TRANSCRIPT: PRESS CONFERENCE
TRANSCRIPTION: PROOF COPY E & OE
DATE: 26 November 2012
TOPICS: Government response to the DLA Piper and Broderick Reviews.
STEPHEN SMITH: Thank you very much for turning up. I'm accompanied this morning by the Honourable Len Roberts-Smith QC, a former judge of the Supreme Court of Western Australia and a former judge of the Court of Appeal of Western Australia, and Liz Broderick, who is the Commonwealth Sex Discrimination Commissioner.
Two purposes today- firstly, to update on the progress that has been made with all of the reviews and announcements effected in April 2011 in the aftermath of the so-called ADFA Skype incident, and also to announce the Government's response to the DLA Piper Review, which I received in April of this year.
You might recall in the aftermath of the ADFA Skype incident in April and May of 2011 that the Government announced really four separate streams of work. Firstly, a series of cultural reviews into the culture in the Australian Defence Force and concern about inappropriate conduct in the Australian Defence Force.
Secondly, we asked Ms Broderick, as the Commonwealth Sex Discrimination Commissioner on behalf of the Australian Human Rights Commission, to effect a study into women in both ADFA, theAustralianDefenceForceAcademy, and also the Australian Defence Force generally.
Thirdly, we made a decision and announcement with respect to women in combat or combat roles being open for women.
And finally, as a result of numerous approaches and allegations that were made, a reference to DLA Piper to investigate individual allegations so far as inappropriate conduct in Defence was concerned.
Very briefly, the cultural reviews have been responded to by the tabling in the Parliament of me of the so-called Pathway to Change document. That document, which was tabled earlier this year, was effectively written by the Chief of the Defence Force and the then-Secretary. That's a document which says that there is a zero tolerance for inappropriate behaviour and conduct in the ADF. There'll be no more of a turning of a blind eye to such inappropriate conduct and a zero tolerance to such conduct.
So far as Liz Broderick's work is concerned, two of her reports, the first into ADFA, theAustralianDefenceForceAcademy, and the second into the Australian Defence Force generally, women both in ADFA and in the ADF, both of those reports have been tabled in the Parliament.
All of the recommendations in those two reports have been accepted in principle, and today Liz and I will be in a position to update on the implementation of her second report, namely with respect to women in the Australian Defence Force generally.
Finally, so far as women in combat is concerned, you would have seen the recent update by Minister for Defence Personnel Snowdon indicating that that will now be implemented over a maximum of a five-year transition period. But importantly, internal applicants will be able to apply for the relevant positions as early as January next year.
Let me deal now with today's announcement with respect to the review by DLA Piper. DLA Piper reported to me April of this year. Some 1000 pieces of correspondence or contact were made with DLA Piper. DLA Piper have assessed that there are some 750 plausible allegations of inappropriate conduct in Defence. And today, the Government announces its response to that review.
Firstly, the Government will give an apology to those people in the Defence Force or the Defence Organisation or the Department of Defence who have suffered from sexual or other abuse in Defence. That apology will be made by me as Minister for Defence on behalf of the Government in the Parliament today at midday, at 12 o'clock, at the commencement of Government Business. I will say sorry to those people who have been subject to inappropriate abuse over their time in the Australian Defence Force. That will occur at 12 o'clock in the Parliament today.
Secondly, we are establishing a task force to be chaired by Len Roberts-Smith. Len Roberts-Smith is very eminently and appropriately suited to this task. A former judge of the Supreme Court of Western Australia, a former judge of the Court of Appeal of Western Australia, a former director of the Legal Aid Commission of Western Australia, variously the Deputy Chair and Chair of the Equal Opportunity Board of Western Australia, Corruption and Crime Commissioner of Western Australia, and also a former Judge Advocate-General, a role which sees civilian legal oversight of the military justice system.
Len will be assisted by a Deputy Chair, Robert Cornall, a former Secretary of the Attorney-General's Department. Len and Robert will also be assisted by Susan Halliday, a former Commonwealth Sex Discrimination Commissioner. Rudi Lammers, who is an Assistant Commissioner with the Australian Federal Police, will be an ex-officio member of the task force, as he will continue his line portfolio responsibilities with the Australian Federal Police. And Len and I have agreed that if Len requires more members of the task force, once he and the other members have had a chance to make a judgment about work load, any further requests for additional members of the task force will be granted by me.
