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Royal Commission into Veteran Suicide confronts lawfare, cronyism and a bureaucratic nightmare

DVA, Royal Commission into Defence and Veteran Suicide

The Royal Commission has found three veteran deaths by suicide every fortnight, yet Stuart McCarthy says the situation with the Department of Veteran Affairs remains toxic with a ‘lawfare’ campaign against vulnerable veterans and their families.

MWM‘s investigation into corruption allegations aired in a Senate Estimates hearing two weeks ago reveals additional layers of a “toxic” veterans’ affairs bureaucracy, which has defied not one but two Royal Commissions.

At the heart of the controversy lies a long-running campaign of taxpayer-funded ‘lawfare’ against vulnerable military veterans, families and widows, with parallels to the Robodebt scandal, involving a 140 year old law firm whose influence is undermining “urgent” reforms to “not fit for purpose” legislation identified as a contributory factor in veteran suicide. As the Defence and Veteran Suicide Royal Commission’s (DVSRC) inquiry draws to a close, the situation is now so toxic the department’s security chief has labelled its critics as “security threats.”

Two weeks ago MWM covered revelations from a Senate Estimates hearing that the head of the Department of Veterans’ Affairs (DVA) veteran and family counselling service was the subject of “numerous” misconduct and corruption allegations, and in 2020 dismissed a misconduct complaint against herself “on behalf of the Minister.”

The hearing also revealed DVA’s head of security Rodger McNally was referred to the national intelligence watchdog for allegedly waging a “vendetta” against veterans and advocates who used freedom of information (FOI) laws to uncover “toxic” practices that have since been a focus of the DVSRC’s inquiry.

NACC: Veterans’ Affairs boss dismissed misconduct complaint against herself

 

During the Estimates hearing, Tasmanian Senator Jacqui Lambie also asked DVA Secretary Alison Frame:

“Do you know if there have been any referrals from the Royal Commission to investigative bodies with respect to DVA or any of the contractors that have been used in the past?”

To which Frame replied, “I’m not aware of any.”

In response to a written query, an Australian Federal Police spokesperson told MWM “The AFP has not received any reports from the DVSRC.” However, multiple sources say DVA’s toxic, adversarial culture is largely driven by ‘lawfare’ by the 140 year old law firm Sparke Helmore, acting on behalf of the Commonwealth.

From 2016 to 2019 Sparke Helmore received $9.6 million to engage in lawfare against veterans making claims to DVA, including appeals that often escalate to the Administrative Appeals Tribunal (AAT).

The overall DVA process, described as “byzantine”, “archaic” and “not fit for purpose” by the DVSRC and a multitude of previous inquiries, has been identified as a contributory factor in veteran suicide.

An August 2018 letter from then Veterans’ Affairs Minister Darren Chester obtained by MWM says “DVA pays Sparke Helmore on a global basis for its services, and not on a per matter basis.”

MWM can also reveal that during the advocacy campaign to establish the DVSRC, Sparke Helmore lawyers were so deeply embedded in the DVA bureaucracy they were authorised by the DVA Secretary to make determinations about the releasability of departmental documents under the FOI Act.

Veterans treated as ‘security threats’

Several well known veteran advocates who lobbied for the DVSRC’s establishment using documents obtained through FOI are among those identified as “security threats” in a 695-page affidavit from McNally to the AAT, cited by Lambie in the Senate hearing two weeks ago. The affidavit was for an AAT matter in which DVA is seeking exemptions from FOI laws that require the names of senior public officials to be included without redaction when government documents are released.

One of the DVA clients named by McNally as a “security threat” is a veteran with a traumatic brain injury and terminal Parkinson’s Disease.

The day after the Estimates hearing, Veterans’ Affairs Minister Matt Keogh tabled proposed legislative amendments to “simplify and harmonise” veterans’ entitlement laws, in response to the DVSRC’s first “urgent” interim recommendation two years ago. Keogh claims the “legislation has been developed in close collaboration with the defence and veteran community,” but his proposal was panned as a “band-aid bill.” Australian Peacekeeper and Peacemaker Veterans’ Association chair Ian Lindgren told MWM last month he quit Keogh’s “purported consultation process on day one”, because:

“The ‘simplified’ legislation will continue to create the angst, complexity and trauma which contributes to suicidality in the defence and veteran community.”

“Give up and die”

Several sources have told MWM that Sparke Helmore lawyers are among those advising DVA officials on the drafting of Keogh’s Veterans’ Entitlements, Treatment and Support Bill. The Bill proposes to retain the most complex and onerous of the current “byzantine” acts, and excise the veterans rehabilitation and compensation system from legal standards and oversight mechanisms applicable to other Commonwealth workplace safety and compensation schemes. Veteran advocates say this is a green light for continued lawfare against vulnerable, seriously ill veterans. One advocate says:

“This is just a continuation of the bureaucratic meat grinder by rich men in suits sucking on the public teat while our mates give up and die.”

In May last year the DVSRC commissioners wrote to Prime Minister Anthony Albanese seeking a 12-month extension to their inquiry “in the hope that we could complete the most thorough inquiry possible … to induce action.” Albanese declined the request three months later. An anonymous spokesperson for Attorney-General Mark Dreyfus told The Guardian three months later that the government was instead “committed to finalising this inquiry promptly so we can save lives and ensure a better future for our defence and veteran communities.”

Shades of Robodebt

But the veterans affairs lawfare controversy actually predates the current Royal Commission, with senior government officials having defied the directions of a previous Royal Commission almost a decade ago. The scandal runs deeper than the dysfunctional legislation, into unlawful conduct and impunity that has parallels with the notorious Robodebt scheme.

