Chapter 8: Principle 5: Gender based harassment and violence ruins lives, divides teams and damages operational effectiveness

Key findings of Review

The ADF Review found that sexual misconduct – including sexual harassment and, on occasion, sexual assault – existed in the ADF, particularly in male dominated areas. It also found significant underreporting of sexually based incidents from victims because of fear of victimisation; concerns about negative impact on career progression; and personal trauma. The ADF Review heard from members who had made a formal complaint but had not received a satisfactory response and, as a result, had been further traumatised.1

Results from an independent survey conducted for the ADF Review found that sexual harassment prevalence rates for women in the ADF were similar to those in Australian workplaces, while for men in the ADF, they were lower. One in four women and one in ten men experienced sexual harassment in the ADF in the five years preceding 2012. One in four women and one in ten men experienced sexual harassment in the ADF in the previous five years.2

Recommendation 18

As a priority, COSC should establish a dedicated Sexual Misconduct Prevention and Response Office (SEMPRO) to coordinate timely responses, victim support, education, policy, practice and reporting for any misconduct of a sexual nature, including sexual harassment and sexual abuse in the ADF. This Office is to be adequately and appropriately staffed, including with personnel that have experience in responding to people who have been subjected to sexual harassment or abuse and is to be headed by a senior leader (of no less than one star rank or at SES level) and located at Defence Headquarters.

The Office is to be adequately resourced and report directly to COSC, and will:

  • Respond to complaints of sexual harassment, sex discrimination and sexual abuse including ensuring the immediate safety and well-being of the complainant.
  • Provide a 24 hour/seven day a week telephone hotline and online service (click, call or text access) that is staffed by personnel with expertise in responding to complainants – female and male – who report sexual harassment, sex discrimination and sexual abuse.
  • Collaborate with expert independent educators to provide recruits and trainees with interactive education on: respectful and healthy relationships, and sexual ethics; the meaning, inappropriateness and impact of sexist language and sexual harassment; the meaning of consent; the appropriate use of technology; stalking, controlling and threatening behaviours; and the importance of bystander action. The effectiveness of these education and training efforts should be evaluated every two years with an external evaluator and assessed against key indicators that measure attitudinal and behaviour change. Appropriate training and education should also be provided to all members entering command positions.
  • Provide an outreach service to all ADF establishments including a rolling cycle of visits to each base every two years. This service would provide both relevant training and education and offer members an opportunity to discuss issues of concern with SEMPRO personnel.
  • Enter into appropriate arrangements with expert external service providers so as to offer complainants an alternative avenue for support and advice if the complainant does not wish to engage with the ADF’s internal complaints system. The ADF must provide adequate resourcing and assistance to these organisations to ensure that they have the capacity to provide these services and that their expertise in sexual harassment and sexual assault matters is enhanced by an understanding of the military.
  • Be the single point of data collection, analysis and mapping of all sexual misconduct and abuse matters. Prevalence, trends and key issues should be regularly reported to COSC and strategies to address any issues of concern arising from the data, implemented as soon as possible.

SEMPRO’s role should be widely advertised and promoted across the ADF so that all members are made fully aware of the reporting options and the measures to be taken to ensure confidentiality when reporting confidential complaints.

 

Intent of Recommendation 18

The intent of Recommendation 18 was to set up a high-level, specialised office staffed by professionals experienced in responding to disclosures of sexual harassment or abuse, in order to make the complaints system more responsive to the needs of victims. Complainants reporting to SeMPRO would be given the option of making unrestricted disclosures (in which case the chain of command would be informed of the incident), or restricted disclosures (which remain confidential). This was envisaged as an important strategy to address the significant under-reporting that the ADF Review encountered. The intent of the recommendation was also to embed an effective prevention and education program and to establish a single point of sexual misconduct data collection and analysis.

Implementation actions

The ADF moved swiftly to establish SeMPRO in response to the release of the ADF Review’s Report. A one-star was appointed as Head, SeMPRO in October 2012, and SeMPRO was officially launched by the Minister for Defence and the Chief of the Defence Force on 23 July 2013. The Audit commends the ADF on the creation of SeMPRO and its commitment to ensuring that victims of sexual harassment and assault are given appropriate and sensitive support.

The recommendation proposed that SeMPRO report directly to COSC. The intent of this was to give SeMPRO the appropriately high status that the ADF Review considered necessary and to ensure that addressing sexual misconduct remained a high priority for the ADF senior leaders. Head, SeMPRO reports to COSC on a quarterly basis.3 The Audit notes that, at the beginning of 2014, a new Head, SeMPRO has been appointed. Whilst not a one-star as proposed in the recommendation, the Head has been appointed based on the skills and knowledge demanded of the position and is directly overseen by a one-star. It is important that the position has the profile, seniority and prominence to ensure its impact across the ADF.

