2. Women at ADFA: Harassment, Abuse, Discrimination and Assault

 

2.1 Introduction

ADFA is a unique institution where cadets live, study, work and socialise. The intensity of this environment can exacerbate the experiences of sexual harassment, abuse, discrimination and assault.

The Review had the opportunity to speak with women and men across the ADFA community and beyond. It is mindful of the pride felt by many about the inclusive culture of ADFA. Many women, both staff and cadets, stated clearly that they are treated equally and fairly. Further, a number suggested that the Review was unnecessary and could potentially undermine the success of women at ADFA. They were concerned there was a potential for ideas such as positive discrimination in favour of women to cause significant cultural division. The predominant view was that for most women, most of the time, ADFA was a good environment.

However, an alternative view was put to the Review that some female cadets and staff believe being part of a minority group presents certain obstacles, including an expectation that women have to perform at a higher standard than their male counterparts.

The Review heard concerning accounts of alleged unacceptable behaviour, including isolated incidents of sexual assault and more widespread experiences of sexual harassment.

Given these divergent voices, the Review has been conscious of the need to honestly reflect the views of the majority of women with whom we spoke, while ensuring that any difficulties identified for women at ADFA have been considered. The Review has found some systemic issues which impact on the fair and inclusive treatment of women. In raising these issues, the Review acknowledges both the publicly expressed positive experience of many women at ADFA and also the experiences of other women which were conveyed confidentially by submissions, in interviews, and through the Unacceptable Behaviour Surveys.

This chapter explores cadets’ stated experiences of sexual assault, discrimination and harassment more generally. It also assesses the processes that ADFA uses to address these issues. It draws on various sources of evidence, including the 2011 ADFA Unacceptable Behaviour Survey, data from ADFA and the Australian Federal Police (AFP), qualitative material gathered by the Review and ADFA policies and procedures.

2.2 Cadets’ stated experiences of harassment, abuse, discrimination and assault: The ADFA Unacceptable Behaviour Survey

ADFA periodically conducts the Unacceptable Behaviour Survey to gauge attitudes towards, and incidence of, unacceptable behaviour at ADFA. The most recent survey was conducted with ADFA cadets in June 2011 at the request of the Review. Surveys were also conducted between 1998 – 2000 and 2003 – 2008. This chapter draws on information from the surveys administered in 1998 and 2005 in order to provide comparisons over time. In line with the Terms of Reference, this analysis examines the section of the 2011 survey dealing with gender and sex-related harassment experiences, conducts a gendered analysis of the remainder of the 2011 survey, and presents comparisons with previous surveys where appropriate.

In 2011, 61.6% (N=599) of all cadets completed the ADFA Unacceptable Behaviour Survey, compared with a participation rate of 83% (N=825) in 1998 and 86% (N=837) in 2005.^[196] The lower respondent rate in 2011 is due in part to the timing of the survey administration, which coincided with pre-exam study week, and the ‘voluntary’ nature of the survey.^[197] Nevertheless, the 2011 respondent pool included a majority of each gender (66% of all female cadets and 59% of all male cadets); a majority of first-, second- and third-year cadets; and a majority of each service.^[198] In 2011, 25% (N=147) of respondents were women. This compares with the returns for 2005 (19%, N=161) and 1998 (25%, N=208).

(a) About the survey

The 2011 ADFA Unacceptable Behaviour Survey was an updated and expanded version of the Survey of Unwanted Gender and Sex-related Behaviours administered in 1998 as part of the Grey Review, and the 2005 ADFA Unacceptable Behaviour Survey.^[199]

Each survey contained similar versions of an instrument known as the Sexual Experiences Questionnaire (SEQ), which forms the basis for the comparisons conducted below.^[200]

The 2011 survey consisted of 42 questions and collected:

• demographic information
• opinions on unacceptable behaviour
• general harassment and discrimination experiences
• gender and sex-related harassment experiences
• electronic harassment experiences
• impact of ‘unwanted’ behaviour
• management of ‘unwanted’ behaviour
• qualitative comments.

A copy of the survey instrument is included at Appendix C.

The gender and sex-related harassment questions within the ADFA Unacceptable Behaviour surveys are split into five categories. They are: sexist behaviours, crude/offensive behaviours, unwanted sexual attention/seduction, sexual bribery/threat and sexual assault. In relation to these categories and the sections on general harassment and electronic harassment, respondents are asked about situations involving ‘any Defence personnel such as Military, Defence APS, contractors, on or off duty, and/or on or off [their] base or unit’.^[201]

Appendix D further examines the survey, its methodology and limitations, and some analysis provided by Defence’s Directorate of Strategic Personnel Policy Research (DSPPR) and Directorate of Workforce Intelligence (DWIntel).

(b) Key findings

The 2011 ADFA Unacceptable Behaviour Survey suggests that ADFA is an improved environment compared to the situation reported at the time of the Grey Review. However, its findings suggest that women continue to disproportionately experience harassment and discrimination. In the previous 12 months:

• 74.1% of female cadets and 30.3% of male cadets reported experiencing an ‘unacceptable’ gender or sex-related harassment behaviour
• 53.7% of female cadets and 33.4% of male cadets reported experiencing a ‘unacceptable’ general harassment or discrimination behaviour
• A proportion of cadets reported experiencing the discriminatory behaviours listed in the surveys but did not consider them to be ‘unacceptable’ – for example 86.3% of all respondents experienced an incident of ‘general harassment or discrimination’ but only 44.7% of these (or 38.6% of the total survey respondents) reported their experience as ‘unacceptable’.

(c) Gender and sex-related harassment

The most common form of gender or sex-related harassment reported was being ‘repeatedly told sexual stories or offensive jokes’. This was experienced by 67.1% of all respondents.

Nine items returned statistically significant responses by gender, with women more likely than men to report that they had:

• been whistled, called or hooted at in a sexual way (40.3% of women compared with 15% of men)
• experienced unwanted attempts to draw them into a discussion of sexual matters (37.6% of women compared with 23.5% of men)
• been treated differently because of their gender (34% of women compared with 5.9% of men)
• experienced offensive sexist remarks (31.9% of women compared with 9% of men)
• been put down or condescended because of their gender (25.2% of women compared with 1.4% of men)
• been stared, leered or ogled at in a way that made them feel uncomfortable (22.2% of women compared with 2.9% of men)
• experienced offensive remarks about their appearance, body or sexual activities (22.2% of women compared with 14.6% of men)
• experienced unwanted attempts to establish a romantic sexual relationship despite making efforts to discourage it (19.4% of women compared with 4.5% of men)
• been continually asked out after they had said ‘no’ (13.9% of women compared with 2.4% of men).

At the more serious end of the spectrum, in the previous 12 months:

• 2.1% of women and 0.2% of men reported being forced into sex without their consent or against their will
• 4.3% of women and 1.9% of men reported being treated badly for refusing to have sex
• 6.9% of women and 3.6% of men reported being touched in a way that made them feel uncomfortable.

The Review notes that the National Union of Students (NUS) also administered a survey in late 2010/early 2011 concerning experiences of sexual harassment and assaults at Australian universities and residential colleges more generally. The NUS survey was conducted exclusively online through the NUS website, and 1549 survey responses were collected. Its results reported that 17% of its sample had experienced rape, and 67% of the sample had experienced unwanted sexual encounters.^[202] However, as the DSPPR notes, ‘differences in methodology [between the Unacceptable Behaviour Survey and the NUS survey] mean any comparisons are of negligible value’.^[203]

The results of the 2011 ADFA Unacceptable Behaviour Survey and the NUS survey indicate that sexual harassment and assault is a problem across Australian universities. Researchers in the area argue that an authoritative research methodology is required as part of the response.^[204]Recommendations 25 and 26 of the Review suggest ways that ADFA can take a lead role in the development of this research in ways that would help address the situation at the Defence Academy, and across the nation’s campuses more generally.

(d) General harassment and discrimination

The 2011 ADFA Unacceptable Behaviour Survey shows that the most common type of general harassment or discrimination reported was experiencing ‘insulting comments about physical characteristics, abilities or mannerisms’. This was reported by 66.8% of all respondents, although only 13.3% found this behaviour ‘unacceptable’.

Five items returned statistically significant differences in responses by gender with relevance to the Review. Women were more likely than men to report that in the previous 12 months they had:

• experienced the spread of malicious rumours or public statements of a derogatory nature about themselves or another person (55.5% of women compared with 12.2% of men)
• been treated differently, victimised or harassed on account of their medical status (45.5% of women compared with 17.9% of men)
• been excluded from a normal conversation or workplace activities and work-related social activities (21.9% of women compared with 12.2% of men)
• been treated differently, victimised or harassed on account of an impairment, medical condition or disability (11.7% of women compared with 5.6% of men).

In addition, 3.4% of women reported being treated differently, victimised or harassed on account of their pregnancy or potential pregnancy.

(e) Electronic harassment

In the Survey’s short section on electronic harassment, about 90% of respondents reported that neither they nor others they knew had been exposed to electronic harassment. Another 7-9% of respondents did not answer the questions in this section.

