Abuse claims process softened for Defence personnel
Current and former Defence personnel no longer face the distressing prospect of recounting in person the sexual or physical abuse they suffered during their service when making a claim for injury.
The number of complaints dealt with by the former Defence Abuse Response Taskforce (DART) and increased public awareness has ushered in a change in which the Department of Veterans Affairs (DVA) assess injury claims relating to sexual and physical abuse suffered by service people.
Prior to the change, sexual and physical abuse claims required a claimant to establish that an incident or incidents of abuse in fact occurred. This would mean a claimant would have to provide an account, sometimes at hearing, detailing the abuse they suffered. It was a process claimants found distressing and humiliating.
The policy change acknowledges how difficult it can be to obtain evidence in matters of this nature to establish that abuse occurred. There may be a variety of reasons why this difficulty exists. For example, there may be no witnesses to the abuse, there may not be a contemporaneous report of an incident to colleagues/medical staff, medical records may be incomplete or reporting may have been difficult or discouraged at the time, particularly with respect to children.
To recognise the difficulties in gathering evidence faced by abuse survivors, the delegates of the Military Rehabilitation and Compensation Commission (MRCC) have been instructed to accept claimants’ personal accounts in the form of statutory declarations as evidence in the following circumstances:
- In the absence of contradictory evidence, a statutory declaration alone will be sufficient to establish the fact of abuse in claims related to incidents of physical or sexual abuse of children under the age of 18 at the time of the abuse where the abuse occurred on or before 11 April 2011;
- In the absence of contradictory evidence, a statutory declaration, supported by corroborative evidence, will be sufficient to establish the fact of abuse in claims related to physical or sexual abuse of children under 18 at the time of abuse, where the abuse occurred after 11 April 2011;
- In the absence of contradictory evidence, a statutory declaration, supported by corroborative evidence, will be sufficient to establish the fact of abuse in claims related to sexual or physical abuse of survivors aged 18 or over at the time of abuse, where the abuse occurred at anytime.
The structure of the statutory declaration is complex and must provide as much detail that a claimant can about the incident or incidents. Putting those experiences into words will remain a challenge for any potential claimant, so seeking legal advice on this will be important. In circumstances where a statutory declaration is required to be supported by corroborative evidence, this could include but would not be limited to – contemporaneous reports, eyewitness statements, Defence investigations and information about abuse identified by the DART. The scope, however, for what the MRCC delegate may consider is broad and they will have the discretion to weigh or discount the significance of particular items of evidence in accordance with their own judgment and reason.
This policy change assists the first aspect of the claims process – establishing that an incident of abuse occurred. It will then remain for the MRCC delegate to be satisfied that a diagnosed medical condition exists and the medical condition is related to a claimant’s military service.
Should the DVA accept a claim as service related, then a claimant will have access to a number of entitlements that they would not have had access to previously as part of the DART process. Those entitlements could be weekly incapacity payments should the claimant be unable to work as a result of their condition, payment of reasonable medical expenses, and possibly an entitlement to lump-sum compensation award for permanent impairment.
Given the prevalence of claims of this nature in recent years and the heightened exposure within the media, claimants should be encouraged by the DVA’s change in approach.
Should you be considering a claim with respect to abuses suffered during your time in service, it is wise to seek legal advice with respect to how you initiate a claim and what evidence needs to be provided to the MRCC in order for the claim to be assessed and accepted in the most efficient timeframe.
Tindall Gask Bentley’s Tim White and Brianna Tapscott specialise in military compensation claims, advising former and current Australian Defence Force personnel nationally. TGB offers a free first interview to those considering claims.