The task force has been given the job by the Government to do the following things.
Firstly, for those people who have made complaints or allegations to DLA Piper, those people who wish to pursue, those men and women who wish to pursue those matters, the task force will seek to engage in restorative justice, in other words, reconciliation or potentially a direct personal apology from an alleged perpetrator to a victim. So there will be a process of restorative justice.
Secondly, there will be a compensation scheme to be administered by the task force. That compensation will be to a maximum of $50,000. That is based on rule of thumb, some of the state-based criminal injuries compensation schemes that we see in existence.
Those decisions will effectively be made by the task force and those grants of compensation will not take away an individual's right to pursue other remedies if they choose.
Thirdly, counselling will be made available.
Fourthly, there will be reference to relevant Commonwealth avenues, in particular Defence, the military justice system, or the Australian public service system if we are dealing with matters that involveDefenceCommonwealthpublic service employees.
Fifthly, reference to relevant State and Federal Police or investigative bodies as appropriate.
Sixthly, I have asked Len and the task force to in particular look at two matters with a possible comeback to me by way of recommendation for a Royal Commission into two narrow areas.
Firstly, the area identified by DLA Piper, what has become known as the ADFA 24. I've asked Len to pay particular attention to that. If he needs the powers of a Royal Commission or Royal Commissioner to deal with that matter, he will come back to me and those powers will be granted.
Secondly, I've also asked Len and the task force to look in particular at the so-called HMAS Leeuwin matter, a training school in Western Australia where children were in HMAS Leeuwin, and there are very serious allegations of abuse. In those days, in the '60s and the '70s, children as young as 13, 14 and 15 could formerly join the navy and go to such a training institution.
So in those two areas, I've asked Len to come back to me with particular recommendations. If he needs the power of a Royal Commissioner in those areas, they will be granted.
Some final matters before I ask Len and then Liz to speak to you. So far as the cost of these matters are concerned, including the compensation, the cost of the establishment of the task force, the cost of any compensation scheme will be met by Defence, out of Defence's existing resource allocation. That's appropriate. If any organisation sees on its watch inappropriate or bad conduct, in the end there is a price to pay. So I have undertaken to my Cabinet colleagues that Defence will bear the burden of the costs of this matter.
The expectation is that the taskforce will work initially for a 12-month period and Len will make a judgment with about three months to go as to whether an extension of time is required.
Finally, in terms of parliamentary oversight, in the materials distributed to you I've indicated that I'm proposing to make an annual report to the Parliament, to give an update to the Parliament, on the implementation of the various cultural and other reviews that we have seen put in place since April of last year.
I think it's important that the Minister of the day make those ongoing implementation reports. I also believe it's important that there be some form of parliamentary oversight so far as implementation of those recommendations from those various reports are concerned.
Some of you may be aware that the Senate References Committee for Foreign Affairs, Defence and Trade has a reference before it essentially on military justice matters. I'll have a conversation or a discussion with that Committee to see what is the best mechanism for parliamentary oversight of the implementation of the various recommendations arising from these reviews, including any which come from Len's task force.
In my analysis, the experience of Defence has been that as Defence has tried to grapple with these issues over the years and the decades, very often reports are made, recommendations are agreed, but often they are either not fully implemented, or honoured in the breach, and that implementation is something that I, the Defence leadership, the Chief of the Defence Force, the Service Chiefs and the Secretary, are absolutely committed to effecting.
I’m very pleased, and you’ll see from the paperwork, that the Chiefs of the Service Committee, effectively the Chief of the Defence Force, the Vice Chief, the Service Chiefs and the Secretary, have signed a document which says that in this area, there will be zero tolerance, in this area there is no negotiation, these matters have to be dealt with.
The apology that is given today, the words that we speak today, and the action that we affect today, I am confident will mean that no future Minister for Defence has to make the same apology to future victims of inappropriate conduct in Defence.
