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Transcript of press conference: 26 November 2012: Government response to the DLA Piper and Broderick Reviews



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Minister for Defence - Press Conference

26 November 2012

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.

Thank you.

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.

Thank you.

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.

JOURNALIST: [Indistinct]

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.

JOURNALIST: [Indistinct]

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 having a very close look at a

couple of narrow areas, and I’ve identified both of those today: the ADFA 24, which DLA Piper

recommended look at, and HMAS Leeuwin.

The conclusion I came to is that if you look at the history of these matters, and Len dealt with

some of it and I dealt with some of it, there have been investigations, reviews and report in the

past. Invariably, those investigations, reports or reviews have said, we are in a better position

now than we were on previous occasions, and this has been very much Liz’s experience which she

referred to.

Her study of ADFA shows that there’s been significant improvement since the Grey review or

report back in the 1980s, but there is a lot more work to be done.

So, it is not as if in this area that we haven’t seized upon the need for institutional and personal

accountability. We clearly understand the work that needs to be done and when I came to a final

decision, it was really the point that Len made, which is here there has to be a focus on giving the

individual concerned an outcome. Whether that’s restorative justice, whether it’s compensation or

whether it’s a reference of a matter to a state or Federal Police officer or other investigative

agency.

If, in the meantime, Len and the task force come across structural or systemic matters which we

think will increase the prospects of instituting zero tolerance and this not happening again, then

we will adopt that, as we have with the Pathways to Change document put forward by the Chief

and the Secretary, and with the work that Liz has done.

A broadly-based Royal Commission here would not have brought the individual cases to a

conclusion in any quick manner, and we are already doing a lot of work in the institutional and

structural frameworks required to stop this happening again. The reality is that since April of

2011, we’ve done more work in this area. The Chief and the Service Chiefs and respective

Secretaries have done more work in this area than has been done in decades before, and that’s a

very good thing. We want to continue that work, but at the same time enable individuals who

have made allegations through the DLA Piper process to get an outcome.

JOURNALIST: Well, just bearing in mind what Mr Roberts-Smith said about privacy matters, is it

envisaged that some or any of the task force work will be done in public?

STEPHEN SMITH: I think that’s unlikely, but Len can respond to that.

LEN ROBERTS-SMITH: I think that’s unlikely as well, except to the extent that as the Minister has

indicated, he will be seeking reports on a reasonably regular basis from the task force and

ultimately, of course, there will be a report towards the end of the 12 months or at the end of the

12 months, which will be tabled in Parliament through the Minister.

But for the reasons that I indicated earlier, I doubt that there will be much, if anything, done

publicly in the sense of exposing in - by way of hearings or anything of that kind what has

happened to individuals.

The focus of this, as the Minister has said, and as I said at the outset, is to do something which

Royal Commissions don’t do. Royal Commissions conduct inquiries either in public or not, but they

don’t produce outcomes in relation to particular cases.

The whole focus of this taskforce is to produce outcomes in relation to the allegations of abuse by

the individual victims or complainants, and those outcomes need to be examined and canvassed

with them and tailored to their circumstances, so that they, hopefully, will feel vindicated and

satisfied, and feel self-respect in turn, and that they’ve been listened to at least, ultimately, by

Defence, and by the Government and by the taskforce.

JOURNALIST: Thank you, John. When you conducted your review, was the view of victims that

they wanted to speak publicly? Would they, in your opinion, have preferred a Royal Commission

which would have given that opportunity?

LIZ BRODERICK: I mean, we met a range of victims, but I think for many of them, I was the first

person that they’d actually spoken to. And we know some of the reasons for that, the reasons

around victimisation.

I mean, as some women described it to me, complain or career, that’s the choice you’re making.

So, I think, very much to support the Minister’s and Len’s assessment that, actually, most people

will want this done in private.

I also saw the importance of actually bringing those people who had suffered deeply in the

Defence Force directly face-to-face with those people who had power to change the system. And I

saw what that did in terms of a starting of a healing process. To someone who had power to say

sorry, it wasn’t good enough, what happened to you should never have happened. And, I think, all

those processes that we did in a smaller scale, I suppose, through our review are things that will -

I’m excited about in terms of the task force.

