The prosecution of three soldiers in relation to an incident which took place almost two years ago in Afghanistan raises important issues which have been the subject of comment and interviews on 2GB and other stations on the the Macquarie Radio Network by the nation’s leading radio commentator, Alan Jones.  (The latest was on 8 December)

In raising this issue here on 4 October  (“Military prosecutions: Parliament must act now”), and subsequently (see below for details) we have was argued that  there can be no more important duty for the government and the Parliament than the defence of the Realm and that the performance of this duty is constitutionally enshrined. 

This obviously means ensuring the Army, the Royal Australian Navy and the Royal Australian Air Force are always able to do their duty.

This requires a structure which allows the armed forces to function in the preparation for and in actual combat. This necessarily involves a certain separation from civilian life, of which there is no better demonstration than that while they are under ministerial direction, the armed forces owe their loyalty to the Australian Crown and not the politicians.

The constitutional intention is that the armed forces be subject to a command structure including a power to subject its members to penalties for breaches of discipline.

In an attempt to deal with specific complaints relating to military discipline, the Parliament has created a far more serious problem and seems unable to reverse it. 

(A significant part of Parliament's "reform" has already been found unconstitutional by the High Court.  This is the creation of the military court. Governments have indicated they believe they can establish a miltary court which complies with the Constitution. But now evan a signficicant supporter of the process under which the three soldiers have been prosecuted,  Justice Brereton Paul Brereton counsels against this. See below)

…misguided "reform"…

Invited to write for The Spectator Australia on 4 December, I said: 

We should always be wary whenever the politicians agree. They did so in 2005, which is why three of our finest soldiers are being prosecuted over an incident in Afghanistan 18 months before where they were fired on and, believe it or not, returned the fire.

Discussing strategy at the conference I mentioned my understanding from national service that the aim of the army is to kill the enemy.Major General ‘Digger’ James, the Korean War hero, confirmed this.

I asked if it now is ‘to counsel the enemy in a non-discriminatory, non-racist way to find a mutually acceptable solution’.We are now treating the most hardened criminals better than we do our soldiers, who are ready to sacrifice their lives for our country, as are incidentally our two brave princes, William and Harry.

If this policy continues, it will destroy morale in the armed forces.Last Friday the Australian published my second piece arguing this.

If Curtin and Menzies had done this in the second world war, we would now be a Japanese colony.It’s time for the politicians to correct their mistake.

....radio interveiw…

This was a subject of an interview by Alan Jones on 8 December on the Macquarie Radio Network which can be heard by clicking here.

A paper published in  The Australian “Soldiers denied their basic rights in military prosecution”  on 26 November seeks to answer criticisms of opposition to  the prosecutions  by Justice Paul Brereton of the NSW Supreme Court. and Associate Professor Ben Saul of the University of Sydney.  This follows below.

A New South Wales judge, Justice Brereton of the NSW Supreme Court  has publicly “slammed” critics of the decision by the Director of Military Prosecutions to prosecute three soldiers over an incident in early 2009 in Afghanistan (Sun Herald 7/11) . This was in a paper to a conference on the rule of law in early November, 2010.

The DMP was established as one the two radical changes to the military justice system adopted by the Parliament in 2005 and 2006.

…no to the military court…

Apart from a strong support of the DMP and an argument that some of the criticism could well constitute a contempt, Justice Brereton criticises the other principal reform of the military justice system.

This was to replace courts martial with a separate court. But in 2009 in Lane v Morrison the High Court found the separate court, the Australian Military Court, to be unconstitutional. The Rudd Government then announced that it would legislate to establish a Military Court of Australia which would conform with the Constitution.

There is a risk, Justice Brereton point out, in such a court. This would involve cold analysis over many days, and years later, of incidents that had required immediate decision and response by soldiers in, as he elegantly puts it, “the urgency, danger and fog of battle”.   

He fears, rightly,  this may give insufficient weight to the pressures of the circumstances in which the soldiers were operating.

He believes a court-martial is better equipped to judge prosecutions for service offences than a judge without operational military experience. I suspect that he is right.

…the facts…

As to the charges, let us recall the few facts about this case which have been made public.

