Senate Foreign Affairs, Defence and Trade Legislation Committee, , 3:25:28 to 3:43:01
The committee examines the Commonwealth's position on a sexual abuse class action and the enforcement of historical non-disclosure agreements.
Topics: Workplace culture, Human rights, Government legal services
Speakers: Larissa Waters, Francesca Rush, Admiral David Johnston AC RAN, Hon Jenny McAllister, Speaker 22, Raff Ciccone
>> thank you. Good afternoon, Minister Admiral and others. I have some questions regarding the legal action that more than 2,300 women have joined alleging sexual abuse in the Australian Defense Force. Has the Commonwealth made an application to exclude serving Army members from joining the class action for systemic sexual abuse and harassment?
that Senator Waters but Admiral Johnson chief of the defense force others will talk to what are the legal questions that are part of the class action that is occurring but from uh my perspective I anticipate all of the people that is all three services and the women who are identified in the time period that are covered by the class action at the moment are able to exercise their legal
>> Thank you. Well, could I get that detail then on whether that application to exclude serving army members from the class action has been filed. Um, Senator
Fran Rash, uh, Chief Council Defense. Um, it's not correct that the Commonwealth is trying to exclude any service as the CDF has mentioned. Um, it is our intent to ensure that all service members who are entitled to participate do have their opportunity to do so.
>> Okay. Was an application ever made that may have been withdrawn to that effect?
It >> No application, no such application has been made, Senator.
>> Okay. Is it the case that the Commonwealth has applied to remove any incidents alleged to have occurred while women were deployed overseas?
>> Um, Senator, the question there is actually a question of what the existing law says, what is the subject of the proceedings at the moment is an understanding as to whether the existing court decision um would apply such that the sex discrimination act would not be have extr territorial effect. So there's no such application. It's question of an existing law.
>> And is the Commonwealth progressing that question of law through that case?
>> Both parties are progressing the
>> Okay. But you have not applied to exclude those folk. Although the natural result of such a determination could be to exclude those folks.
>> Certainly the question is open in between the parties in the proceedings. Um it will be a matter for the court to make that determination. Senator.
>> Okay. So who initiated that determination?
That's actually as part of the existing proceedings as they transition from the Human Rights Commission to the Federal
>> Okay. But presumably it was the Commonwealth that raised it rather than the survivors saying they weren't eligible.
>> Oh, it's it's been a question that's been before the Human Rights Commission. The Human Rights Commission actually made a determination of it before it was remitted to the federal court.
>> Okay. Um, has the Commonwealth applied to uh exclude women where they already have uh a a claim on foot being pursued in a different legal forum?
>> Senator, that's not been the basis of any any assertion application and I think CDF's talked to the position about the position of the department in terms of participation in the class action.
>> Okay. Thank you. Um, if the determination is made by the court that uh women who've served in any part of the ADF overseas are excluded from that class action, how many victim survivors would be excluded as a result of that determination?
>> Um, Senator, I don't think we could determine that at this point in time. Uh, that will be a question we will need to assess. you'd appreciate any any deployments overseas are not necessarily the only basis upon which um consideration of the class might be assessed. The part the members of the ADF are within the class or based on the current proceedings before the court. So deployment of itself wouldn't have that
>> Okay. But you're not sure the numbers?
>> We don't know the number. We don't know
the numbers at this point. Um, whilst the Sex Discrimination Act doesn't explicitly apply outside Australia, is it correct that the Defense Force Discipline Act and related defense manuals do apply offshore?
>> Certainly policies have that have that impact, Senator.
>> Okay. So, are you contending in your arguments to the court that incidents that have occurred offshore should be excluded from the class action?
>> We we are not making any observation about that at the moment. the question will go before the court and then we will plead as the situation presents
>> Okay. So, you're not actively suggesting that military sexual violence that occurs overseas shouldn't have repercussions?
>> Absolutely not. Absolutely not. And I think CDF relayed that.
