The Defence Abuse Restorative Engagement Program

THE DEFENCE ABUSE RESTORATIVE ENGAGEMENT PROGRAM

SPEECH

ROBERT CORNALL AODEPUTY CHAIR, DEFENCE ABUSE RESPONSE TASKFORCEWITH COMMENTS BY ANNE SUTHERLAND-KELLY

ADDRESS TO THE NATIONAL MEDIATION CONFERENCE
MELBOURNE, 10 SEPTEMBER 2014

INTRODUCTION

The Defence Abuse Response Taskforce is providing some redress to about 2000 complainants who have suffered sexual abuse, physical abuse, bullying or harassment in the Australian Defence Force.

At the beginning, it is necessary to tell you a little bit about the Defence Abuse Response Taskforce to explain why it was established and how the Restorative Engagement Program evolved.

You may remember what is known as the Skype incident which occurred at the Australian Defence Force Academy in April 2011. A student secretly filmed himself having consensual sex with a female colleague and broadcast it to his mates in an adjoining room without her knowledge.

The publicity surrounding the incident brought to light further allegations of sexual, physical or other abuse in Defence. In response, the Secretary of the Department engaged law firm DLA Piper to call for and consider allegations of abuse in Defence and recommend what to do about it.

While the DLA Piper review was taking place, thethen Minister for Defence, the HonStephen Smith MP, was consideringa number of other steps to eradicate abuse and change the culture in Defence. In due course, one of those actions was to establish, with the cooperation of the Attorney-General, the Defence Abuse Response Taskforce on 26 November 2012 as part of the Australian Government’s response to the DLA Piper Report.

THE SCALE OF THE TASKFORCE’S ACTIVITIES

It may help if I give you some idea of the scale of the Taskforce’s activities.

DLA Piper received around 775 allegations of abuse in Defence. Most of those allegations were passed on to the Taskforce with the complainants’ consent. The Taskforce advertised for complainants to report matters to us and we had received a total of around 2,400 complaints by the cut-off date of 31 May 2013. About 2,000 of those complaints are within the scope of our Terms of Reference.

To be in scope, the complainant and the alleged abuser must have been employed by Defence at the time of the alleged abuse and the abuse must have a connection to that employment. This means, for example, that domestic violence between a husband and wife who were both serving in Defence will not be in scope because the abuse is unrelated to their employment.

I should note that, if complaints are assessed as out of scope or not plausible, the Taskforce advises the complainants of other avenues they can pursue to seek assistance when they are told of that assessment.

The abuse can have taken place at any time before 11 April 2011, being the commencement date for the DLA Piper review. Some of the abuse reported to us occurred as far back as the 1960s, that is, 50 years ago. Our oldest complainants are men in their sixties – or even older – who were cadets at the HMAS Leeuwin naval base in West Australiaand who, in some instances, have never spoken of their abuse until they spoke to us.

Other military establishments have a record of bastardisation processes which often had sexual elements and, more recently, the Australian Defence Force Academy has an appalling record of sexual assaults on women and men in the 1990s.

Initially, the Taskforce was intended to finish its work within one year but it soon became clearthat was not possible, given the volume of complaints. The Taskforce will now come to an end on 30 November 2014 but there will still be a large number of outcomes to be delivered to individual complainants after that date. The arrangements for the completion of that legacy work are yet to be finalised by the Minister of Defence and the Attorney-General.

The size of the Taskforce has naturally varied over time but it currently employs around 170 staff. The staff comprise lawyers, sexual assault practitioners, police officers, intelligence officers, psychologists, administrators, communications advisers and IT, accounting and support personnel.

The Taskforce is an independent body,based in the Attorney-General’s Department, which reports quarterly to Parliament. The Taskforce’s sevenInterim Reports to date, a separate Report on Abuse at HMAS Leeuwin and a great deal of other interesting information about the Taskforce and its work can be found on our website (

However, today I am going to concentrate on the evolution and development of the Restorative Engagement Program and the participation of mediators as Restorative Engagement conference facilitators.

THE PLAUSIBILITY TEST

One of the regular questions that arises in relation to allegations of abuse in Defence is whether the Government should establish a Royal Commission. In setting up the Taskforce, the Government’s preference was to find ways to redress past abuse, to the extent that is possible.

This is a delicate task, as many of our complainants are suffering from the long term effects of their abuse and Taskforce officers take great care to adhere to our guiding principle that we should do no further harm.

The first step in our process is to determine whether a complaint is within the scope of our Terms of Reference and then if the allegation of abuse is plausible.

So we can focus primarily on assisting the person who was abused, the Taskforce developed a test of plausibility to assess allegations made by complainants. Plausibility means that, on all the information available to the Taskforce, the complaint has the appearance of reasonableness. It is less than an assessment on the balance of probabilities and far less than beyond reasonable doubt.

