Review was announced, 11 April 2011. 

 The DLA Piper Review recommended that a Royal Commission not be established to inquire into and report on general allegations of abuse in Defence.  The Government has agreed with this recommendation.

 The DLA Piper Review did recommend that consideration be given to establishing a Royal Commission to inquire into particular matters, including whether any of the persons who were identified in 1998 as having been suspected of committing rape at ADFA are still in the ADF or whether any persons who allegedly witnessed and did not intervene to prevent these rapes are still in the ADF.

 The Taskforce will therefore expressly consider if further investigation through a Royal Commission is required into particular matters identified in the Report of the DLA Piper Review, in particular in relation to ADFA as outlined above and in relation to alleged events at HMAS Leeuwin in the 1960s and 1970s.

 Broader issues about the Defence justice and complaints system and Defence culture are being pursued separately, including through the Defence Pathway to Change strategy. 

 The Pathway to Change strategy is Defence’s response to the various Reviews into aspects of the culture both within the Australian Defence Force Academy (ADFA) and the Australian Defence Force (ADF) which addressed ongoing areas of concern in relation to inappropriate conduct.

 Pathway to Change also includes implementation of the recommendations of the Reviews into the treatment of women in ADFA and the ADF conducted by the Sex Discrimination Commissioner, Ms Elizabeth Broderick, on behalf of the Australian Human Rights Commission.

 Where the Taskforce’s work highlights further possible systemic issues or issues to be considered in these initiatives, the Taskforce will draw these to the attention of the Minister for Defence, Chief of the Defence Force and the Secretary of the Department of Defence.

 The Taskforce will operate for a year, unless a longer period is required, and at its conclusion report to Parliament through the Minister for Defence.

 The recommendations of the Review together with a summary of the proposed Government response are at Attachment A.

Attachments

A.     Summary of key DLA Piper Review Recommendations and Government Response

B.     Taskforce Roles and Functions

C.     DLA Piper Review Background

D.     Curriculum Vitae for the Honourable Leonard William Roberts-Smith QC

E.     Taskforce members

 

Media contact:

Andrew Porter (Minister Smith) 0419 474 392

Attachment A

Government Response to DLA Piper Recommendations

RECOMMENDATIONS – DLA PIPER REPORT  
Recommendation 1We recommend that, for people whose detailed further information has not been received or fully considered before Volume 2 is delivered:(i) any further detailed information which the Review receives should be considered and reported on in a supplementary report to the Minister and Secretary; and(ii) the supplementary report should report on whether the preliminary assessment and recommendations which went into Volume 2 need to be changed.  Agreed.The Taskforce will examine additional allegations concerning incidents to 11 April 2011.
Recommendation 2The Review recommends that Phase 2 undertake discussions with Defence as a matter of urgency with a view to the clarification and, if necessary, amendment of DI(G) PERS 35-4 to permit administrative action to be taken in respect of actions which may constitute sex offences under applicable criminal law. The other DI(G)s that seem to be relevant to these issues should also be examined.Consideration should be given to having a DI(G) which directs the relevant Commanding Officer to consider taking administrative action even though the same incident has also been referred to civilian police and to review the status of the matter at regular intervals to see whether administrative action should be taken.Regard should be had to the desirability of Defence procedures following the APS model for running administrative processes during or after criminal processes for the same facts.A broader examination should be undertaken of the management of actions which may be sexual offences under applicable criminal law and ‘unacceptable behaviour’ and the relevant DI(G)s redrafted to provide simpler and appropriate advice and guidance to management. Agreed. The Taskforce will examine these matters in the course of its work.
Recommendation 3If a new complaint resolution scheme is established, it should not be limited to people who have come to this Review but should be open to people who have not raised matters with this Review.  Agreed.The Taskforce will examine additional allegations.
Recommendation 4If a new complaint resolution scheme is established, each allegation reported on within Volume 2 should be reviewed to see if the allegation is suitable for the new scheme.  This is particularly important to allegations identified in Volume 2 for ‘no further action‘. That recommendation is based on the remedies currently available for the members concerned. If new remedies are put in place, some of the ‘no further action’ matters may be suitable for reparations under the new system.  Agreed.The Taskforce will directly handle resolution of complaints to DLA Piper.
Recommendation 5There should be further investigation of matters identified during Phase 1 as raising real concerns as to the occurrence of abuse and/or mismanagement by Defence of reports of abuse.  Agreed.The Taskforce will gather additional information as appropriate and report to the Minister on implications for ‘Pathways to Change’.
Recommendation 6Further investigations to be made during Phase 2 should be conducted by an external review body. A body similar to that which has conducted Phase 1 of the Review should be established for this purpose.  Agreed.The Taskforce is oriented towards the resolution of cases. 