This Review was established following a widely publicised incident involving allegations of inappropriate behaviour and use of technology leading to a police investigation. In the course of the Review, another incident occurred at ADFA involving allegations of a male cadet secretly filming a female colleague in the shower, with a mobile phone, which was also referred to police.^[205]

A U.S. study in 2007 noted that electronic aggression and victimisation rates of youth were estimated at between 9-34% and growing, figures much higher than returned in the 2011 ADFA Unacceptable Behaviour Survey.^[206]

The ADFA and the ADF may wish to examine how the survey gathers information about electronic harassment to ensure that organisational policies and responses can effectively prevent and address issues of this nature.

(f) Opinions on unacceptable behaviour

In addition to collecting data about behavioural experiences, the 2011 ADFA Unacceptable Behaviour Survey uses a direct query approach to collect opinions about unacceptable behaviour. The high proportion of neutral responses to the various items raised in this section suggests that respondents had more difficulty responding unambiguously to this approach.

There were significantly different responses by gender to five items. Four of these items related to the career opportunities of women compared with men, suggesting a greater proportion of women than men feel that their gender impacts on their career prospects. The fifth item related to the experience of unacceptable behaviour.^[207]

A higher proportion of women than men believe that:

• ‘Women should not be restricted from any specialties from which they can qualify’ (66.7% of women compared with 46.8% of men)
• ‘Men have an advantage over women when it comes to having a successful military career’ (31.3% of women compared with 19.6% of men).

A lower proportion of women than men believe that:

• ‘Men and women have equal opportunities for promotion in my Service’ (68.0% of women compared with 78.1% of men)
• ‘Work groups whose members are all the same sex generally work together more effectively’ (9.5% of women compared with 29.5% of men).

A higher proportion of women reported being subject to some level of unacceptable behaviour during the previous 12 months when directly queried (38.8% of women compared with 23% of men).

(g) Impact of unwanted behaviour

The 2011 ADFA Unacceptable Behaviour Survey also asked a series of questions about the nature, impact and management of unacceptable behaviour. Of the 265 respondents who identified one or more of the general harassment and discrimination and/or gender and sex-related discrimination behaviours listed in the survey as ‘unacceptable’, 151 provided further information on their experience. A brief snapshot of the results is presented below. Further information is available in Appendix E.

Respondents were asked to categorise one incident that had the greatest impact on them and base their following responses on this incident. The women who answered this question were more likely to categorise the incident as gender harassment or discrimination, while men indicated their experience was best described by ‘other’ categories, workplace bullying and harassment.

Respondents were more likely to find the behaviours ‘annoying’ rather than ‘frightening’. However, 4.9% reported that their experience was ‘very’ or ‘extremely’ frightening.

The majority of respondents experienced the behaviours once a month or less, but 20.9% experienced the behaviour ‘two to four times a month’; 10.8% experienced the behaviour every few days; and 1.4% experienced the behaviour every day.

The majority of behaviour experienced lasted for less than one week. However, 21.3% (27.9% of women and 16.2% of men) experienced the behaviour for between one and four weeks; 12.5% (9.8% of women and 14.9% of men) experienced the behaviour for between one and six months; and 11.8% (8.2% of women and 14.9% of men) experienced the behaviour for more than six months.

Those responsible were more likely to be part of a group, male and the same age and rank as the respondent.

The majority of incidents occurred at work or in training, within duty hours and within the respondents’ unit.

No incidents involved drugs. However, 32.4% of respondents reported that alcohol was associated with the incident at least sometimes.

Respondents were asked to describe the consequences of this behaviour. Women were more likely to indicate that their experiences made them embarrassed or upset, or that training became unpleasant or hostile. Men were more likely to report embarrassment, deteriorating relationships with their workmates or negative feelings about the ADF.

(h) Management of unwanted behaviour

The 2011 ADFA Unacceptable Behaviour Survey concluded by asking respondents a series of questions about the management of the particular behaviour. For all of these items, the majority of respondents indicated that they did not perform the described action. Where cadets reported taking action, the issue was more likely to be dealt with informally, at an individual level and with some degree of satisfaction.

Cadets were more likely to seek advice or information from a peer (43.7%) or a family member or friend (27.1%) than their chain of command or internal or external support staff.

At an informal level, cadets were more likely to ‘ask or tell the person to stop’ (64.5%), ‘act like it didn’t bother them’ (63.5%), ‘ignore the behaviour and do nothing’ (58.8%) or ‘avoid the person/s responsible’ (42.8%). There were no significant gender differences among these responses. Only 14.6% of respondents who experienced unacceptable behaviour reported making a formal complaint or report, most often to their Divisional Officer.

When a formal complaint was made, 56.2% of cadets said they were ‘satisfied’ or ‘very satisfied’ with the way that the complaint was managed, 35.1% were ‘neither satisfied nor dissatisfied’ and 8.8% were ‘dissatisfied’ or ‘very dissatisfied’.

More than half (57.7%) were ‘satisfied’ or ‘very satisfied’ with the outcome of their complaint, 32.7% were ‘neither satisfied nor dissatisfied’ and 9.6% were ‘dissatisfied’ or ‘very dissatisfied’. The vast majority (84.9%) of those who made a complaint did not feel victimised as a result, 11.3% felt victimised ‘to some extent’ and 3.8% felt victimised ‘to a great extent’. There were no statistically significant gender differences in the responses to these items.

(i) Concluding comments

At the end of the survey, respondents were given the opportunity to provide additional comments and feedback. 196 (32.5%) respondents took the time to provide written comments and the majority were positive in tone. The DSPPR’s report on the survey suggested that the high proportion of positive comments was anomalous with other free comments sections in their surveys which ‘tend to elicit a high proportion of comments negative in tone, with respondents more likely to express concerns rather than satisfaction with Service life.’^[208] DSPPR suggested that this ‘may be a reflection of the context in which this particular survey was administered; with respondents reacting to being under intense Defence, public and media scrutiny.’^[209]

About one-third of respondents who provided comments made reference to the culture and standards of behaviour at ADFA. These responses were overwhelmingly positive:

I have never in my time at ADFA been subjected to anything I would describe as “unacceptable behaviour”, nor have I seen any inflicted on anyone else. [female cadet, first year]

The Academy has (from previous reports) gone through radical change post-Grey Review and, as such, discrimination/harassment has ‘all-but’ been stamped out of the Academy. [male cadet, third year]

However, a minority of comments identified aspects of an unacceptable work culture:

There is a culture amongst cadets that I feel the upper leadership miss all the time. It is of misogynist/chauvinist/sexist behaviour. It generally involves alcohol, however it happens without it too. The only way to see it is to get involved with it, because no one will own up to it or express it. Even girls feel the need to get involved. It’s like we have gone backwards in time and it needs to be fixed. [male cadet, first year]

About one-fifth of the comments mentioned the context in which ‘unacceptable behaviour’ occurs and presented ADFA favourably in comparison to other institutions:

Compare the ADF and ADFA in particular to any other cross section of society, for example, another college institution and you will find that we operate under a far higher ethical code and instances of unacceptable behaviour are far less. Add to this the unique stressors of Service life and the fact we do have such less unacceptable behaviour is pretty bloody impressive if you ask me. [male cadet, third year]

A proportion of the comments suggested that a minority of badly behaved individuals gave ADFA an unfair reputation:

There is no problem at ADFA, just the occasional idiot(s) that do individual acts and make us all look dumb. [male cadet, second year]

A proportion of the comments suggested that appropriate behaviour and avoiding harassment were an individual responsibility:

I have not been sexually harassed because I don’t put myself in a situation to be harassed. Women who get drunk to the point they have no idea are women who wish to be taken advantage of. [female cadet, second year]

A proportion of the comments expressed confidence in the complaints management process:

The ADF and in particular ADFA treats equity and diversity in the highest manner. Harassment and discrimination is not tolerated or in any way accepted. [male cadet, second year]

(j) Comparisons and trends

A comparison between the data captured by the 2011 ADFA Unacceptable Behaviour Survey and surveys administered at ADFA in 1998 and 2005 suggests there have been improvements over this period in many areas. However, gender discrepancies in the reported experiences of unacceptable behaviour still remain and further work is required to address these issues. The comparisons set out below are limited to the gender and sex (SEQ) items included in the surveys.

• (i) Gender and sex-related harassment comparison

In 1998, 55% of female cadets and 20% of male cadets reported that they had been whistled, called or hooted at in a sexual way. In 2005, the proportions were 53.1% of women and 25.1% of men. In 2011, the proportions were 40.3% of women and 15% of men.

 

In 1998, 54% of female cadets and 33% of male cadets reported that they experienced unwanted attempts to draw them into a discussion of sexual matters. In 2005, the proportions were 51.3% of women and 33.4% of men. In 2011, the proportions were 37.6% of women and 23.5% of men.

In 1998, respondents were asked whether they had been treated differently because of their sex. In 2005 and 2011, they were asked whether they had been treated differently because of their gender. In 1998, affirmative responses were 64% for women and 11% for men. In 2005 affirmative responses were 52.8% for women and 7.8% for men. In 2011 affirmative responses were 34% for women and 5.9% for men.

In 1998, 78% of female cadets and 18% of male cadets reported that they had experienced offensive sexist remarks. In 2005, the proportions were 49.7% of women and 13.6% of men. In 2011, the proportions were 31.9% of women and 9% of men.

