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Comment by the Australia Defence Association This page records official comment by the Australia Defence Association on important current issues as they arise. Other comment on current issues can be found on our recent media commentary and letters-to-the-editor pages. ADA comment on longstanding or over-arching issues is provided on our key issues page. Further comment and background information can also be found through the Issues Index, the Defender Index covering recent editions of our quarterly national journal Defender, and in our monthly bulletin Defence Brief. Media Citation. If an individual citation for comment is required please cite ADA executive director, Neil James. Feedback. As an independent, non-partisan, community-based, public interest guardian organisation and think-tank the ADA takes great care with its contributions to informed public debate. We welcome supportive or critical comment on our efforts at Feedback but expect the form and nature of feedback to respect community standards for informed public debate. Links to 2012 Comment" Finding fault but not exaggerating bad behaviour in the ADF
Links to previous year's comment: 2011, 2010, 2009, 2008, 2007, 2006, 2005, 2004
Finding fault but not exaggerating bad behaviour in the ADF
Media coverage of bad and criminal behaviour in our defence force has led many Australians to assume, incorrectly, that problems such as alcohol abuse, sexual harassment and youth suicide are prevalent in our defence force and occur at rates far higher than community norms or in other professions and industries. It has also led to two widespread but mistaken public assumptions. First, that the ADF is somehow much different, or should be morally and culturally perfect, compared to the rest of Australia, despite it being disproportionately full of young Australians. Second, that the force’s problems are systemic in nature and the product of a supposedly institutionalised and dysfunctional culture, despite every independent inquiry into incidents of ADF misbehaviour concluding the opposite. Bad or criminal behaviour in our defence force cannot be totally avoided, just as it cannot be totally stamped out in Australia generally.
But it does occur at markedly lower rates in the ADF than in society at large and in most, perhaps all, other professions and industries. For example, Federal Sex Discrimination Commissioner, Elizabeth Broderick, has noted that rates of sexual harassment (and particularly sexual assault) at ADFA are much lower by orders of magnitude than those occurring in Australia’s civil universities and TAFEs. And that she is unable to quantify the difference in detail only because the civil tertiary institutions keep such inadequate records and are not as transparent and publicly accountable as our defence force. The community's cognitive dissonance about ADF misbehaviour mainly results from three causes. First, most Australians now have such little personal, or even extended family, experience of military service or war that they no longer “get” their defence force and are prone to misunderstandings, misconceptions or unreasonable expectations of behavioural perfection.
This ignorance is exacerbated because relevant knowledge is assumed, wrongly, merely from exposure to fictional and usually dramatised TV programs, films and computer games.
Second, context and balance are often ignored: · The ADF is the third largest employer in the country (after Woolworths and Wesfarmers), but the number of reported incidents is usually not considered proportionally, or in context, about what are national (not sectoral) problems. · Over 50 per cent of ADF personnel are aged under 25 and two-thirds under 30 ― a disproportionately young workforce compared to most professions and industries. · In terms of workplace conditions they also often live together collectively for all or most of every day, often for long periods and, at times, under considerable group and individual stress. Rather than, as civilians do, just work or study together for a minority proportion of each day during a 5-day working week in suburban Australia. · Working in the ADF is by necessity more of a stressful environment operationally, even in training or exercising for war, than nearly all other professions. · ADF personnel are subject to the Defence Force Discipline Act as well as ordinary criminal law. This leads to false public assumptions that disciplinary proceedings and punishments for minor matters necessarily involve serious civil criminal offences. · Young men and women in the ADF are just as Australian as anyone else. They are not some form of moral praetorian guard somehow immune by nature to the social problems affecting Australian society generally. Third, much of the inaccurate media coverage and consequent public misunderstandings are because the ADF is an easy target for lazy, unscrupulous or otherwise unprofessional journalism. People are naturally interested in our defence force. It is also accountable, keeps good and publicly accessible records, and has a culture of encouraging complaints and usually acting swiftly on them (especially compared to most civil professions and industries). This enables the easy exploitation of stories sensationally, rather than reporting of them accurately or in context. And it enables the media to avoid having to research or report on much worse, but less publicly recorded, misbehaviour in other Australian institutions and industries. Public confusion also occurs through the same ADF incidents being reported over and over again by the media as new when they are not. Finally, as a contextual example using publicly available figures, the annualised rate of serious sexual incidents in the ADF (using the widest possible definition), appears to be under one in five thousand (or 0.02 per cent of the Defence workforce). Moreover, during the, largely misinformed, public furore over the non-consensual filming incident at ADFA last year, did any journalist in the country ever survey any of Australia’s 38 civil universities to discover how many similar or worse incidents had happened at each and how they had been handled? Especially given that last year’s national survey of 1500 female university students by the National Union of Students claimed that one-third of female tertiary students have been sexually harassed or assaulted. This seemingly stark invidious comparison to the one serious incident among some 200-250 female cadets at ADFA has unfortunately been ignored by nearly all journalists and far too many Australians.
Back to the strategic basics, not the politics or emotion, on asylum and refugee policy (The ADA's comprehensive discussion paper on this issue can be found here) Women in combat: Operational capability must remain the prime determinant in employment policy Why the Black Review is a disaster for management of our country's defence ADA calls for public inquiry into incident at ADFA Incident at the Australian Defence Force Academy Irresponsible use of social media by a small number of Australian soldiers in Afghanistan Report of the HMAS Success Commission of Inquiry (Gyles Report) Why is the ADF's amphibious fleet worn out?
Links to previous year's comment: 2010, 2009, 2008, 2007, 2006, 2005, 2004
The ADA's comprehensive discussion paper on this issue can be found here.
Back to the strategic basics, not the politics or emotion, on asylum and refugee policy
By fixating on the recurrent symptoms, not the causes and cures, most public argument on asylum seeking continues ineffectively. Politicians are addicted to electoral point-scoring. Refugee advocates are prone to discuss factors selectively.
Some community concerns about “boat people” and visa-overstayers are undoubtedly due to misunderstandings and even at times irrational fears.
But informed concern is surely well-grounded in appreciating the risk that unauthorised and therefore uncontrolled arrivals compromise Australia's national immigration policy, sovereignty and ― should numbers increase dramatically and/or suddenly ― our domestic economic, social and political stability and our environmental sustainability.
Arguments commonly mounted in favour of accepting asylum seekers tend to centre on the low numbers arriving currently, or cite the Refugee Convention and world refugee statistics selectively. This does not assuage basic community concern about potentially larger numbers if policy remains so hostage to events.
Similarly, knee-jerk allegations of supposed xenophobia or racism are way off target where one in four Australians was born overseas and most Australians are knowledgeable about immigration matters and compassionate about genuine refugees.
The vast majority of Australians, even if disagreeing about aspects of refugee policy, seem to agree overwhelmingly that our national compassion must be focused using two principles: · Australia cannot possibly shelter or resettle all the world’s refugees so compassion must be applied using prioritisation and equity; and · our refugee intake, including any increases, should not occur by means outside reasonable Australian control.
Informed debate is therefore more over the matter of fairness, priorities and control as necessary principles, not over the responsibility to provide refuge or even the numbers to be given sanctuary in practice.
Too many arguing on all sides are also trapped in fallacious assumptions.
These include that this is wholly a domestic matter, not mainly a strategic policy issue; that our regional neighbours are uninvolved or blameless; that all asylum applications are genuine, or alternatively all bogus; that asylum means permanent residence as an immigration outcome, not protection for as long as it is needed as the Convention requires; that bogus claimants are being successfully deported when they are not; and various selective or erroneous beliefs about push and pull factors.
Australia’s predicament is primarily due to our geo-political situation. Only 7 of the 35 countries between the Aegean and Arafura Seas are signatories to the 1951 Refugee Convention.
Six of the seven are effectively pseudo-signatories. The nearest real signatories to our north-west are Israel and the EU. To the north-east it’s the USA and Canada. To the north its no-one.
Even NZ takes in much fewer refugees per capita because we are who and where we are.
We also need to buttress the universality, integrity and original intention of the Refugee Convention and Chapter VIII of the UN Charter. Particularly the importance of pressuring neighbouring states in conflict-afflicted regions to resolve these wars in the first place, so refugees can swiftly return home directly to rebuild broken polities and societies.
Rather than stay marooned in refugee camps watching their civil societies and families destroyed.
The incidence of war or civil strife in the world generally is not a “push factor” per se, as some claim reflexively, but another recurrent symptom of the Convention not being universal.
The key pull factor is that Australia is a highly desirable first-world country; and one of only four with a popularly-accepted mass immigration program, a diverse society, and no national ID card so disappearing into the diversity is easy. Indeed it is the success and cultural acceptance of our immigration-based society that so skews debate away from what our Convention responsibilities actually are.
Since 1946 we have permanently resettled, rather than just temporarily sheltered as the Convention requires, over 700,000 refugees.
Apples-and-oranges comparisons with larger numbers currently hosted temporarily by some countries obfuscate proper comparisons about degrees of protection and proportionate burdens over time, and excuse buck-passing by all our regional neighbours.
It is axiomatic that the effective regional mechanism needed to protect refugees would involve “offshore processing” in an Australian context. But our near and further neighbours have no incentive to sign the Convention, or otherwise care for refugees, because they regard us (and the EU) as their permanent “soft-touch” solution.
Meanwhile: · market forces mean people-smuggling flourishes and the Refugee Convention is undermined; · around five per cent of unauthorised arrivals by boat drown due to various criminal acts in Indonesia; · our intercepting naval personnel are put at risk saving them and now need to be armed and equipped with anti-stab vests; · most boat arrivals destroy identifying documents because they are false; · our detention centres are bulging, re-filling continually and riven with violence, riots, suicide and mental stress; and · deportation rates for bogus asylum seekers have sunk to as low as two per cent, due to false claims to be “stateless” and regional non-cooperation generally. Compassion must be combined with resolution and strategic realism to really help genuine refugees. Turning the tap off at Indonesian and Malaysian airports is the best way to combat people smuggling and immigration fraud without affecting the right to claim asylum or our responsibility to provide it where warranted. As deterrents to immigration fraud and people smuggling, we need to reintroduce TPVs and negotiate swaps of asylum claimants. Both are right in principle. It was the administration of TPVs that
was flawed last time (especially the ban on family reunion). Malaysia is the
problem with swapping not the policy itself. The nine reasons to reintroduce TPVs can be found here. Offshore centres such as Manus and Nauru remain worth trying, but their deterrent value would be much diminished without TPVs and other regional countries not acceding to the Convention. Current numbers of unauthorised arrivals by sea and air are manageable but the strategic, law enforcement and humanitarian effectiveness of current policy, including sustaining public confidence, is wholly dependent on the numbers remaining low and slow. But there is no longer any strategic, crime deterrent, economic migration, refugee flow, international travel complexity or public policy rationale for this complacency to succeed. We are getting ever closer to having to warn our neighbours that unless they accede to the Convention, and live up to its responsibilities, we will have to suspend our membership and humanely turn boats and airline passengers back until they do. 03 October 2011 Women in combat: The ADA’s 10-point summary The longstanding ADA position on the gender aspects of combat employment (based on all the factors and issues covered in this comprehensive discussion paper) is summarised in the following ten points: · Helping to defend Australia is a universal civic responsibility (like jury duty), not somehow “someone else’s problem” (such as only serving or former members of our defence force). All Australians have a citizenship responsibility to serve in our defence force when required or otherwise support the effectiveness of the force at other times. These responsibilities are shared by all Australians irrespective of where they live or their family circumstances, age, gender, occupation, religion, ethnicity, sexuality or political beliefs. Female or male employment issues in our defence force are therefore part of wider citizenship responsibilities, not a stand-alone matter that can or should be considered in isolation from them. Just as importantly, they are not just a gender issue. · We should also never forget why we have a defence force in the first place. Nor that the overall operational capability of our defence force must remain the prime determinant of employment policy within it. Otherwise we risk failing to deter wars, risk losing wars and risk the lives of both our male and female defence force personnel irresponsibly and immorally. This is discussed further here. · Operational preparedness standards for physical fitness, strength, endurance, stamina, load-bearing and marksmanship based on hard-won battle experience over a century must not be lowered to enable universal or even selective workforce participation by females. Just as they are not lowered to permit participation by all males, or indeed by Australians of all age groups, heights, weights, physiques and states of health generally. · Similarly, the operational effectiveness of the weapons and equipment procured for our defence force by Australian governments must not be reduced otherwise diluted to enable universal or even selective female use of them. Just as they are not reduced or diluted to permit defence force participation by every male, or indeed by Australians of all age groups, heights, weights, physiques and states of health generally. · There are no psychological or emotional barriers to employing female defence force personnel in combat. Australia does this now and has done so for many years. Arguments commonly mounted to oppose female participation on psychological or emotion grounds are invariably incorrect factually or conceptually. Similarly, most social and cultural arguments posed against broadening female participation in combat roles have been disproven by ADF and allied experience gained in existing mixed-gender units. All these aspects are discussed in commonplace misconceptions and myths. · Once trained and qualified, female defence force personnel should be allowed to undertake any military task where the current government policy limitation is due solely to physicality, rather than physiology or bio-mechanics, and where the participating female personnel can meet and maintain the physicality standards needed. · We support female defence force personnel also being employed in any situation where technology, training, the procurement of modern equipment or other means can effectively neutralise physiological or bio-mechanical differences between the genders so that the overall operational capability of our defence force is not affected ― and the female personnel concerned do not end up inequitably facing a much higher risk of injury, wounds or death than male personnel undertaking the same tasks. · In combat roles that might or do incur additional risks for female personnel compared to males undertaking the same tasks (such as more disabling injuries generally, disproportionate casualties or sexual assault if captured), we support the right of female personnel to choose whether to accept such extra risks or not. However, we believe that the exercise of such choice needs careful monitoring to ensure it is truly free and reasonable in the circumstances ― and that it does not incur unintended, inequitable or unfair results for such females (and their male comrades) in practice. This is discussed further here. · As allocation of male personnel to combat roles is generally not voluntary, particularly in the Army, the allocation of female personnel should wherever possible be the same in order to ensure true gender equality. This is also discussed further here. · In both collective and individual terms, operational credibility is vital for operational effectiveness in a defence force. Not just in perception, or for effective teamwork, but because lives are at stake. Any broadening of combat roles must never involve using prescribed or target quotas based on gender, rather than the operational capabilities needed to deter or win wars and the personnel standards necessary to achieve this. We further suggest
that anyone purporting to hold an informed or broad view on this issue who
has not also worked through all the complexities and implications outlined
above (and discussed in our comprehensive discussion
paper) is deluding themselves about undertaking an objective enquiry
― even if they do not necessarily agree with some or all of our
deductions or conclusions. A Black day for our defence force There is much wrong with, and in, the Department of Defence, most of it however usually in the department, not the defence force. This is lost on many Australians, including it now seems Professor Rufus Black and those Ministers running Defence (and many of those advising them) who should know better.
That the flawed analysis and suggestions of the Black Review could be seriously entertained by anyone shows, at the very least, an appallingly short and/or biased corporate memory in the Department of Defence and political circles about what has failed when tried previously - even in recent decades and even before we examine the more distant past before and after the 1974 Tange re-organisation of the then Defence group of departments.
Because it is not a first-principles, bottom-up and top-down review of structure, responsibilities and accountabilities, the Black Review will fail as its 13 predecessors since 1974 have failed. Tragically again, its flawed, inconsistent and ahistoric recommendations - and the Minister’s intention to implement them - will inevitably inflame and indeed spread the disease of ever-growing departmental bureaucratisation and lack of collective and individual accountability, not cure it.
Black-inspired anti-reforms will also needlessly resuscitate the associated virulent virus of bitter ADF-APS rivalry that so poisoned the department’s institutional culture and consequently its effectiveness throughout the 1970s, 1980s, 1990s and early 2000s. A virus that the last three Secretaries (especially Ric Smith), all from outside the department, have done much to eradicate. This virus thrives whenever there is arrogant, pervasive and unwarranted civilian bureaucratic interference in military professional matters or supplanting of Ministerial control over the ADF by public servants (as occurred for most of the 1974-1998 period).
In particular, the proposed appointment of an Associate Secretary to oversee defence force capability development and procurement is guaranteed (and perhaps even purpose-designed) to reignite destructive bureaucratic bloodshed. Not least because (the new Secretary Duncan Lewis excepted) there are clearly no adequately qualified candidates for such a position in the department or out of it, nor can there ever be unless that person had both significant ADF and APS professional experience.
Seven general aspects about the Black review and its implementation stand out to anyone with an objective and long-term knowledge of defence issues:
Most dangerously, contestability of policy advice will be severely weakened or lost because military professional advice to Ministers will now be again filtered through senior public servants. This will again sadly include recommendations as to what the Government should decide about the selection of weapons and equipment for our defence force, thus once again separating responsibility for such advice from the command, operational and moral responsibilities of the ADF’s commanders for the men and women whose lives they are literally accountable for.