JOURNALIST: Minister, how do you imagine this to sit with the existing Royal Commission into

child abuse, given a lot of the older cases are minors and cadets, as you said?

STEPHEN SMITH: I was asked in Brisbane on Thursday, do I see any crossover between the work

we’ve been doing and the more general Royal Commission - proposed Royal Commission into

sexual abuse, so far as children or minors are concerned.

There are two obvious crossovers. One is the HMAS Leeuwin instance where you’ve got children in

Navy or in the Defence Force. That is in the ’60s and ’70s, but that’s a potential for the more

general Royal Commission.

Secondly, you’ve got cadets. If a cadet who, invariably, will be a young man or young woman, a

boy or a girl, if you’ve got a cadet who makes an allegation, then that would potentially fall within

the terms of reference of the more generally based Royal Commission. And the institution

responsible could be a Defence organisation, could be a school or both.

So the general Royal Commission into sexual assault against children is very broadly based,

because you’re dealing with a range of institutions. Either private institutions, state-based

institutions, very few, if any, with direct responsibility to the Commonwealth.

Here, we’re dealing with an organisation for which the Commonwealth is directly responsible. And

over the last 18 months, and in previous years, but particularly over the last 18 months, we’ve

done a lot of work - a lot of work - to try and put the systems and the structures in place to

prevent these things from occurring again.

And as Liz referred to earlier, a very pleasing part of this has been the strength of the

commitment by the Chief of the Defence Force, the Vice Chief and the Service Chiefs and

respective Secretaries to institute reform and change, zero tolerance, no turning of a blind eye to

make sure that these things don’t happen again.

And the materials that we’ve distributed, you can see the no negotiation on these issue

statements signed by the various Service Chiefs and the Secretary. It’s proposed that that be

updated as personnel change, as there are changes in the Service Chiefs, a proposal to be

updated annually in any event. So, we have an ongoing structural, system, institutional

commitment to not allowing these things to occur.

But in the end, I came to the conclusion that the raft of remedies that we’ve put out there today is

a more appropriate course of action than a broadly-based Royal Commission. So you have a

general apology by the minister of the day to anyone in Defence who’s been subject of sexual or

other abuse.

My apology will be reinforced by an apology to the Defence organisation by the Chief of the

Defence Force. The restorative justice mechanisms provide the opportunity, if people are willing,

for a private apology to be made to an individual victim.

The compensation scheme that we’ve referred to, a maximum $50,000 payment, won’t attach to

it the same burden or level of proof that a civil action might require. That’ll be a threshold which

Len Roberts-Smith referred to as a low threshold. There’ll also be additional counselling made

available and then, as necessary, reference to state and federal-based investigative authorities

where there are clearly a need to pursue serious criminal allegations.

That array of responses or remedies, plus me saying very clearly to Len and the task force, if in

these two particular difficult areas, the ADFA 24 so-called and/or HMAS Leeuwin you think you

need the powers of a Royal Commission to get to the end of your work, come back and tell me

and they’ll be granted.

That combination gives individuals a chance of some individual outcome in a relatively short space

of time. It also adds to the structural change that we’ve been effecting since April of last year,

which Liz and the Chief and the Secretary have been central to through Liz’s work and through the

Pathway to Change document.

JOURNALIST: Does your compensation scheme in any way limit a victim’s opportunities to pursue

a civil claim?

STEPHEN SMITH: No. If a person wants to pursue another claim, that’s entirely a matter for them.

It may well be that if there’s a compensation payment, and a person pursues a civil claim and is

successful, that a court may take into account what has been given by way of compensation. But

it’s not proposed in any way to stand between an individual victim of abuse and his or her rights

to pursue a claim.

You’ve been very patient, sorry.

JOURNALIST: Minister, and also Elizabeth Broderick, has the time come to accept that ADFA is an

anachronism, and that young men and women should just go through normal universities for their

education?

STEPHEN SMITH: No, that’s - Liz can happily add as well - that’s not my view. I know that was an

issue in the aftermath of ADFA Skype where there is a range of suggestions.

Liz’s work in ADFA was a very good piece of work which said improvements have been made since

the Grey Review, but there’s a lot more that we can do. Liz has also made the point that her

review into ADFA, her review into the ADF, both of those will be subject effectively of a second go,

and I’ve made it clear, I will, as Minister not just report the taskforce’s work to the parliament,

but also ongoing implementation.