The Chair of the Taskforce, the Hon Len Roberts-Smith RFD QC has explained the need for a lower standard of proof for acceptance of complaints in these terms:

For many different reasons, including (but not limited to) complainants not reporting the abuse at the time nor for years afterwards; minimising descriptions of the abuse when it was reported; lack of forensic evidence; lack of witnesses; credibility issues because of psychological illness, alcohol or drug addiction (often the result of the abuse itself); and the absence of documentation, many if not most complainants to the Taskforce would have no prospect of having their allegations accepted as true in any formal administrative investigation or judicial process. The application of legal standards of proof (the balance of probabilities or beyond reasonable doubt), with the complainants having the onus of proving the truth of their allegation, would be an insurmountable obstacle. It is against this background that the Taskforce is required to accept an allegation of abuse as true, if satisfied on all the material available, that it is plausible.[1]

While the Taskforce has to have regard to the rights and interests of alleged abusers, the advantage of the plausibility test is that we do not have to deal with them directly and divert our focus from the victims.

TASKFORCE OUTCOMES

Our Terms of Reference requiredthe Taskforce to determine, in close consultation with those who have made complaints, appropriate action in response to those complaints.

After careful consideration, the Taskforce settled on five outcomes that can be provided for each complainant, depending on their individual circumstances. Those outcomes are:

• Psychological counselling
• A reparation payment of up to $50,000 depending on the level and nature of the abuse, noting that this payment is made without any requirement for waiver of legal rights or confidentiality undertaking by the complainant
• Referral to police for possible investigation and prosecution of criminal offences but only with the complainant’s consent
• Possible referral to the Chief of the Defence Force for consideration of administrative action or military justice sanction, and
• Participation in the Restorative Engagement Program.

The Department of Defence is bearing all of the costs associated with the Taskforce and its delivery of outcomes to complainants. It has committed around $80 million for the delivery of outcomes (that is, reparation payments, counselling and restorative engagement) and approximately $37 million for the administration of the Taskforce over the period of its operation.

THE EVOLUTION OF THE RESTORATIVE ENGAGEMENT PROGRAM

So that brings me to the evolution of the Restorative Engagement Program.

The Terms of Reference require the Taskforce to assess the findings of the DLA Piper review. One of those recommendations was:

Consideration should be given to establishing a framework for private facilitated meetings between victims, perpetrators and witnesses of abuse within Defence.

The Government’s response was in these terms:

Agreed. Restorative justice is one of the options open to the Taskforce to resolve individual complaints.

This recommendation reflected a number of factors uncovered by the DLA Piper review and re-enforced by complaints made to the Taskforce:

• First, many complainants had not reported their complaints when the alleged abuse occurred because of a strictly enforced culture of not dobbing on your mates
• Second, complainants who did report the abuse to Defence (whether formally or informally) were often not believed or their complaint was not handled properly, and
• Third, some complainants were treated so badly by their colleagues or senior officers that they ended up leaving or being forced out of the Defence Force.

Put simply, these complainants wanted Defence to acknowledge that the abuse had occurred, that it was wrong and to apologise for it.

The Taskforce agreed with the general thrust of the DLA Piper recommendation and the Government’s acceptance of it but could not see how the principles of restorative justice could apply in our situation for several reasons.

First, restorative justice involves a meeting between the victim of a crime and the offender who has pleaded or been found guilty.

Secondly, a restorative justice conference is part of a process leading to other actions which the offender agrees to undertake to make good, at least to some extent, the damage caused by his or her criminal offence.

But, as I have explained,the Taskforce does not engage directly with alleged abusers. Therefore, there was no possibility that our process would result in an abuser acknowledging or being proven to an appropriate standard to have perpetrated the abuse. This non-engagement was a deliberate decision by the Taskforce – along with the development of the plausibility test – so we could get on with our principal aim of redressing the abuse reasonably established to have been suffered by the complainants.

However, it was also apparent to the Taskforce that, in many cases, Defence itself was a major contributor to the abuse. Either it had failed to deal properly with an individual complaint or, more generally as an organisation comprising Army, Navy, Air Force and the Department, Defence failed to provide a safe workplace.

The failure to provide a safe workplace could have arisen in one of two ways. First, by not taking steps to correct or prevent known abusive behaviour (such as bastardisation rituals) or, second, by not protecting victims who reported abuse from bullying, harassment and isolation by their peers for doing so.

In quite a few complaints I have read, the complainants speak about their pride about being accepted into the Australian Defence Force and their great sense of loss at unfairly losing their military career as a result of their abuse.