It is legitimate for the Department of Defence to contest ADF recommendations, as long as this is undertaken honestly and objectively (which too often did not occur in the pre-DER structure now being revived by Black ) during consideration by the Government. The DER found that the deliberately confrontational structures then entrenched (Force Development and Analysis Division versus the Services) were counter-productive and inefficient in results, process, scheduling of projects and the overall toxic culture they sustained. The DER determined that more collaborative processes and structures were needed. It is therefore not legitimate, as Black recommends and the Minister has accepted, for public servants of any level to manage, filter or otherwise delay or frustrate professional military advice to Ministers. Civilians bureaucrats do not, as many arrogantly claim or imply, somehow automatically “know better” than military professionals how to deter and fight wars.
True accountability in Defence will only come from downsizing the organisation, simplifying lines of accountability and re-instituting statutory boards accountable to Parliament for defence capabilities (of the type that existed before 1974). At least one for the department and one for the defence force. And with relevant ministers as full and involved members, not just as supposed customers for bureaucratic policy advice.
The time has clearly come to split the department and the headquarters of the defence force into two much smaller and truly synergistic, rather than bureaucratically competing and self-defeating, entities in perpetuity. Both answering to the Minister for Defence, with clear chains of authority and military command respectively (and where the portfolio minister is assisted in each by at least one full-time junior minister).
In the department, the junior minister would supervise DSTO and the DMO with the (overall) portfolio minister supervising the rest directly. For the ADF, the junior minister would be known as the Minister for the Defence Force and handle both the integrally related, day-to-day, operational and personnel functions. The Minister for the ADF would not be double-hatted as the Minister for Veterans Affairs.
It now seems ever more necessary for true reform of the Department of Defence to be imposed by Parliament after a full public inquiry, rather than by internal reviews and partisan posturing. Just as Congress reformed the Pentagon in the 1986 Goldwater-Nichols Department of Defence Re-organisation Act after the Packard Commission. Sadly, the men and women of our defence force still wait for a Minister informed and courageous enough to tackle the Gordian knot of political and bureaucratic vested interests bedeviling the principles and practice of our national defence.
Echoes of Dreyfus: Independent inquiry now needed
From
the beginning, the Australia Defence Association has unreservedly
condemned the despicable abuse of a female cadet at ADFA when her consensual
sex with a male cadet was filmed and relayed to others without her consent. Incident at the Australian Defence Force Academy
Reporting of the non-consensual filming of consensual sex between two cadets at the Australian Defence Force Academy (ADFA), contrary to ADF discipline, has now evolved into incorrect assumptions and claims that affect informed public debate on defence force capability and operational matters.
The Australia Defence Association therefore enters the debate somewhat reluctantly. The ADA reminds those involved on all sides that civil control of the military by its Ministers is a longstanding tradition in Australia. It is rightly entrenched in our constitutional system and the professional culture of the ADF.
There are, however, significant two-way responsibilities involved. Especially as our apolitical military are often legitimately prevented from defending themselves in public from uninformed, partisan or other biased criticism ― and must rightly observe privacy restrictions and natural justice provisions when discussing individuals (and claims made by some individuals).
Moreover, the excessively rigid, non-responsive, over-centralisation of control over defence public affairs matters in the Department of Defence and the Minister’s office over the last decade or so has added new problems that could be avoided by decentralising responsibility to ADF commanders at all levels again (as largely occurred until the late 1990s). Our defence force is now too often unable to defend its professional reputation collectively, and the reputation of its members individually, from ignorant, biased or sensationalist criticism. This is inequitable to say the least, but is also operationally and strategically stupid.
Just as the Attorney-General is expected to defend judges from unfair and incorrect criticism, and given the sensationalist and highly inaccurate manner in which the media has covered the recent incident at ADFA, comments today by the Minister for Defence correcting media misinformation, and incorrect assumptions by members of the public, are welcomed by the ADA.
As in all such cases, there are two sides to every story. As has occurred in many previous cases of real and supposed ADF scandals, the media has largely published and broadcast only one side. And again in this case with little or no understanding of precedents, context, nuance or the necessary professional and legal procedures of a modern defence force.
As the Minister has now finally confirmed, a number of the allegations broadcast as fact about this incident over the last two days are untrue. The female cadet involved did receive extensive counselling from the beginning. The ADF did investigate and handle her initial complaint professionally and appropriately. ADFA does have extensive and readily accessible means of lodging complaints about sexual harassment and other matters, an extensive education program about them and a long record of effectively handling such issues. Contrary to her apparent claim (as broadcast), the cadet concerned was never asked to apologise to her classmates or the whole cadet body for going to the media (contrary to ADF regulations). No-one at ADFA or elsewhere in the defence force has downplayed or tried to cover up that her consensual sexual intercourse should not have been filmed without her knowledge. From the beginning, the ADF has considered a serious disciplinary offence occurred even though the civil police were initially unsure as to whether a civil criminal offence had been committed. The Commandant ADFA has rightly noted that such a serious abuse of professional standards and trust is likely to be a career-ending one for the perpetrators.
However, Minister Smith’s implicit refusal at a media conference to support the difficult command decisions made by the Commandant of ADFA is unfair and quite disappointing. Surely he could have dismissed such factually-ignorant questioning by noting that there was no evidence to suggest that anyone in the ADF chain of command had acted inappropriately.
The Minister’s comments on the separate and summary disciplinary proceedings also involving the female cadet are also highly unfortunate and perhaps inappropriate ― just as they would be if a minister of the crown commented in such a way about similar matters before a civil court. Such comments have unfortunately led to false claims in the media that the separate disciplinary proceedings were somehow improper bullying of the cadet charged and aimed at improperly influencing her to withdraw her complaint about the filming incident. Such allegations are clearly invalid as the ADF disciplinary investigation into the filming incident would necessarily continue independent of whether she complained or not. Such outrageous allegations should be refuted by the Minister, not encouraged by him, however inadvertently.
The cadet in question had pleaded guilty to these charges before the filming incident was known to her and publicly. She had legal advice and apparently chose not to request a delay in the proceedings. The charges were simple matters heard before a subordinate summary authority (presumably her squadron commander). It was not a “court case” or an overly-formal proceeding as the Minister’s comments might unfortunately lead those uninformed on defence force disciplinary law to believe.
It is surely constitutionally inappropriate (at least) for the Minister for Defence to be perceived as interfering in defence force disciplinary proceedings. Particularly when they were minor matters involving the lowest jurisdiction of such proceedings and when a Minister could not possibly know, or be expected to know, all the circumstances, facts and ramifications involved. Or indeed all the leadership, associated welfare and development issues involving the person charged.
Finally, despite the current sensationalist and invalid media clamour, the filming without consent incident at ADFA (involving cadets who have only been there some ten weeks) does not prove or even indicate a systemic cultural problem in the defence force about gender matters. Just as occasional similar incidents at other Australian tertiary institutions do not necessarily indicate systemic issues in such institutions either. The real issues here about sexual norms and social media are surely more general ones in the wider Australian society from which our defence force is necessarily recruited and which it generally reflects. Particularly among the younger age cohorts that the ADF employs disproportionately in comparison to most other professions and industries.
The biggest lesson in this case is that the whole matter could have been resolved in much more detail, much swifter and in a much more effective manner for everyone concerned if the Commandant of ADFA had been allowed to explain the facts from the beginning. Including when Channel 10 were first approached by the female cadet with claims about supposed ADF indifference to her situation that we now know were not correct. Instead the Commandant has been wrongly scape-goated by the media and some comments by Minister Smith have unfortunately not helped correct such disgraceful scape-goating.
Another lesson worth pursuing legitimately by the media is the quality of advice on defence force professional matters the Minister is receiving from his political staff.
Irresponsible use of social media by a small number of Australian soldiers in Afghanistan
Media and consequently public controversy about certain Facebook and YouTube postings by a very small number of Australian soldiers in Afghanistan needs to be put into perspective. Those seeking to excuse the soldiers' behaviour and those seeking to portray such behaviour as typical in our defence force are both guilty of adopting extreme opinions that ignore the facts and the context involved.
The ADA's executive director last visited Afghanistan in December 2011, including talking to diggers deployed well forward of Tarin Kowt, He was again impressed by the professionalism and maturity of our diggers. Most soldiers and officers of all ranks continue to talk to the ADA very willingly and freely (in confidence) because they trust the Association and know how often the ADA has to defend them in public from ignorant claims in the media or by uninformed or biased members of the public. They also know how much we stand up for them, when justified, in disputes with the chain of command, the Department of Defence bureaucracy and the Ministers responsible for defence matters.
The ADA has been the national public-interest watchdog for defence (and related) matters since 1975. After nearly four decades of observing or working with defence force personnel, however, the Association also understands that every sailor, soldier or airman/woman is not always perfect and that failures in professionalism, personal behaviour, leadership and/or training do sometimes occur. The ADA therefore remains an independent public-interest watchdog for the whole community, not some apologist group that can never see fault in our defence force collectively or its members individually.
It is worth noting that the ADA has received no feedback at all from ADF personnel in Afghanistan, or indeed elsewhere, disagreeing with our stance of criticising the soldiers concerned in this incident . We have instead received many emails and telephone calls from serving and former defence force members (including veterans of Vietnam, Iraq and Afghanistan) thanking us for once again being the “voice of reason” in this matter.
Somewhat bizarrely, but not unexpectedly, we have also received vituperative and invariably anonymous emails from the usual cranks accusing us of being apologists for ADF misbehaviour. These cranks try to criticise the ADA because our remarks are perceived as not critical enough, or because the cranks believe that everything about Australia's lawful and balanced participation in the UN-endorsed international effort to rebuild Afghanistan war is always somehow illegal or immoral.
The context of this latest incident where social media has been misused essentially involves six aspects:
·
Australian sailors,
soldiers and airmen/women have always used black humour to help cope with
adversity and this is both understandable and legitimate; ·
sometimes such
humour might appear to be in bad taste to some civilians who do not
appreciate the context or circumstances; ·
defence force
personnel fighting wars are under types of stress that civilians largely
cannot understand; ·
to an extent,
soldiers in particular have always tended to dehumanise their enemy,
including with nicknames (Ities, Japs, Nips,
Jerries, Krauts, Charlie, Skinnies, etc) but this
is not racism; ·
successful combat,
especially in counter-insurgency wars, largely depends on the teamwork of small
groups, but in networks of such groups where you cannot possibly know
everyone else but still need to be able to depend on them; and · every soldier must be able to depend on the professionalism and commonsense of his mates.
In fighting a counter-insurgency war one of the last things that needs to happen is where some unprofessional idiot is so lacking in commonsense that he or she needlessly provides propaganda to the enemy by posting undoubtedly racist and ignorant remarks on Facebook or YouTube . Particularly when such an enemy is continually claiming that our soldiers (and indeed our citizens generally) are infidels who can be killed without compunction because we are somehow lesser humans. The last thing needed is to sink to the enemy’s level or give them evidentiary-standard ammunition of our supposed attitudes which the Islamist enemy can then twist, exaggerate or otherwise misuse worldwide and use to reinforce support at home.
Members of the Special Operations Task Group (SOTG) and Mentoring Task Force (MTF) in particular also have to work in the field with Afghan soldiers and police on a daily basis. This naturally requires trust, teamwork and the development of mutual respect, both professionally and culturally. Our diggers also have to win the trust of the Afghan people they necessarily work (and fight) amongst and are there to help protect. Even if, for argument’s sake you disagree with this, we still need to win the co-operation of most Afghans to better protect our troops from attack from other Afghans. This is why the comments and clips posted on Facebook and YouTube are so particularly stupid professionally even if you believe that such ignorant, juvenile, cowardly, racist tripe can somehow be otherwise excused.
This is also why posting such offensive material on social media has long been a disciplinary offence and every digger is specifically warned about this during pre-deployment training. It is also why every digger receives comprehensive cross-cultural awareness training about operating in Afghanistan during their pre-deployment training. None of those involved can claim they did not know the implications of their foolish actions.
Although the recent postings were by a tiny minority of soldiers, they do show, to differing degrees, definite personal and professional failures by those soldiers. They also probably indicate failures in leadership by those commanding them, especially at section and platoon level.
Fighting wars remains a tough business. In this particular incident, the soldiers concerned have badly let their mates down by their lack of commonsense and professionalism. They have also let down Australia, the Army, the Afghans they work with, the Afghans they are there to help protect, and the overall UN-endorsed war effort. The comments and film clips posted go well beyond black humour in adversity and well beyond what could legitimately be justified as a result of stress.
Given their published comments and beliefs in social media, they are not fit to be soldiers in the Army because their stupid behaviour has added to the dangers their mates face. And the dangers their replacements face over the long run.
Finally there is the point admirably made by General Peter Cosgrove (Retd). Our diggers have done a lot of good in Afghanistan (and elsewhere). It should not be undermined on the ground and in the public mind back here in Australia and around the world by the stupid actions of a small minority of unprofessional idiots.
Clashing perspectives: Why the ADF is perpetually forced to operate equipment well past its use-by date
Recent controversy about the poor state of the Navy’s amphibious fleet has again demonstrated three great truths about much public debate in Australia on defence issues. ·
First, public understanding is often limited and
more influenced by World War II films and popular mythology than up-to-date
knowledge about our defence force and indeed the requirements of modern war.
Hence the widespread but incorrect assumption that current
problems with Navy amphibious ships must automatically and only be the
Navy’s fault. ·
Second, most media coverage of why our amphibious
ships are worn out has been superficial, very short-term in its analysis of
causes and often factually incorrect and/or sensationalist. Consequently it
has been quite inaccurate, especially in analysing varied causes and
apportioning blame. · Third, those most responsible culturally, institutionally or personally for the neglect of this and other defence capabilities have largely escaped censure.
The short-term culprit To supposedly save money, in 2003 the maintenance of the Navy’s ships was largely centralised in the Defence Materiel Organisation. Navy Support Command was disbanded.
Not one recent TV program, radio news grab or talkback radio rant about the Navy or the defence force has reported this. It would seem no newspaper article has registered the importance of this fact either.
Similarly, few media stories have noted that the Navy has ably continued to meet all the tasks levied on it by government despite its 40-year old amphibious ships being worn out. Or that unlike Darwin after Cyclone Tracey, northern Queensland was always more likely to be assisted by road and rail links after Cyclone Yasi.
Even worse, virtually no media coverage has bothered to examine the root cause issue of why our Navy has to operate 40-year old ships in the first place. Or why most other first-world Navies scrap their amphibious ships around the 25-year mark (largely because they rust on both sides of the hull more than other ships).
Instead, to grab a headline or a rating, seek a scalp, save time in reporting, push a partisan line or even satisfy some conscious or subliminal anti-defence force bias, the media has mostly concentrated on ignorantly blaming the Navy organisationally and its Chief individually.
And our politicians, from all parties, have gladly let them so as to divert attention from their own culpability.
Moreover, no media and thus public blame has been appropriately apportioned to the organisational management gurus, Defence and Finance bureaucrats, armchair theorists and expedience-driven politicians from all parties who have forced unsuitable matrix management methods on the support structures of our defence force. Beginning in the late 1980s and particularly since the thoroughly mis-named Defence Efficiency Review in 1997.
The result, as the unfairly blamed Chief of Navy is currently experiencing, is that in both the public view of general accountability, and in budgetary structures, he retains the responsibility for operational outputs, but has clearly insufficient control over the financial, administrative, engineering and logistic inputs needed to meet them efficiently in both operational and financial terms. Even then, like all the Service Chiefs, he is constantly hectored in the current, so-called, Defence Reform Program to make further financial savings even at the real cost of diminishing defence force capabilities and incurring greater long-term financial costs.
The long-term culprit The real bottom line here is not, however, a financial one.
The operational efficiency of a defence force at deterring and winning wars, and its financial efficiency, are often necessarily quite separate requirements conceptually and practically. Particularly if a short-term approach to cost-saving holds sway rather than one focused on efficient long-term investment.
As in 1994, when the Keating Government (in which the current Treasurer and Minister for Defence were prime-ministerial advisers) chose to procure second-hand, partly unsuitable, amphibious ships built in 1970 rather than invest in new, purpose-designed ones suited to Australian operational requirements and regional sea conditions.
If Australia had obtained new amphibious ships in 1994 instead ― or even better bought new ones around 2000 when we finished rebuilding and refurbishing the second-hand ones ― those new vessels would now be under halfway through their 30-year lifecycle. It would also have been cheaper over the long run to buy and maintain new and suitable ships than to adapt and maintain very old and still not entirely suitable ships long past their effective use-by date.
Yet when ADF professional advice explains such concepts, then and now, it often meets an ignorant clamour that the defence force somehow “gold-plates” operational requirements. The bitter irony is that the clamourers are almost invariably never those called on to risk their lives in harsh environments, tempest at sea or combat operating the sub-optimal ships, vehicles and aircraft the clamourers advocate instead.
In terms of clashing perspectives in planning and investment, the 10-15 year defence capability development cycle and the 20-30 year lifecycle of major weapons platforms and equipment continually confronts the annual budgetary cycle and the 3-year federal electoral cycle. Consequently defence requirements continually clash with the much shorter attention span of the public, the media and particularly our politicians. The latter ever prone to buying votes by diverting needed defence investment elsewhere for short-term electoral gain.
