Defence Minister on Military Justice System

The following is a transcript, issued by the Department of Defence, of an interview by the ABC’s Sabra Lane of Defence Minister Stephen Smith. The interview was broadcast this afternoon by ABC Radio National’s PM program.

I cannot understand for the life of me why the Opposition will not let go of this issue. They are not doing the soldiers any good, they are not doing the Military Justice System any good, and if they had their way on this they would not be doing anything for Australia’s standing as a nation bound by international humanitarian law and the laws of armed conflict.

One of the attributes of a government in waiting, as the Opposition considers itself to be, is the judgement to know when to let something go. Clearly that attribute is lacking in this case.

For a previous post on this issue see Abbott irresponsible on military justice.

TRANSCRIPT:  INTERVIEW WITH SABRA LANE, ABC RADIO “PM”

TRANSCRIPTION: PROOF COPY E & OE

DATE: 14 OCTOBER 2010

MARK COLVIN:  The Opposition is not letting up over the charging of three Australian soldiers over the deaths of six civilians in Afghanistan last year.

The Opposition Defence spokesman, Senator David Johnston, said on AM today that he thought the soldiers in question have been betrayed by the Government and he was disappointed that they had been charged in the first place.  The soldiers were charged last month after an 18 month investigation by the Director of Military Prosecutions. Senator Johnston says that he’s not convinced that the Department did all it could to retain senior and experienced counsel to defend the soldiers before they were charged.

The Defence Minister, Stephen Smith, has now responded to the claims.  He spoke to Sabra Lane.

STEPHEN SMITH:  I think on this matter there has been too much ill informed, inflamed language.  I think we need to just very calmly understand what has occurred here.

Australia has always had a system of military justice.  It is very important that out Defence Force operates within our domestic and international law.  We’ve prided ourselves on our higher standards and we have a well regarded international reputation about so doing.  And when, for example, there are incidents involving civilians we always investigate those.

From time to time, those investigations historically and recently have led to charges being laid.  The only change we’ve seen in the current circumstance is the charges on this occasion were laid by the independent Director of Military Prosecutions who was established by the Howard Government under legislation they introduced and we, when we were in Opposition, supported that process.  So historically Australia has confronted these issues before.  The only change we’re dealing with now is we have an independent Director of Military Prosecutions who has made the decision to press charges and historically of course that decision has been made by military chiefs.  Under the Howard Government, the Parliament believed having that independence was a sensible thing to do and I agree with that. 

SABRA LANE:  Senator Johnston says he’s not convinced though that Defence retained very senior or experienced counsel to make full submissions to this Director of Military Prosecutions on behalf of these soldiers before they were charged.  Can you confirm, were these soldiers … did they get QC advice before they were charged?

STEPHEN SMITH:  Well again I think people have to be very clear about the thrust of the legislation.  It was Howard Government legislation.  Senator Johnston himself was a Senator at the time.  And provision of the legislation Section 5A of the Defence Force Discipline Act enables the Chief of the Defence Force or his representative – on this occasion it was the Vice Chief – to make representations to the Director of Military Prosecutions on general implications for the Force.

Now when the legislation went through the Parliament the legislation made it clear that any such representation was not to impact adversely on the independence of the Director of Military Prosecutions.  Some people including Senator Johnston are out there somehow suggesting that the representations made by the Chief of the Defence Force or the Vice Chief on his behalf went to the legal defence of the three concerned.   They don’t indeed.  When the Director of Military Prosecutions asked for the advice in accordance with the statute she expressly made clear that it should not go to those matters about guilt or innocence or whether charges should be preferred because that would impact upon her independence.  The second point goes to the legal defence of the three concerned and the Chief of the Army, the Chief of the Defence Force and I have made it absolutely crystal clear that they have been and will be provided with all the necessary resources to deal with this matter, both legal and other support; and the Chief of the Army has made it clear to the families concerned that he will spare no expense to make sure that they get the legal support and counsel that they require and they need.  

SABRA LANE:  The Senator says that he’s been told that people inside Defence that the pre-charge submission made on behalf of these soldiers was a bit of a doddle.  Is that your assessment?

STEPHEN SMITH:  I would be not making such pejorative remarks.  But again, that remark misunderstands either inadvertently or deliberately the nature of the representations that can be made under the Howard Government legislation. 

SABRA LANE: But it’s still not clear from what you’re saying Minister, did these soldiers get adequate legal advice before these charges were laid?

STEPHEN SMITH:  The Howard Government legislation provides for the Chief of the Defence Force to make representations to the Director of Military Prosecutions about the general interest of the Defence Force.  It does not go to whether charges should be preferred or not.  

