important information for survivors of child abuse in the ADF.
On the 4th May 2016, George Brandis, Attorney General issued a Legal Direction instructing Commonwealth agencies and non-corporate Commonwealth entities that they are not to plead a defence to a time-barred child abuse claim based on the expiry of a limitation period, nor to oppose an application to an extension of a limitation period in relation to a time barred child abuse claim.
The Attorney General and the Government should be congratulated for its leadership on this issue and we would hope that state governments, not already doing so, follow their lead.
It is important to emphasize that survivors have never asked for their claims to simply be accepted. Every institution has a right to put a claimant’s case to proof and to give evidence. All survivors have been asking for is a level playing field from which to have their claims heard. Ironically, what has prevented claimants complying with statutory time limits is the systemic failures that allowed the abuse to occur in the first place and secondly prevented the reporting of it. This state of affairs has been grossly unfair, and at last the Commonwealth has recognised this.
This decision has a vital impact upon child survivors of abuse who were employed by the Australian Defence Force (ADF) at the time the abuse occurred. In many situations, 15 year-old boys and girls at establishments like HMAS Leeuwin, HMAS Nirimba, HMAS Cerberus, Balcombe, Wagga Wagga, or in other units which allowed teenagers to join, were subjected to the most horrendous abuse and are still living with the aftermath of the horror to this day. Likewise, there have been incidents where teenage cadets were subjected to abuse, where proper management could have prevented it occurring. Many of these survivors’ claims have been denied by the Department of Veterans’ Affairs (DVA) and they receive no benefits relating to the abuse. This denial of assistance has been unjust, and the legal direction now gives these survivors another option.
Many child survivors who were awarded the full amount under the Defence Abuse Response Taskforce (DART) scheme and received an acknowledgement and apology have subsequently had their claims rejected by DVA, or alternatively held in abeyance. These survivors have effectively been re-traumatised by having to tell their stories over and over again. Now these survivors have the option to consider bringing claims against the ADF, who allowed the abuse to occur through their mismanagement. There are also many survivors who did not come forward to DART as they were either unaware of its existence or simply believed, given past treatment, that no one would support or believe them, considering the time that had transpired. They should take comfort that now they can pursue a claim, if they wish, without the fear of it being rejected based purely on time limitations.
Finally, whilst there is an emphasis on monetary outcomes, it is important to recognise that for many survivors, the decision to bring a claim will not be about money but more about the power of acknowledgement and apology in helping to address the harm. The Commonwealth, and in particular the ADF, has shown leadership in being willing to accommodate survivors. It will be interesting to see if non-government organisations follow this lead.