This view was put most movingly by Private Veronica Wadley in these terms in an interview published in the Weekend Australian Magazine last year[2]:

‘It’s not the rape’ she says …’it hurts, yes, but I can let that go. It’s how the Army treated me that killed me the most. They were my family. We were supposed to look out for each other, to watch each other’s backs. But when push came to shove, they showed me the door. They just broke my heart’.

Another complainant expressed it this way:

I can also relate to the sense of loss of my career while the abusers kept theirs and even flourished in spite of what had occurred.

Complainants told DLA Piper and the Taskforce that they would like the opportunity to speak to a senior Defence representative to tell them their story face to face and have their abuse and mistreatment accepted and acknowledged as a significant step in redressing the wrongs they had suffered.

These considerations led to the development of the Restorative Engagement Program.

The most significant and distinctive feature of this unique Program is that it is not part of a process leading to other actions, although in some instances there can be some minor follow up by Defence. The Restorative Engagement conference is itself the outcome.

TERMINOLOGY

At this point, it is useful to spend a couple of minutes talking about terminology.

We took advice about – and gave very careful consideration to – the terminology the Taskforce uses. Three major decisions involved the terms complainant, reparation payment and restorative engagement.

We chose complainant because we were advised that many of the people who came to the Taskforce would resent being classed as a victim. That advice was correct. Many complainants see themselves as survivors or in some other light. Even so, we do get criticism from people who want to be called and recognised as victims while others don’t like either term.

In relation to the payments we make to complainants who are within scope and have established a plausible case, we quickly decided to stay well clear of the term compensation. The lives of many complainants have been very badly affected by the abuse they suffered in Defence. A maximum payment of $50,000 would fall well short of adequate compensation for that damage.

We chose the term reparation payment because reparation is the act of making amends. It is a payment that recognises that abuse is wrong and should not have happened. However, we never suggest that it is compensation in the legal sense and complainants are not required to give up any rights they may have to sue Defence or the Government as a condition of payment.

You might expect that ex gratia payment was another option but that expression has a very particular meaning within the Australian Government and was not appropriate for the Taskforce’s purpose.

Then there is restorative engagement itself. This term was adopted to highlight our process is different to restorative justice and avoid any misunderstanding that could arise from using that terminology for a new and different process. It also conveys well the purpose of the Program which is to restore - to the extent that is possible – the relationship between a participating complainant and Defence.

THE DEVELOPMENT AND IMPLEMENTATION OF THE RESTORATIVE ENGAGEMENT PROGRAM

The Australian Defence Force has been strongly supportive of the development and implementation of the Restorative Engagement Program.

The clearest indicator of that support is that the then Chief of the Defence Force, General David Hurley, was Defence’s representative at the first RE conference and the Chiefs of the three Services and other senior Defence officers promptly followed his example.

However, there were two hurdles that had to be overcome to allow full and effective Defence participation.

First, we had to deal with a concern that an apology to a complainant in a Restorative Engagement conference could be relied on in any subsequent legal proceedings as an admission of liability. As a condition of their participation, complainants undertake they will not seek to use any apology by the Defence representative in that way.

Second, there was a concern that, under existing Defence policies, the Defence representative had an obligation to report any account of abuse disclosed to Defence for the first time in the conference. The Chief of the Defence Force and the Secretary of the Department issued a joint directive which said that any existing requirements which would undermine the intent of the Program do not apply to Defence representatives.

Once those barriers had been removed, we were able to sign the operational protocol and other supporting documents which form the basis of Defence’s participation in the Program.

DLA Piper noted that the complainants’ primary wish is for Defence to acknowledge that abuse had occurred, should not have occurred and to express regret for that action. This aim has guided the definition of the critical features of the Restorative Engagement Program which have been identified by the Taskforce Chair[3]as follows:

• The underlying principle is: Do no further harm
• The complainant’s account of the abuse and the harm experienced is accepted and is not in dispute
• The Defence representative is a true representative – he or she is authorised by the Chief of the Defence Force or the Secretary of the Department to speak on behalf of Defence
• Defence accepts that the abuse was wrong and that they have a responsibility to respond (that is, Defence is accountable)
• The complainant’s needs are of paramount importance – the primary aim is to provide a beneficial experience for the complainant
• The conference is the outcome (although the complainant and the Defence representative may agree further action to be taken by Defence)
• The complainant is not required to waive his or her right to take any legal or other action
• There is no discussion about money (to the extent that is relevant to the complaint, it is dealt with in a separate application for a Reparation Payment), and
• While the confidentiality of the complainant is absolute and what occurs in the conference itself is confidential to those present, the complainant is not required to sign any confidentiality agreement which would prevent him or her talking about the abuse they suffered.

Having established those critical features, three things were very clear to the Taskforce.