I’ll ask Len to make some remarks, then I’ll ask Liz to make remarks, and then we’re happy to respond to your questions, although I’d just make this point right now, we’ll have to leave at about ten to eleven, because we’ve got a function to attend at 11. Len?
LEN ROBERTS-SMITH: Thank you, Minister. The Minister mentioned a moment ago some observations made in the DLA Piper Review to the effect that there had been quite a number of reports and reviews in relation to these areas within Defence over a number of years, and that measures had been put into place.
Their observation there I think was that in most cases, the recommendations which had been made, had been accepted and indeed implemented, but self-evidently they had not necessarily resulted in dealing with the problems which had been identified.
More significantly from the point of view of the present task force is this point, that those previous reports and reviews have been focused on dealing with the systemic issues, and looking to dealing with the problems for the future.
One of the observations made in the DLA Piper Review was that in many instances, the actual allegations of sexual or other abuse which had been the cause of the review or report in the first instance, had actually not been themselves addressed.
That I think is a very significant difference, so far as this task force is concerned, because one of the primary aspects, one of the main focuses of this task force, is going to be dealing with each of the allegations and complaints that have been made and identified by DLA Piper, and indeed any others which come in, in the immediate future, over the period with which the task force is going to be concerned.
It will be the role of the task force therefore to deal with individual cases, and to ensure that they are referred appropriately, obviously the task force cannot itself take action, full investigative action or prosecutorial action, or whatever the case may be in relation to every one of them, but what the task force can and will do, is ensure that they are properly further investigated to the point of the task force being able to ensure what action, or to identify what appropriate action is necessary, and then to refer or arrange for that action to be taken, and monitor the implementation of it.
Likewise compensation, the Minister has mentioned compensation, the scheme is being established by the Government, the task force will administer that scheme.
Again I think the important point to recognise about that is that it is not going to be a civil liability-type scheme where people have to establish damages and liability and go to great lengths of proof to establish a claim. There will be a relatively low threshold for entitlement under the compensation scheme, and the key principle underlying it will be simply to recognise that compensation should be payable in recognition of the simple fact that sexual or other abuse of the kind we’ve been talking about, is itself a wrong, and compensable.
So that I think are some of the things which are significantly different about this task force, and I reiterate that our focus will be in relation to the individual cases, to ensure that they are appropriately dealt with.
Overarching that of course, the DLA Piper review also drew attention to system issues within Defence, and there were quite a lot of historical issues of that kind. The task force needs to build on that work, to develop the examination of systemic and cultural issues within Defence, in conjunction with the work that Liz and her team have done, and in addition and in conjunction with the Pathway to Change approach, which is currently being implemented within Defence.
So the task force will be looking at individual cases, looking at outcomes for the individual cases, and also in relation to that, looking at the way in which Defence managed those cases, or alternatively failed to do so, and if there was a failure, then why was it so, and what can be done to fix that now?
The only other observation I think I should make at this stage before questions, after Liz has spoken to you, is this. There are very significant privacy issues here, some may say well why not have a Royal Commission with public hearings- I would have thought one obvious answer to that is the very serious privacy issues.
DLA Piper made it quite clear in their report that very many of the people who raised allegations with them, had never done so before, they had never done so within the ADF, and in many instances they had never even mentioned to their families what they say happened to them. They are concerned not to be publicly identified in the context of the sort of work the task force is going to be doing.
That obviously needs to be respected, we will need to be able to resolve or assist the resolution of their allegations and complaints in an appropriate way, whilst respecting their privacy, and the privacy of their families.
The other side of that too of course, from a proper legal point of view, is that of procedural fairness. The DLA Piper Review did not purport to identify alleged perpetrators, the work of the taskforce is likely to do so, and indeed, I think that is going to be part of what we seek to do.
That does not mean we would investigate things to the extent of preparing prosecution briefs for instance, we will still be conducting only preliminary investigations, sufficient to determine whether or not there is substance, or likely to be substance in an evidentiary sense, to the allegations which have been made, and if we conclude that there is, then they will be referred off, as the Minister says, to the appropriate police or investigating authority for further proper, that is, full investigation, and if appropriate, prosecution, by the appropriate authorities.