SeMPRO responds to disclosures or reports of sexual misconduct from both male and female members and provides a victim-focused approach to responding to, and coordinating support and care for, clients. It does not have an investigation or complaint-handling role but supports a victim to access Defence complaint systems, should they wish. The revised and reissued interim Defence Instructions (General) PERS 35-4 – Reporting and management of sexual misconduct (DI(G) PERS 35-4) states:

17. Defence has established SeMPRO to provide support for ADF victims. SeMPRO is focused on coordinating services for ADF members who have been affected by sexual misconduct. APS employees who wish to access SeMPRO services may do so if they wish.4

18. SeMPRO will provide ADF victims of sexual misconduct with advice, coordination of Defence health care services (including a forensic examination if appropriate and only if agreed to), as well as ongoing care and support to assist with their recovery and, if possible, a return to their full work potential.5

SeMPRO’s internal structure is made up of three directorates:

  • Policy Systems & Reporting (PSR) has as its main focus policy development and data collection. The PSR is setting up the framework for SeMPRO to be the single point of contact in Defence for data collection and the analysis of this data for prevalence and trends.
  • Prevention and Education (PE) works at developing, implementing and evaluating the Defence sexual ethics education program. They co-ordinate SeMPRO’s visit schedule, travelling and presenting. They also have carriage of promoting SeMPRO’s roles and responsibilities through SeMPRO’s branding and merchandising and dissemination of packs and promotional materials.
  • Critical Response and Recovery (CRR) is the service delivery area. It responds to all client contacts, undertakes follow up calls and co-ordinates care and case documentation. DCRR also conducts research into the principles and procedures for providing trauma-informed care.6

The unit was fully staffed from mid-March 2013 with four ADF staff and ten APS personnel. Senior staff advised the Audit that there are proposals for more staff,7 and that it is a high priority so that the Director of CRR ‘can move from staffing the phones to managing the service.’8

SeMPRO’s remit for ‘misconduct’ is defined as sexual offences and serious incidents of a sexual nature which can cause trauma.9 The Values, Behaviours & Resolutions (VBR) Branch within Defence continues to manage complaints of sexual harassment and discrimination.10 SeMPRO is co-located with VBR, and SeMPRO staff told the Audit that their policies have been developed in conjunction with VBR:

SeMPRO staff work closely with VBR staff to ensure all callers are assisted, appropriate to their needs, and not turned away.11

SeMPRO also coordinates the Sexual Offences Response Teams (SORT). Members of SORT teams are Defence personnel or employees located at various bases who have been identified as likely to receive reports from victims of sexual misconduct. SORT members can include Chaplains, psychologists, command officers, legal officers, ADF Investigative Service (ADFIS) representatives and medical personnel. These members can liaise with SeMPRO on a victim’s behalf and also coordinate the support he or she may require at the local level.

SeMPRO’s statistics for the first four months of operation show that calls and emails are being received from victims, command staff, managers and members of SORT.

A SeMPRO Support Officer (SSO) network is also being established consisting of trained volunteers who live on or near a base. The aim of this network is to connect a victim to their most local and accessible SSO. SeMPRO documents provided to the Audit state that:

It is anticipated that the SSOs will be recruited from across the nation, along the lines of Equity Advisors, or Fairness and Resolution Practitioners. SeMPRO will look to Commanders to encourage and support their staff from every base to volunteer and work in this capacity. Each SSO will be trained by SeMPRO and by ADFIS, with the training to include understanding trauma, understanding sexual assault, forensic examination, immediate response and basic crisis management.12

SeMPRO advised the Audit that the Support Officer Network will be initially rolled out to the seven ADF recruit and training schools.13 This is an encouraging development.

In relation to the element of Recommendation 18 stating that appropriate sexual ethics training and education should be provided to all members entering command positions, SeMPRO told the Audit that:

First (pilot) training opportunities across the three Services have been identified and will be completed by end of 2013.14

Discussion of the specific elements of this recommendation, including relevant information from the Unacceptable Behaviour Survey, follow.

Respond to complaints of sexual harassment, sex discrimination and sexual abuse including ensuring the immediate safety and well-being of the complainant.

SeMPRO responds to disclosures of sexual misconduct only, and not sexual harassment and sex discrimination despite the breadth of the recommendation. As noted above, SeMPRO’s remit for ‘misconduct’ is defined more narrowly than the wording of the recommendation, and includes only sexual offences and serious incidents of a sexual nature which can cause trauma.15 This includes:

  • repeated demeaning behaviours of a sexual nature
  • extreme exclusion based on gender, sexual orientation, or gender identification
  • persistent unwanted/unwarranted attention of a sexual nature and
  • recording, photographing or transmitting incidents and images of sexual misconduct.

SeMPRO coordinates Defence’s response to the ‘high and critical’ end sexually based incidents. Its Standard Operating Procedures (SOPs) for caller intake are intended to guide the professional judgment of the SeMPRO staff to inform them whether cases are best managed by SeMPRO or by the Values, Behaviours and Resolutions Branch (VBR).16

Prior to the establishment of SeMPRO, the victim support mechanisms in relation to sexual offences were principally provided through ADFIS, whose primary role is investigative.17 A dedicated victim support unit has been welcomed by ADFIS, whose Director advised the Audit that:

We’ve got a good working relationship [with SeMPRO]... I’ve got one officer who will commit at least once a week to develop further in relation to SEMPRO requirements now that we’ve introduced the limited disclosure reporting.18

Provide a 24 hour/seven day a week telephone hotline and online service (click, call or text access) that is staffed by personnel with expertise in responding to complainants – female and male – who report sexual harassment, sex discrimination and sexual abuse.

SeMPRO’s 24 hour/seven day a week advice and counseling service went live in July 2013. During business hours the service is staffed by SeMPRO specialist staff. The after-hours component of the service is managed by a specialist contractor. The contract for the after-hours service is for six months until March 2014.