 

Recommendation 7Consideration should be given to establishing a capped compensation scheme for the victims of abuse within Defence.  During Phase 2 a detailed proposal for a capped compensation scheme could be developed for the Government‘s consideration at the end of Phase 2. Agreed.A capped compensation scheme will be administered by the Taskforce.
Recommendation 8Consideration should be given to establishing a framework for private facilitated meetings between victims, perpetrators and witnesses of abuse within Defence. During Phase 2 a detailed proposal for such a framework could be developed for the Government‘s consideration at the end of Phase 2. Agreed. Restorative justice is one of the options open to the Taskforce to resolve individual complaints.
Recommendation 9Special counselling and health services in place for the duration of this Review should be extended into Phase 2 of the Review whilst a plan for providing health services to victims of abuse is prepared. Thereafter, the plan should be implemented such that victims of abuse within Defence have access to counselling and health services. Agreed. The Taskforce will be funded to provide additional counselling and will also liaise with and provide referrals to existing services.
Recommendation 10A suite of options should be adopted to provide means for affording reparation to persons affected by abuse in Defence comprising:-          public apology/acknowledgements;-          personal apology;-          capped compensation scheme;

-          facilitated meeting between victim and perpetrator;

-          health services and counselling.

A body or team should be tasked to develop detailed proposals for the suite of options, so that they may be presented for a decision on implementation.

While the suite of options are being developed, there should be further external investigation of matters recommended in Volume 2 for further external investigation. There could be referral of matters recommended for internal/external referral. Volume 2 recommendations are limited to existing options. Accordingly, matters recommended for ‘no further action’ in Volume 2 should be ‘held’, pending the development of the proposals and then – where appropriate – considered for possible action under any new processes adopted. There should be appropriate communication to complainants as to what will happen during the transition stage and into Phase 2.

 Agreed.The Government response is based on a similar suite of options.  The Taskforce will be responsible for an expanded role than that recommended by DLA Piper and is strongly oriented towards the resolution of cases.

 

Attachment B

Taskforce Roles and Functions

The Independent Taskforce will individually assess all of the allegations made to DLA Piper and will also investigate new allegations (where the conduct is alleged to have occurred before 11 April 2011), noting there are several categories of allegation:

  • Allegations received by DLA Piper before the deadline for receiving allegations and assessed by DLA Piper as ‘in scope’.
  • Allegations received by DLA Piper before the deadline for receiving allegations and assessed by DLA Piper as ‘not in scope’.
  • Allegations received by DLA Piper before the deadline but referred to the Commonwealth Ombudsman as DLA Piper identified a potential conflict of interest.
  • Allegations received by DLA Piper after the deadline for receiving allegations and recorded as received by DLA Piper but with no assessment conducted.
  • New allegations of inappropriate conduct which occurred before 11 April 2011.

 

The Taskforce will also, as appropriate, gather additional information relevant to consideration of the handling of particular allegations, for example, relevant records held by Defence.   

The Taskforce will address the central recommendations in the DLA Piper Review by establishing a process for determining and implementing a way forward for individual cases.  It will liaise with those who have made allegations to determine an appropriate response in individual cases, which may include:

  • possible restorative justice/conciliation processes where a victim and alleged perpetrator are brought together in a facilitated process (with the Taskforce being funded to facilitate these processes);
  • referral to counselling (with the Taskforce being funded to provide counselling services beyond those generally available to Defence personnel or veterans) and health and other existing services (the task force would not provide additional health and other non-counselling services);
  • compensation;
  • referral of appropriate matters to police for formal criminal investigation and assessment for prosecution; and
  • referral of appropriate matters for disposition by the military justice system or other Defence process (for example, consideration under the Public Service Act). 

The Taskforce will also assist in identifying relevant existing health services, including counselling support for individuals seeking this advice.