SABRA LANE:  Isn’t it just a simple case of yes or no?

STEPHEN SMITH:  It is a simple case of carefully understanding the legislation that the Howard Government put through the Parliament which Senator Johnston supported and which the Labor Party supported.

SABRA LANE:  Given what you’re saying now then, after this case is heard and is finished is it a case that this legislation should be reviewed to allow a defence to be mounted on behalf of soldiers before they are charged?

STEPHEN SMITH:  A defence will be mounted on behalf of these soldiers and that defence will be mounted as they are given access to the prosecution brief by the Military Prosecutor and have access to all the necessary legal and other support that will be provided.

MARK COLVIN:  The Defence Minister Stephen Smith speaking to Sabra Lane.

Abbott irresponsible on military justice

One of the key differences between the Australian Defence Force and the rag-bag of contractors, mercenaries and private militias that have been involved in the wars in Iraq and Afghanistan is that the ADF is a disciplined force, trained in and subject to the rule of law, including international humanitarian law and the international law of armed conflict.

The requirements of Australian military law and applicable international law are normally embodied in the rules of engagement under which our soldiers enter into military operations.

It is quite typical for our military personnel to be indemnified against local law while they are deployed into the relevant theatre of operations. This is the case with the ADF’s deployment in Afghanistan; the Status of Forces Agreement (SOFA) indemnifies our soldiers from prosecution under local law.  This means that the only law to which our soldiers are subject is Australian military law. If they commit a crime against Afghan citizens those people have no expectation of justice except through the Australian military justice system.

A corollary of the ADF being a disciplined force subject to the rule of law is that when there is reason to suppose that there has been a breach of law or of discipline, that alleged breach must be investigated, and if an investigation by the competent authority finds that there is a case to answer, then that matter must be referred to the Australian Military Prosecutor for consideration as to whether charges should be laid. The Australian Military Prosecutor is an independent prosecutorial authority for the Australian Defence Force, and makes her decisions outside the chain of command in order to remove any suggestion of command influence.

The charges against three Australian soldiers to which Opposition Leader Tony Abbott has referred in recent press commentary arise from a compound clearance undertaken by the Special Operations Task Group in Oruzgan Province on 12 February 2009. The matter, which involved the deaths of six Afghan civilians, including several children, was investigated by the ADF Investigative Service, which referred the matter to the Director of Military Prosecutions for consideration of charges. The Director of Military Prosecutions decided that three ADF members were to be charged in relation to the incident, with offences including failure to comply with a lawful general order, manslaughter and dangerous conduct.

This is of course an acutely sensitive matter – the soldiers concerned were undertaking a dangerous operation on active military service.  Nevertheless, the competent military authorities have found that there is a case to be answered, and there is no alternative to the matter being tested before a properly constituted military tribunal – otherwise our soldiers are in effect subject to no law when they are on military operations in Afghanistan.

What the soldiers are entitled to in these circumstances, and have been assured that they will receive, is a presumption of innocence, proper legal representation, and other forms of support. The Chief of the Defence Force, Air Chief Marshall Angus Houston, has stated, “Consistent with the presumption of innocence, these members will receive the full support of the Australian Defence Force”.  This support will include, but not be limited to, medical, psychological, legal, chaplaincy and welfare support.

The Chief of Army, Lieutenant General Ken Gillespie, has stated, “I give the members facing these charges a firm, personal undertaking that I will ensure that they are thoroughly supported throughout the legal process”.

Tony Abbott must know, or ought to know, all of the above. It is therefore the height of populist irresponsibility for him to be using inflammatory language like his suggestion to talk-back radio host Alan Jones that our soldiers are being “stabbed in the back by their own government” and that the Government is failing “to provide these soldiers with the defence that they are entitled to”. Jones of course was delighted to go along with this; he was beside himself to assert that the problem was the supposedly untrammelled powers conferred on “this woman” (the DMP) by the Rudd Government, whereas it was in fact the Howard Government in 2006, but Jones is clearly not going to let the facts get in the way of a good story.

Unfortunately this is yet another episode in which Tony Abbott seems neither to know nor to care how key systems in the Australian polity work, or the legal frameworks within which they operate, and is heedless of the potential consequences of his populist comments. His approach to asylum seekers is another obvious example.

For further informed commentary on this issue see opinion piece Soldiers’ work is life or death, but they are not above the law by Gideon Boas, former senior legal officer at the International Criminal Tribunal for the former Yugoslavia in today’s edition of The Age (accessible here),  and the contribution to today’s edition of Crikey by Angela Priestly, editor of Lawyers Weekly (accessible here).