TGB Partner Tim White looks at the options ahead for victims of alleged abuse within the Australian Defence Force, and the compensation process.

There remains uncertainty over what, if any, action the Federal Government will take in view of a recent report that revealed allegations of systemic abuse within the Australian Defence Force.

Will the Government establish a Royal Commission? This would involve significant costs and considerable time.

Or will it establish a Statutory Fund for people affected? A statutory fund would potentially provide more immediate assistance to people that have been abused and suffered as a result.

Clearly there would need to be an established criteria for victims of abuse. But this could take into account factors such as the circumstances of the incident, how long ago it occurred, the extent of any medical condition, the extent of time lost from work, whether a member can currently not work due to the caused condition and the extent of medical treatment received or needed.

There should be assistance provided to members who make an application to any fund that is established. It is often not a straight forward process and the gathering of relevant information is very important.

In addition, members affected have existing statutory entitlements to make claims under the Safety Rehabilitation Act, and the Military Rehabilitation and Compensation Act (2004). These statutes cover serving members who have a medical condition that has been caused by service occurring in Australia.

The first step is to file a claim form with the Department of Veterans Affairs (DVA).  Medical evidence should be attached to indicate the nature and extent of the condition.

The claim should be investigated by the DVA and a formal decision made, either accepting or rejecting the claim. If the claim is rejected, the decision can be challenged and there is an established process to go through to dispute it.

Entitlements can include lost wages, medical expenses, rehabilitation costs and potentially a lump sum payment for a permanent disability.

For any member who has been medically discharged from the Defence Force, they should look very closely at the claims accepted by the DVA.

Medical costs can be considerable, especially when taking into account consultations to doctors, psychologists, visits to hospital and medication. These costs add up over time.

There are also potential entitlements under the Military Superannuation Scheme for those with more serious medical conditions. This is usually paid by way of a weekly pension, which can be ongoing for a prolonged period of time.

Current or former members of the military should be aware of the complications a lot of former veterans have experienced by delaying making claims until years after the event. Having assisted a lot of Vietnam Veterans with claims against the DVA, it often becomes a very difficult battle to substantiate claims arising from events that occurred many years ago.

Typically, the longer the gap between the event and the lodging of the claim, the harder it is for the claim to be successful. Accordingly, subject to how the government reacts to this recent report, members impacted by medical conditions due to events happening in service should give serious consideration to filing claims as soon as possible.

When making a claim, it is important to obtain documentation to support your allegations, including medical evidence and service documents if you can access them. A statement from other serving members about the incident will be vital as well.  It is important to seek legal assistance throughout this process.

When disputing a claim rejected by the DVA, depending on the type of claim, you can seek an internal review or ask it be sent to the Veterans Review Board.  If the claim is still rejected following that process, you can appeal the decision to the Administrative Appeals Tribunal (AAT).  The AAT is where lawyers often become more involved in providing assistance.  The DVA will also obtain legal advice.

The AAT process is initially based on trying to reach a settlement through negotiation.  But if that is not successful,l a dispute can be listed for a trial. How long all of this takes varies, ranging from six months to several years. However, most matters never make it to trial.

Author: Tim White

Claiming Military or Veterans entitlements can be complicated. For some initial advice and assistance, register your details online HERE or call Tim on (08) 8212 1077.

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