SeMPRO staff told the Audit that they have received a steady flow of calls during business hours. Data on SeMPRO’s initial uptake is limited, given the short time in which the service has been operational.19 It shows that, from 24 July 2013 to 12 November 2013, SeMPRO received 133 calls, 31 emails and one text. Nine after hours calls were received in November. Information on contacts by type has only been provided to 20 August 2013, where there were 62 phone calls, 20 emails, one text and five after hours calls. Of these, 14 were from ADF victims, three from APS victims, two former ADF members, three family members, 13 Commanders, nine medical/psychologist, one legal, one ADFIS, one State and Territory civilian police, 14 requests for information and six other callers.

Information from SeMPRO identifies no calls were made between 10pm and 6am. SeMPRO staff advised the Audit that they propose to assess whether Defence requires a 24/7 response service, and present recommendations in this regard to COSC in February 2014.20 However, more recent advice from Defence leaders indicate that they are committed to providing a 24/7 phone response service and do not propose to reduce the service.21

Collaborate with expert independent educators to provide recruits and trainees with interactive education on: respectful and healthy relationships, and sexual ethics; the meaning, inappropriateness and impact of sexist language and sexual harassment; the meaning of consent; the appropriate use of technology; stalking controlling and threatening behaviours; and the importance of bystander action.

The effectiveness of these education and training efforts should be evaluated every two years with an external evaluator and assessed against key indicators that measure attitudinal and behaviour change. Appropriate training and education should also be provided to all members entering command positions.

SeMPRO’s Strategic Plan states that SeMPRO will:

  • Conduct research and consultation with identified experts to develop applicable, evidence-based sexual ethics packages for delivery across the ADF training continuum
  • Liaise with the three Services to identify all training opportunities and to program interactive sexual ethics education into Trade School and Promotion course curriculum.22

In 2013 SeMPRO conducted a ‘census’ of current training relating to sexual ethics across Defence, which concluded that:

there is a lack of ‘through-career’ sexual ethics training. While elements of a package are taught in varying degrees at stages in the training continuum there is no comprehensive, inclusive package.23

SeMPRO has developed a draft ‘Sexual Ethics Education in Defence Framework’, to be presented to COSC in February 2014. SeMPRO states that it will develop an Educator’s Guide for staff delivering sexual ethics training, and also notes the possibility of developing a sexual ethics code of conduct. The draft Framework notes:

A plan will be developed with the Services to roll-out sexual ethics education across the ADF training continuum (induction/entry, to Trade Schools, and then promotion courses).24

SeMPRO staff advised the Audit that their approach to training is to engage the three Services in the development and provision of sexual ethics education rather than presenting them with a final product.25 SeMPRO favours delivery of sexual ethics training by military members but acknowledges that staff may be nervous about presenting sexual ethics training.26 A train the trainer program is proposed, with educators to be chosen by Commanding Officers. An educator’s guide will be prepared. The Audit understands that Dr Michael Flood, an expert sexual ethics educator, is working with both SeMPRO and ADFA to develop a sexual ethics program that can be delivered in recruit and training environments. Dr Flood provided a critical and robust evaluation of the ADFA Sexual Ethics and Healthy Relationships program which had been envisaged as a possible template for wider ADF use. He is working with ADFA and SeMPRO to address the gaps in the program.

In relation to sexual ethics education for Commanders, to be delivered to pre-Command Officers and Warrant Officers, SeMPRO has identified the courses to be delivered. Course content is still to be developed and staff anticipate delivering the training in 2014.

Part of the recommendation requires that the effectiveness of education and training be evaluated every two years with an external evaluator and assessed against key indicators that measure attitudinal and behaviour change. SeMPRO’s draft Sexual Ethics Framework states that it is:

Developing reporting metrics to determine attitudinal and behavioural changes in trainees prior to and following the delivery of the Sexual Ethics Education packages. External experts, with experience in evaluating Primary Prevention Program, will also be consulted. A formal Evaluation Strategy will also be needed and will be developed in due course.27

Provide an outreach service to all ADF establishments including a rolling cycle of visits to each base every two years. This service would provide both relevant training and education and offer members an opportunity to discuss issues of concern with SEMPRO personnel.

SeMPRO staff told the Audit that they are conducting regular site visits and presentations, generally to command teams. SeMPRO sees its role as engaging with command to provide information and resources. It is then the responsibility of command to pass information and material on to their personnel.28

SeMPRO is working with the Services to establish priority locations to visit. The Audit notes that the 2013 Unacceptable Behaviour Survey may also assist in identifying ‘regions of concern’.29 DSPR provided that ‘regions of concern’ tended to have high reported prevalence of unacceptable behaviour, combined with a relatively low likelihood of reports or complaints being made following unacceptable behaviour experiences.

SeMPRO propose to conduct visits to each base every three years, not every two years as required by the recommendation. SeMPRO staff told the ADF Review that this is due to resource constraints and that staffing numbers are not sufficient to conduct visits every two years.30

Enter into appropriate arrangements with expert external service providers so as to offer complainants an alternative avenue for support and advice if the complainant does not wish to engage with the ADF’s internal complaints system.

The ADF must provide adequate resourcing and assistance to these organisations to ensure that they have the capacity to provide these services and that their expertise in sexual harassment and sexual assault matters is enhanced by an understanding of the military.

SeMPRO staff originally advised the Audit they will not enter into arrangements with expert external service providers to offer an alternative avenue for support.31 Instead, SeMPRO advised that they will ‘establish appropriate arrangements with local specialist support services to promote awareness of SeMPRO and for them to encourage ADF personnel who have been affected by sexual misconduct to contact SeMPRO’. 32 The Audit notes that this is not the intent of the recommendation.

