The Military Rehabilitation Compensation Commission and the Repatriation Compensation Commission have recently reviewed the policies used by the Department of Veterans’ Affairs to assess claims made by veterans for cases of physical and sexual abuse within the military. These changes stem from the Commissions’ consideration of matters arising from the Royal Commission into Institutional Responses to Child Sexual Abuse, covering the Australian Defence Force and recognise the evidentiary difficulties that survivors of such abuse may experience.
New Policy – Use of Statutory Declarations
In the absence of contradictory evidence, Commissions have agreed to the use of statutory declarations alone to establish the fact of abuse in claims related to incidents of physical or sexual abuse, where the abuse event occurred on or before 11 April 2011 and the survivor was aged under 18 at the time of the abuse.
In the absence of contradictory evidence and supported by corroborative evidence, Commissions have also agreed to the use of statutory declarations to establish the fact of abuse in claims related to incidents of physical or sexual abuse, where the abuse event occurred after 11 April 2011 and the survivor was aged under 18 at the time of the abuse.
In the absence of contradictory evidence and supported by corroborative evidence, Commissions have agreed to the use of statutory declarations to establish the fact of abuse in claims related to incidents of physical or sexual abuse where the survivor was aged over 18 at the time of the abuse.
New Policy – Notice provisions under the Safety, Rehabilitation and Compensation Act 1988
‘Notice to inform’ provisions in section 53 of the Safety, Rehabilitation and Compensation Act 1988, section 53 the Compensation (Commonwealth Government Employees) Act 1971 and section 16 of the Commonwealth Employees Compensation Act 1930 require employees to provide written notice of an injury to the relevant authority as soon as practicable after the employee becomes aware of the injury.
As revealed at the Royal Commission, survivors of abuse often do not report the abuse or conditions relating to the abuse until decades after an incident. DVA is aware that ‘notice to inform’ provisions have been applied in rejected abuse cases previously.
The Commissions have agreed not to rely on these notice provisions in the abovementioned Acts to reject claims involving allegations of sexual and physical abuse. This approach recognises the vulnerable position of abuse victims and that survivors of abuse do not report the abuse until years or decades after the event due to a range of factors, including an identified culture of underreporting. This approach utilises the ‘any other reasonable cause’ exception to the ‘notice to inform’ requirements in the 1988 Act and its 1971 and 1930 predecessors.
Application to claims
The Department is presently assessing claims involving sexual or physical abuse of children that either have been held in abeyance pending the outcome of the Royal Commission, or that have been received from individuals who appeared before the Royal Commission.
Following this, the new policy will be applied to claims involving the sexual or physical abuse of children that have been previously rejected by DVA, to determine whether the Department may now accept claims on the basis of the revised evidentiary policy. Due to system limitations, DVA is unable to readily identify claims of abuse rejected before 2012.
The Department has asked the RSL and other Ex-Service Organisations, in light of the difficulty in identifying rejected claims prior to 2012, to assist in communicating these policy changes to the ex-service community, and will be launching a wider communication strategy in 2017 to ensure that awareness of this policy change is widely communicated to all of those who may be affected.
The Department has also asked that the ex-service community also be reminded that care for PTSD, depression, anxiety, alcohol use disorder and substance use disorder are available to all members who have served in the permanent forces of the Australian Defence Force through the Non-Liability Health Care (NLHC) scheme. Diagnosis of these conditions is not required at the time of application and approval of the NLHC, however, a diagnosis from a General Practitioner (GP), psychologist, or psychiatrist is required within 6 months of the approval of the NLHC for it to continue.
A detailed statement of DVA policy relating to claims involving physical and sexual abuse is available on the Consolidated Library of Information and Knowledge at http://clik.dva.gov.au. The statement on claims related sexual and physical abuse is located at section 3.4.7 of the Policy Manual in the ‘Military Compensation MRCA Manuals and Resources Library’.