>> Thank you. Um, now women currently serving across all facets of the ADF have reported workplace harassment and bullying following the class action, including threats against joining that class action or comments suggesting that they would only join the class action to get a promotion. What action has the ADF taken in response to those claims of harassment?
Senator, I've made it very clear and that communication through our leadership group that we expect that women are able to exercise their lawful rights. Uh I made statement similarly that participation if that is what women choose to do in the class action is not a test of their loyalty to the ADF. Uh our women are a critical part of the defense capability. I do expect them to be able to exercise that right and that's the clear message that we are sending to both men and women in the ADF.
>> Okay. Through what means are you sending that message?
>> So we to the extent and the class action does make communication a little more difficult in terms of the messaging that we can provide to the workforce. Uh I've made that statement publicly in terms of a message that has gone out to the entire force when we first became aware of the class action and we continue to reiterate it uh in the appropriate forums wherever we do so.
>> Okay. What information andor support is the ADF providing to potential applicants to understand their rights and what joining the class action would
Senator, I I might ask that answer that question first, but I think we are at an early stage in the proceedings where we are working with the plaintiff firm around communications. Uh you might be aware the federal court practice note actually requires um engagement through the plaintiff firm to do that. So we are working out what that that level of engagement would be in terms of individuals. Um at this point in time it is not defense is not communicating with individuals in relation to their individual circumstances.
>> And Senator Waters um you're obviously asking these questions in a sensitive way aware of the fact that that these questions do go to an ongoing court proceeding. There are some limitations on what Ms. Rush can share with you about the approach because while a matter is before the court there are obviously some some constraints on her and indeed defense generally.
>> Yes, I appreciate that. Thank you minister.
>> Can I just um can [clears throat] I just add just a greet deputy secretary people. So um Miss Rush talked to the legal support. We've been um working hard to ensure members understand other supports. So in particular the sexual misconduct prevention and response office is a key part of that. Um and we have ensured an understanding there of the proceedings that are occurring as well as other support mechanisms that are regular in terms of our um welfare and well-being for our ADF members.
>> Thank you. Perhaps on notice, please, given the time constraints, could you provide me with the number of personnel in that sexual misconduct uh prevention and response office and what proportion um that is compared to the uh entirety of a ADF membership? Thanks very much. Can I move uh quickly to historic non-disclosure agreements? I'm aware that the ADF no longer uses NDAs in settlements, but there are many former ADF officers who signed NDAs before that change in policy. Um, we did ask you, my colleague Senator Schub asked in December, how many women were gagged by those older NDAs and uh, at the time you weren't able to put a figure on it. Are you able to do
>> Senator? I I can talk to um what we do know and I think we we are still in a a position where we don't have historical records to support that and I think I that was the evidence I gave in the December hearing. Um I I don't think our um work to date has been able to give us any more clarity of the numbers.
>> Okay. Has there been any effort made between December and now to
>> We we have historically look looked at this and I I don't think that there we've got any more detail to offer at
>> Okay. At the December estimates um my colleague invited I believe it was you minister as well as um yourself Admiral to publicly commit to not enforcing any existing NDA if a victim survivor wants to speak out. I believe you took that on notice. We don't have a response yet. So I'd like to give you another opportunity to make that commitment.
>> But Senator, I I would have to check the transcript, but my recollection of the evidence I provided was that we would look at that on a case-bycase basis with the individuals involved. You will be aware that some of those NDAs of course are at the request of the parties involved rather than uh from defense. But my recollection is the commitment I gave was that were an individual to seek to have any of the clauses of an NDA reconsidered, we would work through that constructively with them.
>> Okay. So if they ask, you'll think it through. Will you commit to not enforcing those NDAs? um if a victim survivor requests that
>> my answer is as I gave you we would work with each one of those individuals you asking me for a very broad statement I think we we would work constructively sensitively uh in a way that recognizes the well-being of the individual to find the right answer with them
>> can I just thank you for that can I ask whether or not this this matter was raised raised with either defense minister miles or um minister Kio. I'm not sure whether that would have been your role minister or your role admirable admiral but was this question of not enforcing historic NDAs should the survivor wish that raised with either of those uh ministers?