SeMPRO maintains that the ADF’s duty of care to victims and other members of the workforce precludes them from advising victims to access external providers. Its rationale is that a private psychologist, for example, may not fully understand Defence and the potentially high risk nature of some of the roles and categories of employment. SeMPRO states that, as such, they cannot manage the risk of referring someone out to a private counsellor or psychologist outside of Defence. As a secondary issue, SeMPRO advises that it is not funded for payment to private psychologists.33

In more recent advice from Defence, the Audit was told that the ADF is ‘committed to pursuing the establishment of referral mechanisms to expert external service providers for those ADF members not wishing to utilise existing internal avenues’.34

Be the single point of data collection, analysis and mapping of all sexual misconduct and abuse matters. Prevalence, trends and key issues should be regularly reported to COSC and strategies to address any issues of concern arising from the data, implemented as soon as possible.

SeMPRO reports that it is establishing the SeMPRO reporting database and finalising the methodology to categorise and interpret the data on sexual misconduct and abuse. Staff have been engaging with internal stakeholders on data collection and advise that:

It’s a matter of determining who we need to link with, who’s capturing what type of information for what purpose, what are they doing with it and then how do we get that to us...They’re capturing it in different ways and different degrees of detail and also in different ICT systems.35

SeMPRO currently use the same data collection system as ADFIS. There are some issues with categorising an incident, in terms of assessing whether it constitutes an offence or harassment. SeMPRO is setting up a reporting framework so that data is received on a fortnightly basis. SeMPRO staff advise the Audit that they are also working on obtaining de-identified information from people who are not in the formal reporting system, such as medical professionals and Chaplains. These people will report to SeMPRO on a case by case basis.

SEMPRO’s role should be widely advertised and promoted across the ADF so that all members are made fully aware of the reporting options and the measures to be taken to ensure confidentiality when reporting confidential complaints.

SeMPRO has a dedicated website and it is featured on the Defence intranet and in Service magazines. Literature such as posters and brochures detailing reporting options, have been produced. SeMPRO staff have visited a number of bases, primarily recruit and training schools in the first instance, and met with leadership teams to brief them on SeMPRO’s role and purpose and provide advice on managing incidents.

Audit findings

The Audit strongly commends the establishment of SeMPRO and congratulates Defence for setting up the office so quickly. The swiftness in establishing SeMPRO is testament to senior leadership’s strong commitment to ensuring that victims of sexual misconduct are appropriately and sensitively supported. The Audit also acknowledges the effort and commitment which has gone into staffing SeMPRO, the development of policies and operating procedures by SeMPRO staff and the strong relationships that the staff is building with other Defence offices, such as ADFIS. The Audit welcomes the development of a single point of data collection for all sexual misconduct and abuse matters. It encourages SeMPRO to ensure full use, analysis and mapping of this data to identify prevalence, trends and key issues and to regularly report this to COSC for action.

The results from the 2013 Whole of Defence Unacceptable Behaviour Survey, as well as further disclosures made by ADF personnel during consultations for the Audit,
underscore the critical importance of SeMPRO in providing a specialised, victim focused service outside and independent of the chain of command. That the Unacceptable Behaviour Survey found that incidents of sexual misconduct and sexual offences were less likely to be reported than incidents of non-sexual unacceptable behaviour further highlights the critical importance of the existence of a dedicated, specialist service to respond appropriately to disclosures.

Real and perceived obstacles to reporting are clearly still an issue for ADF members. The Audit heard, for instance, that reporting obstacles can arise because:

...you’ve got to live with those people. Like it’s just whispers, like she went and told on you...and you’re a bitch because you did it.36

The Audit acknowledges that SeMPRO has only been established for less than a year but it is nevertheless concerned about the limited knowledge that ADF members – particularly junior members – have about its role and purpose and the options for reporting. On many of the base visits conducted for the Audit, command and leadership teams showed a good knowledge of SeMPRO and were supportive of its role. However, the Audit team’s discussions with other members on individual bases, revealed little awareness of SeMPRO.

When its role was explained, most of these members expressed support for the functions of the office. Advertising of SeMPRO was not always prominent at individual bases. Few bases the Audit visited displayed posters or brochures in high visibility and access areas. Rather, advertising appeared to rely primarily on the Defence intranet site and via Defence News, which, the Audit heard, are not always priority information points for Defence members. The Audit is strongly of the view that greater and more proactive efforts need to be made by Defence (and not just SeMPRO staff) to promote SeMPRO so that it is more widely known.

The Audit supports SeMPRO staff’s efforts in speaking with leadership teams at bases. A major part of SeMPRO’s role should include information sessions with all members, and in particular, junior members who the Audit considers are among the most vulnerable to sexual misconduct. The Audit also considers that SeMPRO should draw from the locations identified in the Unacceptable Behaviour Survey as being ‘regions of concern’ to assist them in prioritising their visits to and information sessions for bases. It is imperative that SeMPRO is properly resourced to undertake this role of base visits.37

SeMPRO advised the Audit that they do not have the resources or staff to conduct visits every two years to provide an outreach service as well as education and information sessions. Rather, it advises that this could be achieved every three years. It is not clear whether the issue concerns the outreach service, the education and information sessions or both. The Audit notes that SeMPRO has already made a number of visits in 2013, where they have met with command teams, and will no doubt prioritise these base visits in 2014. The Audit believes that consideration could be given to undertaking both the outreach session and an information session during the same base visits in 2014 as a way of maximising resources and minimising cost.