The following item uses the term ‘sex’ in 1998 and ‘gender’ in 2005 and 2011. In 1998, 58% of female cadets and 6% of male cadets reported that they had been put down or condescended to on account of sex. In 2005, the proportions were 43.4% of women and 3.4% of men. In 2011, the proportions were 25.2% of women and 1.4% of men.

In 1998, 38% of female cadets and 6% of male cadets reported that they had been stared, leered or ogled at in a way that made them feel uncomfortable. In 2005, the proportions were 33.5% of women and 6.3% of men. In 2011, the proportions were 22.2% of women and 2.9% of men.

In 1998, 62% of female cadets and 33% of male cadets reported that they had experienced offensive remarks about their appearance, body or sexual activities. In 2005, the proportions were 39.6% of women and 28.6% of men. In 2011, the proportions were 22.2% of women and 14.6% of men.

In 1998, 44% of female cadets and 9% of male cadets reported that they had experienced unwanted attempts to establish a romantic sexual relationship despite making efforts to discourage it. In 2005, the proportions were 39.6% of women and 28.6% of men. In 2011, the proportions were 19.4% of women and 4.5% of men.

In 1998, 42% of female cadets and 3% of male cadets reported that they had been continually asked out after they had said ‘no’. A gender disaggregation was not provided in the 2005 report. In 2011, the proportions were 13.9% of women and 2.4% of men.

 

2.3 Incidents of sexual harassment, discrimination and assault

(a) Sexual assault and related offences

The Australian Federal Police (AFP) advised the Review that between 1 January 2000 and 31 July 2011, 17 alleged sexual assault offences involving ADFA cadets were reported to ACT Policing. Of these, nine resulted in charges being laid.

• Seven of the nine sexual offence charges occurred in 2002 and were committed by the same ADFA offender on different occasions. The two female victims were not ADFA members.
• The other two sexual offence charges related to separate incidents in 2010 and 2011. Both the offenders and victims were from ADFA.^[210]

Data provided by ADFA also demonstrates that there have been several reports of alleged sexual assault in recent years. These statistics vary from those reported to the AFP.^[211]

The Review has encountered some difficulty in interpreting data from ADFA. The statistics from the two main systems from which the ADF and ADFA have provided data are inconsistent. The ADF’s Equity and Diversity complaints data (from its ‘COMTRACK’ system) indicates that between 1 January 2007 and 27 July 2011, there were four complaints of alleged sexual offences involving ADFA cadets.^[212] In contrast, ADFA’s ‘serious and sensitive management register’, a non-mandatory tool which is used to manage serious and sensitive incidents at ADFA, records five incidents of alleged sexual assault involving ADFA in the shorter time period of 2009 and 2010.^[213]

The separate systems appear to use different terminology and be tracked in different locations and by different persons. Some information is not formally collected or recorded at all; for example, the details of the subsequent employment of a complainant within the ADF (or their departure from the ADF and the circumstances of their departure). While the ADF and ADFA have made attempts to provide consolidated statistics on complaints/incidents of sexual offences (including assaults) and sexual harassment, it is concerning that consistent and comprehensive data is not available.

ADFA records released under Freedom of Information (FOI) requirements provide further details about a number of complaints of sexual assault since 2005.^[214] However, based on the information available, it was not possible to definitively cross-reference the incidents revealed by the FOI data and the statistical data or to otherwise resolve the inconsistency in the statistics.

(b) Sexual harassment and sex discrimination

ADFA provided the Review with data on sexual harassment and discrimination complaints.

Between 1 January 2007 and 27 July 2011, the COMTRACK system records indicate that there were four complaints of sexual harassment at ADFA (all complainants were female). There was also one complaint of discrimination (by a male complainant) and there were 11 complaints of harassment (all by female complainants) at ADFA, although it is not clear whether these incidents were gender-based.^[215]

Data provided from the serious and sensitive management register records 16 instances of ‘unacceptable behaviour’ and ten of ‘harassment’ in 2009 and 2010, although it is not clear whether these categories include instances of sex discrimination.^[216] ADFA advised the Review that the serious and sensitive management register did not record any instances of sexual harassment between 2009 and 2011.^[217]

The figures recorded by ADFA are significantly lower than the SEQ data suggests and this may be attributable to under-reporting. This is further discussed later in this chapter.

(c) Qualitative data

Qualitative data was also gathered through the Review’s consultations. ADFA staff and cadets generally emphasised the lack, or infrequent nature, of incidents of sex discrimination, sexual harassment and assault. Indeed, some suggested that women are given preferential treatment at ADFA:

During my time at ADFA ... not once did I feel I was discriminated against for being a woman ... ADFA does not separate women or limit them in any way, the measures used to promote gender equality are more than adequate. Women are given the same amount of opportunity to participate and achieve as their male counterparts.^[218] [former cadet]

Although at no time during my tenure at ADFA did I ever experience any examples of sexual harassment or discrimination, I am confident that had such isolated incidents occurred, ADFA had appropriate measures in place to deal with such situations.^[219][former cadet]

During the time I spent at ADFA, I believe that due to the fear of public scrutiny, equal opportunities were often more in the favour of women than men, with women often at the advantage.^[220] [former cadet]

Nevertheless, instances of inappropriate behaviour, which may or not have been otherwise reported, were brought to the attention of the Review in submissions, interviews and focus groups. These include reports of some serious cases of alleged sexual harassment and assault. One former cadet noted that she and another cadet were subjected to ongoing harassment. One of these cadets was subsequently raped on ADFA’s premises.^[221] The Review also heard:

I was involved in only one incident that could be described as sexual harassment where a friend of mine was photographed using the toilet.^[222] [former cadet]

... a member of ... staff was harassing ... [females] ... He kept it very low key ... but he would sometimes single them out, he would call them names, he had a pet name for one of them. He would make what was later sort of identified as comments with sexual innuendo to these girls, some of which were at the time under 18.^[223] [current staff]

On one occasion, a female officer cadet approached me ... to advise that she thought she had been sexually assaulted by a male [cadet].^[224] [former staff]

The mentor that was assigned to my division within the first eight weeks used to make comments like “Navy girls should wear guys’ uniforms” because they fit us better and make our butts look good and he would love to stare at my butt all day. When I asked him to stop these things and leave me alone he told me to get used to it because I was a pretty girl at ADFA.^[225] [former cadet]

Second and third year guys used to knock on the first year div doors late at night looking for sex. They used to ask the person who opened the door to take them to the easiest and hottest girl in the div’s room.^[226] [former cadet]

As [I was] talking [with a male colleague], he opened his pants and exposed himself at my desk, and asked me to perform oral sex. I declined, but he was very persistent and it took a significant effort to get the Cadet to leave my room.^[227] [former cadet]

The guys in one div stole one of the girls’ underwear from her dryer and hung it up in the common room. In another div, guys were getting naked and knocking on the girls doors and dancing round in front of them thinking it was funny.^[228] [former cadet]

The ACT Rape Crisis Centre also told the Review that they are aware of and have been involved in responding to several incidents of alleged sexual assault involving ADFA cadets. They said that the victim in these incidents was generally a young woman and that some cases had involved more than one offender. However, none of the women who had been brought to their attention had gone on to use their counselling and support services.^[229]

However, reports of sexual harassment and discrimination are not limited to these overt examples. Several past and present cadets made allegations of behaviours that they may not identify as discrimination or sexual harassment, even though the behaviours may be unlawful under anti-discrimination legislation.

Sexual harassment cases over many years have recognised that an environment or culture which is sexualised or hostile to women also amounts to sexual harassment.^[230] For example, a workplace marked by continual derogatory comments about the capacity of women to perform at work, or where obscene or sexualised materials are displayed or general sexual banter, crude conversation or innuendo is common, may create a hostile work environment.

Derogatory comments about the capacity of women to perform at work were evident from comments heard by the Review. They indicate negative attitudes about women’s strength and their capacity to succeed in the military. A submission stated that:

I got knocked back for direct entry and [a staff member] of ADFA told me that I was a female and being female means the glass ceiling is lower for me than males. I was not as smart as a man and needed a degree or else I would be just another idiot female in the Navy. If I got a degree the ceiling would be raised a little higher but I still would not be as good an officer as a male could be.^[231] [former cadet]

A staff member stated:

The ladies in my division have so far demonstrated that they respect the differences between the sexes, recognise that, in general, men are stronger and fitter than women and therefore better suited to some roles than the majority of women.^[232] [current staff]

As noted in Chapter 1, there was evidence of highly sexualised behaviour directed towards female cadets, including competitions to ‘score a trifecta’ and the ‘commodification of women’ as ‘sexual objects’, including through the practice of ‘dully hunting’.^[233]

A survey of 186 cadets undertaken for the Kafer Review also found some evidence of similar behaviour, such as offensive sexist comments, ‘crude and offensive sexual remarks’, telling sexual stories or offensive jokes, ‘unwanted attempts to establish a romantic relationship with me despite my efforts to discourage it’, and displaying, using or distributing sexist or suggestive materials (such as pornography, pictures or stories).^[234] While the extent of these behaviours varied in frequency, and some were not common, most were more likely to have been experienced by female cadets rather than males.^[235]

It appears that these inappropriate behaviours may be normalised to some extent at ADFA. Certainly, there is evidence that inappropriate behaviours can be excused by some members of the cadet body. One current cadet noted ‘sometimes you get the blokes that get a bit handsy, they’re not used to being around girls.’^[236] There is also an expectation that these inappropriate behaviours should just be accepted as part of ADFA’s working environment. A former cadet provided the following comment regarding a staff member’s response to issues of sexual harassment:

He smirked at us and told us that it was just boys having fun. When he was at ADFA they did the same thing to the girls and it is just a joke, nobody is getting hurt. We joined the defence force; we can’t expect them to treat us like dainty females.^[237] [former cadet]

2.4 Current policies, procedures and training in relation to complaints of sexual harassment, discrimination, abuse and assault of women at ADFA

(a) Reporting sexual harassment, discrimination, abuse and assault of women

The Review is aware of a number of mechanisms through which ADFA cadets can report and/or make formal complaints of incidents of sex discrimination, sexual harassment and sexual assault.

