Paper presented by the

Minister for Defence
Stephen Smith MP

on
The Defence Abuse Response Taskforce
Tabled in conjunction with a Ministerial Statement

14 March 2013

***Check against delivery***

Introduction

The Government is committed to providing regular reports and updates on its response to allegations of sexual or other forms of abuse in Defence, including to the Parliament.

In April 2011, in the aftermath of the so-called ‘ADFA Skype incident’, I announced a range of Reviews into aspects of the culture within both the Australian Defence Force Academy (ADFA) and the Australian Defence Force (ADF) to address ongoing concern in relation to failure to meet appropriate standards of conduct.

The cultural Reviews included the Use of Alcohol in the ADF, Personal Conduct of ADF Personnel, the Use of Social Media in Defence, Australian Public Service Women’s Leadership Pathways in Defence and the Management of Incidents and Complaints in Defence.

The Reviews assessed the good work that had been done to date in these areas and examined what further improvements would be made.

In addition to the Reviews into aspects of Defence culture, I also announced at that time two significant reviews into the treatment of women at ADFA and in the ADF more generally to be conducted by the Federal Sex Discrimination Commissioner, Ms Elizabeth Broderick, on behalf of the Australian Human Rights Commission.

Phase One of the Broderick Review, into the Treatment of Women at ADFA, was tabled in Parliament in November 2011.

Phase Two, which considered the treatment of women in the ADF generally, and pathways for women into leadership roles in the ADF, was tabled in Parliament in August 2012.

Defence’s comprehensive response to these cultural Reviews, the Pathway to Change: Evolving Defence Culture outlines how the recommendations of the Reviews will be implemented consistent with the wider Defence reform programme.

Pathway to Change also builds on the institutional and personal accountability reforms in Defence to implement the Review of the Defence Accountability Framework (the Black Review) announced in August 2011. The Black Review was the first comprehensive review to examine personal and institutional accountability in Defence as a whole.

Ongoing implementation of these reforms is critical to ensuring that Defence’s culture meets modern Australian community standards.

To ensure that ongoing implementation of these essential reforms receives the highest levels of oversight, I have committed on an Annual basis provide a report to the Parliament on Defence’s implementation of the reform program.  This year I propose to do so before the end of June.

On 26 November 2012 I also announced the Government’s response to the Report of the DLA Piper Review into allegations of sexual or other forms of abuse in Defence.

Today I will provide an update on the Government’s response to the DLA Piper Review. 

DLA Piper Review

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 required very careful consideration.

The Government’s response to the Review has been 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 historic 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.
• 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.
• access to a capped compensation or reparation scheme; and
•  
  a free telephone hotline so that complainants can access information about the Government’s response. 

Apology

On 26 November 2012, I delivered in the Parliament an historic 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.

In my apology, I said that the men and women of the Australian Defence Force, past, currently serving and future, are entitled to be and deserve to be treated with the highest standards of admiration and respect. 

I also said that, sadly, not all members of the Australian Defence Force have been treated with the necessary respect required to meet both common decency and these high standards.

To those men and women in the Australian Defence Force or the Department of Defence who have suffered sexual or other forms of abuse, on behalf of the Government, I said sorry.

On the same day, the Chief of the Defence force, General David Hurley, also made an apology to those who have suffered sexual, physical or mental abuse while serving in the ADF.

Independent Taskforce

Under its Terms of Reference, the Taskforce is to:

• assess the findings of the DLA Piper review and the material gathered by that review, and any additional material available to the Taskforce concerning complaints of sexual and other forms of abuse by Defence personnel alleged to have occurred prior to 11 April 2011,the date of the announcement of the DLA Piper Review;
• include in this assessment the 24 Australian Defence Force Academy (ADFA) cases noted by DLA Piper and the cases of abuse identified by reports into physical violence and bullying at HMAS Leeuwin, and whether the alleged victims, perpetrators and witnesses in relation to these cases remain in Defence;
• determine, in close consultation with those who have made complaints, appropriate actions in response to those complaints;
• also, as appropriate, gather additional information relevant to consideration of the handling of particular allegations eg relevant records held by Defence;
• take account of the rights and interests of alleged victims, accused persons and other parties;
• liaise with the Minister for Defence, Chief of the Defence Force and the Secretary of the Department of Defence on any implications of its work for Defence’s ‘Pathway to Change’ and other responses to the series of reviews into Defence culture and practices in particular the work done by the Sex Discrimination Commissioner into the ADF and ADFA;
• report to the Attorney-General and Minister for Defence every 3 months on its progress and issues arising, including whether the funding it has been provided is adequate so as to enable the Attorney?General and Minister for Defence to report to Parliament as appropriate;
• report to the Attorney-General and Minister for Defence by October 2013 on whether, in what form, the Taskforce should continue in effect beyond the initial 12 month period and the funding that would be required so as to enable the Attorney?General and Minister for Defence to report to Parliament as appropriate; and
• to advise whether a Royal Commission would be merited into any categories of allegation raised with the DLA Piper review or the Taskforce, in particular the 24 ADFA cases.

The independent Defence Abuse Response Taskforce (‘the Taskforce’) has 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;
• reparation, 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). 

All communications made to DLA Piper, including those that were assessed as outside the scope of that review or were referred to an external body, are intended to be reassessed by the Taskforce.

The Taskforce will also assess new allegations and complaints received since its establishment where those allegations refer to abuse that is alleged to have occurred prior to 11 April 2011.

Today, I table the Taskforce’s First Interim Report to me and the Attorney-General.

Taskforce First Interim Report

The Taskforce is comprised of a Leadership Group appointed by the Attorney-General and me and staff who have been engaged by the Taskforce since its establishment.

The Leadership Group Chair, the Honourable Leonard (Len) Roberts-Smith RFD, QC is assisted in his role by three other Leadership Group members, Deputy Chair Mr Robert Cornall AO, Member Consultant Ms Susan Halliday, and Ex-Officio Member Australian Federal Police Assistant Commissioner Rudi Lammers APM.

The Taskforce is assessing all of the allegations and complaints from the DLA Piper Review, as well as the new matters raised directly with the Taskforce.

The number of cases before the Taskforce is building steadily. In addition to the more than 1000 DLA Piper cases, the Taskforce is receiving approximately 15 new matters per week through the Hotline.

The Taskforce is working closely with DLA Piper to facilitate the steady transfer of case files.

As at 4 March 2013, the Taskforce had received 524 case files from DLA Piper.  The Taskforce has also received 19 ‘conflict of interest’ cases which had been referred to the Defence Force Ombudsman.  These cases were referred to the Ombudsman because DLA Piper identified a potential conflict of interest arising from its prior involvement in the matter.

The Taskforce has also received a large volume of material from the Australian Defence Force Investigative Service (AFDIS) in relation to a range of incidents and complaints.

The Taskforce has developed and adopted protocols to ensure all complainants are heard, thoroughly assessed and there are appropriate governance and case management systems to complete all operational goals in a clear and efficient manner.

It was also necessary to secure from DLA Piper and Defence all those documents and records from the DLA Piper Review which resulted in the creation of the Taskforce.

Taskforce staff have been carefully selected from a range of disciplines, and include:

• Experienced AFP officers, including investigators and intelligence analysts, to assess the allegations received, and, gather and examine additional information on the reporting and management of allegations of abuse by Defence personnel;
• Registered psychologists and counsellors to provide staff support and to assess whether complainants require additional counselling and/or are suitable for referral to existing counselling services;
• Former investigators or inquiry officers from the Ombudsman’s Office;
• Staff with expertise in the management and delivery of compensation to victims of crime and crime support;
• A highly experienced legal team well versed in the areas which are likely to be raised; and
• Experienced personnel in policy, information and communications technology, operations, business, project, case management and administration.
   