Perhaps if the journalists covering defence issues were qualified and experienced specialists, as they tend to be for business, economic, health and science journalism, the true state of our bureaucratically and financially beleaguered defence force might be better understood by Australian taxpayers.
Report of the HMAS Success Commission of Inquiry
Having been appointed to conduct an independent inquiry by the Chief of the Defence Force, the Honourable Roger Gyles, AO, QC has presented an excellent report into allegations of unacceptable sexual behaviour and indiscipline aboard HMAS Success. There is no doubt a toxic subculture of unacceptable sexual attitudes and behaviour was allowed to flourish among parts of the marine technical department of this particular ship for nearly a decade.
Mr Gyles is undoubtedly correct in his finding that this occurred because of a serious failure of leadership at all levels on the ship, but especially by the officers of the ship’s technical department and the senior sailors of the propulsion sub-department. There is certainly no whitewashing of this fact in the report.
He carefully notes, however, that this toxic subculture flourished because the personnel involved ― particularly the senior sailors of the propulsion sub-department ― had spent so much of their afloat career aboard Success because of the specialised nature of its propulsion systems (as an orphan platform). In effect, most of them had not served much, if at all, on other ships. This was unhealthy in terms of their career and individual professional development, and indeed in their personal social development as well-rounded adults. This point about the subculture being confined to one sub-department on one ship is the key finding in terms of the wider Navy, but one missing in some of the more superficial media coverage of the Gyles Report.
Two points are particularly worth noting here.
·
First, Success (a Durance class
underway-replenishment ship or AOR) is an orphan platform in the fleet. Built
in Australia to a French Navy design it entered service in 1986. The original
plan was to build two AORs but the high cost and delays of building the ship
in Australia (essentially a pork-barrelling decision by the Hawke Government
to bolster local shipbuilding) meant the second AOR was cancelled. As an
aside, this government decision also led indirectly to the Westralia tragedy in 1998 because, on cost
grounds, this second-hand, less capable oiler was leased instead in 1989 and
bought in 1994. The rise of the toxic subculture aboard the propulsion
sub-department on Success is therefore yet another disadvantage of the
orphan platform problem that has continually bedevilled
the Navy with such types of ship. · Second, the toxic subculture aboard one department on Success does not appear to be representative of the fleet as a whole or the Navy as a whole (or even, thankfully, Success as a whole although it did cause some wider problems on the ship). This important fact appears to have been lost in the more sensationalist or simplistic media coverage of the Gyles Report.
A key finding by Mr Gyles is that nearly all the unacceptable behaviour occurred off the ship, during port visits in Australia and overseas, when the personnel concerned were off duty and generally customers in commercial establishments. This is no excuse, at least morally, because the personnel concerned were still representing Australia overseas as members of our Navy. Their misbehaviour overseas, especially in China, also had operational security implications because it risked them being blackmailed or otherwise comprised by a foreign intelligence service. Furthermore, as a matter of both principle and naval professionalism in practice, it is very disappointing that much of this misbehavior, including criminal damage, public drunkenness, threats of violence, physical confrontations and acts of considerable bad taste in public, was led and/or encouraged by senior sailors. Such senior non-commissioned officers are obviously expected to set an example and to stamp out misbehavior, not publicly encourage and actively condone it and then unprofessionally cover it up.
Mr Gyles has noted, however, that there are obvious limitations to what can be done practically to stop young Australians binge drinking, and misbehaving as a result, when not on duty. Members of our defence force are recruited from Australian society and, no matter how disappointing at times like this, can often reflect some of the more embarrassing or less savoury attitudes of that wider society.
Based on the Gyles findings, there would appear to be obvious grounds for a police investigation by the ADF Investigative Service to determine if breaches of the Defence Force Discipline Act have occurred (which, on the face of it, has happened). We disagree with Mr Gyles about taking administrative action to dismiss personnel involved from the Navy under the administrative law provision that their retention is not in the best interests of the Service. This should only happen if no prosecutions under the DFDA are possible. It should not otherwise be resorted to in lieu of disciplinary action, not least because the onus of proof is reversed under administrative law and this is wrong in principle even if the personnel concerned are considered guilty or are guilty.
With this proviso, the ADA supports all of the report’s reasoning, findings and recommendations.
Finally, the holistic new-generation navy (NGN) initiative introduced by the current Chief of Navy as a five-year plan to change the Navy’s institutional culture and personnel management processes must be further strengthened. The current Chief of Navy has done much to reform the Navy’s approach to personnel management, materiel procurement and maintenance, and operational availability. The problems aboard HMAS Success long precede Admiral Crane’s command of the Navy and it would be both unfair and a serious mistake of fact to hold him responsible. It would also be an injustice ― as has been much of the public scapegoating of Admiral Crane for the current state of the Navy's amphibious fleet (see comment below) ― because he has worked so hard to prevent and fix such problems.
The ADA believes there are solid grounds, in fact, to extend Admiral Crane’s command of the Navy (his three-year contract is up in early July) to enable him to continue his modernisation of that Service. The Minister for Defence should seriously consider this action as a mark of his confidence in, and appreciation of, Admiral Crane’s leadership.
Why is the ADF's amphibious fleet worn out?
Both sides of politics are being less than correct historically when trying to attribute blame for sudden and burgeoning deficiencies in defence force amphibious vessel capabilities.
Such capabilities are important, not least because Australia remains a heavily seaborne-trade dependent, island continent, surrounded on two sides by archipelagoes and with vast oceans in every direction. We are a country also responsible strategically and/or legally for ten per cent of the Earth’s surface (most of it ocean). The seas around Australia, and especially the sea-lanes crossing them, are dotted with islands. These sea lanes carry some 99.9 per cent of Australia's trade by volume and 75.4 per cent by value.
Our whole standard of living and way of life depends on freedom of navigation over secure sea-lanes. Securing them by a rules-based international system, and in conjunction with allies, has been Australia’s enduring and greatest strategic challenge since the early 19th Century. It underlies all the key aspects of our foreign, trade and defence policies.
Both sea denial and sea control operations and contingencies in such a geo-strategic setting mean that the Australian Defence Force (ADF) needs extensive and integrated joint-force amphibious manouvre (but not necessarily amphibious assault) capabilities. Amphibiosity is also not just a naval function as certain armchair strategists or some single-Service zealots are wont to claim. Amphibious vessels of varying size and role are a key part in such capabilities but they are not the only component. Supporting warships, logistic-support vessels, reconnaissance, strike and transport aircraft, and amphibiously-equipped troops from across the defence force must all be integrated with amphibious vessels in order to sustain a true amphibious capability.
The current situation with the poor state of the ADF's amphibious fleet has both short and long-term causes. Virtually all current political and media discussion has concentrated on the former and ignored the latter. Both types of cause need to be discussed, together, as no long-term future solution can be found without understanding and addressing the longer-term past causes.
The situation we face now is primarily driven, in terms of the short term causes, by the Navy retaining the responsibility to operate its ships but now having insufficient control over their maintenance by the Defence Materiel Organisation (DMO). This is compounded by the 30 per cent downsizing of the Navy over the last 20 years and the loss of integral marine engineering expertise as governments have contracted out most maintenance functions to save money in the short term ― often at the capability price of lesser strategic effectiveness, lower operational efficiency, less domestic industrial and engineering capacity nationally and greater long-term financial cost to the taxpayer.
But even more important are the five long-term and root causes to the current problem; all seemingly ignored in most political rhetoric in recent weeks and indeed missed by most media reporting.
First, long-term and sustained under-investment in defence capabilities by governments of both political persuasions since World War II has meant precious lessons from the Pacific campaign about Australia needing extensive amphibious capabilities were mostly lost for over four decades. Sparse investment in defence went to perceived higher priorities.
Second, both sides of politics have some ideological hang-ups about providing the ADF with strategic and operational-level mobility. Some on the left, for example, have long believed that the way to avoid "foreign entanglements" is to prevent the defence force having the ability to operate outside coastal waters. Primarily for reasons of cost, some on the right have long resisted Australia accepting regional responsibilities for strategic stability, especially in the South Pacific. Both fixations ignore historical lessons learned the hard way in the 1940s and again since various regional crises starting with the 1987 coup in Fiji. Both attitudes have conspired, however unconsciously or not, to limit Australia's capabilities to respond swiftly and comprehensively to crises in even our immediate region, no matter whether such responses were for one or a combination of strategic, military or humanitarian purposes.
Third, amphibiosity became a cultural and organisational orphan in our defence force because political horizons, and departmental bureaucratic and funding arrangements, from the 1940s to the 1990s savagely discriminated against joint (tri-Service) capabilities in favour of exclusively single-Service ones.
Fourth, has been a cultural problem in the Navy (and to some extent the other two Services), which for too long regarded amphibiosity as a third-level, or even irrelevant, professional qualification and operational skill. Even now the Navy’s elite Principal Warfare Officers (PWOs) cannot specialise in amphibious warfare as a core skill and be badged accordingly until 2013.
Finally, and most importantly in terms of the scale, longevity and persistence of the root causes, once again governments are primarily at fault because of their short-term thinking. The investment needed in defence capabilities is often diverted to vote-buying elsewhere. It is therefore governments, not the scape-goated Navy, who are chiefly responsible for the Navy having to operate very old and/or inadequate ships.
HMAS Tobruk, which at 3300 tonnes displacement (5700 tonnes fully loaded) has been too small from the start, was commissioned in 1981. Its inability to carry, operate and refuel more than two helicopters has been a growing problem. The six heavy landing craft (really large coastal barges in civilian terms) at 310 tonnes each were built between 1967 and 1974.
HMA Ships Kanimbla and Manoora are 8450 tonnes displacement but subsequent experiences, including Aceh, Nias, Fiji, etc, have proved they are far too small, especially in their capacity to carry enough and balanced land forces, and in their ability to safely and effectively carry, operate and refuel sufficient numbers and types of helicopter. Built in 1970, they were bought second-hand from the US in 1994 when the then government sought to save money in the short term. They required extensive refurbishing and rebuilding (much more than originally thought) and were not in operational service until after the late 1999 East Timor crisis, where they would have been invaluable.
Note the 29-44 year age range of all these vessels. In some cases they are even older than the parents of most of their crews. Most should have been replaced around the 25-year mark but were not because governments refused to make the necessary investments in defence capability infrastructure.
As with many naval vessels, it has cost more over the life-cycle of all our amphibious vessels to buy, maintain and upgrade second-hand, old or inadequate vessels and keep them in service than it would have cost to procure and maintain adequate new ships and regularly replace them in the first place. The ADF has been forced by government parsimony to have kept the LCHs, Tobruk, Kanimbla and Manoora in service far longer than comparable allied navies do so it is no mystery why they are now worn out.
Moreover, if the Whitlam, Fraser, Hawke, Keating and early Howard governments had invested in sufficient, bigger, and new ships matched to regional maritime conditions, strategic requirements and operational needs, in the period since 1987 we would have handled regional contingencies in Fiji, Vanuatu, Bougainville, PNG, Solomon Islands, East Timor, Aceh and Nias much easier.
In hull size, cost and construction terms, steel is cheap and air is free. Due to automation and new propulsion technologies, modern ships of adequate size can now be run by much smaller crews than in the past (although there is a limit to the potential for crew downsizing in a warship, compared to a merchant ship, because of operational considerations, including having enough pairs of hands for battle damage repair requirements). This is why the greatly increased capability of the modern Canberra class amphibious ships coming into service in the mid 20-teens will revolutionise how the ADF can work and should think in deterrence, stability, peacekeeping, disaster relief, warfighting, and diplomatic and sovereignty support operations generally.
Ironically, the two new Canberra class Landing Ships-Helicopter-Dock (LHDs) at 27,800 tonnes displacement now being procured have been erroneously criticised in some quarters as somehow being too big, although such mistaken comments have chiefly come from academic and media armchair strategists with no actual experience of the sea or military operations. Similar amateurish or ideological analysis underlies incorrect claims that the LHDs are somehow amphibious "assault" ships (they are designed for manouvre not assault and the ADF lacks the other capabilities needed for such assaults anyway), or that they are somehow "aircraft carriers" (they are not intended to and cannot operate fixed-wing aircraft), or that they are "aircraft-carrier sized" (which they are not in the modern sense, and such a size is strategically and operationally irrelevant anyway unless you are bent on misrepresenting their role and potential).
Finally, another sad and dangerous irony is the blame-the-victim nature of much current political and media comment. The RAN and the ADF overall are actually, once again, chiefly the victims not the perpetrators of this situation. Governments need to take a long-term view of defence investment and save money over such terms by procuring new and adequate platforms and equipment in the first place, instead of too often opting for party-political expediency in their budgetary decisions.
It is governments that too often force the ADF to pursue supposed cheaper options (even when they are more expensive over the long term) and make do with inadequate, aging or obsolescent kit long past its effective use-by date. It is also governments that blame the ADF for bloc-obsolescence problems that have been caused by previous governments, usually from decades before to the present day.
It is also governments and their partisan groupies in academia, the media and the bureaucracy who tend to then accuse the ADF of supposedly "gold-plating" capability requirements when the defence force recommends buying adequate and modern platforms and equipment in the first place (and which will generally be cheaper overall over the long term than the "short-term fixes" too often so attractive to politicians).
Unnecessary public confusion caused by poor media coverage of the charges against three commandos over the February 2009 incident (updated 17 October 2010) Discussing frontline combat in Afghanistan (updated 10 October 2010) Charges against ADF personnel relating to the February 2009 incident in Afghanistan (updated 10 October 2010) Flaws in the proposed Military Court of Australia (updated 02 October 2010) Flawed aspects of ministerial reshuffle in the defence portfolio (Saturday, 11 September 2010) (updated 15 September 2010) February 2009 incident in Afghanistan: An undoubted tragedy but let the self-correcting system work (updated 29 September 2010) Yet more diversion of Greg Combet's capacity for ministerial supervision Domestic manufacture of Australian Defence Force combat uniforms remains essential
Links to previous year's comment: 2009, 2008, 2007, 2006, 2005, 2004
Unnecessary public confusion caused by poor media
coverage of the charges
Please begin by noting our two comprehensive comments on the background to the February 2009 incident below.
It is frankly nothing short of appalling that inaccurate and often sensationalist media coverage of the February 2009 incident in Afghanistan is causing so much public confusion and even ill-informed political comment. Even many war veterans, who were assumed to have a better understanding of the laws and accountabilities involved, seem confused. Much media reporting and especially commentary is grossly misleading about the legal and operational contexts, and nature of the charges, and indeed concerning the most basic facts about the incident they stem from.
The ADA has been advising all its military and civilian members not to sign either of the two petitions against the charges being circulated on the World-Wide-Web. Based on erroneous media reporting and perhaps on ill-informed partisan comment, both petitions at best are based on assumptions that are either not true or that need to be tested in court to find out if they are true. Both petitions also seriously misunderstand and misquote the law applying and indeed the history of the ADF in previous wars.
Even more importantly, the poor media coverage, and especially the confused and inflammatory nature of the petitions, will not actually help the three personnel facing charges. Indeed, they risk making their trial a political and emotional travesty, rather than the fair and objective court martial they need to clear their names once and for all.