Senator, I can confirm that that the minister minister certainly minister Kio is aware of this issue and is um we are speaking to him about about that question around whether or not there's been advice around enforcing NDAs. That would again be a question that was subject to the individual circumstances.
>> Okay. So you have raised that with Minister Kio.
>> Minister Kio is aware of the requests that have been made. >> Okay. >> Through the through the Senate
Can you make a public commitment that under your government, the Department of Defense will not be permitted to enforce any NDAs contained in any settlements, payments, or other agreements relating to sexual assault, harassment or discrimination? That might that one might be for you, Minister. Are you able to make that
commitment? I think the CDF has indicated the approach that uh the ADF would take in relation to those questions. I'm obviously um [clears throat] it it goes to a commitment to working through it sensitively and having regard to the well-being of the individuals involved. Uh you are asking for a blanket approach. I think the CDF has offered an alternative which is responsive to the sensitivities of these issues. the importance of these issues and and is aligned with the government's intention to ensure that uh women are can be confident that when they engage uh in defense or in the ADF that they are treated well, respectfully and can be
Minister, can you commit to ensuring that any victim survivor who wants to tell their story of abuse in the military will not be stopped from doing
>> Senator Waters, the CDF's talked to you about the approach and my answer just now goes to it. We want people to feel safe to be confident in their engagement uh with our organizations. uh we believe that every person whatever workplace they are in has a right to be safe and to feel safe. That is our intention with the broad reforms we are pursuing uh within the ADF. Um and the CDF has explained to you the approach that uh he would take and the organization would take in relation to specific requests from individual
survivors. >> Thank you. Um I'm just uh I'll finish up shortly. Chair just some reporting today um by Associated Press that quotes uh Donna Manton, a survivor of military sexual violence who chairs the Athena Project, a group that supports and advocates for survivors. Um she is uh under the impression that in fact the Commonwealth is seeking to exclude serving army personnel from the application. and we've discussed that earlier. Her view is that that makes and I quote, "It makes the victims feel unheard, unsupported, and unwanted." Noting the minister's um aspiration for people serving to not feel that way. Can I ask perhaps what will be done to uh clarify this? And can uh if it is indeed the case that an application hasn't been made to exclude personnel, why do you think some folk have that impression and can the Commonwealth now actively make it clear that that is not your intention and legally also make that clear through the case on foot?
>> Senator, I might talk to uh to that issue. Certainly there's been no communication with um with Ms. Manton. The class action that we're responding to doesn't have a lead applicant from the army which is probably the inference that she's drawing. But so it raises questions that we are we are looking before the court which we've talked to just before. So that that's all I can really offer around that. But certainly the way that the group is described and the period of service as CDF's outlined um would definitely does not exclude
army. It's just the nominated personnel
do not include an army.
>> Okay. And for clarity, the lack of a lead applicant being an army personnel is not grounds for the Commonwealth to seek to exclude army personnel. Is that correct,
>> Senator? I think as I indicated to you earlier some of the issues you are raising uh before the courts and we've officials have tried to assist because there is great public interest in that matter and we understand the need to communicate as best we can. There are some limitations on what officials can talk to you about and in particular uh drawing conclusions about how court might approach different aspects of the law is a a challenging thing to ask officials to do.
>> I'm not asking the officials to stand in the shoes of the court. I'm asking them to clarify the position the Commonwealth has taken. And just picking up on your last comment, um, Miss Rush, the fact that there isn't a lead applicant from the Army, is that the basis for the Commonwealth contending that other army personnel should not be participating? >> I was just trying to understand the
position. I think you my my evidence before and certainly CDF's evidence as I understood it as well is that we do not contend that army is not women from army are not part of the existing cohort that
are the subject of the class action. >> Thank you. That's the clarification I was seeking. Thanks very much. Thanks
>> Okay. [clears throat] Now I'm going to come to Senator Whitten and then um we'll break for lunch.