In December 2016, the Office of the Commonwealth Ombudsman (within its Defence Force Ombudsman jurisdiction) 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, explains special counsel at Donaldson Law Lisa Kinder.
Recent government statistics show the total number of reports received between 1 December 2016 and 30 September 2020 is 1,862.
Interestingly, there were 100 such reports in September 2020, the highest number yet, and an increase of 222 per cent from the same month last year. In fact, each month for the past year there has been an increasing number of people reporting abuse.
This trend does not mean that military abuse itself is increasing, merely that more people are finding the courage to report it. The reports themselves can relate to abuse occurring recently or many years in the past, but only serious abuse that occurred prior to 30 June 2014 may attract a reparation payment.
Frankly, it is very worrying that the numbers are increasing so rapidly so close to the cut-off date of 30 June 2021. My concern is that ADF members past and present are only now starting to take steps to apply for reparation payments, which option will disappear permanently in less than eight months.
To 30 September 2020, Defence has made 836 payments to abuse survivors, totalling $35,815,000. Both of these figures should by rights be much higher. Much, much higher. As a lawyer who specialises in this very niche area of abuse law with ADF members, I am well aware of the rates of serious historic abuse within Defence, most particularly within their training institutions with people who joined as children. The numbers who have reported so far either to the Defence Ombudsman or to its predecessor of sorts, DART, are only a drop in the ocean of actual ADF abuse survivors. I worry that survivors don’t know about this option, how it works and most worryingly – when it stops.
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.
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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 frequent misunderstood question.
What if I didn’t report the abuse at the time and how can I prove it occurred?
There is no need at all for the abuse to have been reported previously and 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 time frame during your military service, whether last week or 50 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 $50,000 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 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 2021. It is likely that people will still be able to submit reports after that date, but they will no longer get any payments.
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. Of the 1,862 reports received to the end of September, 17 per cent of people were still currently serving (81 per cent were no longer).
It’s also interesting to look at where and who the applications are coming from. The most reports so far have come out of the Army (47 per cent), followed by the Navy (35 per cent). The majority of reportees has by far been men, more than triple in fact. Which does make sense given the gender makeup of the ADF, but there have also been 428 women who have made applications.
Whether or not you decide to speak up and report your abuse (with or without a lawyer), it does 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.
It’s important to remember that help is available and whether you qualify for a reparation payment or not, there are still a range of other options that might be of assistance to you, such as counselling. Sometimes the most powerful form of reparation can come in an apology from the organisation. The simple act of acknowledgement by an institution can often be the start of a happier future for many survivors of abuse.
Lisa Kinder is a special counsel at Donaldson Law, a national firm which specialises in assisting abuse survivors and ADF members. With more than 20 years in the legal profession, Lisa Kinder is an accredited personal injury specialist who has recently been at the forefront in developing collaborative legal processes with institutions such as the Defence Force.