Noting all that is involved, any bottom line analysis of the whole issue surely needs to include consideration of the following: · The February 2009 incident was a battlefield accident committed by ADF personnel, but that it was an accident is undisputed by everyone (except Taliban propaganda and even they probably do not believe it). · No “war crime” or “atrocity” or "massacre" was involved. Those using such terms to describe it, in any context, are wrong in fact, law, general decency, appropriate citizenship values and specific respect for the soldiers concerned. · The law applying to the conduct of the soldiers involved in this incident is essentially no different to that which has applied to every Australian digger in all our previous wars back to and including World War I (chiefly the Hague and Geneva Conventions). It is surprising that so many Australians, including some war veterans, seem unaware of this. · The ADF is not the SS or the Japanese in World War II and no Australian soldier has ever been allowed to apply unlimited force in battle. That is why the ADF uses rules-of-engagement and orders-for-opening-fire. · It is also why our diggers, and those who command them and those politicians who send them to war, must always remain accountable for their actions. · Just as importantly, it is also why we are different to the Taliban and its Islamist allies now, just as we were to the Nazis, Japanese militarists, Chinese, North Korean and North Vietnamese communists, and Baathist Iraqis, etc., in our previous wars. · The charges were only preferred after three separate investigations, one operational (by an infantry colonel) and two by military police, into the accident – and after the Director of Military Prosecutions (DMP) had requested and received formal advice from the CDF and the Service Chiefs (as the Defence Force Discipline Act requires) about the implications of charges. · The charges did not somehow result from some whim by the DMP. Nor because of supposed deficiencies some are claiming in her being a female, a lawyer, a former reservist (at one stage) or an officer who has seen no combat personally (although it should be noted some of her staff are combat veterans). · The 2005 reform that created the DMP and made the institution independent of the ADF chain of command and political direction was a much needed reform to improve fairness for defence force personnel facing disciplinary or criminal charges. The DMP functions (as it should) just like the independent civilian Directors of Public Prosecutions in each state and federally. · Recent vituperative personal criticism of the DMP has been disgraceful, and often cowardly as well as ignorant. Such critics ought to be ashamed of themselves. · Such inflammatory and uninformed criticism also risks prejudicing the fair trial the charged diggers need and deserve. It certainly risks prejudicing public opinion against them. · It might be valid to criticise the threshold of proof the DMP has used to decide on charges but this is best sorted out in court. It eventually may require amendment of the statute requiring her to act – but she is governed by the existing law. · No soldier is being charged with manslaughter for killing an enemy in combat during this incident (as many wrongly believe). · No soldier is facing “war crimes” or “atrocity” charges over this incident (as many carelessly, callously and wrongly allege). · Many of the facts involved in how this battlefield accident occurred are simply not known, or not confirmed, and need to be established or tested in court. · This includes confirming whether the Afghan man shooting at our diggers was a member of the Taliban or not - and what might have caused any briefings, etc, given to our troops that seem to have led them to believe he was. · We believe that the one digger charged with manslaughter (of the four children and the youth) is likely to be acquitted of this charge once the facts are tested in court. At the very least, such facts are likely to be of such a mitigating nature that any punishment would be minimal if he was found guilty. · We also firmly believe that the diggers involved are better off clearing their names in court. Otherwise, just like with regular allegations from the Vietnam War, unprofessional journalists are likely to run sensationalist, fact-free, context-free “atrocity” stories every few years for ever. · Those charged will fortunately get a far fairer trial by court martial than they would in the proposed new Military Court of Australia (MCA) being foisted on the ADF by out-of-touch politicians and civilian lawyers (and largely ignored by the very same media who purport to be “outraged” by the charges). · This is because a court martial will mean decisions on guilt and innocence, and on any aggravating or mitigating factors, will not be made by a civilian judge sitting alone with no jury. Instead they will be made, appropriately, by professional peers of those charged – a court martial board of fellow defence force members who understand the operational complexities and moral nuances of military service and war. · The particular circumstances of this battlefield accident, even the ones known now, are so specific to the planning, command and conduct of this particular commando raid that their application to wider combat is probably minimal to nil. · This is why such charges are so rare, even among comparable and accountable allies with similar constitutional and military legal systems such as the UK, Canada, NZ and the US. · Our diggers in Afghanistan understand all this (after some initial concern). It has not been grasped sufficiently by many ADF personnel back here in Australia. Nor it seems by many veterans of previous wars, who are not up on the facts and have forgotten the law applying (even though it applied to them). · The Vietnam War examples that have been cited in the media as the same or similar to this particular battlefield accident in Afghanistan are in fact different in circumstances, nature and in law. · Allegations that the charges stem from rivalries between the regular Army and the Army Reserve, or between the mainstream Army and the Special Forces, or between the regular Special Forces and the reservist 1st Commando Regiment, are largely all incorrect and irrelevant. · Beliefs that the charges were the result of pressure from the International Criminal Court, or due to fear of that court, also appear thoroughly unfounded. This is discussed further below. · Beliefs that the charges stem from the current crop of Service Chiefs not being combat veterans are also incorrect and irrelevant – and this will be shown when the facts come out in court (including their submission on the implications of the charges to the ADF). Discussing frontline combat in Afghanistan
Background
A recent prolonged firefight over three hours by Australian troops on 24 August 2010 once again indicates considerable confusion about ADF operations in Afghanistan's Oruzgan Province. This confusion has several causes and effects, and at several levels, among the public, the media, our politicians and the profession of arms.
In assessing this action, and to clarify real and perceived shortcomings in ADF tasking and methods involved, the Australian people really need to hear from the commander of the sub-unit concerned and his task force commander. Only then can we really know what did or did not happen, and why.
Moreover, professional discussions about the firefight back here in Australia ― based on the insufficient and somewhat contradictory information available thus far ― mainly depend on what you consider is the operational mission of our force in Oruzgan (and its relationship to the strategic objectives of our allies in the International Security Assistance Force). If you think our mission should be, or is, to secure the province and destroy the Taliban operating there, then you are likely to be critical of the force levels the ADF has been allowed to deploy to Afghanistan and critical of the apparently unnecessary tactical risks taken on 24 August. If you think the ADF mission should be, or is, just to train the Afghan 4th Brigade until they can take over responsibility for the province alone, then you are likely to have a more sanguine approach to the operational risks posed in general and on the 24 August in particular. This said, the task of our Mentoring Task Force in Oruzgan is a particularly challenging and dangerous one. In order to assess whether force levels are sufficient to the task, much more clarification of the mission, and the rationale underlying it, seems needed to restore public confidence.
Some of the differing professional views in Australia about the 24 August action also appear to be due to differing assumptions about whether it was an action by a fighting patrol (which it was due to the limited forces involved), an advance-to-contact (which it was not for the same reason) or a patrol clash (which it was not in the conventional sense of the Taliban not patrolling), and whether this matters. Some differences between the combined US-Australian effort in Oruzgan now, and the predominantly all-Australian effort in Phuoc Tuy Province for much of the Vietnam War, have led to further differing assumptions and perceptions among some Vietnam veterans when discussing the matter. As have discussions among veterans and military professionals generally about the real and perceived operational risks of having to rely on Coalition partners, especially for artillery and air support, no matter who or how reliable that partner country may be.
Wider community confusion results from the generally poor standard of media coverage of defence issues, the way the emails at the heart of the matter were reported publicly in often incorrect and sensationalist terms, the general lack of military experience across Australian society, simple misunderstandings about military terminology (artillery or mortars "in support" means they were available to fire, not necessarily that they fired), and by the rather inept way the ADF tried to clarify the situation afterwards. Every sloppy media description of the action as a "gunfight" or an "ambush", for example, no doubt led to much teeth grinding exasperation by those who know that soldiers are neither cowboys nor gangsters and that the Australians were not ambushed. Moreover, this type of tactical-level combat often involves confusing and confused situations and understandings even for those present. It is much more difficult for those not there to understand, especially for those without military experience trying to grasp what happened afterwards without a reliable frame of professional reference.
Professional military historians are well aware of all these factors when later trying to reconstruct campaigns and battles from one or both sides ― often from contradictory eyewitness accounts and incomplete, otherwise-focused or contradictory contemporary documents.
ADA involvement
In terms of the ADA's involvement, the facts and chronology are as follows. Following the 24 August firefight, over the next few days, a soldier engaged in that action had an exchange of emails with a family friend in Australia. This friend is a retired regular Army artillery officer and a veteran of the Vietnam War (where he served as a Forward Observer). The emails were much more valuable in terms of the information and insight they provide because it was a two-way exchange and because the soldier was asked intelligent questions from an interlocutor who understood combat, military operational doctrine and battlefield tactics through considerable personal experience. This level of combat experience and military knowledge, and the consequent level of discussion, stands in stark contrast to much of the media reporting and commentary when excerpts of the emails were subsequently published in the media.
On 27 August 2010, after seeking and receiving the usual assurances about confidentiality (to protect the soldier concerned), the veteran passed the email exchange on to the Australia Defence Association. He did so because he and the soldier's family respect the ADA's role as the national public-interest watchdog for defence issues and knew the ADA would try to help resolve the issues raised responsibly.
It should be noted that subsequent reported claims in late September that the News Limited reporter, Ian McPhedran, received the email directly could not be correct.
The ADA often receives feedback from defence force and other personnel deployed on operations or returned from such operations. This feedback comes from all ranks. The ADA also undertakes frequent consultations with members of all ranks (and other experts across Australia and the region) in order to obtain the fullest possible picture of how things are going and how the ADA can help rectify or forestall problems. This is entirely consistent with our role as an independent public-interest guardian organisation. For decades soldiers of all ranks have trusted and respected the ADA for its efforts and we value their trust.
As with previous feedback, the account of the 24 August action provided in the emails was necessarily incomplete because no one participant in such an action can be aware of all that occurred or did not occur ― and why. The perspective, and indeed the direct experience, of every soldier in a combat action can be different depending on where they were physically on the ground relative to the others involved, the effects of terrain and other cover of the area concerned, the effects on them of enemy fire and noise generally, what their particular command or specialist responsibilities were, what ability they had to communicate with the others involved, and what opportunities there were for post-operation debriefs and informal discussions (including their extent). The emails in question had also been written in the heat of the moment, after losing a mate killed in action, and probably before some confirmatory and background detail was available to the author.
This noted, much of the material contained in the emails obviously needed pursuing to either clarify the detail or rectify perceived deficiencies and (on the face of it) apparent anomalies in how battles are or should be fought. These included the clarity and operational basis of the mission of this particular fighting patrol, the combat force groupings involved, the provision of direct and indirect fire support, and the quality of the intelligence support the operation was based on. Some concerns about whether the application of greater force might have destroyed even more of the enemy also seemed to require clarification. It is probable that only the tactical sub-unit commander on the ground (and perhaps his unit and task force commanders) could really be expected to know the answer to this question ― and indeed whether such greater force (in manouvre and/or firepower) was even available or could have been used tactically in the situation applying. In the final analysis these are command decisions taken at the time and without the benefit of 20/20 hindsight in later armchair reflections. This is why our military forces have and need commanders and why we must rely on their professional judgement.
Allowing for these limitations and reservations, the ADA initiated immediate steps to obtain or confirm basic information in order to take the matter further. Care needed to be taken because some information in the emails, if publicised out of context, precipipantly or sensationally, risked affecting the teamwork, morale and operational task of the force elements involved. The action also occurred during the post-election caretaker period. There was therefore an even greater than normal risk of inaccurate and sensationalist media coverage and/or party-political controversy. The ADA was also concerned that any professional debate within the ADF over the incident produce a positive result for all involved rather than the opposite. The same concerns applied, to a somewhat lesser extent, to the risk of uninformed public debate generally. The lesser degree of concern was because eventual public debate could not be avoided and would generally be led by media descriptions anyway, at least initially, until clearer professional explanations emerged from participants.
Again, as is standard procedure with the ADA, the exchange of emails was converted to a document that does not allow the author or his interlocutor to be identified. No substantive detail was changed or edited out in this process. In a one-on-one meeting with the CDF soon afterwards the ADA's executive director sought and received an assurance that the author of the emails would not be subject to disciplinary action or informal disadvantage, and that no "witch hunt" to identify him would be mounted. The ADA then passed on their redacted version of the email exchange. Discussions over the following three weeks, and ADA consultations elsewhere, indicated clearly that no clear picture of the 24 August action seemed to be available.
Subsequent actions and developments
The CDF subsequently convened a media roundtable to discuss the issues raised in the email exchange against the background of ADF operations in Afghanistan in general . The ADA's advice (from both ADF sources and the more informed journalists) is that the journalists attending were generally satisfied with the discussion.
It should be noted that in his much later reporting based on leaked excerpts from a transcript of the original email exchange (apparently obtained through a Vietnam veteran who is now in some trouble from his mates), Ian McPhedran of the News Limited tabloids allowed the soldier concerned to be easily identified by anyone with professional knowledge of military matters. Even allowing for the fact that McPhedran probably did not realise this because he lacks such knowledge of military operations, terminology and procedures, surely he could and should have checked with a knowledgeable person before publication. Furthermore, the day before publication, McPhedran was also advised by a retired senior officer he had rung about the email that, if he must publish, protecting the identity of the soldier must be the paramount consideration. This advice was reiterated in an SMS sent to him the day before publication. Moreover, if McPhedran was really across this issue as a reporter covering defence matters, he surely would and should have known about the redacted version being used by the ADA in its negotiations in order to protect the soldier's identity.
Ian McPhedran's action in pushing ahead with a version that identified the soldier is simply not understood. It also appears quite contrary to the journalism code of ethics and contrary to the claim by his employers that they always seek to protect the identity of whistleblowers. Soldiers of all ranks have raised this matter with the ADA and have described his action in scathing terms. At the very least, McPhedran's editors and other supervisors must surely take immediate and thorough steps to prevent a recurrence of such privacy protection and whistleblower protection breaches.
Lessons
Some broad and specific lessons from this incident seem clear. Before we can focus in on the operational risks to our troops in Afghanistan, and whether there are enough of them and whether they have sufficient support, we need to place their operational mission and the strategic objective it is designed to achieve in an overall framework of moral, national governance, strategic and operational considerations: · Australia is at war, not just our defence force. Public debate on the war, including media coverage, must be conducted responsibly no matter whether it is supportive or critical. · All wars are ultimately contests of will and end when one side gives up. Wars must therefore be fought with ideas and words as well as bullets. Vigorous, informed argument focused by responsible debate is needed to win wars just as much as soldiers are. Uninformed, lazy or subjective argument, on the other hand, undermines our national will and irresponsibly assists our enemy. · Ruthless, undemocratic enemies exploit the need for debate intrinsic to our democratic system of government. The globalisation of information via the world-wide-web helps even the Taliban and Al Qa'eda to subvert our national will directly and indirectly. Many contributors to public debate in Australia ignore this. · If Australian public opinion now seems against the war in Afghanistan, this would only be important if the majority of the adverse opinion became informed and objective. Uninformed or mindlessly defeatist opinion should be reversed, not feared or respected. · Australia should not be in any war we do not intend to win (or help win). If we do not intend to win we should not be there in the first place. We owe this to the soldiers we commit to fight our wars. · The lives and the health of our troops should not be risked to satisfy alliance maintenance objectives alone. Nor for inchoate policy settings that result in having to accept a risky operational status quo on the ground for our troops through ambiguous, unclear, or operationally illogical or unsustainable missions ― especially when such missions seem to be sustained more by policy or bureaucratic inertia rather than robust review. · Our war-fighting policy and strategic direction should be based on proper, regular, intelligence estimates and formal strategic and operational appreciations, not bureaucratic policy waffle, armchair strategic theorising or perceived damaging electoral considerations. Objective concern for the long-term national interest should drive such formal appreciations. · The Australian Government needs to clarify its strategic guidance for ADF operations in Afghanistan. Within the obvious constraints of security and diplomacy the government then needs to lead public debate with logical argument and facts, rather than let uninformed (and too often mindlessly defeatist) public opinion predominate. · The Australian Government must retract arbitrary caps on force levels driven by domestic political considerations (including a seemingly irrational fear of casualties). It must allow the size, composition and balance of the force in Afghanistan to match the mission set and the consequent operational tasks required. · No matter whether our mission is to secure the province or just train the Afghan 4th Brigade to do so, more troops-to-task now is more likely than not to lead to less casualties over the long run and to bringing our troops home sooner. Arbitrarily capping the size, composition and balance of our force in Afghanistan is both short-sighted and counter-productive. · The Australian Government should not, therefore, discourage military professional advice it may not want to hear for party-political or electoral reasons, or for fear of adverse public opinion. ADF commanders must also offer frank and fearless professional advice. They must not fail to do so because they consider the effort wasted due to a Government (of either political persuasion) being not willing to listen and not keen to ask for advice they do not want to hear. · We need to let our commanders command at all levels. We must not unduly restrict their professional judgement. While holding them to account, we must not second-guess them in public debate based on uninformed views, political prejudices or other biases. We also need to let commanders at all levels explain what they are doing. · We should return to the former (mid-1990s) policy whereby ADF commanders at unit and formation level and above are authorised to speak to the media directly to explain what their forces are doing and why. If they make a mistake when doing this, they (and their ministerial masters) should be prepared to wear the consequences. · Our theatre commander in Afghanistan (a major general) should be free to conduct his own public affairs activities. This is probably the best level to swiftly and effectively meld tactical, operational and strategic information of interest to the public (and the media). Trying to do so in Canberra does not seem to work and the ADF (and Ministers for Defence) should stop trying. · Within reason, properly qualified and accredited journalists should be forward deployed with our troops. Within reason, they should have day-to-day access to sub-unit commanders (down to infantry section level) to help explain what our troops are doing and why. If they betray operational security or have no reasonable respect for the safety, security and morale of our troops they should be refused all further access and sent home. Trust must be re-established and both the media and the Department of Defence must work at this. · Regular and informative media briefings should be conducted in Canberra by a suitably qualified, and not necessarily senior, ADF officer in order that journalists covering defence issues can appreciate the strategic and operational-level thinking underlying war-fighting and other operations. · The quality and general relevancy of press releases and other information promulgated by the Department of Defence should be improved. · The Department of Defence, and the Minister's office, must cease their grossly over-centralised and highly bureaucratised control over the release of public information. · Ministers in the Defence portfolio should cease issuing media releases on every ADF activity no matter how mundane or trivial. They should only issue media releases on important subjects of genuine national interest. · The Minister for Defence, the Department of Defence and the ADF should refuse any contact or co-operation with unprofessional journalists who commit security breaches, or who are prone to write inaccurate and/or sensationalist stories with no regard for the safety, security or well-being of our troops or the success of the mission set for them by the Australian Government. Charges against ADF personnel relating to the February 2009 incident in Afghanistan
Again, recent media and public commentary concerning charges being preferred against some ADF personnel for their alleged actions in Afghanistan in February 2009 has tended to miss the point ― and to misunderstand the complex legal background involved (discussed below). As the Australia Defence Association has long noted, this was always going to be a controversial case, not least because so few Australians now have the personal (or indeed even family) military experience to understand the operational, legal and moral principles and procedures involved.