On 12 February 2009, six Afghan civilians were killed, probably one a combatant, and another four injured in an operation undertaken by Australian soldiers operating in Uruzgan province, Afghanistan. 

Following an investigation by the Australian Defence Force Investigative Service, the matter was referred to the DMP, Brigadier Lyn McDade, in November. Further investigations were undertaken at her request. After obtaining representations on behalf of the Defence Force as to the service interest in relation to the charges, the DMP announced her decision on 27 September 2010.

This was to prosecute three soldiers: one for manslaughter and alternatively, dangerous conduct, with a second count of dangerous conduct; the second for failure to comply with a lawful general order and alternatively prejudicial conduct; and that a third, who was overseas, would be charged upon his return.

…the argument for the DMP…

Justice Brereton observes that:

“Our ability to bring these charges is the mark of a mature society in which the rule of law is well established. We operate within constraints; that is what separates us from the terrorists."

He is correct in this, as was Associate Professor Ben Saul (The Sydney Morning Herald  15/10) in arguing that unlawfully killing civilians is a serious crime in war.

…criticising the "reform"..

This is all true. But this does not preclude a criticism of the 2005 changes to the military justice system.

These introduced a model which is unfair and unjust, and which will, I believe, prove unworkable.

The rationale for the creation of the DMP is that it is no more than the military equivalent of the Directors of Public Prosecutions.It is not. The office combines the power to prosecute breaches of military discipline hitherto vested in commanding officers, and  the powers of a magistrate in a committal hearing, all without any of the safeguards.

…the US model…

In the United States – which a model of military justice which could well be emulated here – these powers are shared by at least four officers.

In addition there are substantial safeguards for the soldiers, ones  which are scandalously absent in the Australian model.Unlike their American counterparts, Australian soldiers (and sailors and airmen) are denied three fundamental pre-trial rights.

These are rights which are accorded to the most hardened criminal.

The first is the right to examine the DMP's witnesses before the trial.

The second is the right to know what the DMP's case is against them before the trial. In the present case, have the three soldiers received copies of all reports, supporting documents and representations, as well as the reasons for the DMP’s decisions?

The third is the right to argue and to make submissions to an impartial person that the DMP's case is inadequate and should not proceed to trial.Is it not extraordinary that one class of Australians, those who are prepared to put their lives on the line for their country, are the only ones in the nation to be denied elementary justice?

…effect on morale…

Now that this is common knowledge in the armed forces, we can imagine the impact on the morale of those in service and in due course the impact it will have on recruiting.And that is not all. The creation of this office undermines the chain of command.

It neutralises an important part of the authority commanding officers must have.This is militarily incoherent.Had this system been in operation in the Second World War with  similar prosecutions being ordered from some Canberra office operating behind closed doors, months or years after the alleged offence , the AIF, the RAN and the RAAF would have been rendered impotent.

The Menzies and Curtin governments did not and would never have proposed such an office. The Americans would be astounded if a similar office were proposed there.

In the highly unlikely event that  legislation to establish a US DMP were passed, the Supreme Court would surely find grounds to invalidate it,  if not in the express terms of the constitution, at least in gazing into its penumbrae, or shadows.

…Parliament must act…

It has only now become evident that Parliament was seriously in error in approving  the changes made to the military justice system in 2005 and 2006.

Until Brigadier McDade’s announcement parliamentarians were no doubt ignorant of its flaws.

To ignore these now and hope the immediate problem will go away by, say, an acquittal by the courts martial will only delay the day when real reform must take place.  

It is the duty of each and every MP and Senator to take steps to correct it.

That duty is greater than appearing on such occasions as ANZAC day ceremonies to eulogise the armed forces.  Without action, these will only be seen by members of the armed forces as empty gestures. 

[ Earlier in this column on 4 October (“Military prosecutions: Parliament must act now”)  we criticised the legislation under which the prosecution of three soldiers concerning an incident in Afghanistan was recently announced by the Director of Military Prosecutions.  This was followed on 23 Ocotober  Military Prosecutions: Parliament must act , The Military Justice System and  27 Ocotober Military Justice; station 2GB Alan Jones.

An earlier  comment was published in The Australian 22/10  “Denial of rights for our brave Diggers”.  ]