Lisa Kinder, special counsel at Donaldson Law, provides an update on the defence reparation scheme and shares some insights for those personnel thinking about coming forward.
In the past decade, the Australian Defence Force has recognised that it has a long and shameful history of allowing its members, often whilst they were still children, to be physically and sexually abused, bastardised, bullied and harassed. The men and women who have had these experiences have often suffered in silence, within a culture that discouraged the reporting of abuse and failed to support survivors. That is now changing.
When it concluded, the Defence Abuse Response Taskforce had assessed 2224 complaints of abuse within Defence. These complaints comprised abuse in Defence that occurred across the time period from the 1940s until the Taskforce cut-off date of 11 April 2011.
Subsequent to DART, in December 2016 the Defence Force Ombudsman, began receiving reports of serious abuse within the Australian Defence Force. Since then, the Defence Ombudsman has been able to make recommendations for reparation payments to survivors of abuse in the ADF for the most serious forms of abuse. Recent Government statistics show the total number of reports received by the Ombudsman between 1 December 2016 and 31 December 2021 is 2,936.
Combined, that means that over 5000 men or women have so far overcome their guilt, shame and embarrassment about their own abusive experiences in the ADF to formally report what happened to them, and receive an acknowledgement in the form of a reparation payment of up to $50,000 that the abuse should never have occurred.
Interestingly, 878 of the total number of reports to the Defence Ombudsman (almost 30%) submitted their reports in the past twelve months. Clearly, the number of survivors willing to come forward is increasing, as opposed to dwindling with time.
Hundreds of thousands of men and women have served in our military over the past sixty years, but only 5000 have so far formally reported their abusive experiences. The culture of abuse that we have heard about in the reports that have been made was so much a part of our military training and traditions in the past, that we know that there are many thousands of ADF survivors who haven’t yet spoken.
Perhaps they are not ready to admit what happened to them. Perhaps they were so conditioned to their experiences that, even now, they don’t recognise that it was abuse. Perhaps they have blocked it from their memory, to try to move on with their lives. Perhaps they fear they won’t be believed. Perhaps they are still suffering fear about consequences of reporting. Most frighteningly, perhaps they don’t even know that they have this option available to them. Whatever the reason, they are running out of time.
The jurisdiction of the Ombudsman to receive Reports of Abuse and make recommendations for reparation payments will cut off permanently on 30 June 2022. If the many thousands of survivors who have not yet submitted a Report don’t do so soon they will forever lose the opportunity they deserve to receive the acknowledgement that they have been wronged.
I wanted to address some of the key questions that might be creating barriers for survivors to making Reports of Serious Abuse to the Defence Ombudsman, so that as many as possible understand their options before they run out. It is no doubt a big decision to bring any type of claim or application in regard to abuse, but I think not understanding the process is a difficulty.
Do you actually need a lawyer to make a Report of Serious Abuse to the Defence Ombudsman?
No, you don’t. But does it help? In my experience having a specialised lawyer help you prepare and submit your report is a good idea, and I will explain why.
You may find it easier to tell your story to a trauma-informed lawyer so that they can write it for you, rather than trying to find the words to write it yourself. We do not underestimate just how hard it is for someone to disclose their abuse.
We have helped large numbers of men and women obtain reparation payments. We can give specialised advice about your chances, and importantly, we can make sure that when your report is prepared it contains the information that matters. Many clients have their own ideas about the ‘important bits’ from their perspective, but we can add expertise about what are the important bits from the perspective of the Defence Ombudsman.
Some people may rule themselves out for the wrong reasons, not realising that their experiences could justify the submission of a Report, and a reparation payment. In fact, that leads me to my next most frequented misunderstood question.
What if I didn’t report the abuse at the time?
There is no need at all for the abuse to have been reported previously.
How can I prove the abuse?
You don’t need to prove it, beyond swearing in a statutory declaration that it was true.
The Defence Ombudsman does not formally investigate events reported to them, but they do have to be satisfied that the events were “reasonably likely to have occurred”. It is not uncommon for there to be no witnesses or documentary evidence to episodes of abuse, and this does not prevent Reports from being accepted and reparation payments made.
Does it matter how long ago it happened?
Yes, and no. You can make a Report of Serious Abuse for any abuse at all, at any timeframe during your military service, whether last week or fifty years ago.
However, reparation payments cannot be recommended in respect of events which occurred since 30 June 2014. For events after this, you can still submit a report, and you can have access to restorative engagement, but you won’t be eligible for a payment.
What types of abuse are considered?
The Defence Ombudsman can recommend a payment of up to $45,000 to acknowledge the most serious forms of abuse, and a payment of up to $20,000 to acknowledge other abuse involving unlawful interference accompanied by some element of indecency. Generally this involves sexual abuse or serious physical abuse, or behaviour with aspects of some indecency.
We can give the person a general idea of where abouts on the ‘seriousness scale’ their abuse may sit, how much their reparation payment might be and an idea of how long it might take.
How long do I have to make an application?
This is the question I wish people would ask more! The clock is seriously ticking, and once the time is out, that’s it. The jurisdiction of the Defence Ombudsman to recommend reparation payments only applies to Reports submitted by 30 June 2022.
Twice before, the Government has extended the jurisdiction for another twelve months, but so far there is no indication that this will happen again. If a survivor wants certainty that they will be able to make a Report, they should act now.
One of the biggest misconceptions with reparation claims is that they are straightforward and don’t take long. The process itself is straightforward, but there is skill required in preparing the documents to maximise the chance of a payment. This can’t be rushed, and shouldn’t be left to the last minute. After the Report is submitted it can take up to a year to get a final decision.
I’m still serving so should I be uncomfortable about making an application?
No, you should not be, but this is definitely a common concern for ADF members. By far, the majority of Reports are made by members no longer serving. Perhaps this is a reflection of the much higher levels of abuse in earlier decades such as the 1970s and 1980s, meaning that a significant number of survivors have since left the services. We know however that there have been episodes of abuse right up to 2014, and even since then.
How will it affect me?
We know that it is not easy to disclose abuse, and can be retraumatising. Our staff are trauma-informed, and treat clients with respect and empathy.
Whether or not you decide to speak up and report your abuse (with or without a lawyer), it may help to talk about it. Many people spend their lives dealing with the psychological trauma associated with such events and feel great confusion about what happened to them. The Government have some excellent free resources available for past and present ADF members who may have endured tough times, including the following:
- Open Arms;
- Private treatment funded through Non-Liability Health Care which provides free medical treatment for any mental health condition for ex-servicemen and women.
Lisa Kinder is the special counsel at Donaldson Law.