Inaccurate, one-sided and in some cases sensationalist media coverage of the charges has not helped. Especially commentary advancing the notions that either the defence force personnel involved in the incident should and could not ever be charged because "things like this happen in every war", or conversely that they must be charged because "they committed a war crime", "crimes against humanity", an "atrocity" or a "massacre". Neither of these extreme opinions are factually or legally correct. Both also ignore what international and Australian law (and their moral basis) actually say and have always said in previous wars. Again it would be worthwhile for such commentators to read up on the legal background actually applying.
Several points about international humanitarian law (IHL), Australian law and the facts are worth noting in any discussion of this or similar incidents. Moreover, the subset of IHL known as the Laws of Armed Conflict (LOAC), primarily based on the Hague and Geneva Conventions, apply to this matter ― as they do in every war. Where LOAC might appear to clash with other provisions of IHL, then LOAC applies under the principle of lex specialis (the most relevant law applies). Contrary to popular belief, the use of force by soldiers in war has not and never can be totally unlimited. Every Australian soldier, in every war Australia has fought, has been constrained in their use of lethal force by the need to comply with LOAC.
First, all wars are morally, legally and operationally complex and the Afghanistan war also involves significant cultural, religious, social and political complexities. This is the inescapable and enduring nature of war.
Second, the enduring nature of war means that the conduct of military operations, and the protection of non-combatant civilians during war, are covered by IHL in some detail, particularly by the Hague and Geneva Conventions respectively. As in all Australia's wars, the ADF's actions in Afghanistan are rightly constrained by IHL, particularly LOAC based on such conventions and customary international law.
Third, no-one denies that Afghan civilians were killed by the ADF in this incident and that most and perhaps all these Afghans were non-combatants (as defined in the Fourth Geneva Convention).
Fourth, as discussed below, no cover-up was suggested by anyone and none occurred. The self-correcting mechanisms of the professional defence force of a country ruled by law have been followed. The original operational investigation of the incident recommended a further (police) investigation by the ADF Investigation Service (ADFIS) be conducted. The results of this ADFIS investigation were then passed to the statutorily independent Director of Military Prosecutions for consideration. She ordered a further ADFIS investigation before deciding to prefer charges. The suggestion in some quarters that the DMP has somehow acted improperly, or without detailed knowledge of the facts and circumstances of the incident, is simply not true. Similarly, the operational investigation and the two ADFIS investigations were undertaken by experienced and professional personnel with personal experience of war ― not by lawyers or people who do not know what they are talking about.
Fifth, on the publicly available evidence the deaths were clearly accidental (not necessarily illegal under IHL however tragic) rather than deliberate (which is generally but not always illegal under IHL). No one, except Taliban propaganda, has claimed otherwise.
Sixth, even where accidental killing during combat might be illegal under LOAC this does not constitute a "war crime" or a "crime against humanity". These terms are reserved for deliberate and serious offences against IHL such as genocide or ethnic cleansing. Some emotive and subjective critics of Australian participation in the UN-endorsed international force in Afghanistan too often forget, or deliberately omit, this important distinction in their polemical rhetoric.
Seventh, the soldiers involved are entitled to and must be given the presumption of innocence when facing any disciplinary or criminal charges. And to the nature and severity of those charges, and their trial, taking full recognisance of the difficult and dangerous conditions of applying military force in battle during complex counter-insurgency wars. In particular, the split-second decision-making required in combat must be taken into account when such incidents are later dissected in court or out of it.
Eighth it is better that such allegations or charges, and the facts actually involved, are aired, answered, tested and dealt with in court. As Australian history shows with previous wars, the alternative is that the individuals concerned, or the ADF collectively, would remain the subject of unproven allegations, untrue public memories, popular mythology or scurrilous media sensationalism for decades ― or indeed for ever. In the long run, all involved (including Australia's national reputation as a country ruled by law and a good international citizen) benefit from open investigatory processes and fair trials to answer allegations of LOAC breaches.
Ninth, the actions of ADF personnel in combat are also now subject to the jurisdiction of the International Criminal Court (ICC) if Australia does not handle alleged LOAC breaches properly in an Australian court. Whatever your views on the propriety or effectiveness of the ICC having such jurisdiction (Australia having signed up to the relevant treaty with insufficient care for our military), ADF personnel will get a much fairer and far more timely hearing in an Australian court martial. The potential involvement of the ICC is clearly not a major reason in the preferring of charges, not least because the ICC mainly concerns itself with war crimes, not battlefield accidents, and only then if the country concerned refuses to investigate or conducts subsequent trials improperly. The chances of the ICC getting involved in this particular matter are minimal to nil.
Tenth, where ADF personnel are charged they will also get a much fairer trial, and the interests of justice will be much better served, if they are tried by a traditional court martial rather than by the proposed Military Court of Australia (MCA). In a court martial their guilt or innocence can be appropriately decided by their professional peers who understand the difficult and nuanced circumstances of war. As would be the punishment necessary, including the appropriate weight to put upon the mitigating circumstances of combat. In the proposed MCA, in stark contrast, the trial would be by a civilian judge, sitting alone, with those charged having no right to trial by a jury, a court martial board of peers or other safeguards generally assumed to be the right of any Australian citizen facing serious criminal charges. Nor would such an MCA judge necessarily have any experience of military service, war or the complex and nuanced situations applying in battle. The numerous deficiencies in the MCA bill tabled in the last parliament are discussed below. This situation needs to be brought to the attention of every parliamentarian, particularly those fixated on inappropriately and unfairly applying peacetime, civilian law, norms to military service (but oddly minus many of the safeguards of such civilian law).
Eleventh, the matters of fact and law involved in this incident are mainly very specific to this particular incident. Once this is known and understood, there will probably be little or no effect on diggers applying lethal force in combat more generally. This aspect has unfortunately not been appreciated by many commentators in media and wider public debate, including veterans of previous wars, who have based their comments on general and specific assumptions about the incident that are simply matters of opinion, or are not correct, not known or not proven. Several of these matters are now best tested in court.
Twelfth, the claim by some that the investigations into the February incident, and the consequent charges, are the result of rivalry between the regular Army and the Army Reserve is a red herring and is not true. Two of the three personnel charged are reservists (who were serving on continuous full-time duty when deployed in Afghanistan). The other member is a regular Army officer. Given the nature of the battlefield accident involved, any unit (regular or reserve) would have been investigated in the same way and for the same reasons. The sub-unit involved was also the same one that was the subject of the July 2009 CDF Inquiry by Vice Admiral Chris Ritchie, a retired Chief of Navy, into its preparation and certification for deployment to Afghanistan. An unclassified and redacted version of Admiral Ritchie's report is on the Department of Defence website at http://www.defence.gov.au/coi/reports/RitchieReview.pdf.
Finally, as the Australia Defence Association has made clear from the beginning of public discussion of these matters in mid 2009, if ADF personnel are to be charged over this incident then this should not be confined to the soldiers directly involved in the accidental killing of the civilians. The possible liability of those planning the operation and commanding the element involved (at various levels of command) must also be examined and they too must be charged if, for example, professional recklessness or negligence contributed to the incident. The potential liability of those further up the chain of command responsible for preparing the unit concerned for war service, and assessing it as qualified for such service, should also be examined and, if necessary, be subject to legal action.
This is a difficult issue. Like all difficult issues about war, discussions often become unduly emotive and subjective. This is why we need to focus on the key moral principles involved and the consequent legal and operational practices that apply.
In particular, there is the big-picture truth that holding the ADF accountable is an issue that again underlines the moral, legal and accountability differences between us and our enemies ― and between the causes for which we fight.
There is a chasm between the motivations, responsibilities and actions involved with our lawful participation in the UN-endorsed International Security Assistance Force in Afghanistan, compared to the rejection of international humanitarian law and the associated accountabilities by the Taliban and its Islamist allies. And indeed to the barbaric (and illegal) Taliban view that our difficult adherence to international humanitarian law ― at increased risk to our troops ― is not something to be reciprocated (as civilised peoples do and international law requires) but is somehow just a vulnerability for the Taliban and its Islamist allies to exploit illegally.
Flaws in the proposed Military Court of Australia
The Government's 24 May 2010 announcement of new higher judicial structures governing the Australian Defence Force (under Chapter III of the Constitution) requires careful analysis as the proposed model risks creating new problems in practice through its attempts to avoid further constitutional (and comity) complications.
The announcement also lacked detail on how various practical problems are to be addressed. There are unfortunately signs that the Government's desire to establish the new Military Court of Australia (MCA) as a Chapter III court has driven all other considerations, rather than a more balanced approach being taken. In terms of operational decision-making methodologies in the military, the MCA seems to have been the result of a "situated appreciation" rather than an objective "appreciation of the situation".
Detailed ADA comment on the background and issues involved, including the High Court's August 2009 invalidation of the previous Australian Military Court (AMC), can be found here. Unfortunately much of the media coverage of the MCA announcement has ignored or misunderstood the history of this issue.
Many of the range of conceptual issues and concerns the ADA has raised in our previous comment on the AMC still appear to apply to the proposed MCA in part or full. These were (and largely remain): § First, any court trying ADF personnel needs to be readily deployable overseas when required – as numerous courts martial have had to sit in war zones – including having to share the dangers involved and appropriately understand the conditions, nuances and wartime or other operational contexts applying to the ADF in that particular foreign theatre of operations. § This means that the judges and all court staff need to be appropriately trained as military personnel, to some extent, in order to defend themselves and others, and to avoid being an undue security vulnerability or other operational burden when in a theatre of war. § It also means that all court personnel need to meet standard operational preparedness requirements such as good health, physical fitness, adequate training for war and ready availability to deploy for perhaps prolonged periods to unpleasant places at very short notice. § Moreover, the suggestion by some that such a court could somehow sit in Australia instead and interview all its witnesses remotely by video-conferencing or by bringing all of them to Australia ignores several equity, fairness and practical issues. These include the difficulties of such a court (including any juries) being able to understand appropriately the context, circumstances and conditions involved with offences committed overseas. Bringing all ADF witnesses or potential witnesses to Australia, or even interviewing them by video-conferencing, risks unduly compromising ongoing military operations. If foreign witnesses were to be brought to Australia from war zones, often for long periods, there are likely to be significant practical, legal, immigration and asylum problems (especially if they refused to return home at the end of the proceedings or sought to negotiate their entry status). The veracity and integrity of foreign witness evidence from war zones could be a significant problem where such witnesses were potentially compromised by also being asylum claimants or potential immigrants. § Second, the ADF's disciplinary code is a key component of defence force operational effectiveness not some arcane back corner of the law. For both ADF operational efficiency and for fairness and equity reasons, all or most of the presiding members of a court trying ADF personnel must include judges with sound military experience in order to make fair and adequate judgements (especially about disciplinary rather than civil criminal offences). § Third, due to the unique natures of war and military service in particular, a court trying military personnel must have credibility among those subject to it exclusively. This is particularly so as by entering military service ADF personnel have voluntarily surrendered to such a court's special jurisdiction over them in a way, and in potentially lethal circumstances, that do not apply to other Australian citizens. § Finally, based on the ADF's wartime experiences, many (but perhaps not all) past and current senior ADF commanders consider that the judges of a court trying ADF personnel need to be themselves military personnel so they are subject to the DFDA in other than the performance of their judicial function and duties – and are fully subject to the Laws of Armed Conflict (LOAC). This is considered necessary for both ADF operational effectiveness and for the general military training and LOAC protections of the personnel concerned. If a new military court was to be constituted under Chapter III of the Constitution this would perhaps be the most difficult issue to resolve. While in practice it is unlikely to be a problem, it cuts directly to the issue of balancing the necessary independence of the judiciary, in perception as well as principle or operation, with the other unique aspects of war and military service. The ADA remains concerned that the new MCA will not be sufficiently deployable overseas. We also have some concerns about how its judicial officers would be protected under the Geneva Conventions (as they would not qualify for protection as ADF personnel). That the judges and magistrates of the MCA need only have "a familiarity with the Services" (whatever that is to mean), rather than actual experience of military service or war, is also likely to have significant practical and moral consequences.
The problems of deployability also go beyond the practical and equity ones outlined in our previous analysis (see excerpt above). Sittings of the MCA as a full Australian court (as opposed to courts martial which are in effect a disciplinary tribunal in constitutional terms) in a foreign country are likely to face significant sovereignty issues for the host country. Unless Australia is an occupying power under international law (a very rare situation), it is unlikely that many countries would agree to a Status-of-Forces-Agreement (SOFA) that allows jurisdiction by a foreign court in their territory – especially if citizens of the host country are involved as victims of offences allegedly committed by ADF personnel. This is also not just a legal problem as the nature of military operations in foreign countries generally involves a complex mix of military, political, social and various international relations factors. The obvious solution on sovereignty, equity and practicality grounds (as New Zealand has done) is to retain the option for trial by court martial where the ADF is operating overseas.
The ADA is also particularly concerned that the proposed MCA does not appear to include (or at least guarantee access as a last resort to) jury trials, whether by a military jury or a court martial board composed of ADF personnel, or by a jury composed of civilians – although the attorney-general's press release makes some mention of courts martial perhaps being used to try serious offences committed overseas (but with no detail of their role and composition). All or most cases will apparently be heard by a judge or magistrate of the MCA sitting alone. At first glance we can see no legal or military reason why this change has been introduced. Particularly given that the judicial officers of the MCA may have inadequate knowledge or experience of Service life or war, we see three significant and inter-related problems with the lack of juries: the high risk of judgements lacking a proper understanding of context and nuance in especially complex moral and legal situations, the general lack of fairness risked, and its overall constitutionality.
As noted in our detailed background comment (below), ADF personnel do not somehow lose their fundamental rights as Australian citizens by donning a defence force uniform. Section 80 of the Constitution, for example, states in part:
Cleverly-worded legislation might get around the indictment requirement, such as prosecution by summons or through a "reference" by the Director of Military Prosecutions. The new MCA may also well be able to hear cases concerning ADF disciplinary offences by judge or magistrate alone, as happens now under existing legislation in around 19 out of 20 cases. But the new MCA will also be required to try criminal cases. This means the absence of a jury will still apply, even where the offence is a serious one and/or is allegedly committed when the defence force member concerned is deployed overseas (where the ACT criminal code is the applicable Commonwealth law).
Excluding whatever legalistic drafting of the legislation is tried, the practical and moral problem is that the accused in an MCA trial is surely still entitled to a fair trial in both perception and reality. If the presiding judicial officer is not a serving military officer (to satisfy the independence requirements of a Chapter III court), and/or has no general military experience (even if a lawyer technically qualified in military law) previously, how can the trial be considered fair? There is a serious risk that such a judicial officer may have little on no real understanding of the complex matters of operational context, and especially battlefield nuance, that apply in the unusually stressful and abnormal situations of combat or other complex military operations. In essence, will MCA trials still be fair if the judge has no military experience, or more particularly real knowledge of war, and sits in judgement alone?
Why are ADF personnel now apparently to be denied their existing right to be judged on matters of guilt or innocence in serious cases by their professional peers – or indeed any peers at all among their fellow citizens? For example, the New Zealand Courts Martial Act, 2007, deliberately includes the option for the presiding judicial officer (a "real judge" in Australian terms) to be assisted by a panel of three or five "military members" (as has long occurred successfully in courts martial in Commonwealth countries for over a century).
That the judges and magistrates of the MCA may only have an undefined "familiarity with the Services", rather than actual experience of military service or war, is a grave cause for concern. This aspect draws together a range of concerns about safety, suitability, deployability and equity. It highlights the puzzling decision to remove the right for decisions on guilt or innocence to be made by peers of the accused as applies in civilian trials for serious offences.
Finally, as a Chapter III court the new MCA falls under the responsibility of the Attorney-General not the Minister for Defence. The apparent conceptual gaps in the proposed structure and processes of the MCA announced thus far do not instil confidence that the drafting of the necessary legislation will pay due attention to the unique circumstances of military service and the unusual situation of war. The Minister for Defence and the ADF leadership must not lose the confidence of ADF personnel in this regard.
In summary, the proposed MCA appears to solve some constitutionality, and perhaps comity, problems but at the cost of creating or exacerbating a range of practical problems in implementation on the ground. Fighting wars is a complex matter and the legal framework governing this activity needs to balance the legal, moral and practical challenges involved appropriately.
Flawed aspects of ministerial reshuffle in the Defence portfolio
The new ministerial supervision arrangements in the Defence portfolio are profoundly disappointing for the cause of long-term reform in the Department of Defence through improved and sustained ministerial supervision. They also appear to have paid grossly insufficient attention to the fact that the ADF is currently fighting a war on the nation's behalf, and that this means national responsibilities must have priority over considerations of party-political or party-factional advantage, or indeed mere prime-ministerial convenience when reshuffling her ministers.
The new ministers in the Defence portfolio, as people and as ministers, are not the problem. The Australia Defence Association welcomes the appointment of Stephen Smith as the new Minister for Defence, replacing the able John Faulkner (see Defence Brief 141). Coming from the foreign affairs portfolio, and having been an attentive member of the National Security Committee of Cabinet, Minister Smith is well qualified to fill Senator Faulkner's shoes (and probably the best qualified minister other than, perhaps, Greg Combet).