Recommendation 18 envisaged that SeMPRO would respond to complaints of sexual harassment and sex discrimination. As noted above, however, VBR continues to manage complaints of unacceptable behaviour of a sexual nature, including sexual harassment and discrimination.38 The ADF Review team was involved in these discussions when SeMPRO was being set up and is cognisant of the rationale for this separation of functions. However, as stated at that time, ongoing and effective collaboration is critical to ensuring holistic support for victims, effective organisational responses and the prevention of victims ‘falling through the cracks’ because of confusion between the roles of SeMPRO and VBR.

In relation to providing a 24/7 service, SeMPRO closely monitors and reports on access statistics. The Audit is pleased that the ADF has recently indicated39 that it remains committed to the 24/7 service and is not reconsidering its need, given that many people the Audit spoke with were not yet aware of SeMPRO, nor clear about what it provided.40

SeMPRO has not engaged with external service providers to offer complainants an alternative avenue for support and advice if the complainant does not wish to utilise the ADF’s internal complaints system. Initial advice from SeMPRO was that it had conducted its own risk assessment and concluded that external referrals is ‘against military duty of care and would abrogate ADF responsibilities.’41 The Audit does not support such a blanket approach.

The evidence presented to the ADF Review and to the Audit by serving members, as well as that contained in the Unacceptable Behaviour Survey, shows that many victims are not comfortable with having the incident investigated through the internal mechanisms of the ADF.

Speaking of her own experiences with unacceptable behaviour, one woman told the Audit:

...being the only female where I am right now, I probably wouldn’t mention it to someone within my department; I’d probably go outside and seek resources outside.42

This position was also reflected in various trends arising from the 2013 Unacceptable Behaviour Survey. The Survey Report stated that:

Overall, the majority of respondents did not seek advice and assistance about the unacceptable behaviours they were experiencing. Interestingly, respondents were less likely to seek support or advice about sexual misconduct or sexual offences than for other types of unacceptable behaviours.43

In fact, the Survey Report concluded that around three quarters of respondents who reported experiencing unacceptable behaviour of a sexual nature did not make a complaint or report.44

Additionally, while DSPR found that respondents who did make a complaint about unacceptable behaviour were most likely to approach their chain of command or supervisor, the Survey Report also provided that supervisors and COs were most frequently identified as the perpetrators of unacceptable behaviours:

This may go some way to explain one of the barriers to increasing the reporting rate for unacceptable behaviours.... it remains to be seen whether reporting behaviours will change as a result of SeMPRO...45

The Audit recognises that, in time, SeMPRO will help to build victims’ confidence in those mechanisms. However, failing to provide a range of support options can serve to disempower victims of sexual assault and can reinforce decisions about non-disclosure. Victims may also be forced to deal with the trauma on their own. This is not without consequence for either the victim or the ADF.

Following recent discussions between the ADF and the Audit team where the Audit expressed concerns about SeMPRO’s position regarding external referrals of ADF sexual misconduct victims, the ADF has provided the following advice:

[SeMPRO is] working on a model for external referrals to SeMPRO clients (and is) committed to pursuing [the] establishment of referral mechanisms to expert external service providers for those ADF members not wishing to utilise internal avenues.46

The Audit notes that the ADF intends to have the proposed model in place ‘as a matter of some urgency.’47 The Audit strongly welcomes this revised approach.

The Audit finds that progress on the provision of sexual ethics training has been slow. Twelve months have passed without the delivery of effective sexual ethics training. Given the data provided in the 2013 Unacceptable Behaviour Survey and the disclosures made to the Audit, this is now a critical matter. Recommendation 18 also requires that SeMPRO collaborate with expert independent educators to provide recruits and trainees with interactive sexual ethics education. SeMPRO acknowledges that the education and prevention program is still in its development stage.48 The Audit supports the engagement of Dr Michael Flood to assist in the development of a sexual ethics program. Recent advice from SeMPRO indicates that a two hour training package, targeting recruit schools will be delivered to staff of those schools in April 2014. The Audit welcomes this development and urges the ADF to ensure that a robust sexual ethics program is also delivered across the broader ADF as soon as possible and in collaboration with experts in the field.

Recommendation 19
As a matter of urgency, the ADF should investigate mechanisms to allow members to make confidential (restricted) reports of sexual harassment, sex discrimination and sexual abuse complaints through SEMPRO.

 

Intent of Recommendation 19

Recommendation 19 envisaged that people would have the option to report and receive support in a confidential way. As the ADF Review Report noted:

Restricted reporting allows victims to report an incident confidentially and access medical and counseling support without disclosing identities or initiating an investigation. It provides command with de-identified information about rates of sexual assault that may help to affect systemic change. Victims can elect to convert to an ‘unrestricted’ status at a later stage should they wish to do so.49

Implementation actions

The Interim Defence Instructions (General) PERS 35-4 Reporting and management of sexual misconduct including sexual offences (interim DI(G)) refers to restricted disclosures. It was released effective 28 August 2013, with the revised permanent version planned for release in early 2014.50

The interim DI(G) states:

26. Defence recognises that formally reporting incidents may not be a victim’s preferred choice for disclosing an incident of sexual misconduct. The ability to disclose incidents outside of the chain of command may encourage a victim to seek the support they require to assist with their recovery and, if possible, a return to their full work potential. For this reason, Defence has introduced a confidential disclosure option called ‘Restricted Disclosure’ for ADF victims of sexual misconduct, where circumstances allow.