The Review heard that cadets are able to report unacceptable conduct through the chain of command, to staff members such as equity and diversity advisors, to padres, under the Defence Whistleblower Scheme, or where sexual harassment or sex discrimination is involved, to the Australian Human Rights Commission. Cadets may also utilise the formal complaint mechanisms under Defence Instruction (General) PERS 35-3, ‘Management and Reporting of Unacceptable Behaviour’,^[238] Defence Instruction (General) PERS 35-4, ‘Management and Reporting of Sexual Offences’ ^[239] andDefence Instruction (General) ADMIN 67-2, ‘Quick Assessment’^[240] (discussed later in this chapter).

Evidence from the Review’s consultations suggests that cadets at ADFA are aware that policies and complaints handling procedures exist to identify, prevent and address unacceptable behaviours. Cadets acknowledged that they receive some training on equity and diversity and other matters during their time at ADFA. Furthermore, when questioned about where they could seek assistance if they experienced a problem, numerous cadets referred to the presence of the equity and diversity system, chain of command and support staff, such as padres and psychologists.^[241] It is also clear that these reporting mechanisms are used at times.^[242]

Even so, there is some under-reporting of allegations of sexual assault, harassment and discrimination at ADFA. This is apparent from the discrepancies between the 2011 ADFA Unacceptable Behaviour Survey results and the formal complaints data. While a significant proportion of cadets surveyed indicated that they had experienced some sexual harassment behaviours, as discussed earlier in this chapter it appears that only four formal complaints were made through the COMTRACK system between January 2007 and July 2011.

The Review is aware that ADFA also has a mandatory ‘Quick Assessments Register’.^[243] Data from this register was not available to the Review at the time of writing, however, its figures may indicate a higher level of reporting by cadets than that suggested by the COMTRACK data.

However, the Review still considers that there is significant potential for under-reporting of inappropriate behaviour at ADFA. This is supported by the results of the 2011 ADFA Unacceptable Behaviour Survey, discussed earlier in this chapter. Only 14.6% of respondents who indicated they had experienced unacceptable behaviour in the 12 months prior to the survey reported that they had made a formal complaint and/or report.

Such under-reporting is not surprising, nor is it uncommon in broader society.^[244] Researchers have identified various reasons for this under-reporting. For example, in relation to incidents of sexual assault, studies have identified barriers to reporting such as:

• lack of recognition that an incident is sexual assault, or not considering an incident serious enough to report
• a relationship between victim and perpetrator (not necessarily an intimate relationship, although these are less likely to be reported)
• potential for negative reactions, including fear of not being believed or being blamed
• lack of encouragement from support networks
• fear of repercussions and concerns about the impact of disclosure on others, such as children
• the victim’s belief that they can handle an incident themselves.^[245]

Sexual harassment and discrimination may not be reported for similar reasons, including a perception that an incident/behaviour was not serious enough to be reported, a lack of understanding about what sexual harassment is, a lack of confidence in the complaints process, the victim taking care of it themselves and fear of a negative reaction to reporting.^[246]

The evidence suggests that similar barriers to reporting exist at ADFA.

A potential barrier to reporting is the expectation that ‘every attempt should be made to solve something at the lowest level’.^[247] From the beginning of their training, cadets are advised to use this approach to resolve conflicts with other cadets:

In the YOFT from day one they say “look you’re living with people you don’t know, there are going to be conflicts, resolve it at the lowest level, talk to the person about it” and that’s something that we try and do.^[248]

Cadets spoke of using this approach when issues arise:

I think there are isolated incidents, however most things are usually dealt with at a level that is such that it doesn’t become an issue. If someone is offended by a specific language, someone might be swearing a bit too prolifically for someone’s liking, they’re quite happy to usually tell them you know stop. What are you doing and why are you saying that? Or if it’s, you know, sort of derogatory comments about someone’s, you know, sexual preference or the like, if they’re generally offended by that, most people here are of the idea that they’re a professional anyway. They don’t want to come across as unprofessional so they’re not going to continue to do that out of spite or anything like that. But I mean sometimes you get things that don’t work and this place isn’t for everyone and you get the isolated incidences where ... it has gotten out of hand, but for the most part it’s usually dealt with at the lowest level because that’s where it needs to be dealt with.^[249]

The fact that cadets feel they should deal with issues such as offensive language and derogatory comments about sexual preference, seems to indicate that these behaviours are not viewed as worthy of reporting. It also indicates that cadets do not consider these behaviours to be part of a broader problem of sexual harassment. This is suggested in the words of a former cadet, who stated that ‘a conceptualisation of sexual harassment [within ADFA] is practically non-existent’.^[250] It may also be linked to the normalising of sexualised behaviours, as discussed earlier in this chapter. It is also evident in the results of the 2011 ADFA Unacceptable Behaviour Survey where, as noted previously, there is a discrepancy between the proportion of cadets who reported experiencing harassing and discriminatory behaviours, and those who reported perceiving it as ‘unacceptable’.

The values emphasised by ADFA’s culture may also play an important role in dissuading reporting of serious issues. Emphasis is placed on the notion that ADFA cadets should not show ‘weakness’. As one staff member outlined:

The most important and overarching cultural value at ADFA is never show weakness. This is a fairly understandable normative virtue for a military academy. However, the pervasiveness of the anti-weakness mindset is cause for concern. Weakness can be identified in almost any activity ... admitting one has a problem of any kind is weak, admitting one has a psychological problem is weakest of all. The opportunities to be judged as weak is seem [sic] limitless. For alpha males and females the need to project strength and develop a hardened shell is one of the main tasks of training. They also believe everyone identified as weak is basically unworthy and should be removed from training and/or sent elsewhere. Sometimes they try to help this process along by targeting these people and making them feel so uncomfortable in the military they want to leave. Hence the problem of harassment continues at ADFA in one form or another.^[251]

The submission goes on to explain that ‘men rarely ever complain, and as for alpha males and females, complaining is a form of weakness they do not tolerate in themselves or others’.^[252]

As outlined in Chapter 1, there is also pressure on cadets to maintain loyalty to each other and not ‘jack on your mate’. This is likely to make cadets hesitant about reporting cases of unacceptable sexual or other behaviour. The negative impacts of loyalty are also articulated by an ADFA staff member:

Loyalty itself is not actually a positive characteristic in this context, as it is aimed at protecting one’s mates even when they have been bad. Loyalty to one’s mates can, and frequently does, take precedence to loyalty to the broader organisation. ‘Hear no evil, see no evil, speak no evil’ is how cadets and MIDN [midshipmen] experience ADFA. There is no forgiveness for those members who ‘inform’ on their peers – even when their behaviour is completely unacceptable.^[253]

This attitude highlights an expectation that cadets may be subjected to negative repercussions if they report inappropriate behaviour by their friends and colleagues.^[254] The Review was provided with other information to support this. One former cadet relayed an experience of unacceptable behaviour:

more than half the div were complaining but were too scared to do anything because if you spoke out against the ‘alpha males’ they made your life hell.^[255]

Another former cadet commented on the ‘fear of the backlash of the rumour mill’ as a barrier to reporting.^[256] Other cadets noted that after some female cadets reported sexually harassing behaviour by a male staff member, they received negative reactions from the males in their divisions: ‘... the guys in the div after that hated us ... They were like “why did you do that? It’s all in good fun.”’^[257]

However, loyalty is not only an issue in relation to the reporting of fellow cadets. Some participants in the Review’s consultations also discussed the ongoing sexual harassment by a former ADFA staff member towards a number of female cadets, which was briefly mentioned earlier in this chapter. In this case, the harassment lasted for around ten months before it was reported to other ADFA staff because:

... they didn’t want to get him in trouble or they didn’t think it was that bad or, you know, they just didn’t feel like they wanted to cause a ruckus or cause any issues or have a negative impact on his career.^[258]

The concern about negative reactions to reports also extends to potential staff responses to complaints. Some comments made to the Review give credence to fears cadets may hold about not being believed or taken seriously if they report an incident. For example, while acknowledging that most reports are honest, the following comment from a current staff member indicates scepticism about the veracity of some reports:

I think we’re starting to see the emergence of really unreliable complaints and that’s tricky because in my view, most allegations of sexual harassment or assault, I would think most of them are true. They’re more likely to be true than not. But then there are some that are confused or there are some that are manufactured...Some of these things are straight lies to get people out of other disciplinary issues.^[259]

A former staff member also recounted the way in which one allegation of possible sexual assault was addressed. In this case, the incident was reported by the victim of the alleged assault, with the support of a friend. However, a subsequent investigation found insufficient evidence to support the allegation. The staff member went on to say: ‘I subsequently spoke informally with both female officer cadets about their part in the whole sorry story, the implications of inciting false allegations on all three parties.’^[260] This response is problematic. The implication that the allegation must necessarily be false because there was insufficient evidence to support the claim is misguided. A number of studies have found that rates of making false allegations are low and that the fear of not being believed is a barrier to reporting.^[261]

(b) Complaints/incidents policy framework

In addition to examining potential cultural barriers to reporting incidents of unacceptable behaviour, the Review has also undertaken some analysis of ADFA’s complaints/incidents policy framework. The Review considered the key Defence Instructions which provide mechanisms through which ADFA cadets can report, and/or make formal complaints of, incidents of sex discrimination, sexual harassment and sexual assault. The Review did not conduct a full audit of the content of all Defence Instructions.