We also welcome the return to the portfolio of Warren Snowdon, previously Minister for Defence Science and Personnel (November 2007 ― April 2009), but note that he is now unfortunately also to be the Minister for Veterans Affairs (an arrangement that has had more disadvantages than advantages in recent years). Warren Snowdon has a demonstrated long-term interest in defence issues on parliamentary and caucus committees stretching back over a decade and is no stranger to the ADF and the department.
The appointment of Jason Clare as Minister for Defence Materiel, and Senator David Feeney as the Parliamentary Secretary for Defence, also pose no apparent problems from a personal viewpoint. Senator Feeney is known for his interest in, and commonsense approach to, international relations issues.
There are, however, six big problems with the ill-thought through reshuffle of responsibilities and consequent administrative arrangements by the prime minister.
First, everyone concerned with the reshuffle seems to have forgotten that we are at war in Afghanistan and that running the Department of Defence properly, and supporting our diggers in combat effectively, are necessarily higher priorities than most other activities or concerns. Such real national governance issues are certainly more important than parliamentary or political party contests, or indeed intra-party tensions.
Second, there is the significant, and frankly avoidable at least in part, loss of continuity and momentum involved. This loss of continuity in ministerial supervision means much consequent risk to the momentum of reform in the Department of Defence ― and in proper Government attention to its continuous responsibilities (to the nation and to the defence force) for an ADF at war.
With John Faulkner and Alan Griffin retiring, and Greg Combet and Mike Kelly being moved to other portfolios, there will obviously be serious losses in the continuity and quality, at least initially, of ministerial supervision as new ministers read in. The loss of Greg Combet will be keenly felt. Throughout the defence force and the department he has been highly respected, and very few doubt he would make a very capable and reformist Minister for Defence. Why Dr Mike Kelly (the only war veteran in federal parliament), and an able parliamentary secretary in the Defence portfolio, is also being moved out of the portfolio makes no apparent sense. Especially if he is not being promoted to a junior ministry but only transferred to be a parliamentary secretary elsewhere. Whatever the perceived partisan advantage this transfer might accrue to the Labor Party, it does not warrant the damage caused to the national responsibilities of any government for effective ministerial supervision and continuing reform of the Department of Defence.
Third, there is the needless dilution of ministerial supervision in numbers and structure. After the initial and subsequent reforms in ministerial supervision instituted by this government in the Defence portfolio we have now moved backwards substantially and unnecessarily. That this has apparently occurred as an oversight, or for mere factional convenience within the Labor party, only makes the tragedy worse. That it also appears to have occurred despite Senator Faulkner's considered recommendations as to the required structure of ministerial supervision for Defence, and the need for continuity, makes it inexplicable.
Fourth, there is the risk of losing the ministerial team approach successfully forged by Senator Faulkner. For the first time ever, under any government, Faulkner instituted a viable structure, culture and arrangement of responsibilities whereby the senior and junior ministers (and parliamentary secretary) worked properly as a team in their supervising of the defence force and the department. This has been unprecedented under governments of both political persuasions and such an important reform should not be wasted.
Fifth, there is the unexplained and frankly illogical splitting of responsibility for defence science and technology matters from procurement and materiel ones. The appointment of Greg Combet as Minister for Defence Materiel and Science in April 2010 was a major reform in ministerial supervision of the portfolio. Particularly as it dedicated a junior minister to the supervision of the Defence Materiel Organisation (DMO) and the Defence Science and Technology Organisation (DSTO) and rightly transferred responsibilities for defence force personnel matters to the portfolio's other junior minister.
Sixth, there is the loss of reform momentum towards matching the ministerial responsibility for defence force personnel matters with the responsibility for day-to-day operational ones, rather than with veterans affairs (which is mostly not a defence function). Having a full-time junior minister supervising operational and personnel matters in an integrated manner not only makes sense in itself, but also frees up the senior portfolio minister so he or she can concentrate on higher priority responsibilities.
As the ADA noted earlier this year (full comment below), when discussing the diversion of ministerial effort caused by of Greg Combet having to also take over many of Peter Garrett’s ministerial responsibilities in the environment portfolio:
The changes to the structure of ministerial responsibilities in the Defence portfolio, and the flawed administrative arrangements now introduced, strongly suggest no considered thought was given to them during the reshuffle. They also strongly suggest that intra-party political considerations were the only criteria used. This is very short-sighted and irresponsible.
Finally, these new weakened arrangements for ministerial supervision of the Department of Defence, and the significant downgrading of the position of Cabinet Secretary from a senior minister to a parliamentary secretary, also appear to be a slap in the face for the dedicated and well-thought through reformist efforts of Senator John Faulkner over recent years ― and for the loyalty he has shown the Labor Party in helping manage the aftermath of the Rudd-Gillard leadership transfer and the re-election of the Gillard Labor Government.
We urge the prime minister to, at the very least, refine the flawed administrative arrangements of her ministerial reshuffle to give Jason Clare the same ministerial responsibilities that Greg Combet has had since April this year ― properly integrated responsibility for Defence science, technology and procurement matters. Leaving Dr Mike Kelly in the Defence portfolio would also be a good idea.
February 2009 incident in Afghanistan: An undoubted tragedy but let the self-correcting system work
In mid February 2009 a night raid in Afghanistan resulted in the deaths of six Afghan civilians, four of them small children and one a youth, at the hands of the ADF. Two more children and two adults from this family group were wounded.
By definition the incident occurred in a war zone and in territory that is disputed across the physical, military, political and human senses. It also happened in circumstances where formal Afghan legal mechanisms were and remain inoperable ― and clash anyway with long-established cultural and religious mores that contradict Afghanistan’s laws and indeed nominal government structures.
Determining truth in such circumstances is difficult. Accurately apportioning responsibility or blame is even harder. Both must be done, however, in order for Australia to comply with International Humanitarian Law (IHL), to reassure Afghans that there is a moral difference between the ADF and the Taliban, and to preserve the professional and operational integrity of the ADF as the defence force of a liberal democracy ruled by law.
Operational limitations on the ground, including security concerns, respect for bereaved victims and wider cultural sensitivities affected both the initial operational investigation and the subsequent criminal investigation it recommended. Both were not able to visit the scene of the deaths or interview the survivors and any witnesses at first hand in the same way we would in downtown Australia. Indeed the SBS documentary team covering the incident later ran into many of the same limitations.
Discerning truth must also account for the background context. In the final analysis any war is a contest of will and ends when one side gives up. This means in both the Afghan and international arenas the wider public information and propaganda clashes can never be entirely separated from the shooting on the ground.
In this particular incident, and with the Taliban insurgency seeking to win popular support generally, the Taliban have naturally sought to portray what happened so as to boost their cause and undermine ours. Moreover, because of justifiable anger, genuine allegiance, Taliban intimidation or a combination, the objectivity of in-situ evidence from the villagers involved may be problematic in both a factual or legal sense. As the generally balanced SBS Dateline documentary showed, this is not an insurmountable problem as long as it is recognised. In this case many of the known facts do not need much embellishment by the Taliban anyway.
The ADF operates in Afghanistan within a legal framework of Australian, Afghan and international law (and in accordance with appropriate constitutional and professional mechanisms). The overall legal basis of the International Security Assistance Force in Afghanistan (ISAF) stems from the UN Charter in general and several UN Security Council Resolutions in particular.
The conduct of our military assistance is governed by that specialist branch of IHL known as the Laws of Armed Conflict (LOAC), chiefly based on the Hague and Geneva Conventions. The Taliban on the other hand do not respect IHL and LOAC and regard our adherence as a vulnerability to be (illegally) exploited. They have no process for investigating breaches of IHL and LOAC. Indeed they reward not punish acts such as the indiscriminate targeting of non-combatants.
Under the LOAC umbrella our troops are subject to Rules of Engagement (ROE) governing the overall application of armed force to the particular circumstances of the Afghanistan War. There are also ISAF commander’s directives applying to all troops in the alliance on matters such as night raids on Afghan compounds. On the ground, the ROE are further broken down into Orders-for-Opening-Fire (OFOF) which tell each digger when they can and cannot use lethal force.
Interpreting ROE and OFOF in the hectic chaos of battle can be tough, certainly much tougher than subsequently in peaceful court rooms. Accidents of all kinds also happen frequently in the confusion of war and the chaos of battle. But deliberate killing contrary to ROE and OFOF is generally and necessarily illegal because the alternative is the barbarism of our Taliban enemy. Accidental killing can also be illegal if resulting from actions that could be reasonably foreseen, or from professionally reckless or negligent use of force by those commanding, planning or doing the fighting.
No-one is disputing that something went dreadfully wrong in this incident. The operational procedure flaws have already been fixed. But nothing more should be allowed to go wrong in finding out how, why and who might be at fault.
All Australians should be reassured that there have been no cover-ups. Nor delays beyond those dictated by the operational situation in Afghanistan and the time needed for due legal process. We should also be encouraged that our national war-fighting systems are so self-correcting. Unlike the Taliban we have professional, legal and moral accountability processes than can objectively investigate battlefield mistakes.
The professional debate within the ADF about possible underlying causes of the incident is also a necessary and professionally healthy phenomenon. It shows there is no institutional culture of deceit, groupthink or resistance to accountability and appropriate and transparent supervision of the ADF’s use of armed force.
Criticism of the ADF for the time taken in investigation, or its care not to prejudice due legal process by public comment, is uninformed, unfair and invalid. We should let the law take its course. Only the statutorily independent Director of Military Prosecutions can properly decide whether any ADF personnel should face criminal or disciplinary charges.
Yet more diversion of Greg Combet's capacity for ministerial supervision
The Prime Minister’s announcement that Greg Combet is to take over many of Peter Garrett’s ministerial responsibilities in the environment portfolio has more than a party-political or issue-of-the-day dimension.
Once again, the necessary ministerial supervision of the ADF, and government capacity for appropriate attention to its responsibilities to the men and women the defence force comprises (and which it often sends into combat), have been sacrificed in the interests of political expediency and the short-term electoral and media cycles.
Greg Combet, as Minister for Defence Personnel, Materiel and Science, is already responsible for all the Defence functions previously undertaken by himself when Parliamentary Secretary for Defence Procurement and those previously undertaken by Warren Snowdon as Minister for Defence Science and Personnel – plus all his efforts and responsibilities as the Minister Assisting the Minister for Climate Change. This latter aspect was described as only temporary when first levied but has now dragged on for nearly a year. Even more to the point, it appears that climate change matters are taking up about 80 per cent of his time.
On top of all this, Greg Combet now has the task of sorting out various Department of the Environment functions in place of Peter Garrett.
Minister Combet is very competent but surely there are limits to even his talents, time and attention?
Surely there are other junior ministers that are considered competent and who can be drafted in to assist or replace Cabinet Ministers when the Rudd Government encounters political, policy delivery or administrative difficulties?
The diversion of Minister Combet highlights the need for the Minister for Defence to be assisted on a permanent basis by two junior ministers with no other responsibilities. The Department of Defence is, after all, the biggest employer and landowner in the country, we are fighting a war, and there is a need to pay close attention to the necessarily long-term plan to rebuild the ADF’s force structure after decades of comparative neglect by both major political parties in the 1980s and 1990s. The Minister for Defence may one day also not be someone with the capacity of Senator Faulkner.
As the ADA has maintained for several years, and as the British do, Defence needs a full-time junior Minister for the Defence Force – not just its personnel aspects – who can cohesively address in an integrated way both the operational and personnel sides of the ADF coin. This would also help free up the Minister for Defence as the portfolio minister so he can concentrate even more on challenging high-level strategic and corporate responsibilities – often with a very long-term focus when compared to other portfolios.
Defence also needs a full-time junior Minister for Science, Technology and Procurement to supervise the DMO and DSTO. Combet has done wonders with sorting out many procurement and defence industry policy matters. Just think how much more he could do if not also having to address personnel matters, often in isolation from their operational employment aspects, (and having to fix climate change and now environmental matters outside the Defence portfolio).
As happens in the UK, a structure of one senior and two junior ministers in Defence would also allow career progression whereby suitable junior ministers can actually be groomed for eventual responsibilities (often after time in other portfolios) as the senior portfolio minister in Defence.
A three-minister structure would also help avoid Defence getting stuck with less competent junior ministers or parliamentary secretaries who are placed there as a political reward or to give them profile in marginal seats without supposed political risk – as occurred far too often during the early years of the Howard Government and at times under Hawke and Keating.
Other portfolios with smaller spans of responsibility and less responsibilities have more than two Ministers, why not Defence?
Domestic manufacture of Australian Defence Force combat uniforms remains essential
In early July 2009 a sourced tender was released for the further supply of combat uniforms for our defence force. Tenders closed in early August and the contract was let on 22 December 2009. Being a sourced rather than open tender, only two Australian manufacturers were involved on the basis that both had previously supplied the defence force. The resulting contract to Australian Defence Apparel was for the manufacture of 120,000 combat uniforms at a cost of $A13.6 million at an approximate rate of 60,000 sets per year. The contract included an option for Australian Defence Apparel to source some of the fabric needed from a supplier in China (the Zhe Jiang Huili Dyeing and Finishing Company) rather than obtain all of it from the existing Australian manufacturer (Bruck Textiles in Wangaratta). The fabric involved is specially designed and specially treated camouflage material unique to Australia, used only by the Australian Defence Force and until now manufactured only in Australia. Three types of ADF combat uniform are involved: Disruptive Pattern Camouflage Uniform (DPCU), Disruptive Pattern Desert Uniform (DPDU) and a fire-retardent version of DPCU. Both DPCU and DPDU are predominantly worn by the Army and much of the Air Force (when operating on the ground) although Navy personnel sometimes wear DPCU, especially the fire-retardent version, when operating afloat and ashore tactically in littoral or amphibious operations (and DPDU when serving ashore in the Middle East).
The decision to source this fundamental type of defence materiel from an overseas supplier (even as fabric and not the finished article), however, contradicts a longstanding and well-proven principle concerning Australia's defence – including maintenance of a viable defence industrial capacity. Beginning in 1888 with the creation of the Colonial Ammunition Company by the (pre-federation) Australian Federal Council, Australia has always sought to produce certain basic defence equipment from Australia-based manufacturers only. Federation in 1901 and the experiences of the two world wars brought renewed and sustained initiatives in this regard. These basic items of equipment include small arms (rifles, pistols, machine guns, etc), ammunition, explosives, combat clothing and individual load-carrying equipment (webbing, packs, etc). In previous eras, and still too some extent now, they have also included preservation of limited capacities for naval shipbuilding and repair, aircraft assembly, the manufacture of artillery pieces and the assembly, manufacture or integration of electronic equipment such as combat systems, radios and radars.
In modern defence policy jargon, the national industrial capacities to produce such key items of defence force equipment are formally classified as Priority Industry Capabilities (PIC) by the Department of Defence. PIC are formally defined as "... those capabilities that confer an essential strategic advantage by being available from within Australia and which, if not available, would significantly undermine defence self-reliance and Australian Defence Force operational capability". Current PIC are endorsed by the Government and include combat clothing – as they effectively always have done.
For most of the 20th Century the factories, facilities and shipyards producing such key items were civil divisions of the Department of Defence and their workers were public servants. The surviving ones are still primarily located in regional cities such as Lithgow, Bendigo and Wangaratta because when they were founded in the early 20th Century (largely before the advent of air forces or when such forces were in their infancy) these inland locations, well serviced by railways, were rightly considered to be more secure from foreign naval gunfire and seaborne raids. The small-arms factory at Lithgow was also strategically sited in that area to exploit nearby coal mines and the steelmaking facilities needed for the manufacture (generally under licence), modification and maintenance of small arms.
In pursuit of industrial efficiencies, financial savings and operational rationalisation these Defence-owned (but often commercially moribund) manufacturing facilities were corporatised as Australian Defence Industries in 1989 and privatised in 2001. Since 2004 many of these facilities have been owned or operated by Thales Australia, an Australian subsidiary of the French company Thales. The former Commonwealth Government Clothing Factory in Bendigo on the other hand now operates independently as Australian Defence Apparel and also makes uniforms and protective clothing for various State Emergency Services and Rural Fire Services.