The Taskforce has met with Police agencies in every jurisdiction in order to meet and agree upon a Taskforce/Police protocol.

The Taskforce has also started to collate and organise information received regarding allegations and complaints.

It has also undertaken a preliminary assessment of a number of high priority cases or cases from the Hotline which have required escalating. These cases have been referred together with case summaries to appropriate teams in the Taskforce.

The Taskforce is now preparing to transition into its Operational Phase, in which the assessment of allegations and complaints will be considered in accordance with the Taskforce’s protocols.

In the Operational Phase, the Taskforce will consider whether the matter is:

• Appropriate to be considered and assessed under the Taskforce Terms of Reference;
• Suitable for referral to existing counselling services should the complainant need additional counselling;
• Suitable for consideration under the Defence Abuse Reparation Payment Scheme;
• Suitable for restorative justice/conciliation processes, including apologies from appropriate Defence officers;
• Suitable to be referred to police for assessment and possible formal criminal investigation and prosecution;
• Suitable to be referred for disposition by the military justice system or other Defence process;
• Suitable to be referred to another external entity, such as the Defence Force Ombudsman; or
• In a category of allegations that merits further inquiry by a Royal Commission.
   

Although the Taskforce is not directly responsible for resolution of allegations, it is responsible for determining the response necessary and referring the matter to the appropriate entity. Following an initial assessment the Taskforce will, in consultation with the complainant, determine the most appropriate response action to allow for resolution of the matter.

A complainant may receive a number of outcomes from the Taskforce in relation to the one complaint (for example, referral to the Police, a reparation payment and counselling).

In all instances any action will take into account the rights and interests of the complainants, alleged perpetrators and other parties.

Where necessary, the Taskforce will gather additional information about the handling of particular allegations by Defence in order to decide the appropriate response action. This material will also help determine whether any amendments are recommended to Defence Instructions in order to provide simpler advice and guidance to Defence management where incidents of abuse are reported to them.

Systemic issues

All information assessed and analysed will be considered to ascertain whether there are any implications for Defence in the work it is undertaking in its Pathway to Change, or arising from other Reviews.

This includes any systematic issues indentified in the DLA Piper Review Report, which has been provided to the Taskforce for consideration and advice to the Minister for Defence.

In accordance with its Terms of Reference, the Taskforce will bring any such matters to the attention of the Minister for Defence, Chief of the Defence Force, and the Secretary of the Department of Defence to ensure Pathway to Change addresses, or is updated to address, the concerns of systemic issues.

Where appropriate, the Chair may also refer matters to the Sex Discrimination Commissioner for consideration following the Review into the Treatment of Women in the Defence Force.

The Taskforce will also report to the Attorney-General and Minister for Defence every quarter on progress and whether any systemic issues are identified.

ADFA and HMAS Leeuwin

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 is therefore expressly considering 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.

The Taskforce has reported that its analysis of all available ADFA- related Defence Inquiries, reports and reviews suggests there are difficulties arising from ADFA’s hybrid military/education institutional model.

These afford a context and may illuminate the circumstances of the individual allegations the Taskforce is also required to assess in this area.

Based on an analysis of the material currently available to it about the events which are alleged to have taken place at HMAS Leeuwin in the 1960s and 1970s, the Taskforce has noted that:

• There is a consistency between material available on the public record regarding events at HMAS Leeuwin in the 1960s and 1970s and the substance of the individual complaints made to the Taskforce;
• It appears that bullying and violence of a widespread and serious nature occurred at HMAS Leeuwin during the 1960s and 1970s;
• Much of the alleged bullying and violence appears to have been unreported;
• Abuse alleged to have occurred at HMAS Leeuwin during this time period included:
  • Abuse alleged to have been perpetrated by peers, including numerous allegations of physical assault and frequent allegations of sexual assault;
  • Abuse alleged to have been perpetrated by staff, including some allegations of serious sexual assault and several allegations of physical assault;
  • Allegations that some training practices were carried out in a manner that was perceived as abusive,including for example, requiring recruits to run holding rifles over their heads, or to ‘bunny hop’ whileholding rifles over their heads for long periods of time, beyond any reasonable training purposes; and
  • Some allegations of sexual assault perpetrated by ‘sponsors’, who accommodated recruits in family homes on weekends.
• Many of those who allege that they suffered abuse at HMAS Leeuwin during this time period also describe significant detrimental long-term impacts such as Post-Traumatic Stress Disorder or serious depression, which they attribute to their experiences at HMAS Leeuwin.

Reparation Scheme

The Government has today announced that it has approved the operation of the Defence Abuse Reparation Payment Scheme.

The purpose of the Defence Abuse Reparation Payment Scheme is to recognise that abuse in Defence is unacceptable and wrong.

Individuals who suffered sexual or other forms of abuse in Defence should be afforded some form of financial reparation, as part of a broader acknowledgement that such abuse should never have occurred.

Recognition will be made in the form of a reparation payment to persons who have made plausible allegations of being subjected to sexual or other forms of abuse in Defence.

The Scheme also seeks to recognise individuals who reported abuse and whose cases were then mishandled by Defence management.

Reparation payments are not intended as compensation per se. 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 case.

The making of a Reparation Payment to a person under the Scheme is not intended to affect the statutory, common law or other legal rights of the person.  However, a Court or Tribunal may, if it thinks fit, take the making of a Reparation Payment into account in assessing the amount of any damages or compensation otherwise payable to a person under the common law or a Commonwealth, State or Territory Statute.

Free telephone hotline

As part of its response to the DLA Piper Review, the Australian Government launched a free call information Hotline to operate immediately following the announcement of the establishment of the Taskforce. The Hotline is currently administered by DLA Piper.

As at 4 March 2013, the Hotline had received 1041 contacts comprising 781 telephone calls and voicemail messages and 260 emails which include 328 people with new matters that have never previously been communicated to DLA Piper.

Period of operation

The Taskforce was originally intended to operate for a year until December 2013 and at its conclusion report to Parliament through the Minister for Defence.

However, I have received advice from the Taskforce Chair that he considers an extension of this deadline is necessary as there is no realistic prospect the work required by the Terms of Reference could be completed within the present 12 month timeframe, noting the substantial workload before it and the large number of new cases.

The Attorney-General and I have therefore agreed to his request that the duration of the Defence Abuse Response Taskforce be extended from 12 to 18 months.

The Taskforce is now due to complete its work at the end of May 2014.

The Attorney-General and I also agree that the cut-off for the Taskforce accepting new allegations of abuse that are alleged to have occurred prior to 11 April 2011 will be 31 May this year, giving the Taskforce a full year in which to assess these allegations and conclude its work.

This announcement will ensure that people who have experienced abuse prior to 11 April 2011 but who have not yet brought their case forward have the time to consider doing so.

Parliamentary Oversight

The serious nature of the matters being considered by the Defence Abuse Response Taskforce requires the highest levels of oversight. 

This is why I support Parliamentary oversight in the ongoing management of these matters.

This has already commenced with the establishment of the Senate Standing Committees on Foreign Affairs, Defence and Trade Inquiry into the Report of the Review of allegations of sexual and other abuse in Defence, conducted by DLA Piper, and the response of the Government to the Review.

Today, that Committee will hold hearings at which the Chair of the Defence Abuse Response Taskforce, the Secretary of the Department of Defence and the Chief of the Defence Force will appear.

I also propose to discuss with members of the Committee how Parliamentary oversight of the management of allegations of abuse in Defence, and Parliamentary oversight of implementation of cultural change measures in Defence can be effected.

This Parliamentary oversight will be in addition to the first Annual report to the Parliament on Defence’s implementation of the cultural reform program, which as previously indicated I propose to do in the House before the end of June.