The Academy Standard Operating Procedures state that Defence Instruction (General) PERS 35-3, ‘Management and Reporting of Unacceptable Behaviour’^[262] is to be applied in relation to complaints of unacceptable behaviour.^[263] The Academy Standard Operating Procedures do not however refer to the other Defence Instructions that are specifically relevant where a complaint of unacceptable behaviour potentially constitutes a sexual offence, namely, Defence Instruction (General) PERS 35-4, ‘Management and Reporting of Sexual Offences’^[264] and Defence Instruction (General) ADMIN 67-2, ‘Quick Assessment’.^[265] The Academy Standard Operating Procedures could be amended to provide greater clarity to ADFA personnel on the full range of potentially applicable Defence policies and procedures.

The 2007 Report by the Acting Commonwealth and Defence Force Ombudsman – Australian Defence Force: Management of Complaints about Unacceptable Behaviour (the 2007 Ombudsman Report)^[266] assessed the primary Instruction relating to management of complaints of unacceptable behaviour: Defence Instruction (General) PERS 35-3, ‘Management and Reporting of Unacceptable Behaviour’.

The Ombudsman was satisfied with the Instruction and determined it was generally user-friendly, comprehensive and accessible. Suggestions were made to augment some sections and these were adopted in a review of the Instruction in 2009. This Review similarly considers Defence Instruction (General) PERS 35-3, ‘Management and Reporting of Unacceptable Behaviour’ to be sound.

An area for improvement in the Instruction identified by this Review is in relation to external avenues of complaint. There is a Defence Instruction entitled Defence Instruction (General), PERS 34-2, ‘Complaints of Discrimination and Harassment through the Australian Human Rights Commission’.^[267]However that Instruction provides guidance on how Defence should respond when such an external complaint is made, rather than giving information to complainants on how to make such a complaint and the manner in which it will be dealt with. Defence Instruction (General) PERS 35-3, ‘Management and Reporting of Unacceptable Behaviour’ does state that complaints may be submitted to an external agency, such as the Australian Human Rights Commission. However this is not clearly or prominently positioned in the Instruction as one of the various avenues by which a complaint may be made, which could be an enhancement to the Instruction.

The 2007 Ombudsman Report did not specifically consider related Instructions that may impact directly or indirectly on the management of complaints or incidents of unacceptable conduct constituting sexual harassment, abuse or assault or sex discrimination. These include the Instructions relating to Quick Assessments, Reporting of Sexual Offences and the Defence Whistleblower Scheme.

• (i) Quick Assessments

Defence Instruction (General), ADMIN 67-2, ‘Quick Assessment’ provides a clear, effective framework for what should be done following an occurrence that comes to the attention of the chain of command, where the opinion is formed that a subsequent investigation or inquiry of the occurrence may be required. It is not an investigation, rather, its purpose is to quickly assess the known facts about an occurrence – and identify what is not known about an occurrence – to make a decision about the most appropriate course of action to be taken in response to it.

Appropriately, the Instruction emphasises that a Quick Assessment must not be used as the basis for adverse findings or to replace the need for a separate action where it is otherwise necessary. The Quick Assessment is therefore a preliminary inquiry to determine which policy/procedure may apply. When applied to incidents of unacceptable behaviour such as sexual harassment, abuse or discrimination, it can act as an effective ‘funnel’ to direct activity in the appropriate direction. The Annexures to the Instruction contain useful tools including a flow diagram and Guidance on Selecting the Most Appropriate Administrative Inquiry, which specifically addresses Sexual Offences and Complaints of harassment or discrimination.

Quick Assessments have been found by ADFA Audits to be operating effectively in practice.^[268]

• (ii) Management and Reporting of Sexual Offences

Where a complaint of unacceptable behaviour potentially constitutes a sexual offence, Defence Instruction (General) PERS 35-4, ‘Management and Reporting of Sexual Offences’ takes account of the particular issues that arise including reporting to police and consequent criminal and disciplinary proceedings. Appropriately, the Instruction provides for a Quick Assessment to be conducted, together with other immediate actions in relation to securing the scene and crisis intervention. If there is a reasonable suspicion that a criminal offence may have been committed it constitutes a Notifiable Incident and the additional reporting and management obligations under Defence Instruction (General) ADMIN 45-2, ‘Reporting and Management of Notifiable Incidents’^[269] apply.

The current Defence Instruction (General) PERS 35-4, ‘Management and Reporting of Sexual Offences’ is dated 11 February 2004, however, an interim amendment was made to the Instruction on 30 January 2009 by DEFGRAM No. 35/2009, pending formal amendment to the Instruction. This amendment clarifies that all alleged sexual offences must be reported to state or territory police or Defence Investigative Authorities, regardless of the wishes of the complainant/victim.

The current Instruction is highly problematic, in that while it states that commanders and managers must inform the civilian police or relevant DIA, the flow chart attached to the Instruction in Annexure B implies that they have some discretion in whether to report the alleged offence. Form AC 875-4annexed to the Instruction – Record of Complainant’s Wish Not to Officially Report a Sexual Offence to the Police – also led commanders and managers to interpret that once that Form was completed by the complainant, there was no requirement for them to report to the authorities. Form AC 875-4 was (understandably) criticised by police agencies for inhibiting the reporting of matters that should be reported.

The 30 January 2009 DEFGRAM No. 35/2009 interim amendment cancelled Form AC 875-4 and Annexure B – Flowchart for Managing Complaints of Sexual Offences. The Sexual Offence Management Guide was also withdrawn. It was stated that Defence Instruction (General) PERS 35-4, ‘Management and Reporting of Sexual Offences’ would be amended as soon as possible. However, over 18 months has elapsed and it appears that the consolidation of the Instruction has not occurred.

Potentially unacceptable behaviours of a sexual nature range along a spectrum from lower level sexual harassment through to serious sexual assault. Whether an offence within the meaning of Defence Instruction (General) PERS 35-4, ‘Management and Reporting of Sexual Offences’ has occurred may in some circumstances be difficult to determine and input from the relevant authorities with appropriate expertise must be sought. The relevant Instructions applying to the management and reporting of such behaviours may overlap and it is critical that those managing incidents have clear, up to date and consistent guidance on the steps they should take. This is particularly so in situations where time is of the essence and matters must be dealt with urgently to protect individuals. Currently there is potential for the DEFGRAM interim amendment to the Instruction to be overlooked and the Instruction incorrectly applied. At a minimum, it could delay the process as commanders and managers seek to properly understand their obligations.

In addition to the potential legal issues in failing to report certain criminal offences, inappropriate priority given to the wishes of the complainant/victim of unacceptable sexual behaviour of any kind – whether constituting a sexual offence or not – may result in issues not being appropriately identified and dealt with. This is of particular concern in an environment where there are demonstrated barriers to reporting of conduct.

The relevant Forms for reporting unacceptable behaviour or sexual offences are Form AC 875-1 Initial Complaint Report – Unacceptable Behaviour or Sexual Offence; Form AC 875-2 Monthly Update Report – Unacceptable Behaviour or Sexual Offence; and Form AC 875-3 Final Outcome and Formal Action Report – Unacceptable Behaviour or Sexual Offence. These Forms are only annexed to Defence Instruction (General) PERS 35-4, ‘Management and Reporting of Sexual Offences’ – not Defence Instruction (General) PERS 35-3, ‘Management and Reporting of Unacceptable Behaviour’ – although the Flow Chart to Management and Reporting of Unacceptable Behaviour Complaints makes reference to these Forms.

Unacceptable behaviour of a sexual nature may consist of conduct that is at the complete opposite end of the spectrum to a sexual offence. Complainants may be deterred from raising lower level issues – such as a sexually hostile work environment – because of concerns that they are ‘accusing’ the perpetrator of conduct akin to a sexual offence. Conversely, unless properly trained, those managing complaints may not treat complaints about lower level issues as seriously as they ought, perceiving them as relatively trivial in contrast to sexual assaults/offences. Attaching specific forms to the relevant Instruction will also reduce the need to cross-refer to other Instructions and facilitate use of the Instructions by commanders and managers in situations where they need to act quickly and decisively.

• (iii) Defence Whistleblower Scheme

Defence Instruction (General) PERS 45-5, ‘Defence Whistleblower Scheme’^[270] provides an alternative way to make a complaint about unacceptable behaviour, which may be particularly useful where the complainant has concerns about victimisation or repercussions.