There are five enduring, tested and commonsense reasons why the design and production of combat uniforms (but not necessarily non-combat ADF uniforms) should remain included in the types of defence materiel limited to domestic Australian manufacture (and classified as a PIC by the Department of Defence). · First, there are the operational security (OPSEC) implications of this particular PIC. These particularly include reducing the combat risk to ADF personnel by: § protecting, as much as possible, the methods whereby the pattern and fabric deceive visual observation and other sensor systems that are likely to be deployed against our personnel in battle; and § preventing potential adversaries from acquiring the ability to produce and deploy Australian uniforms, especially in large numbers, to illegally clothe substantial numbers of their personnel in such uniforms (contrary to the Geneva and Hague Conventions) for use in strategic and tactical deception operations, false-flag propaganda activities, outright attacks and other breaches of the Laws of Armed Conflict (LOAC). · Second are the strategic security implications of, in effect, off-shoring part of a PIC. The chief one of these is ensuring continuity of supply should the international strategic situation ever deteriorate to the point where overseas supplies (from any country) cannot be accessed, or obtained easily or swiftly, because of political or military disruptions to manufacturing or supply chains – or even an ally having higher priorities to supply its own forces. These might include an inability or refusal to supply, delaying supply either actively or due to other priorities, the application of unilateral or multilateral trade sanctions purporting to ban supply, or military attack on our sea-lanes and airspace to prevent supply. Strategic implications also include Australia taking reasonable steps to minimise the scope for breaches of LOAC by any potential adversary. · Third are the intellectual property (IP) implications of this particular PIC. Both DPCU and DPDU were developed by the Defence Science and Technology Organisation (DSTO) and incorporate technical and manufacturing characteristics that are unique to Australian operational and terrain requirements – and which required considerable effort, expense and proprietary scientific expertise by DSTO. These advantages go beyond the operational security aspects discussed above. They include the financial and technological aspects of IP and our national strategic ability to adapt and improvise such fabrics and uniforms (and the underlying technology) when required by fast-changing combat conditions. · Fourth are the force mobilisation and preparedness implications of a PIC. If the ADF needs to be expanded suddenly, quickly or significantly, we must be able to scale up production of combat uniforms to match this urgency and scope, and we must retain the national industrial capacity to modify them swiftly and effectively as required. · Finally, there are some national dignity and national responsibility implications. In strategic terms it would frankly be embarrassing internationally to clothe our defence force in foreign-produced combat uniforms and this would undoubtedly be eventually exploited by enemy propaganda. It is also likely to affect ADF morale detrimentally. Moreover, on a moral responsibility level, if we ask the men and women of our defence force to risk their lives or well-being on our behalf in combat then the least we can do for them is to clothe them appropriately, efficiently and with a truly Australian combat uniform. The purported savings of $A1.5 million from the part overseas manufacture option in the latest Australian Defence Apparel contract do not justify sacrificing any of the above principles and precepts concerning a PIC. In fact the relatively small savings sought (from an annual defence equipment procurement budget of around $A6 billion), demonstrate a serious loss of perspective about the support our defence force really needs from the Department of Defence and the country at large. Furthermore, saving $A1.5 million does not justify the increased risks to even one Australian soldier.
On Wednesday morning 10 February 2010 the Minister for Defence Personnel, Materiel and Science, Greg Combet, directed that the optional clause in the contract allowing supplementary foreign manufacture by a Chinese sub-contractor be rescinded and he issued a press release accordingly. This swift corrective action to reaffirm combat clothing is a PIC is supported by the Australia Defence Association and no doubt by most Australians after they grasp the strategic, operational and moral responsibilities involved. The Chief Executive Officer of the Defence Materiel Organisation (DMO) testified to a Senate committee later that morning that he became aware of the problem some ten days earlier. Thus far, the decision to award this type of contract has been attributed to a junior or mid-level public servant in the DMO.
The Minister's action therefore begs four questions not addressed in his press release cancelling the (luckily as yet unexercised) contract option for foreign manufacture: · First, why did it take a newspaper story to prompt ministerial action? · Second, why was the flawed decision taken to authorise foreign manufacture in the first place (contrary to combat clothing's classification as a PIC, contrary to long-established principle and practice and indeed contrary to commonsense)? · Third, why has the political and bureaucratic quest for savings within the Defence budget been allowed to degenerate to the extent that it has become an apparent irrational fixation that over-rode well-known PIC requirements and longstanding, fundamental and proven principles of how we organise and resource our national defence and look after our defence force personnel? · What will be done to restore appropriate checks and balances, and indeed commonsense, to departmental processes and accountabilities for materiel procurement (and much else)? One likely underlying reason for these mistakes, of course, is that the Department of Defence is now so large, so organised in functionally-isolated silos, and with bureaucratic decision-makers often so divorced from professional military advice and empathy with, and understanding of, the frontline conditions of soldiering, that such a lack of commonsense and accountability was encouraged and rewarded – not prevented – by institutional and cultural safeguards.
A probable second reason, related to the first one, is Defence's burgeoning inability to retain, diffuse or exploit corporate knowledge. This is largely due to constantly changing (and top-heavy) bureaucratic structures, a seeming process-driven addiction to ever-changing management fads and fashions, and a high turnover of personnel at all levels. It is also yet another apparent result of an overall departmental structure (and culture) that continues to ignore the alternative of a first-principles approach to organising our national defence along proper constitutional and professional lines (including proper civil control of the military by Ministers and Parliament rather than bureaucratic control by an unwieldy, ever-growing and too often unaccountable public service-military bureaucracy).
High Court invalidation of the Australian Military Court Resignation of Joel Fitzgibbon as the Minister for Defence Closing Guantanamo but not by closing our minds and hearts
Links to other year's comment: 2010, 2009, 2008, 2007, 2006, 2005, 2004
High Court invalidation of the Australian Military Court
The 26 August 2009 decision by the High Court to invalidate the Australian Military Court (AMC) instituted in October 2007 was not unexpected as the underlying constitutional, legal and philosophical issues have been debated widely for over a decade. Unfortunately much of the ensuing public commentary has not reflected these debates or their history.
This is also a matter with few, if any, party-political, individual personality or bureaucratic power-play aspects of any note. This has not suited some commentators and unnecessary confusion has resulted from their purported explanations claiming such effects.
What the High Court has effectively said is that the new AMC – in the modern desire to make it as independent of the ADF chain-of-command as possible (and a court of record which the old courts martial were not) – is no longer mainly a disciplinary tribunal (which courts martial were) but a court. Furthermore, in the quest for independence from the ADF chain-of-command it is now too divorced from the defence heads of power constitutionally to be based on them alone, but not divorced enough (particularly regarding the method of appointment and limited tenure of judges) to be a valid exercise of the Commonwealth judicial power under Chapter III of the Constitution. This is consistent with the High Court’s late 1920s decision that invalidated a specialist tax court because its members had limited tenure and were therefore not fully independent.
The High Court decision only invalidated the 2007 amendments to the 1982 Defence Force Discipline Act (DFDA) establishing the AMC (and replacing the courts martial and defence force magistrates previously at the apex of the ADF’s disciplinary system). The remainder of the DFDA remains valid under the defence heads of power in Section 51 of the Constitution. So do the unit-level summary procedures under the DFDA administered, under strict controls, by unit and sub-unit commanders and which handle over 19 in every 20 offences tried under the Act.
On a day-to-day basis military operations in Australia and overseas, and most ADF units and personnel, will not be affected much, if at all, by the hiatus before a new court at the apex of the DFDA is re-established. The superseded courts martial system and the defence force magistracy are being temporarily brought back to handle appeals, and trials for more serious offences, until a new higher court is re-constituted.
The desire to maximise the new AMC’s independence resulted from several High Court rulings on appeals over recent decades that threatened the validity of the DFDA itself – and particularly the traditional courts martial system that tried more serious offences until late 2007. The courts martial system superseded by the AMC resulted from an evolving legal tradition stretching back, in modern times, to the 1887 Army Act of the British Parliament – which applied to the Australian Army (but not the RAN and RAAF) when operationally deployed overseas until the DFDA came into force in 1985. It is therefore important to note that the desire for the new AMC to be as independent as possible from real or perceived supervision by the ADF chain-of-command was not just the result of recent Senate committee inquiries and associated recommendations – nor indeed from alleged political or personality-based incompetence by Ministers or supposedly hidebound resistance to change by the ADF.
What is the background?
Several key points, and most of the historical background, have unfortunately been missed or skated over in much of the media and public commentary.
First, as the defence force of a liberal democracy, no-one is seriously suggesting that the ADF should not have a disciplinary code to comply with Australia’s international humanitarian law obligations (such as the Laws of Armed Conflict) – and so our defence force does not somehow degenerate into an armed rabble that might one day threaten the very democracy it protects. In terms of day-to-day operations the ADF also needs to be governed by legislation that integrates a disciplinary code specific to military personnel with the civil and criminal offences applying to all Australians and with our national and individual obligations under international law. This legislation needs to:
Second, serious criminal offences committed by ADF personnel in Australia tend to be tried by state and federal civil courts anyway. If committed overseas in generally peacetime circumstances they are usually tried by the relevant foreign civil court, depending on Australia's status-of-forces agreement with the country concerned and/or whether the civil courts of that country meet acceptable legal standards. In some cases the country concerned chooses not to prefer charges (even when the ADF recognises the necessity and does so) or prefers that the offender be tried by Australia. Criminal offences committed when the ADF is operationally deployed overseas, or where no valid civil code applies in the country concerned (such as in Somalia), are tried under the DFDA – including its incorporation and extension of ACT criminal law to such situations. Experience of Australian military deployments overseas for over a century has shown that disciplinary and criminal offences need to be treated within an integrated legal system for a range of practical reasons and diplomatic relations and international law obligations.
Third, Senate committee inquiries over the last decade or so rightly reviewed serious problems in the overall “military justice system”, and recommended far-reaching reforms (including the AMC). The great bulk of the more serious difficulties, however, were with the application of civil administrative law to ADF processes, not the force's disciplinary code or how it was administered judicially. Furthermore, difficulties with the code were also generally more to do with the independence, efficiency and equity of its enforcement rather than the principles of the DFDA itself. Moreover, many of these enforcement problems have been solved by tweaks such as creating a director of military prosecutions and a military court registry both relatively independent of the ADF command chain, and by reforming and modernising the ADF’s criminal investigation capabilities.
Finally, the High Court cannot give advisory opinions. In some cases where relatively intractable philosophical or conceptual differences exist, the only alternative is to pass legislation and see which way the Court jumps. In this case, some constitutional purists tended to overlook some of the military practicalities involved and argued for a strictly civil court to be established under Chapter III of the Constitution (like the Federal Court and the Federal Magistracy). They also tended to argue that there was no requirement for the judges (or magistrates) to have military expertise and that even nominal links to the military command chain or the Westminster principle of civil control of the military by Ministers would compromise the independence of the court. On the other hand, those with an appreciation of military experiences and the history of warfare, including some judges and lawyers, tended to approach the matter with emphasis on the unique exigencies and requirements of military service and the general nature of international warfare. They argued that the proposed court should remain a military one, to some degree, in order not to compromise ADF operational effectiveness, preserve the court's relevance to those it tried, and avoid weakening the constitutional, professional and military operational safeguards embodied in the ADF chain of command and civil control of the military by Ministers.
What else is being missed in much of the public debate?
There are also valid concerns as to four requirements for whatever higher court is constituted at the apex of the DFDA. Unfortunately for effective public debate, these aspects do not appear to be well understood in the general community by those without experience of war or military service. § First, any court trying ADF personnel needs to be readily deployable overseas when required – as numerous courts martial have had to sit in war zones – including having to share the dangers involved and appropriately understand the conditions, nuances and wartime or other operational contexts applying to the ADF in that particular foreign theatre of operations. § This means that the judges and all court staff need to be appropriately trained as military personnel, to some extent, in order to defend themselves and others, and to avoid being an undue security vulnerability or other operational burden when in a theatre of war. § It also means that all court personnel need to meet standard operational preparedness requirements such as good health, physical fitness, adequate training for war and ready availability to deploy for perhaps prolonged periods to unpleasant places at very short notice. § Moreover, the suggestion by some that such a court could somehow sit in Australia instead and interview all its witnesses remotely by video-conferencing or by bringing all of them to Australia ignores several equity, fairness and practical issues. These include the difficulties of such a court (including any juries) being able to understand appropriately the context, circumstances and conditions involved with offences committed overseas. Bringing all ADF witnesses or potential witnesses to Australia, or even interviewing them by video-conferencing, risks unduly compromising ongoing military operations. If foreign witnesses were to be brought to Australia from war zones, often for long periods, there are likely to be significant practical, legal, immigration and asylum problems (especially if they refused to return home at the end of the proceedings or sought to negotiate their entry status). The veracity and integrity of foreign witness evidence from war zones could be a significant problem where such witnesses were potentially compromised by also being asylum claimants or potential immigrants. § Second, the ADF's disciplinary code is a key component of defence force operational effectiveness not some arcane back corner of the law. For both ADF operational efficiency and for fairness and equity reasons, all or most of the presiding members of a court trying ADF personnel must include judges with sound military experience in order to make fair and adequate judgements (especially about disciplinary rather than civil criminal offences). § Third, due to the unique natures of war and military service in particular, a court trying military personnel must have credibility among those subject to it exclusively. This is particularly so as by entering military service ADF personnel have voluntarily surrendered to such a court's special jurisdiction over them in a way, and in potentially lethal circumstances, that do not apply to other Australian citizens. § Finally, based on the ADF's wartime experiences, many (but perhaps not all) past and current senior ADF commanders consider that the judges of a court trying ADF personnel need to be themselves military personnel so they are subject to the DFDA in other than the performance of their judicial function and duties – and are fully subject to the Laws of Armed Conflict (LOAC). This is considered necessary for both ADF operational effectiveness and for the general military training and LOAC protections of the personnel concerned. If a new military court was to be constituted under Chapter III of the Constitution this would perhaps be the most difficult issue to resolve. While in practice it is unlikely to be a problem, it cuts directly to the issue of balancing the necessary independence of the judiciary, in perception as well as principle or operation, with the other unique aspects of war and military service. There also remain deep-seated concerns among many military personnel generally about the continued demise of the tried and tested system of traditional courts martial. In a court martial, under the supervision of a legally qualified Judge-Advocate, the court martial board comprised professional officers functioning as a jury but with the additional responsibility that they also had to vote on what punishment should be awarded (within set legal limits) in cases of guilt. The Judge-Advocate presiding was only there to oversee court proceedings and to advise and decide on matters of law. This meant, in the unique context of military service, that the rights of those accused were perhaps better protected than, say, in the AMC. A court martial meant judgement, and punishment, by peers with a real and professional understanding of in-theatre or other operational circumstances, rather than by a judge alone (especially if this is to be by a civilian judge of an independent court back in Australia). There have also been significant practical problems in panelling military juries for jury trials by the AMC compared with the smaller court martial boards previously used.
The main criticisms of the old courts martial system were to do with the way boards were formally convened (and chosen) by senior ADF commanders as a function of command, and that sentences had to be confirmed by the convening officer before taking effect (in both cases only after taking due legal advice). The perceived independence of the courts martial from the ADF command chain, rather than any serious real problem with actual independence in operation, was the issue. The creation of the independent director of military prosecutions and the independent AMC registry have been successful steps taken to remedy this perception and potential deficiency.
It is also worth noting that many distinguished Australian jurists such as Sir Edmund Herring, Sir Henry Winneke, Sir Victor Windeyer, Sir Harry Gibbs, Sir Anthony Mason, Sir Ninian Stephen and Sir Ronald Wilson served in one or both World Wars as operational combatants, not lawyers, before going on to high judicial office in State Supreme Courts and/or the High Court from the 1950s to the mid 1990s. Some even held very senior operational commands. Herring commanded the 6th Division and both I and II Corps. Windeyer commanded the 2/48th Infantry Battalion (the most decorated combat-manouvre unit in Australian military history), the 20th Infantry Brigade and, after World War II, the 2nd Infantry Division in the Army Reserve. Many more junior judges and leading lawyers also served in World War II in operational rather than legal roles. Rather than criticise the courts martial system, their writings and reported views on the subject invariably remark on the efficiency, propriety and equity involved, including favourable comparisons to civil jury trials in terms of protecting the rights of the accused and achieving the interests of justice. The emerging idea that the long-established practice of courts martial might be legally improper or even constitutionally invalid was apparently foreign to this generation of Australian jurists. This does not mean, of course, that courts martial as traditionally undertaken continue to be valid as constitutional practices evolve, but it does provide important insights into our legal and practical history of reconciling the law, citizenship, military service and war in the challenging circumstances of major conflicts.
What now?
The Rudd Government has signalled it will reconstitute the AMC as a court under Chapter III of the Constitution. This might best be done as a division of the Federal Court but only five judges of this court have any military experience. Even then this is only as peacetime reservists and with three of them their military service was or is only as lawyers rather than them having a broad military operational background. One of these three military lawyers is currently the ADF's Judge Advocate General as a reservist. Only two of the five (but the two with general military experience) are under the age of 60 and more readily deployable. Similarly only two serving federal magistrates have any military experience and again both only as reservist lawyers in peacetime.
Whatever method is adopted for a new court, steps will have to be taken to cater for or avoid the readiness, deployability, shared danger, military inexperience, professional credibility and human rights problems outlined above. Whatever form a new court takes, a careful balance will still need to be struck between the independence of the new court and these other conditions and requirements.
The last thing we need to do is ignore some telling legal and practical lessons from the old Courts Martial Appeals Tribunal instituted in 1955. This developed problems as a court of appeal in the late 1960s when its judges (provided by State Supreme Courts) began to include those with no personal World War II, or even post-war Army Reserve, military experience, They consequently had insufficient contextual understanding of warfare, military service or the often unique operational circumstances involved with the difficult appeal cases that came before them.
