Prosecutions abandoned - Royal Commission needed
Written by Professor David Flint AM   
Tuesday, 13 September 2011
The Director of Military Prosecutions will not proceed with charges against a Special Forces officer in connection with a 2009 raid in which five Afghan children were accidentally killed.

Defence Minister Stephen Smith said on 29 August that  the Director of Military Prosecutions, Brigadier Lyn McDade, had told him she was not going to present evidence against the unnamed officer at a directions hearing scheduled for August 29.


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This brings to an end a highly contentious chapter in Australian military justice.  In May, the chief judge advocate ordered manslaughter charges dropped against two non-commissioned officers, members of the 1st Commando Regiment, in relation to the same incident.

As Australia's leading broadcaster Alan Jones said on 1 September:

This was all from a raid conducted by members of the special operations task group in Afghanistan on February 12, 2009.

“The troops came under fire as they conducted a clearance operation.

“They responded with gunfire and hand grenades which you do in war, although the Director of Military Prosecutions didn't seem to understand that.”




...living under the strain of a prosecution...  




Apart from the stress and strain of war, these men have had to live with these criminal military prosecutions over them until they were finally abandoned.

This resulted from the federal parliament seeing that there was a problem with military justice and taking a solution far worse than the problem, creating a centralised system of military prosecutions completely out of the hands of those who have themselves experinced military combat. 

We argued here on 29 June that if the system the Parliament concocted had existed in the Second World War, the morale of the Armed Forces would have been destroyed and we might well have become a Japanese colony run under the same regime  that applied at Changi.

The armed forces must always be able 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.





...Parliament created the problem...




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


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The centralised system of military prosecutions was a serious error. It was fortunate in this case that the military judge was courageous enough to convert the pre-trial hearing into de facto committal proceedings. This should surely tell Parliament that they were at fault in not making specific provision for this.

A significant part of Parliament's "reform" has already been found unconstitutional by the High Court.  This was  the creation of a military court. Successive governments  have indicated they believe they can still establish a military court which complies with the Constitution.

The necessity for this is doubtful; we should surely stay with the existing system of courts martial which have worked well in both peace and in war.

As Alan Jones says, the politicians seem singularly unable to admit that they were in error and to correct this. Yet they are never slow in showing themselves at the  funerals  of those soldiers who have lost their lives as a result of combat.




 ...Royal Commissioners...



 

What the government should do now is not establish a political enquiry – the politicians have already shown that they are not suited to this task. Nor should it be a behind-the-scenes powerless bureaucratic waste of time.

What is needed now is a Royal Commission under a Royal Commissioners or Commissioners who understand the issues. 

Two such persons spring immediately to mind. One is the courageous judge advocate who understood immediately what was wrong with the prosecutions - Judge Advocate Ian Westwood.

The other is Mr Keith Wolohan, the young army officer, now a barrister, who defended the men at the preliminary hearing. And if he were not available, he would know which other lawyers have the requisite combat experience to understand what is necessary.