So in relation to alleged perpetrators, the critical point I think to bear in mind is the need to maintain procedural fairness, we are going to have to be sensitive to that, and deal with people in that context again in an appropriate and fair way.
Subject to those constraints, the work of the task force is going to be considerable, there is a huge amount of work to be done, and I’m very pleased with the other people who are so far on the task force with me, in the leadership group, and each of them brings to bear skills which are going to be highly relevant, and very useful indeed, to the range of work which the task force is going to have to have undertaken.
LIZ BRODERICK: Thank you very much, Len. I welcome the announcement by the Minister, and particularly I’m delighted that retired judge, Len Roberts-Smith, will head the task force. I know Judge Roberts-Smith’s legal and his community experience will bring a great depth and insight into the considerable work that lies ahead.
As the Minister said, I led the review into the treatment of women in theAustralianDefenceForceAcademy, and later into the Australian Defence Force more broadly. Our report into the academy was tabled in the Parliament in November last year, and then just in August this year, we tabled the report into the Australian Defence Force.
Talking to thousands of personnel, my team and I heard many positive stories – stories in which the ADF had served – had clearly served its members well. But on occasion we also heard stories that were deeply distressing and unacceptable.
The review was a sizeable undertaking, and when I reflect on the last 12 months, and the considerable time spent in the ADF, I think one of the most important things that we did was to help create understanding; to bring women and men to meet with each of the Service Chiefs, to tell them first hand of their experiences.
And the reason I’m telling this story is because I was heartened by the reaction of the Chiefs. Each of the Chiefs of the Services who were as appalled as I was at the treatment that some of these individuals have suffered.
They were swift to take action to address individual concerns and injustices and to accelerate systemic change across their particular service.
So through the process of a review, and through, as the Minister said the genuine commitment to implement the recommendations, the Chief of the Defence Force, the Vice-Chief, and the Chiefs of each of the services have demonstrated that they are determined to create a defence force where abuse, harassment, marginalisation and bullying have no place.
It’s a Defence Force where robust and rigorous accountability mechanisms are consistently applied. And I’ve been encourage just to observe over the last few months, the progress that has already occurred.
A number of our recommendations have already been implemented, with one of the key recommendations being the establishment of a dedicated sexual misconduct prevention and response office.
So this office has already been established; there has been a one-star general appointed to lead it.
Once fully operational, this office will be a one-stop shop for people who’ve suffered sexual abuse or sexual harassment and continue to suffer in the military today. It will be a very victim-centric approach. It will enable them to access internal or external support – so support external to Defence. And should a member choose to undertake an investigation into the alleged incident, it will also accept what we call restricted reports.
So it will be a central point of data collection, because that’s one of the things my review uncovered, that the data collection in this area needs to be improved. And SMPRO will be a central point to do that to track trends, and to help the ADF develop strategic interventions.
But whilst the ADF is making progress, there’s no question that more needs to be done. And for this reason, in a further 12 months, the review team – that’s the review team that I’m leading, will examine how effectively our recommendations have been implemented.
I believe the task force that is being announced today is critical for a number of reasons.
Firstly, it will allow victims of abuse in the military to have their stories told; to have their stories heard, and often for the very first time. And I just saw how important that was as I travelled to military bases all across this country and in deployed environments. It will provide them with an avenue for justice.
Secondly, it will uncover past offenders and it will hold them accountable. And finally, I think it will provide the Chief of the Defence Force, the Vice Chief, the service chiefs, it will provide them with the information that they need to be continually vigilant against abuse, and to set up strong and sensitive systems to respond when abuse takes place.
The Government response to the DLA Piper inquiry, in combination with the Pathways to Change initiative, and of course the implementation of the recommendations contained in my report are pivotal moments for the Australian Defence Force.
Sexual abuse, harassment, victimisation; it not only seriously affects individuals, it divides teams, and it negatively impacts on operation effectiveness. So it is my hope that once the work of Judge Roberts-Smith’s task force is complete, future reviews and inquires into sexual and other abuse inAustralia’s military will no longer be necessary.
STEPHEN SMITH: Liz, can I thank you for your work today and your ongoing work. Len, can I thank you for volunteering. Just two quick points before we take questions.