27. A Restricted Disclosure allows current and former ADF members who have been victims of sexual misconduct to disclose that incident directly to SeMPRO without necessarily triggering an investigation.

...

29. In some situations, a Restricted Disclosure will not be appropriate because of the circumstances of the incident and, in these situations, confidentiality will not be maintained. These situations include, but are not limited to, where a victim is believed to be less than 18 years of age; there is evidence of serious and imminent threat to the life or health of the victim or others or as otherwise required by law such as a court order...51

If a restricted disclosure is deemed not to be appropriate, ‘SeMPRO will advise the victim... and will continue to work with that victim in order to provide appropriate advice and guidance.’52

SeMPRO acknowledge that COs are often struggling with the concept of restricted disclosures as they are concerned that there may be a perpetrator in their unit and that they will not know the alleged identity of that person if a restricted report is made.53 The Head of ADFIS also explained:

How was [restricted reporting] going to work from a perspective of trying to get an offender to justice at the end of the day and providing justice to a victim by being able to investigate – ‘that was the broad view by a lot of people in ADFIS. ... At the end of the day if it means that one victim who otherwise wouldn’t have come forward is able to get access to the victims support arrangement that they wouldn’t have otherwise had, that’s a good thing... They all get that now and they all understand [but] there was a little bit of a fear about what SeMPRO means.’54

SeMPRO advised the Audit that it has accepted a number of restricted disclosures since its establishment.

Audit findings

The Audit welcomes the implementation of restricted disclosure reporting as a way of enabling victims to access services and support in a confidential way and as a mechanism to address underreporting.

The Audit frequently heard that there is still reluctance by members to report incidents:

There are still people who won’t complain because they don’t want to rock the boat or potentially they’re too intimidated to do it.55

When it’s my word against his, who are they going to listen to, the [junior member] or the commander? I can damn say it wouldn’t be me.56

At my last posting I had a senior officer that was intimidating me and I did not feel comfortable to put a complaint in, so I didn’t... My whole time on that posting I was practically continually in tears...He pushed me that far, I was that close to a nervous breakdown.

There’s all these support networks, E&D stuff, but you can’t really make a complaint because then everybody knows about it. You’re branded that person who’s made an E&D complaint and it just follows you forever.

These views were also reinforced by several findings of the 2013 Whole of Defence Unacceptable Behaviour Survey. Around three-quarters of respondents who had experienced unacceptable behaviour of a sexual nature did not make a complaint, with as many as one in five citing the reason for this as ‘I did not think my report would be kept confidential’.57

A number of people with whom the Audit spoke were not aware of restricted reporting but maintained that they would be more comfortable using that option rather than reporting through their chain of command.

The Audit considers that efforts should continue to ensure that all ADF members, particularly junior members, are made aware of this reporting option and that the parameters around it are clearly communicated.

Recommendation 20

As a matter of urgency, COSC should review all relevant policy and legislative provisions to provide for the mandatory assessment of an ADF member’s ability to perform the inherent requirements of their job if convicted of any criminal offence, and, in particular any sexual offence, including but not limited to:

  • The insertion of an addition in the list of matters that must be considered in all personnel determinations and decisions in the Defence (Personnel) Regulations 2002 of the requirement that individuals must be ‘fit and proper persons’ for service in the ADF.
  • An amendment to Regulation 87(1) of the Defence (Personnel) Regulations 2002 so that the specific reference currently found within the termination grounds for officers is also available for consideration in relation to enlisted members. Importantly, the reference should include that termination may be considered where the member has been convicted of an offence or a service offence and the Chief of the officer’s Service has certified that, having regard to the nature and seriousness of the offence, the retention of the member is not in the interests of the Defence Force.

 

Intent of Recommendation 20

In its extensive consultations the ADF Review was concerned to hear of current serving members who had convictions for sexual offences. Recommendation 20 sought to ensure that Defence conducted an assessment of those members convicted of a criminal offence, particularly any sexual offence, to determine their continuing fitness to serve.

Implementation actions

The Defence (Personnel) Amendment Regulation 2013 (No. 1) dated 1 March 2013 makes a number of amendments to the Defence (Personnel) Regulations 2002. These include adding a ‘fit and proper person’ test to the mandatory decision making criteria. A decision-maker must consider these criteria when making a decision that affects an individual ADF member, for example appointment or enlistment, promotion, posting or termination decisions.58 New sub-regulation 7(3) provides:

If the decision or determination relates to an individual, the person must consider whether, having regard to the individual’s past and present conduct, the individual is of good character.

For example, this would require a decision-maker to take into account the criminal and ADF disciplinary record of an individual when making a decision about them under the Regulations.59

The Amendment Regulation also makes provision for similar termination provisions for both officers and enlisted members (regulations 85 and 87) which include termination on the basis of criminal conviction.

Audit findings

The Audit congratulates Defence for making the legislative changes to the Regulations in accordance with Recommendation 20. The recommendation also required that all relevant policy relating to these amendments be reviewed as a matter of urgency, but the Audit has not been advised whether this has been completed.

Recommendation 21
COSC should amend all policies addressing the waiver of Initial Minimum Provision of Service and Return of Service Obligations to ensure that a member who has made a decision to discharge from the ADF because of sexual assault or sexual harassment, is able to do so expeditiously and without financial penalty, upon production of supporting evidence of physical, psychological or emotional trauma.