To ensure its independence, the Taskforce will be based in the Attorney-General’s Department and administrative support will be provided by that Department. 

The Taskforce will exist for a year, unless longer is required, and report to Parliament at its conclusion.

 Attachment C

DLA Piper Review Background

Following the so-called ‘ADFA Skype incident’ in April 2011, a large number of allegations of sexual or other forms of abuse in the Australian Defence Force and Defence were made.  

In response to these allegations, the law firm DLA Piper was engaged by the then Secretary of the Department of Defence to review each allegation methodically and at arm’s length from Defence to make recommendations for further action.

The Review had two phases:

  • Phase 1: all allegations of sexual or other abuse and any related matters have been reviewed to make an initial assessment of whether the matters alleged have been appropriately managed and to recommend further action to the Minister.  Phase 1 also considered systemic issues that will require further investigation in Phase 2.
  • Phase 2 to determine the response to individual allegations of abuse, review Defence’s processes for responding to allegations of sexual or other forms of abuse and make appropriate recommendations about any systemic issues.

In October 2011, the Minister received Volume 1 (General Findings and Recommendations) and the first tranche of Volume 2 (Individual Allegations) of the Review’s Phase 1 Report.

On 17 April 2012 the Minister received the full and final tranche of Volume 2 (individual allegations).

In March and July 2012 the Minister released redacted extracts from the Executive Summary and Key Findings, Issues and Recommendations of Volume 1 and Volume 1 of the DLA Piper Report to the public with a small range of appropriate redactions.

The Review into allegations of sexual or other forms of abuse in Defence received allegations from over 1,000 people.

The Review has identified a range of allegations from 775 people which fell within the Review’s Terms of Reference, the overwhelming majority of which are said to be plausible allegations of abuse.

These involve allegations across every decade from the 1950s.  The earliest date of alleged abuse is 1951.

They involve complex and sensitive matters in relation to specific abuses as well as systemic issues. 

The Review outlined a range of options which may be open to Government to provide a response to people who have made plausible allegations of sexual assault or other abuse to the Review, including:

  • Existing schemes or mechanisms for compensation, such as bringing an action in the courts, seeking compensation under the statutory compensation schemes that cover Defence personnel or applying for a financial payment under discretionary compensation schemes; and
  • New mechanisms by which eligibility for some reparation might be considered, such as Royal Commission, judicial inquiry, Parliamentary Committee or the appointment of a body similar to the Review.

The Review also identified options which might be adopted to provide recognition for persons who have made plausible allegations of past abuse, comprising:

  •  public apology/acknowledgements;
  •  personal apology;
  •  capped compensation scheme;
  •  facilitated meeting between victim and perpetrator; and
  •  health services and counselling.

A copy of the materials previously published can be found at:

http://www.defence.gov.au/pathwaytochange/docs/DLAPiper/index.htm

Attachment D

 The Honourable Leonard William Roberts-Smith, RFD, QC

 Curriculum Vitae

 Len Roberts-Smith was educated at St Ignatius College, Adelaide, South Australia and graduated with a Bachelor of Laws degree from the University of Adelaide in 1969. After completion of articles he was admitted to practice in South Australia.  He went to Papua New Guinea early in 1970 where he held various legal posts in the Crown Law Department of the then PNG Administration.  He became Chief Crown Prosecutor and on PNG Independence in 1975 he became the first Public Prosecutor under the new Constitution.  As Public Prosecutor he had ultimate responsibility for all criminal prosecutions throughout the country.

On his return to South Australia in 1976 he was appointed a Stipendiary Magistrate, which he held until 1978 when he took up the position of foundation Director of the Legal Aid Commission of Western Australia which he held for 11 years.  He resigned from that position in January 1989 to return to private legal practice as a Barrister in Perth.  He was appointed Queen’s Counsel in December 1989

He was Deputy President of the WA Equal Opportunity Tribunal from 1989 to August 2000 when he was appointed President of that Tribunal.

Len Roberts-Smith was Counsel to the WA Parliamentary Committee on Delegated Legislation from 1989 to 1998, has been an accredited Australian Advocacy Institute Teacher since 1992, was a member of the Legal Practice Board of WA since 1989, Deputy Chair of the Legal Practitioners’ Complaints Committee since 1992 and Chair of the Murdoch University Board of Discipline from 1999 until he resigned on his appointment to the Bench.