In June 2016 DVA Assistant Secretary Neil Bayles was grilled by the Royal Commission into Institutional Responses to Child Sexual Abuse, over the department’s use of arbitrary standards of evidence for determining rehabilitation and compensation claims from former defence force personnel who were subjected to sexual abuse. Under the relevant laws, claimants are required to meet the “balance of probabilities” standard of proof, but DVA’s nightmarishly bureaucratic claims procedures impose additional, arbitrary legal tests that the head of that Royal Commission said have no basis in law, including a requirement for “corroborative evidence.”

Child Sexual Abuse Royal Commission chair Justice Peter McClellan said to Bayles during the proceedings:

“What you should take back to [the department and government] is advice that a system which is operating on the balance of probabilities but excludes any possibility of succeeding in a claim unless there is corroborative evidence, is not in accordance with the law.”

The Marty Rollins case

Two years after that hearing, and still with no sign of change to DVA’s practices, came an ABC 7.30 Report segment which did finally trigger significant change in the department. Former soldier Martin Rollins, who suffered debilitating spinal injuries in a 1990 training accident, told his story about the decade long campaign of DVA “bureaucratic bastardry” to defeat his claims for economic loss compensation.

The department spent more than $600,000 on legal fees to fight Rollins, then literally deleted the relevant policy without telling him or his lawyer, before finally offering him $127,000 for “defective administration.”

Rollins’ story resulted in a personal apology to Rollins from the DVA Secretary and an apology in Parliament from Senator Marise Payne on behalf of the Veterans’ Affairs Minister. Investigations by the Secretary and her senior legal advisor into Rollins’ mistreatment led to an Australian Public Service Code of Conduct investigation into McNally and verbal acknowledgments from senior DVA officials that the conduct of McNally’s security section was “no doubt a driver of veteran suicidality.”

A DVA “client liaison unit” for managing up to 170 allegedly “unreasonable” clients was closed and its bureaucratic architecture was dismantled. Major internal and external reviews were undertaken, and Rollins was at one point invited by DVA to help implement the recommendations of those reviews.

MWM is aware of at least several cases of DVA clients managed by the “client liaison unit” who subsequently died by apparent suicide. In one of these cases, MWM can now reveal that on 27 January 2022, the other DVA official named by Lambie last week wrote to the spouse of a seriously ill veteran, threatening to impose “restrictions on your methods for contacting DVA” as part of a “communications plan.”

This was standard DVA phrasing for individuals whose cases were being diverted to the “client liaison unit,” using the tone of a headmistress threatening a primary school student with detention for swearing in the playground. The veteran died four months ago. MWM understands that the state coroner is yet to determine a cause of death. Documents obtained by MWM also show that Sparke Helmore is representing the Commonwealth in an appeal to the AAT by the deceased veteran’s widow.

The department has not responded to our detailed queries regarding the involvement of McNally or the other senior DVA official in this or similar cases involving the client liaison unit.

Two months after Rollins’ story aired in 2018 and as the public lobbying campaign towards the DVSRC gained public support, former military lawyer and prominent veterans’ advocate Glenn Kolomeitz told 2GB’s Ben Fordham after attending a round table meeting with senior DVA officials:

“We’ve resolved a whole bunch of the big-ticket issues and I walked away from there really confident that DVA is getting on with the job.”

But eight years on from Bayles’ appearance at the Child Sexual Abuse Royal Commission and two months before the end of the current DVSRC, those initially promising reform efforts seem to have stalled or gone into reverse.

Blatant cronyism

The evidence standards in the department’s policy guidelines still haven’t been corrected. A six-year, billion-dollar PWC/DVA window-dressing exercise called “veteran centric reform” rolled out to forestall the DVSRC became a magnet for blatant cronyism and corruption. One of the key objectives of this billion-dollar program was to “improve the department’s ability to support vulnerable clients.”

In reality, many vulnerable veterans and their families appear to have fallen victim to continued corruption.

Having rejected calls to extend the DVSRC, senior Albanese government officials now argue in private that the “band-aid” Bill tabled in Parliament two weeks ago is the best they have to offer because it would be “too expensive” to undertake the kind of fundamental legislative reform actually recommended by the DVSRC and actually required to meet the needs of veterans vulnerable to suicide.

One of Australia’s most successful veteran advocates, Rod Thompson, who has represented hundreds of survivors of defence force abuse over the past 15 years, says the existing Act retained in Keogh’s Bill “is a basket case”, and if the new legislation is passed:

“I think it’s going to get worse, because there will have to be another set of precedents and case law.”

The Brisbane-based former Navy Leading Seaman says he has a 90% success rate in appeals against DVA determinations to the Veterans Review Board – which prohibits representation of veterans by lawyers but typically involves cases prepared for DVA by taxpayer-funded lawyers – and an 85% success rate at the AAT.

He says he still occasionally deals with Sparke Helmore lawyers representing the Commonwealth in AAT matters. His success rate alone poses serious questions about the justice afforded to injured veterans under the department’s “not fit for purpose” system.

More Helmore hell

Several sources have told MWM that since the 2022 change in government and recent senior DVA leadership staff turnover, including the appointment of departmental secretary Alison Frame in January last year, Sparke Helmore has returned to a position of influence in the department. This includes involvement in the “legislative reforms” tabled by Keogh two weeks ago. One source says:

“Exactly the same shit is happening all over again … the fox is back in charge of the hen house. And it’s happening in the middle of a Royal Commission.”

With an impotent national corruption watchdog, a bipartisan commitment to maintaining the status quo despite clear directions from two Royal Commissions in less than a decade, and mounting evidence of systemic corruption in this dysfunctional portfolio, the defence and veterans community is left wondering what it will take short of criminal corruption charges to generate the political will for real change rather than band-aids.

This post was originally published on Michael West.