 

Intent of Recommendation 21

The ADF Review heard from women who had been sexually assaulted but who did not report their experiences and continued to serve out their Return of Service Obligations or complete their Initial Minimum Periods of Service. Further to Recommendation 19, which introduced restricted disclosures in order to encourage more victims to seek help, Recommendation 21 sought to make clear that a member who had experienced sexual assault or sexual harassment should not be penalised if they no longer wished to remain in Defence.

Implementation actions

Defence Instructions (General) 33-5: Arrangements for Service in the ADF (DI(G) 33-5) has been amended. Amended DI(G) 33-5 makes specific reference to considering release from a service obligation if a member has reported sexual assault, sexual harassment or other significant workplace harassment through the appropriate channels. Termination on medical grounds may be considered appropriate if the alleged incident has significantly impacted on the member’s functional capacity. DI(G) 33-5 now provides:

39. Situations may arise where the gravity of a member’s circumstances could outweigh their obligation to serve. For example, where a member has compelling personal reasons for pursuing separation, the decision maker may approve the application subject to the member complying with a specified condition...

40. Approval to separate on grounds of compelling and compassionate circumstances will generally be administered promptly and not attract a condition. For example, a member who has reported sexual assault, sexual harassment, or other significant workplace harassment through the appropriate channels would normally be allowed to separate without imposition of a condition where they can establish continued service would be to their emotional detriment or have a deleterious effect on their health.

The appointed decision maker or delegate for waiver of service obligations is to take this policy guidance in DI(G) 33-5 into account when making a decision to release a member prior to completion of their service obligation. The reasons for the delegate’s decision are recorded in writing and provided to the member.

Audit findings

The Audit welcomes the implementation of this recommendation.

Conclusion – Principle 5

The Audit congratulates Defence on the establishment of SeMPRO and the significant effort involved in doing so. SeMPRO was only officially launched in July 2013, and the Audit urges that access statistics be monitored for a full 12 months of operation, before the necessity for a 24 hour a day telephone line is reconsidered.

The capacity to report on a restricted basis is now in place and policy changes as required by the ADF Review have now taken effect.

The Audit also commends the ADF on amending its regulations regarding the capacity of convicted sex offenders to serve and for introducing the waivers for IMPS and ROSO as required by the recommendations.

The Audit identifies two main continuing concerns:

  1. the delay in implementing effective sexual ethics training, in collaboration with expert independent educators; and
  2. the decision not to enter into appropriate arrangements with external service providers to offer an avenue of support outside the ADF.

Both issues are critical. The Audit trusts that they will be addressed decisively and in keeping with the intent of recommendations as accepted by the ADF.