I think with the changes that Liz has recommended with the commitment of the Chief and the

Service Chiefs, that ADFA can continue to grow and flourish as an educational and training

institution for the ADF, but Liz-

LIZ BRODERICK: Look, I agree. I think ADFA being the only tri-service academy that we have in

this country is a very important institution, and the more we looked into ADFA, the more we saw

certain strengths.

Having said that, there was a need for cultural reform, absolutely. We made a number of

recommendations in our report, one of which was particularly around the residential - the

arrangements in the lines.

So I do think ADFA is a very important organisation. I think actually, ADFA needs to be well

supported, and it needs the best people to be in ADFA. It needs to ensure that excellence is at the

key, and that’s cultural as well - an inclusive culture. But I’m absolutely behind ADFA as an

institution.

JOURNALIST: [Indistinct]

STEPHEN SMITH: I’d like to - sorry, Brendan to Len, and then [indistinct] - we’ll make [indistinct]

the last one because we’re starting to struggle for time.

JOURNALIST: Mr Roberts-Smith, apart form your formidable judicial experience, you’re also a

former senior member of the Australian Army. Had you personally been aware of this sort of level

of abuse that you’ve obviously been briefed on over recent days? And how do you personally feel

about your role now?

LEN ROBERTS-SMITH: The short answer is no. I wasn’t personally aware of the level of abuse

we’ve been talking about. My source of information, my awareness of these things came, like

everybody else, through the various reports and inquiries, Parliamentary hearings and things of

that kind.

My experience never involved going to - my military experience never involved going to places

like ADFA or RMC, or any of those - I went through the reserves. And certainly at the time I went

through it was a very different process indeed.

I was aware certainly of things which bothered me as we went through, in terms of - one might

call it low-level abuse which we’ve seen I think in various reports described as things like

hardening people up, you know, that kind of euphemism. Of course, I saw that kind of thing - I

didn’t like it. I experienced it myself at various points and didn’t like it; that was my view about it.

So I’ve been very receptive to concerns about that sort of thing, and I have to say, horrified at

the levels of abuse which have come to light in recent years.

I should make the other point that in terms of my final senior rank enrolled in the military, as I

think has been said, I was the Judge Advocate General of the Australian Defence Force for about

six years. It’s important to appreciate though that the role of the Judge Advocate General is a role

filled by a senior civilian judge, and I was a judge of the Supreme Court of Western Australia at

the time, which was my qualification for appointment to that role, because the role - the notion

behind the role is civilian judicial oversight of the military discipline system. And in that capacity I

was not subordinate or subject to the chain of command - I reported directly to the parliament as

the JAG.

STEPHEN SMITH: [Indistinct]

JOURNALIST: To Commissioner Broderick, there was abuse [indistinct] the sub-military personnel

had this view maybe going back a year now that really, the institution that ADFA was being

singled out; that it was actually an institution situated within the broader Australian culture, that

the culture at ADFA was no different to broader community behaviour. Is that your experience of

sexual - sex discrimination, Commissioner?

LIZ BRODERICK: Well it’s interesting, because for the first time we were able to do some

comparison. Not specifically at ADFA, but between the ADF, levels of sexual harassment in the

ADF and the general community. And last week, or two weeks ago I launched the prevalence data

forAustralia. What we found was that 25 per cent of women in Australian workplaces said that

they had been sexually harassed in the last five years. We found 26 per cent of women said

something similar in the ADF. So that’s the first comparative data that we have.

You will remember though when we went into ADFA originally, we found that around 72 per cent

of women had experience some form of low-level sexual harassment. We don’t have comparative

data across other residential colleges in this country, but you will be aware of the stories that are

starting to emanate from some of those other residential colleges and have for many years now.

But having said all that, I think - and the chiefs of the services and the vice chief, and David

Hurley, the Chief of the Defence Force would agree with me, that students at ADFA need to be

held to a higher standard. They are actually in uniform; they are representing their country in a

whole variety of different spheres of influence, and that actually being comparable with the

general community of residential colleges elsewhere around this country is just not good enough.

STEPHEN SMITH: We’ll have to leave it there. Thanks very much. Thanks. Cheers.