The 2007 Ombudsman Report noted that in its focus group consultations, a claim was made that on occasions one unit had discouraged members raising complaints outside the immediate chain of command regardless of the circumstances. The Ombudsman recommended that Defence promote awareness of the Whistleblower scheme in Defence Instruction (General) PERS 35-3, ‘Management and Reporting of Unacceptable Behaviour’. This was done in the 2009 review of the Instruction. Further promotion of the Whistleblower Scheme could be included as part of the specific complaints training modules to be developed, as discussed later in the recommendations of this Report.

(c) Flow Chart Tool: application of policies

The large number of policies and related documentation – Academy Standard Operating Procedures, Defence Instructions, checklists and forms – and their overlapping nature can create understandable confusion about what steps need to be taken in relation to the wide and potentially unacceptable range of behaviours.

Current senior management at ADFA explains the challenge:

Management of sensitive issues at ADFA is bound by a complex set of overlapping Defence policies. There are separate Defence Instructions for the management of sexual offences and unacceptable behaviour and there are multiple policies for the reporting and management of incidents. While every policy is well intentioned, the overall effect can sometimes conspire against management. This complexity is not confined to issues affecting women, nor is it unique to ADFA ...^[271]

A lack of clarity for those managing the investigation and/or resolution of complaints or incidents can lead to a delay in implementing procedures and inappropriate outcomes. This can undermine the confidence of complainants, as well as respondents to complaints, in the process and the outcomes. As noted above, this can create a barrier to reporting unacceptable behaviours.

Defence has developed accompanying brochures and pamphlets to assist complainants, respondents and complaint handlers. A Flow Chart Tool could be developed to draw together the current ADFA and Defence policies and resources (such as Instructions, Academy Standard Operating Procedures, brochures, pamphlets and checklists). The Flow Chart Tool would attempt to provide an over-arching, simple guide on how the key Instructions and Academy Standing Operating Procedures work together in relation to ADFA, including some practical and hypothetical examples. This would support management in conducting complaint processes and maximise the effectiveness of the existing policy framework.

The Flow Chart Tool could also be incorporated into the different training modules delivered to ADFA cadets, Equity and Diversity Officers and staff on making and responding to complaints.

(d) Options for resolution of complaints

As mentioned previously, cadets are encouraged to deal with issues at the ‘lowest possible level’. This is reflected in the existing policy framework, which describes ‘self-resolution’ and ‘supported self-resolution’ as part of the ‘suite’ of options that can be used to resolve complaints or concerns.^[272]

However, giving inappropriate weight to informal resolution options can create risks for individuals and for the organisation. For example:

• complainants – particularly young, inexperienced cadets – may not have the appropriate skills to effectively address sensitive issues of a sexual nature with the alleged perpetrator and therefore do not raise the issue
• serious matters that ought be investigated and, if proven, lead to disciplinary action are not appropriate to be dealt with through informal mechanisms
• patterns of unacceptable behaviour, particularly lower level sexual harassment and elements of a sexually hostile work environment, remain undetected.

An effective complaints process identifies a range of options, including that the complainant address the issue directly with the alleged perpetrator, with or without assistance. Defence Instruction (General) PERS 35-3, ‘Management and Reporting of Unacceptable Behaviour’ contains informal and formal options.^[273] The 2007 Ombudsman Report noted that ‘self-resolution or assisted self-resolution processes may be rendered ineffective by ... power differentials’ in an environment structured by rank and that while Defence Instruction (General) PERS 35-3, ‘Management and Reporting of Unacceptable Behaviour’ expressly states that commanders and managers are to consider rank when determining the appropriate avenue of resolution, it may be ‘helpful to expand this discussion’.^[274]

This Review agrees that the appropriate positioning of self-resolution and assisted self-resolution is a key issue to be included in developing training modules for those who manage complaints of unacceptable behaviour. This will also help build confidence in the impartiality and effectiveness of the complaints management system generally within ADFA.

It is consistent with best practice complaint management processes to present options to complainants in a manner which acknowledges that they may not feel comfortable or capable to address an issue directly with the alleged perpetrator. It should be emphasised in all training modules that complainants are under no obligation to address complaints by way of self-resolution or assisted self-resolution.

The 2007 Ombudsman Report also noted that in focus groups it conducted, some commanders and managers perceived a grey area between informal and formal application of policy (and that this distinction may also influence record keeping practices).^[275] The Review considers that a lack of understanding of what constitutes a complaint, and the appropriate exercise of discretion in initial complaint handling, may act as a barrier to reporting of incidents and obscure the true number and seriousness of complaints that are actually made at ADFA.

Defence Instruction (General) PERS 35-3, ‘Management and Reporting of Unacceptable Behaviour’ was amended by Defence in 2009 in response to the observations of the 2007 Ombudsman Report. The Instruction now clearly states that ‘there is no distinction between a formal or informal complaint. A complaint that includes a complainant’s wish that no action be taken, is a complaint.’^[276] This is a positive step.

However, the Academy Standard Operating Procedures do not clearly state that there is no relevant distinction between informal and formal complaints, as opposed to resolution options.^[277] It is difficult to assess whether the training provided to those who receive and manage complaints of unacceptable behaviour adequately addresses this issue as a practical matter. The appropriate exercise of discretion by commanders, managers and Inquiry Officers when a complaint is initially received – including the obligation to take action and report on actions and resolution – is critical to the effective operation of the Academy Standard Operating Procedures and Defence Instructions. It should form a key element of the training delivered to those in positions of responding to and/or managing complaints. In conjunction with the training, the Academy Standard Operating Procedures could be amended to address any ambiguity in relation to this issue.

(e) Training on Making and Managing Complaints

Responding to complaints involving any kind of sexual element requires a diverse and specific set of skills and competencies. Even where policies and procedures are clear, simple and effective, flexibility is required to interpret and apply them appropriately to the particular situation. The sensitive subject matter makes such matters inherently unpredictable. Further, complaints of this kind do not arise on a daily or even weekly basis, therefore the skills necessary to address complaints are exercised only sporadically.

As a practical matter, there appear to be three primary avenues by which a complaint of unacceptable conduct may be raised:

• to more senior cadets
• to designated contact/complaint officers – Equity and Diversity officers
• through the chain of command – more senior ADFA staff members.

The nature of training on the complaint policies and procedures provided to each of these groups should be tailored to the different roles, skills and level of responsibility of each group.

More senior cadets: New cadets may initially seek advice and input from more senior cadets on an issue of unacceptable behaviour. Reference to peer group is common in such situations, and in the ADFA context may specifically occur because of the prevailing culture of not ‘dobbing on your mates’, and the preponderance of written policies and procedures.

More senior cadets can therefore play a key role in how a complaint or incident is handled. A specific ‘refresher’ Appropriate Workplace Behaviour training module could be devised and delivered as part of their core training curriculum in each year of study. The learning objectives would be to (1) develop a deeper understanding of appropriate workplace behaviour and consent; and (2) acquire basic skills in how to respond to a complaint by another cadet within the policy framework. Cadets would be trained on their responsibilities to escalate and report issues.

Chain of Command: The difficulties in applying the policy framework in a practical context are acknowledged by ADFA management:

Defence requirements for reporting of incidents are very strict. While this is understandable, it has created some challenges for our management of sensitive issues, including issues involving the treatment of women. In some cases, incidents that would benefit from quick and decisive resolution, become subject to complex and lengthy investigations. The ADF Investigative Service and the Inspector General ADF are very professional, but local resources are stretched, and the consequential delays can be very frustrating for all affected parties.^[278]

In contrast to other types of management issues, complaints of unacceptable conduct are relatively infrequent. As a consequence, complaint handling skills are exercised sporadically and there is reduced opportunity for managers to increase expertise in this challenging area. At the same time, identifying and then applying the appropriate resolution option in relation to each particular incident is critical.

Further, the attitude and response of senior ADFA staff to incidents of unacceptable conduct is key to ensuring the effectiveness of procedures and promoting the equal treatment of women. The comment by a staff member quoted above regarding speaking ‘informally’ with female cadets who had reported an incident of possible sexual assault ‘about their part in the whole sorry story [and] the implications of inciting false allegations on all three parties’^[279] suggests a lack of understanding of some fundamental principles of complaint management. There is a critical distinction between complaints that are not proven or inconclusive due to a lack of information and inability to make a finding, as opposed to complaints that are disproven. Where the result of the inquiry is inconclusive, there is no basis on which to suggest that the complaint was false. Even where a complaint is disproven or unsubstantiated, it does not automatically follow that there has been a finding it was false or malicious. In matters involving sexual relationships and sexual harassment outcomes may not be clear cut.

The 2007 Ombudsman Report noted that focus group comments had suggested there was ‘confusion about what was considered an unsubstantiated complaint, and what was a false or malicious complaint’. The Report accordingly recommended that Defence clarify the action to be taken where commanders and managers identify a possible false or malicious complaint.^[280]

(f) Record keeping practices

In order to properly manage and monitor the incidence of unacceptable behaviour at ADFA it is crucial that comprehensive and accurate records of complaints are kept. The 2007 Ombudsman Report concluded in relation to management of complaints of unacceptable conduct within Defence generally that there is ‘an effective process in place to respond to complaints about unacceptable behaviour where both the respondent and complainant are ADF members....[However] Record keeping, quality assurance and reporting are particular areas that Defence could improve with additional clarification and development.’^[281] In respect of unacceptable behaviour constituting sexual harassment, sex discrimination or sexual assault, the Review has drawn the same conclusions with respect to ADFA specifically.