Firstly, Liz referred to the restricted reporting. This is a deeply significant change. This is a capacity now which will allow a person who believes he or she has been the subject of sexual assault, sexual abuse or sexual harassment, to report that independently of the chain of command. That essentially follows a process which has been adopted in theUnited Statesin recent years.
Secondly, on the so-called ADFA 24, just to advise you of this. When DLA Piper reported and the ADFA 24 was raised as an issue, namely that there may be continuing serving members of the ADF who were associated or allegedly associated with those events, with my agreement, the Chief of the Defence Force started an investigation to determine the state of play so far as that is concerned.
ADFIS conducted that investigation. ADFIS have now completed the work that they’ve been able to complete. That work will now be made available firstly to the relevant State or Federal Police or prosecutorial authorities, and secondly, that same work will be made available to Len Roberts-Smith.
The Chief of the Defence Force, General Hurley recommended this course of conduct to me because he didn’t want to see a recommendation that there may be serving members of the force subject to those allegations without doing what he could and Defence could within the confines of the work the Government was doing in terms of response to DLA Piper. So I put that on the record, so you are aware of that. That information will be made available to the relevant police and investigative authorities. It will also be made available to the task force. Now bearing in mind we’ve got somewhere between 20 and 25 minutes- Brendan?
JOURNALIST: Minister, given that initial investigation is being carried by military investigators, do you personally believe that there may actually be serving members of the ADF, perhaps in senior positions who are guilty of such offences?
STEPHEN SMITH: Firstly, I’m not going to make any comments about guilt. What do we know- we know that DLA Piper presented its review to me in April of this year, essentially they said in general terms, we don’t recommend a Royal Commission. But in this narrow area, the so-called ADFA 24, we think you should think about a Royal Commission because there may well be serving officers, continuing serving officers associated with these events. As you know, because of the complex matters that the DLA Piper review presented to me, we’ve worked our way very carefully through a series of complex judgements.
One judgment we’ve made with respect for the so-called ADFA 24 is that we’re not going to go in the first instance to a Royal Commission. I’ve left Len the option of coming back to me saying that he needs the power of a Royal Commissioner with respect to that matter. In the meantime, the Chief of the Defence Force has started through the existing process, an investigation into precisely that point, whether there are existing officers, existing personnel still in the system.
I’m not proposing to indicate numbers, but it is the case on the basis of the investigation done to date that there are people within the system who may well be associated with those events. That’s why the work done by ADFIS will be handed over to relevant investigative authorities, and also handed over to the taskforce. But I’m not proposing to tilt the lever one way or the other in terms of the substance of those allegations. They obviously need to be tested. They’ll be in a sense tested by the task force, but ultimately tested by the relevant authorities.
STEPHEN SMITH: Firstly, there’s no need to shout – we’ll do this in an orderly way. Richard?
JOURNALIST: Minister, can you tell us about the legal implications of the apology that you’re going to make today?
STEPHEN SMITH: The advice that I’ve got is that a general apology, which is what I’m proposing to do does not impact on legal liability. For there to be an impact on legal liability, one needs to delve into the particular facts and circumstances of a particular case; I’m not proposing to do that.
We’ve seen apologies both at the Commonwealth level and the state level in the past. They’re in the nature of general apologies. We simply make the point to a range of individuals, with respect to whom there is plenty of plausible evidence that they have been treated in an inappropriate way, that we regret very much that that occurred to you. We’re sorry that occurred to you, and we are now trying to take steps to make sure that it doesn’t happen again, so similar apologies into the future won’t be required.
So the advice I have is it’ll have no impact on legal liability. That has not restrained me in any way. The compensation arrangements which Mr Roberts-Smith and I have referred to won’t take away from any individual’s rights to pursue whatever remedies they so choose. [Indistinct]
JOURNALIST: Can the taskforce compel witnesses to give evidence?
STEPHEN SMITH: No, we are not proposing to proceed on the basis of compulsion. Certainly the Chief of the Defence Force and the Service Chiefs and the Secretary will fully cooperate with the taskforce in terms of information that they require.
The taskforce may well wish to speak to individuals about some of these matters. It'll be a matter, in the first instance, for individuals to make a judgement about whether they are happy to so cooperate.