He is a former Chairman of the Citizens’ Advice Bureau of WA (Inc) (1978-89) and of the State Advisory Panel for Translators and Interpreters, and was the President of the Civil Rehabilitation Council of WA (Inc), 1980-82.

In 1993 he chaired the State Government Committee of Review into the Administration of Criminal Justice in Queensland, which reported in September that year.  In 2000 he conducted a Ministerial review into the WA Police Witness Protection Program following the death of a protected witness.  His Report on that Review was tabled in state Parliament in August that year.

He was sworn in as a Judge of the Supreme Court of Western Australia on 6 November 2000. He subsequently became one of the first six permanent Judges of Appeal when the Court of Appeal Division of the Supreme Court was established on 1 February 2005.

Len Roberts-Smith joined the then Citizens Military Forces in 1964 as a member of the Adelaide University Regiment.  He was commissioned a Second Lieutenant (Royal Australian Infantry) in December 1968 and served in various battalion positions in AUR and 10RSAR until transferring to the Australian Army Legal Corps on promotion to Captain in 1970.  He served in Papua New Guinea from 1970 to 1975 attaining the rank of Major in 1973. He was subsequently posted to 4MD (Adelaide) in 1976 and 5MD (Perth) in 1978. He was appointed a Judge Advocate and Defence Force Magistrate in July 1985, promoted to Lieutenant Colonel in 1986 and to the rank of Colonel in June 1994.  On 3 October 2001 he was appointed Acting Judge Advocate General (JAG) of the Australian Defence Force and on 6 June he was substantively appointed to that position by the Governor General and promoted to Major General. On 6 October 2005 his appointment as JAG-ADF was extended for a further two years.

In May 2007 he was appointed the Commissioner of the Corruption and Crime Commission of Western Australia which position he held until his retirement on 31 January 2011.

Len Roberts-Smith is a Trustee of the Australian Defence Force Assistance Trust and the Patron of  the Citizens’ Advice Bureau of WA (Inc).

Attachment E

Taskforce Members

 Mr Robert Cornall AO 

Mr Robert Cornall AO as the Deputy Chair of the Taskforce brings over 40 years experience as a solicitor, a legal administrator and a legal policy maker. 

Robert was the former Executive Director and Secretary of the Law Institute of Victoria (1987 to 1995), Managing Director of Victoria Legal Aid (1995 to 2000) and Secretary of the Attorney-General’s Department (2000 to 2008).

Robert was appointed an Officer of the Order of Australia in January 2006 for service to the community through contributions to the development of public policy, particularly counter-terrorism arrangements in a changing global security environment and through providing advice and governance across a diverse range of responsibilities within the civil justice system.

Ms Susan Halliday

Ms Susan Halliday brings to the Taskforce extensive experience in corporate governance, employment law, workplace policy and strategic planning.

Susan was the Assistant Director of the Council for Equal Opportunity in Employment (1990 to 1994) and the Assistant Director of the Business Council of Australia (1994 to 1998).  Susan was appointed Australia’s Sex Discrimination Commissioner in April 1998 and also served as the nation’s Disability Discrimination Commissioner.

Susan was appointed in 2002 as the inaugural Chairperson of The Victorian Institute of Teaching, a position she held for close to a decade.  Susan also runs an employment law consulting and investigation firm. A registered teacher and Life Governor of the Australian Childhood Foundation, Susan is also a Board member of the State Library of Victoria and member of the Australian Institute of Company Directors.  Susan has been a Director of Caraniche since 2004.

Assistant Commissioner Rudi Lammers APM

Assistant Commissioner Rudi Lammers brings to the Taskforce extensive experience in policing having commenced his career with the Australian Federal Police (AFP) in 1982. Since then he has worked in ACT Policing and AFP National including community policing, investigations, prosecutions, technical operations, human resources and information and communications technology.

Rudi has led a diverse range of areas in the AFP and has headed international projects and developed significant capabilities to support operations and investigations in several countries.

Appointed as the Chief Information Officer in December 2008, Rudi is responsible for delivering the AFP’s Information and Communication Technology systems as well as leading the development and implementation of Information Communication Technology strategies to support police investigations, policies, frameworks and standards.


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