• (i) Record keeping: individual complaints/incidents

The Review did not undertake detailed file audits of individual complaints of unacceptable behaviour made at ADFA. The 2007 Ombudsman Report expressed concerns about ‘the overall standard of record keeping and an apparent lack of compliance with reporting requirements’ in relation to unacceptable behaviour complaints within Defence generally.^[282]

The current Academy Standard Operating Procedures in relation to record keeping are unclear about who is responsible for holding records of complaints and incidents.^[283] The 2007 ADFA Audit examined record keeping relating to Quick Assessments and subsequent administrative inquiries by ADFA staff and observed that most inquiry material was retained on files by the Academy Legal Officer, who at that time had maintained a register of inquiry action and was taking steps to raise visibility and improve the quality of inquiry action. However, the auditors could not confirm that all material was held by the Academy Legal Officer. It was therefore recommended that consideration be given to developing an Academy Standing Instruction regarding conduct and central tracking of inquiry action.^[284]

The 2010 ADFA Audit noted that documentation regarding complaints of unacceptable behaviour at ADFA was held on complainants’ personnel files. Of two files audited, it was stated that one case appeared to be properly handled however ‘the documentation relating to the other complaint was incomplete and the auditor was not in a position to assess whether or not it was properly handled.’^[285] The 2010 ADFA Audit consequently recommended that a case file be established for each unacceptable behaviour complaint and all relevant documentation kept on that file, including the Quick Assessment and reports to the Fairness and Resolution Branch, creating an enduring business record of the complaint at ADFA. The 2010 ADFA Audit further recommended that such files be held centrally by the Senior Equity Adviser. This would ‘reduce the risks of complaints not being properly managed and would establish an audit trail in the event of future scrutiny or review.’^[286]

This Review considers that an on-line complaints system/database as recommended by the 2007 Ombudsman Report would enhance record management in this regard, as it would clarify the correct location of all relevant material and the complete, enduring business record of all complaints of unacceptable behaviour would be centrally accessible to appropriate levels of command.

• (ii) Record keeping practices: outcomes and determinations of complaints/incidents

The 2007 Ombudsman Report identified issues in the ability of Defence to identify and respond to emerging trends of unacceptable behaviour, including systemic and recurring problems. An accurate and comprehensive system to capture and record data about the number and type of complaints being reported and the outcome/resolution of those complaints is essential. ‘A recording system should assist in monitoring the progress of complaints and identifying repetitive complaints, as well as allowing the organisation to identify training or development needs of complaint handlers, individuals and teams.’^[287]

The relevant Instructions relating to reporting and managing of unacceptable behaviour and sexual offences require various reports to be submitted to the Fairness and Resolution Branch in respect of each complaint and that this data is used to measure reporting trends across Defence more broadly. However, the 2007 Ombudsman Report noted that ‘while this may assist Defence in identifying some trends, [the Ombudsman’s] file reviews indicated that it does not hold accurate data on all complaints, as reporting requirements are not being met in all cases.’^[288]

The 2007 ADFA Audit noted generally in relation to record maintenance that the audit team ‘experienced some difficulty in locating files and other records relevant to the audit...Of concern to the administrative auditors was an apparent lack of awareness by a number of the central registry staff of the responsibilities of a number of appointments within the Academy and the likely whereabouts and scope of particular records.’^[289] It was suggested that a review be undertaken of ADFA central registry arrangements and the need for holdings of significant amounts of ‘historical’ records remote from the central registry (eg the Academy Legal Officer’s records) be considered.^[290]

Maintenance of accurate, complete and accessible corporate records relating to occurrences and incidents was again identified in the 2010 ADFA Audit. While the administrative arrangements at ADFA were found to be satisfactory, it was again noted that documentation was not held centrally, but generally held on personal files at Squadron level and there was no administrative officer to manage or monitor all the personnel and administrative issues. There was therefore a ‘clear risk that administrative actions may be taken on incomplete or fragmented documentation.’^[291] The auditor noted that an ADFA staff member was attempting to bring together the records management of personnel and administrative matters as well as enhancing administrative processes.

The difficulties this Review experienced in easily accessing comprehensive, and comprehensible, data about the incidence, nature and management of unacceptable behaviour at ADFA has already been noted.

(g) Conclusion

Increasing the level of awareness of gender issues and appropriate workplace behaviour within a framework of diversity and inclusion is a necessary condition for creating a culture of equal treatment of women. However, it is not sufficient.

If unacceptable behaviour occurs that breaches accepted standards and women do not know how to make a complaint or they lack confidence in the complaints procedure, cultural change will not be achieved or sustained.

Unacceptable behaviours can range widely in their degree of seriousness, from inappropriate comments or a highly sexualised work environment through to serious sexual abuse and criminal sexual assault. Accordingly, implementing and applying effective procedures to handle complaints and reports of incidents of sexual harassment, discrimination, abuse and assault is fundamental to gender equality.

^Top

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[196] This proportion (61.6%, N=599) was the official figure provided to the Review in DSPPR Report 5/2011: People Strategies and Policy Group Workforce Planning Branch, Australian Defence Force Academy 2011 ADFA Unacceptable Behaviour Survey, DSPPR Report 5/2011, Department of Defence (2011) p 1. The proportional figures for 2011 and 1998 are taken from the DSPPR Reports. The proportional figure for 2005 is arrived at by taking the figure 837, quoted in the 2005 report, and the ADFA Annual Status Report for 2005 which notes that there were 977 cadets that year: see ‘110819 Broderick Review Task 100 and task 80’ provided to the Review by LTCOL N Fox, 19 August 2011. Directorate of Strategic Personnel and Planning Research, A Survey of Experiences of Unacceptable Behaviour at the Australian Defence Force Academy, DSSPR Report x/2005 (2005) p 4.

[197] Survey methodology is further discussed in Appendix D.

[198] See Appendix E for figures. DSPPR Report 5/2011 notes that 69% of the female cadet body completed the survey, but a supplementary report with year and gender breakdowns received by the Review on 27 July 2011 suggests that the figure is closer to 66%.

[199] Versions of the Unacceptable Behaviour Survey were run annually between 1998 and 2000, between 2003 and 2008, and in 2011.

[200] It was important that the Review administered an almost identical component of the survey to the survey used in the Grey Review. This allowed for a comparison of respondents experiences between 1998 and 2011. The Review also identified that similar data had been collected in 2005. This was also used for comparison purposes.

[201] See wording in Appendix C.

[202] National Union of Students, Safe Universities Blueprint: Talk About It Survey Results and Recommendations (2011), p 5. At whiteribbonday.org.au/media/documents/talk-about-it-survey-results-and-recommendations.pdf (viewed 23 August 2011).

[203] People Strategies and Policy Group Workforce Planning Branch, note 1, p 2.

[204] N Funnell, ‘Claims on uni rape need proper research,’ Sydney Morning Herald, 17 June 2011. At www.smh.com.au/opinion/society-and-culture/claims-on-uni-rape-need-proper-research-20110616-1g5t1.html (viewed 17 June 2011).

[205] ‘ADFA under fire again as army cadet faces shower filming charge’, Sydney Morning Herald, 26 August 2011. Atwww.smh.com.au/national/adfa-under-fire-again-as-army-cadet-faces-shower-filming-charge-20110826-1jd7b.html (viewed 26 August 2011).

[206] C David Ferdon and M Feldman Hertz, ‘Electronic Media, Violence and Adolescents: An Emerging Public Health Problem’ (2007) 41(6) Journal of Adolescent Health S1, S2.

[207] Section 2, items 15 j, 15 k, 15 l and 15 m.

[208] People Strategies and Policy Group Workforce Planning Branch, note 1, p 49.

[209] People Strategies and Policy Group Workforce Planning Branch, above.

[210] R Quaedvlieg, Chief Police Officer for the ACT, Australian Federal Police, Correspondence to M Krasovitsky, Director, Research, Review into the Treatment of Women in the Australian Defence Force, 12 August 2011.

[211] This could potentially be attributed to complainants not wishing to proceed with a formal report to Police.

[212] Australian Defence Force, ComTrack data 2007-2011, provided to the Review by LTCOL N Fox, 3 August 2011; COL Paul Petersen, Deputy Commandant, has also provided a similar figure regarding the incidence of sexual assault at ADFA since 2006. He stated ‘... there have been fourreports of sexual assault at ADFA since 2006, and all were appropriately reported and investigated. Only one of these allegations was confirmed as a sexual assault, and the ACT Police investigation did not yield a suspect. I am also aware of two allegations of the sexual assault of female students while they were away from the Academy. Neither of these incidents yielded suspects, and the Police investigations did not suggest there was any connection with ADFA.’ See public submission COL Petersen.

[213] Australian Defence Force Academy, ‘Table of numbers of reported incidents as of 23 May 11’ provided to the Review by T Sargeant, 25 May 2011; LTCOL N Fox, Email to Review, 23 August 2011.

[214] Department of Defence, ‘Sexual assaults at ADFA’ 273/10/11, Freedom of Information Disclosure Log FY 10/11. Athttp://www.defence.gov.au/foi/disclosure_log_201011.cfm (viewed 23 August 2011).