If the taskforce, if Mr Roberts-Smith believes that he needs to have powers of compulsion, he will come back to me, and we then fall into the area of powers of a Royal Commissioner.
JOURNALIST: HMAS Leeuwin is one of the areas you've also focused in, as well as ADFA. Can you just comment generally about why HMAS Leeuwin is one of the areas you've focused in on? What's the evidence you've seen which has raised alarm there?
STEPHEN SMITH: I think there are two aspects. Firstly, the materials that you find in DLA Piper's report are quite disturbing. That's the first point. And, indeed, some of those general matters have been made public, including through your own newspaper. Secondly, because we are dealing here with a time in Navy and the Defence Force where children as - where men as young as 13, 14 and 15 could formally join the Navy and go directly to a training institution you're dealing with minors or with children.
And so, I've asked Len and the task force to also have a look at that area. I know, from my own observations, that one of the clear issues about the potential for further investigation in that area is the length of time which has elapsed since then, firstly. Secondly, there has also been, if you like, a systemic or structural change. It's no longer the case that boys of that age go directly into Navy. So, in that respect, the systemic or the structural change, which many people see as being the cause of that issue, has been changed.
But other than the - and I think DLA - the DLA Piper review essentially says this itself. Other than the ADFA 24, that area was, if you like, the second most egregious area the DLA Piper review drew attention to.
JOURNALIST: Minister, with the compensation, what would be a case whereby someone alleged to have had sexual misconduct allegations here, what would constitute them getting a full - the maximum $50,000? Would that be something established in the task force? And with the 750 people identified as having serious allegations, that would add up to - they were going to get the full compensation, compensation would be around, I think, $35 million plus the-
STEPHEN SMITH: Thirty-seven point five is my calculation-
JOURNALIST: Thirty-seven point five-
STEPHEN SMITH: -but I could be wrong.
JOURNALIST: Plus the cost of the task force. Is that going to be another impairment on the Defence budget, which has already been under strain?
STEPHEN SMITH: Well, a range of things there. Firstly, so far as the compensation is concerned, it'll be a matter for the task force to administer the compensation. We’ve set a maximum limit of 50,000. That accords with the maximum limit for some state-based criminal injuries compensation arrangements. It'll be a matter for the task force to make judgments about that.
Obviously, the task force will need to work its way through, but $50,000 maximum will no doubt be for the most serious cases that the task force comes upon.
We are still working our way through, if you like, the underpinnings of the compensation scheme, because given the recent High Court case, the Commonwealth v Williams, we need to look very carefully, and this work is being done, at either a legislative or a regulatory basis for that if that's required. But, essentially, it'll be a matter for the task force.
Now, there are a thousand odd allegations that have come in. DLA Piper says 750 of those are plausible. It'll be a matter for the task force to work its way through.
Some people may not want to go on with it. They may decide - they may say, the fact that I've seen a general apology is enough for me. So, it's very hard to make a judgement or a calculation about cost, but you're quite correct, that is the outside parameter, but people shouldn't necessarily regard that as being a definitive assessment or scope of what the cost may be.
I make the same point I made in my opening remarks, all the costs of this exercise will be met from within the Defence budget. In the end, when there is inappropriate conduct in an institution, whether it's an agency, a department or an institution outside of Government, in the end, there's a price to pay, and that will be part of the price which Defence has to pay for inappropriate conduct in the past, but, more importantly, with the steps we're putting in place, we want to get zero tolerance and appropriate conduct into the future, and we'll manage that in the same way that we manage other Defence budget issues.
STEPHEN SMITH: Look, I said, we don't need to shout. There's one at the back and then I'll go along the front row.
JOURNALIST: We've heard from Len Roberts-Smith as to why he doesn't think this needs to be a Royal Commission at this stage. Can you explain why [indistinct]?
STEPHEN SMITH: When I received the report in April of this year, I made it clear publicly that all options are on the table. And I worked my way through, including discussions with some of my colleagues, about what was the best way forward.
And, I think, in more recent times I've said, I don't think it's appropriate, nor is there a need to go down the road of a broadly-based Royal Commission, but I am h