________________________________________________________________

Chapter 8: Endnotes

  1. Australian Human Rights Commission, Review into the Treatment of Women in the Australian Defence Force: Phase 2 Report (2012), p 262.
  2. Roy Morgan Research, 2012 Sexual Harassment Prevalence Survey: Prevalence and Nature of Sexual Harassment in the ADF, prepared for the Australian Human Rights Commission, July 2012, in Australian Human Rights Commission, Review into the Treatment of Women in the Australian Defence Force: Phase 2 Report (2012), p 258, Appendix N.4.
  3. Sexual Misconduct Prevention and Response Office Strategic Plan: 01 July 2013 – 30 Jun 2017, provided to the Audit on 26 August 2013, at [2].
  4. APS employees are encouraged to access the Employee Assistance Program (EAP) for support: Department of Defence, Defence Instructions (General) PERS 35-4 – Reporting and management of sexual misconduct, 28 August 2013, at [19].
  5. The interim Defence Instructions (General) (DI(G)) was issued in August 2013, ‘ahead of the full stakeholder review, with the revised permanent version of this DI(G) planned for release in early 2014’: Department of Defence, Information DEFGRAM No 461/2013: Publication of Defence Interim Instructions (General) Pers 35-4 – Reporting and management of sexual misconduct including sexual offences, provided to the Audit on 26 August 2013.
  6. Head SeMPRO Opening Statement to AHRC Audit, 25 October 2013.
  7. A new service delivery CRR position at Executive 1 level has been established and SEC approval to staff the position is required. Business case for DEPSEC DP being drafted. Funds approved for employment of three Reservists: SeMPRO Broderick Recommendations – Audit Evidence Tracking 29 August 2013, provided to the Audit on 26 August 2013, p 1.
  8. Meeting 7.
  9. As set out in Department of Defence, Defence Instructions (General) PERS 35-4 – Reporting and management of sexual misconduct, August 2013.
  10. RTW Ph2 Report Recommendations – actual wording versus Defence implementation, summary table provided to the Review by SeMPRO, provided to the Audit on 26 August 2013, at ‘Serial 1’.
  11. SeMPRO Charter, provided to the Audit on 26 August 2013 at [14].
  12. Directorate of Critical Response and Recovery: Guide to being a member of the SeMPRO Trauma-Informed Sexual Offence Response Team (SORT), May 2013, provided to the Audit on 26 August 2013, p 11.
  13. SeMPRO Broderick Recommendations – Audit Evidence Tracking, provided to the Audit on 26 August 2013, p 1.
  14. SeMPRO Broderick Recommendations – Audit Evidence Tracking, provided to the Audit on 26 August 2013, p 2.
  15. As set out in Department of Defence, Defence Instructions (General) PERS 35-4 – Reporting and management of sexual misconduct, August 2013.
  16. Sexual Misconduct Prevention and Response Office (SeMPRO) Charter, provided to the Audit on 26 August 2013.
  17. Meeting 7.
  18. Meeting 12.
  19. DPSEC DP, Agendum No 73 of 13: SeMPRO Update, 19 September 2013, Annex C, SeMPRO Access Statistics (24/7 Click/Call/Text and Website Hits), provided to the Audit on 26 August 2013.
  20. Meeting 7.
  21. Consolidated Draft AHRC Audit Report Comments by Service/Branch/Institution, provided to the Audit on 28 February 2013.
  22. 1 July 2013 to 30 June 2017.
  23. Sexual Misconduct Prevention and Response Office (SeMPRO) Training Census Report, provided to the Audit on 26 August 2013.
  24. Draft Sexual Ethics Education in Defence Framework, provided to the Audit by ODU on 22 October 2013.
  25. Meeting 7.
  26. Meeting 7.
  27. Draft Sexual Ethics Education in Defence Framework, provided to the Review by ODU on 22 October 2013, p 6.
  28. Meeting 7.
  29. Directorate of Strategic People Research, Whole of Defence 2013 Unacceptable Behaviour Survey Report, December 2013, provided to the Audit on 12 December 2013, p 5.
  30. Meeting 7.
  31. Meeting 12, document headed RTW (Ph2) Report Recommendation 18e – Unacceptable risk to ADF, provided to the Audit on 26 August 2013.
  32. SeMPRO Broderick Recommendations – Audit Evidence Tracking, provided to the Audit on 26 August 2013.
  33. Meeting 7.
  34. Consolidated Draft AHRC Audit Report Comments by Service/Branch/Institution, provided to the Audit on 28 February 2013.
  35. Meeting 7.
  36. Focus group 11.
  37. Recent advice from the ADF indicates that ‘SeMPRO has a plan for rolling base visits that aim to capture all ADF members in targeted locations; these visits will be supported by CRR staff who will make themselves available to face-to-face contact with potential clients’ (Consolidated Draft AHRC Audit Report Comments by Service/Branch/Institution, provided to the Audit on 28 February 2013).
  38. RTW Ph2 Report Recommendations – actual wording versus Defence implementation, summary table provided to the Audit on 26 August 2013, at ‘Serial 1’.
  39. Consolidated Draft AHRC Audit Report Comments by Service/Branch/Institution, provided to the Audit on 28 February 2013.
  40. Interview 125; Focus group 6;Focus group 9; Focus group 19; Focus group 20.
  41. SeMPRO, RTW (Ph 2) Report Recommendation 18e – Unacceptable risk to ADF, provided to the Audit on 26 August 2013.
  42. Focus group 11.
  43. Directorate of Strategic People Research, Whole of Defence 2013 Unacceptable Behaviour Survey Report (December 2013) provided to the Audit on 12 December 2013, p 172.
  44. Rates of reporting were as follows: unwanted sexual attention (83% of respondents who experienced unwanted sexual attention did not report or make a complaint about that behaviour); crude behaviour (82%); sexual coercion (77%); acts of indecency (76%); sexual assault (minor) (77%); sexual assault (major) (70%): Whole of Defence 2013 Unacceptable Behaviour Survey Report (December 2013), provided to the Audit on 12 December 2013, p 75.
  45. Directorate of Strategic People Research, Whole of Defence 2013 Unacceptable Behaviour Survey Report (December 2013) provided to the Audit on 12 December 2013, p 173.
  46. Consolidated Draft AHRC Audit Report Comments by Service/Branch/Institution, provided to the Audit on 28 February 2013.
  47. Consolidated Draft AHRC Audit Report Comments by Service/Branch/Institution, provided to the Audit on 28 February 2013.
  48. Department of Defence, Defence Annual Report 2012-13, Chapter 6: ‘Women in the ADF’ Report, 2013, p 107. At http://www.defence.gov.au/AnnualReports/12-13/default.asp (viewed 20 November 2013).
  49. Australian Human Rights Commission, Review into the Treatment of Women in the Australian Defence Force: Phase 2 Report (2012), p 271.
  50. Department of Defence, Information DEFGRAM NO 461/2013: Publication of Defence Interim Instruction (General) Pers 35-4 – Reporting and management of sexual misconduct including sexual offences, provided to the Audit on 26 August 2013.
  51. Department of Defence, Interim Defence Instructions (General) PERS 35-4 Reporting and management of sexual misconduct including sexual offences, effective 28 August 2013.
  52. Department of Defence, Interim Defence Instructions (General) PERS 35-4 Reporting and management of sexual misconduct including sexual offences, effective 28 August 2013.
  53. Meeting 7.
  54. Meeting 12.
  55. Interview 13.
  56. Focus group 11.
  57. Reasons for not reporting unacceptable behaviour were reported by category of behaviour. For each type of unacceptable behaviour of a sexual nature, the percentage of respondents who did not report because they ‘didn’t think my report would be kept confidential’ was as follows: crude behaviour (17%); unwanted sexual attention (21%); sexual coercion (17%); acts of indecency (19%); sexual assault (minor) (21%). Incomplete detail was provided on the respondents who indicated why they had not made a complaint about sexual assault (major): Directorate of Strategic People Research, Whole of Defence 2013 Unacceptable Behaviour Survey Report (December 2013), provided to the Audit 12 December 2013, pp 89, 90, 91, 92 and 93.
  58. Explanatory Statement, Defence (Personnel) Amendment Regulation 2013 (No 1).
  59. Explanatory Statement, Defence (Personnel) Amendment Regulation 2013 (No 1).