[215] Australian Defence Force, ComTrack data 2007-2011, provided to the Review by LTCOL N Fox, 3 August 2011.

[216] Australian Defence Force Academy, ‘Table of numbers of reported incidents as of 23 May 11’ provided to the Review by T Sargeant, 25 May 2011.

[217] SQNLDR G van der Kolk, Email to Review, 23 August 2011.

[218] Confidential submission 7.

[219] Public submission LEUT Parker.

[220] Public submission LEUT Russo.

[221] Confidential submission 14.

[222] Confidential submission 11.

[223] Confidential interview.

[224] Confidential submission 8.

[225] Confidential submission 14.

[226] Confidential submission 14.

[227] Confidential submission 13.

[228] Confidential submission 14.

[229] ACT Rape Crisis Centre, Interview, 12 July 2011.

[230] See Horne v Press Clough Joint Venture (1994) EOC 92-556; Freestone v Kozma (1989) EOC 92-249.

[231] Confidential submission 14.

[232] Public submission Bannerman.

[233] Confidential submission 8; confidential submission 13; public submission Burnham.

[234] CDRE BJ Kafer, Report of the Review of the Australian Defence Force Academy Military Organisation and Culture ADFA 2010/1104615/1 (2010), pp 96-102, pp 119-123.

[235] M Glennie, Email to Review, 12 August 2011.

[236] Cadet focus group.

[237] Confidential submission 14.

[238] Department of Defence, Defence Instruction (General) PERS 35-3, ‘Management and Reporting of Unacceptable Behaviour’, 28 June 2009.

[239] Department of Defence, Defence Instruction (General) PERS 35-4, ‘Management and Reporting of Sexual Offences’, 11 February 2004.

[240] Department of Defence, Defence Instruction (General) ADMIN 67-2, ‘Quick Assessment’, 7 August 2007.

[241] Cadet focus groups.

[242] This is evident in the AFP data and ADFA’s ComTrack and serious and sensitive management register statistics, discussed earlier in this chapter.

[243] LTCOL N Fox, Email to Review, 23 August 2011.

[244] D Lievore, Non-reporting and Hidden Recording of Sexual Assault: An International Literature Review, Commonwealth Office of the Status of Women (2003), p 27. At www.aic.gov.au/documents/D/4/6/%7BD4631AC0-2DDC-4729-AD3C-8A69DF33BA65%7D2003-06-review.pdf (viewed 23 August 2011); Australian Human Rights Commission, Sexual harassment: Serious business – Results of the 2008 Sexual Harassment National Telephone Survey (2008) p 31. At www.hreoc.gov.au/sexualharassment/serious_business/SHSB_Report2008.pdf (viewed 23 August 2011); Australian Law Reform Commission, Family Violence – A National Legal Response, ALRC Report 114 (2010). At www.alrc.gov.au/publications/family-violence-national-legal-response-alrc-report-114 (viewed 22 August 2011).

[245] Australian Law Reform Commission, above; A Quadara, ‘Responding to young people disclosing sexual assault: A resource for schools’, ACSSA Wrap, No 6 (2008). At www.aifs.gov.au/acssa/pubs/wrap/acssa_wrap6.pdf (viewed 23 August 2011); D Lievore, note 49, p 28.

[246] Australian Human Rights Commission, note 49, pp 67-68.

[247] Cadet focus group.

[248] Cadet focus group.

[249] Cadet focus group.

[250] Public submission Brooks.

[251] Confidential submission 9.

[252] Confidential submission 9.

[253] Confidential submission 9.

[254] A fear of ‘negative repercussions, including social ostracism and retaliation’ has also been highlighted as a barrier to reporting incidents of sexual harassment in a United States military institution. See JL Pershing, ‘Why Women Don’t Report Sexual Harassment: A Case Study of an Elite Military Institution’ (2003) 21(4) Gender Issues 3.

[255] Confidential submission 14.

[256] Public submission Brooks.

[257] Cadet focus group.

[258] Confidential interview.

[259] Confidential interview.

[260] Confidential submission 8.

[261] Further discussion of falsification of rape (and domestic violence) allegations is available in Australian Institute of Criminology, The Social Research Centre and Victorian Health Promotion Foundation (VicHealth), National Survey on Community Attitudes to Violence Against Women 2009: changing cultures, changing attitudes – preventing violence against women: A summary of findings (2010) p 43. Atwww.vichealth.vic.gov.au/Publications/Freedom-from-violence/National-Community-Attitudes-towards-Violence-Against-Women-Survey-2009.aspx(viewed 23 August 2011).

[262] Department of Defence, Defence Instruction (General) PERS 35-3, ‘Management and Reporting of Unacceptable Behaviour’, 28 June 2009.

[263] Chapter 2 – Military Personnel Administration/Staff Administration. The relevant Academy Standard Operating Procedures are 2.90 – 2.101, under the heading ‘Defence Equity Adviser Network’, which annex very brief Checklists – ‘Checklist for Action in Relation to Complaints of Unacceptable Behaviour (Other than Sexual Offences)’ and ‘Checklist for Action in Relation to Sexual Offences’.

[264] Department of Defence, Defence Instruction (General) PERS 35-4, ‘Management and Reporting of Sexual Offences, 11 February 2004.

[265] Department of Defence, Defence Instruction (General) ADMIN 67-2, ‘Quick Assessment’, 7 August 2007.

[266] Acting Commonwealth and Defence Force Ombudsman, Australian Defence Force: Management of Complaints about Unacceptable Behaviour,Report No 04 (2007).

[267] Department of Defence, Defence Instruction (General) PERS 34-2, ‘Complaints of discrimination and harassment through the Australian Human Rights Commission’, 18 April 2009.

[268] See Inspector General Australian Defence Force, Report of the IGADF Military Justice Audit – Australian Defence Force Academy,IGADF/2007/1026013/1 (2007); and Inspector General Australian Defence Force, Report of Inspector General Australian Defence Force Military Justice Performance Audit – Australian Defence Force Academy (ADFA), 2010/1102552/1 (2011).

[269] Department of Defence, Defence Instruction (General) ADMIN 45-2, ‘The Reporting and Management of Notifiable Incidents’, 26 March 2010.

[270] Department of Defence, Defence Instruction (General) PERS 45-5, ‘Defence Whistleblower Scheme’, 1 July 2002.

[271] Confidential submission 19.

[272] Department of Defence, Defence Instruction (General) PERS 35-3, ‘Management and Reporting of Unacceptable Behaviour’, 28 June 2009, Annexure E; Australian Defence Force Academy, Academy Standard Operating Procedures (2011), para 2.95 – ‘Promulgation of the [Equity Adviser] Network: Harassment and discrimination issues are resolved at the lowest possible and appropriate level and preferably through the EA network.’

[273] Department of Defence, Defence Instruction (General) PERS 35-3, ‘Management and Reporting of Unacceptable Behaviour’, 28 June 2009, Annexure E.

[274] Acting Commonwealth and Defence Force Ombudsman, note 71, para 2.50.

[275] Acting Commonwealth and Defence Force Ombudsman, above, para 2.66.

[276] Department of Defence, Defence Instruction (General) PERS 35-3, ‘Management and Reporting of Unacceptable Behaviour’, 28 June 2009, para 23.

[277] Australian Defence Force Academy, Academy Standard Operating Procedures (2011), para 2.96 requires that all sexual offences must be reported ‘irrespective of whether or not the complainant submits a formal complaint’. However, para 2.97 requires sexual harassment incidents to be reported immediately to an Equity Adviser or Senior Equity Adviser ‘when a complainant makes a formal complaint’. The position is further obscured by Australian Defence Force Academy, Academy Standard Operating Procedures (2011), para 2.98 which states that ‘incidents of other forms of harassment and discrimination managed other than by ‘self-resolution’ are to be reported’ [our emphasis].

[278] Confidential submission 19.

[279] Confidential submission 8.

[280] Acting Commonwealth and Defence Force Ombudsman, note 71, para 2.53.

[281] Acting Commonwealth and Defence Force Ombudsman, above, para 3.1.

[282] Acting Commonwealth and Defence Force Ombudsman, above, para 2.61.

[283] Australian Defence Force Academy, Academy Standard Operating Procedures (2011), para 2.99 provides that all initial, update and final reports on incidents of unacceptable behaviour are to be forwarded to the Senior Equity Adviser (SEA), who will allocate a serial number to the report and centralise the Defence Academy returns for on-forwarding to the Defence Equity Officer (DEO). At the same time, para 2.101 states that records of complaints, unit investigation and consequential action taken are to be ‘kept on unit file raised by either the SEA or Academy Legal Officer’ [our emphasis].

[284] Inspector General Australian Defence Force, note 73 (2007), p 5, para b (2).

[285] Inspector General Australian Defence Force, note 73 (2011), p 5, para 23.

[286] Inspector General Australian Defence Force, above, p 5, para 23.

[287] Acting Commonwealth and Defence Force Ombudsman, note 71, para 2.85.

[288] Acting Commonwealth and Defence Force Ombudsman, above, para 2.86.

[289] Inspector General Australian Defence Force, note 73 (2007), page 4, para b (1).

[290] Inspector General Australian Defence Force, above, p 4, para b (1).

[291] Inspector General Australian Defence Force, note 73 (2011), p 3, para 16.