There is no simple solution to all these problems. Those advocating simple solutions, or suggesting simplistic root causes to the current constitutional impasse, either do not understand the problems or are ignoring them. They do so at some peril to the operational efficiency of our defence force and to the rights and well-being of those who volunteer to serve in it on our behalf – including their surrender of some general citizenship comforts, benefits and rights in doing so.
Resignation of Joel Fitzgibbon as the Minister for Defence
The Australia Defence Association is sorry to see Joel Fitzgibbon resign as the Minister for Defence.
This is preliminary comment and we will be discussing this matter further in our forthcoming publications.
A longer analysis of the background to this resignation may be read in the earlier comment below.
After assuming the shadow portfolio responsibility as somewhat of a surprise choice in late 2006, and then the actual portfolio after the election in late 2007, Joel Fitzgibbon developed into quite an effective minister. He was particularly good at pressuring NATO to treat Australia as a real partner in the allied effort in Afghanistan. He enjoyed amiable and effective relationships with his counterparts among our principal allies. His personal resolve and courage were demonstrated when he insisted on visiting various aid projects in the field when last visiting the Australian contingent in Oruzgan province rather than just tour established (and relatively secure) bases. On a personal level, he related well to the men and women of the ADF.
Although his relationships with the department and the ADF hierarchy were at times uneasy (discussed in the earlier comment below), he was as effective a minister as the current ministerial structure, and party-political temperament, allow. His frustrations and difficulties with the department and the defence force are inherent in the structure and were essentially no worse than those of all recent ministers. To some degree they were also self-inflicted or exacerbated anyway (also discussed below). The bottom line involved here is that this large and complex portfolio is now beyond effective supervision by any one minister and the overall level of its ministerial supervision needs to be modernised and increased if any real reform of the department is to succeed.
We do not believe that Joel Fitzgibbon was undermined by elements of the Department of Defence or the defence force as some media reports have alleged. This resignation principally resulted from personal oversights, ministerial staff mistakes and perhaps intra-party political machinations, not from some form of bureaucratic conspiracy. He has certainly been long targeted by the parliamentary Opposition in its search for their first Rudd Cabinet scalp.
In appointing a new Minister for Defence, the Prime Minister should address the needs of effective long-term governance as well as the politics and Cabinet balance involved. He should also take the opportunity to assist the new senior portfolio minister by also appointing a second full-time junior minister to increase effective supervision of this large and complex portfolio ― with one junior minister overseeing the DSTO and DMO and the other overseeing the ADF not just its personnel issues (or DVA). The PM should also redress the recent decision to strip one and a half of the two parliamentary secretaries from the defence portfolio in order to reinforce Minister Wong politically as this has come at considerable and increasing cost to proper portfolio governance.
It takes any new minister a long time to understand and grasp the defence portfolio. Some never manage it. Even when others do, the time involved causes numerous delays and real-world problems for ADF operations and supporting capability development decision-making. This is especially so when the ADF is committed to combat operations. We are sorry to see Joel Fitzgibbon go and wish his replacement well for his or her daunting, and short-notice, task.
Fitzgibbon: Tensions between the Minister and the Department of Defence are inherent in the structure
If your knowledge of defence issues was confined to reading newspaper headlines, the last few weeks might give the impression that the Minister for Defence is a hopeless nong, that members of the defence force are somehow conspiring against him or that the Department of Defence is out of control.
Luckily the first two are not true and the third very much exaggerated but the real state of affairs, as is usually the case, is complex, nuanced and the product of longstanding historical causes.
There are five broad aspects involved but much media and political commentary is conflating and confusing them rather than examining them separately, and in their historical contexts, using first principles: · First, there is the matter of concern about any Australian citizen with access to classified information having links to persons with connections to countries known to undertake active and covert intelligence collection against Australian targets. In summary, in counter-intelligence terms there is no such thing as a friendly intelligence service but there are the intelligence services of friendly countries. There are also Hostile Intelligence Services (HIS) from countries whose overall relationship with Australia, however friendly it may appear at times, includes significant potential for military or commercial strategic competition. China is clearly one of these countries. Any member of the defence force, for example, who has close links with foreign nationals from such countries is required to declare it as these are matters of legitimate preventative security concern. Such ADF personnel may also be the subject of legitimate investigation if they have such links, particularly if they do not declare it or they do not appear aware that such links have the potential to compromise the security of, and their access to, Australian classified information. As a matter of principle and commonsense practice, at the very least, the Minister for Defence should be treated no differently from ADF personnel in this regard. · Second, there is the matter of Minister Joel Fitzgibbon's relationship with Mrs Helen Liu, his failure to record aspects of this in the parliamentary register of members' pecuniary interests or detail this subsequently, and whether this was serious enough to require him to stand aside (during any investigation) or resign. This was fundamentally a political matter within the Rudd Government and a controversy between the Government and the Opposition. As an independent and non-partisan organisation the ADA offered no comment on this aspect. · Third, is whether tensions between Fitzgibbon as the Minister and his department were individual (both in relation to this particular Minister and that point in time), were unusual – or in fact whether they were mainly structural, longstanding and unfortunately par for the course. · Fourth, is whether individuals or elements of the department (or the ADF) may have sought to use the Liu controversy to undermine Fitzgibbon's ministerial authority or even to try and unseat him as Minister for Defence. · Fifth, is the matter of whether any element of the Department of Defence actually sought to "investigate" or "spy" on their own Minister and if so at what level, and with what purported authority or propriety, such a decision to do so was taken. On the limited information available thus far, it seems if any such "investigation" occurred, it could only have resulted from a breakdown in Public Service professionalism and the chain of command/authority in the ADF and the department respectively. If it occurred and happened in the manner described, it would also have necessarily included the committal of several offences against the Public Service Act and probably wider Crimes Act and Privacy Act provisions. The ADA notes that internal Department of Defence enquiries have not found any substance in the allegations but we appreciate that this internal inquiry will not satisfy all critics. We therefore welcomed the decision by the Inspector-General of Intelligence and Security (IGIS) to also investigate this matter and expressed full confidence in the independent integrity of such an IGIS inquiry. That the IGIS inquiry also found no substance in the claims is not surprising. Four other minor aspects are also in play: · Who leaked this matter to the media and why? Was it part of an internal political agenda or other tensions within the Labor Party or the Rudd Government? · Was this particular controversy just a side-effect of the longer-running campaign by some civilian officials in the Department of Defence to undermine its Secretary? Some senior and mid-level officials still hark back to the outmoded and destructive "divide and conquer" departmental culture of yesteryear. This sought to improperly bolster bureaucratic power by making the Services fight each other so the bureaucracy could claim to Ministers, falsely, that it was indispensible as a "neutral" arbiter. The modern integrated joint-force command structure of the ADF (which the departmental bureaucracy delayed for decades and has since sought to hamstring) means any inter-Service tensions are now resolved professionally and appropriately without any supposed bureaucratic arbiter being needed. Certain old-guard bureaucrats steeped in the outmoded cultural attitudes and practices of a previous era are therefore opposed to the current Secretary and his immediate predecessor (both outsiders from DFAT) because they have done much to reform and refresh the institutional culture of the department. These two Secretaries also both have extensive experience at actually working with the ADF on overseas operations. They have therefore actively sought to minimise the incidence of, and potential for, the poisonous Public Service–ADF rivalry and bureaucratic interference in military professional matters (and other abuses of bureaucratic power) wrongly fostered and encouraged by a generation of Department of Defence officials up until comparatively recently. · Most of the media coverage has come from journalists who do not normally cover defence issues. This has resulted in the conflation or over-simplification of the five broad issues above in much of the media reporting. · Some generalist journalists and commentators, and various academic and political barrow-pushers, unfortunately do not appear to understand or even vaguely recognise the important legal, organisational and procedural distinctions between the ADF and the Department of Defence as legally and professionally separate entities – but ones which are mutually supportive and consequently partially integrated procedurally. In particular, obvious lack of familiarity with the defence force and indeed defence matters in general has meant plentiful media repetition of myths, unfounded suspicions and other shibboleths about ADF personnel somehow not respecting the principle of civil control of the military. Unfamiliarity with defence matters has also meant that some uninformed journalists and commentators have even made silly assertions that civil control of the military is somehow a bureaucratic function (by public servants) instead of solely a ministerial one constitutionally and procedurally. How bad were relationships really?
As part of its public-interest guardian role the Australia Defence Association talks with Ministers, senior ADF commanders, senior Defence officials and others interested in defence matters regularly. Our observation is that relationship between Minister Fitzgibbon and the department, and his relationship with the CDF and the Service Chiefs, was pretty much the same as the last two ministers. It was also certainly better, say, than when Peter Reith was the Minister and embroiled the ADF in the “Children Overboard” scandal.
Minister Fitzgibbon or his staff may have, of course, sometimes thought their relationship with the department was exceptionally rocky. But this apparent belief probably reflected their limited time in the chair since the late 2007 election and the fact that there is effectively no body of corporate knowledge passed on between successive ministers and their staffs in this regard (especially when they come from different political parties). Each Minister tends to think their experiences are unique when this is largely not the case. This lack of long-term corporate knowledge among politicians and their staffs is one of the main reasons why the serious underlying structural problems in relation to ministerial supervision of the department are so rarely understood and even more rarely reformed.
As with Brendan Nelson as Minister for Defence, the ADA has long noted that a lack of senior ministerial staff with departmental, defence force or other real (as opposed to say wholly academic) defence expertise also hampers effective ministerial supervision of the department and the ADF. What any Minister's staff needs is a leavening of former ADF and departmental personnel who know where the bodies are buried and can offer frank and fearless advice. It is even better if they are people with no ambition to return to the department and therefore unlikely to temper their advice accordingly. The absence of this expertise lessens the ability of any Minister to be pro-active in his or her relations with the department and the ADF or to adequately weigh advice from them. A staff mainly comprised of people chosen for their personal or political loyalty also tends to mean an undue focus on the politics of issues, and a short-term one at that, rather than a healthy or effective balance between party politics and actual governance in the national interest. It can also result in somewhat of a cultural chasm in relations and mutual understanding. Many political staffers do not easily grasp or even accept that the ADF, in particular, is necessarily imbued with a constitutionally-based professional approach and focus that strives to be thoroughly apolitical.
Even excluding the day-to-day focus on party politics by ministerial staff, there will also usually be a clash to some degree over longer-term perspectives and therefore perceived priorities. Political staff are naturally and primarily driven by the current-year budget cycle and the three-year electoral cycle. The department and the defence force, on the other hand, are necessarily working to the government's rolling 10-year defence capability plan and the even longer strategic assessment, capability development and investment cycles used in any professional defence force or defence department.
From our knowledge of the department, the ADF and key personalities it also appears unlikely that the motivation for the leak, or for the "investigation" (if one occurred), stemmed from widespread opposition in the department or the ADF to the Rudd Government's overall approach to managing our national defence. It certainly would not stem from any serious or widespread objection to the principle of civil control of the military by the Minister for Defence and Parliament. Media claims to the contrary only demonstrate a serious lack of knowledge of the ADF. Within these contexts, Minister Fitzgibbon's remark that he believed that the attacks on him come from elements of the department opposed to his "reform" measures was therefore unfortunate and unhelpful.
Underlying structural problems
All Ministers for Defence have their ups and downs with the department. Generally the root cause of this is not personalities or personal failings (real or alleged) but the sheer size, complexity and long-term implications of the national responsibilities involved. The overall ministerial workload is now effectively unmanageable despite attempts to cope through an ever-burgeoning bureaucracy, various procedural steps and both sound management principles and useless fads adopted from commercial practice.
As the biggest department, the fourth biggest government spender and third largest employer in the country Defence is also somewhat different from most other governmental responsibilities. The nature of its core business is, or should be, above party politics and the transient political trends of the current electoral cycle. It involves long-term and deep thinking about the unpleasant and even the unthinkable. It means, if necessary, the deliberate risking or taking of human life. At the ultimate extreme it means planning and preparing for our national survival. Finally, very few Australians think deeply enough about our defence to change their vote because of a defence matter. This means governments are prone to neglect defence investment unless they receive a strategic shock that focuses their attention.
We need to help any Minister cope with all this by bolstering their ability to provide ministerial supervision and effective civil political control of the military. The ADA has long argued for the portfolio minister to be assisted by two full-time junior ministers, one for DSTO and DMO and one for the ADF (on a similar model to the UK). The Minister also needs at least one full-time parliamentary secretary and probably two.
When the Rudd Government, on assuming office, appointed two full-time ministers and two full-time parliamentary secretaries the ADA applauded the increase in ministerial oversight from the one and a half ministers and one parliamentary secretary of the Howard Government.
Recently however, on the same day we saw the Opposition move a censure motion against Minister Fitzgibbon relating to his ministerial supervision, Prime-Minister Rudd removed one and a half of his two parliamentary secretaries to reinforce Penny Wong politically.
This might have seemed a good political management idea at the time but has undoubtedly been at the cost of good governance of the Department of Defence. At the very least it smacks of a serious right-hand-left-hand disconnect within the Rudd Government. It has also tended to further politicise the matter of ministerial supervision of Defence (rather than tackle the actual structural problems). It also no doubt sparked the interest of any keen political journalist but without necessarily interesting (or educating) them in the overall issue.
Media coverage not helping
The problem is also again due in part to most media reporting of defence issues now being done by political journalists rather than defence specialists. Even if only unconsciously, this means a domestic political focus often intrudes on matters that have little or no party-political implications – or that the political aspects get too mixed up with the (non-political) governance ones. It also often means reporting by journalists unfamiliar with defence issues or the constitutional and professional principles underlying the structure and practise of our national defence efforts. A lack of long-term knowledge of defence matters and their context also plagues much of the reporting.
Hence the use of emotive headlines such as "dirt file" or “snooping” and loose or incorrect terminology such as “spying”, "military intelligence" or "defence chiefs". A great deal of the media reporting on the relationship between Minister Fitzgibbon and his department, for example, lacked adequate context, was exaggerated or was overly devoted to peripheral issues. Too much was devoted to chasing red herrings, conspiratorial fantasies and even Vietnam-era student prejudices about the military. Much of the reporting appeared simply plain wrong.
Alleged "investigation" of Minister Fitzgibbon
On the specific matter of elements, a rogue individual or a small group of such individuals within the Department of Defence allegedly “investigating” their own Minister several points are worth noting.
First, no matter how harmless a relationship may appear at first glance, there is nothing intrinsically wrong in checking a close financial link between a Minister and a foreign-born Australian resident from a country known to mount extensive intelligence gathering, propaganda and counter-émigré activities in Australia. No professional counter-intelligence authority, for example, could afford to ignore the many historical examples where pressure was applied on extended family members still resident in the old country in order to suborn residents who have emigrated to a new one. This begs the question why ASIO was unaware of the matter, even in general, before it was publicised in the media.
Second, any such investigation would, however, have to be authorised and undertaken properly.
Third, on the description provided, it would not appear that Minister Fitzgibbon or Mrs Helen Liu have done anything illegal. In any event, the publicity would tend to preclude the potential for the Chinese regime to now try and manipulate Mrs Liu and her extended family in China in any way.
Fourth, any “investigation” of Minister Fitzgibbon by elements of the Department of Defence, if it occurred, was clearly unauthorised. Moreover, it is simply very difficult to believe that any proper investigation would, could or should be undertaken without the authority of the Prime-Minister and the involvement of key agencies such as ASIO. If, on the other hand, this matter was properly raised with the Prime-Minister's staff and nothing was done, as some believe, this would constitute a serious breakdown in governmental responsibility for national security.
From the cursory and vague assertions and descriptions given in the media, there has been no detail provided that confirms, or indicates with any authority, that personnel from the Department of Defence or the defence force were even involved. Based on the media claims, and professional knowledge of counter-intelligence doctrine and practice, it appears that one of four things may have occurred in probable order of likelihood: · the whole story is a mistake, hoax and/or media beat-up; · a preliminary check was undertaken by someone to see if a formal (and duly authorised) detailed investigation should be conducted (after authorisation by the Prime-Minister and consultations with the Attorney-General and ASIO); · a preliminary check was done (perhaps misguidedly but for genuine motivations) by someone acting without due care and authority and it went too far; or · enquiries were done improperly and illegally by someone motivated by party-political and/or bureaucratic biases. There is also the possibility that discovering a connection between a Minister and a foreign-born Australian resident with extensive Chinese connections arose through other (and legal) intelligence gathering activities overseas or from a wider counter-intelligence review of the Chinese government's extensive clandestine activities in Australia. It is also possible that the story was leaked using an alleged "Department of Defence" source as cover for actual leaker(s) elsewhere.
Why this matter was leaked to the media, and by who, is essentially a separate issue. It is not clear who gained from such a leak, certainly not Minister Fitzgibbon and probably not the hierarchies of the Department of Defence or the ADF (despite much shallow and erroneous media speculation to the contrary). One possibility is that this was leaked by elements of the Department of Defence (or elsewhere in the government) after consultations with Prime-Ministerial staff about a potential security breach led nowhere. Another possibility is the leak came from Fitzgibbon's opponents within his own party. A third is it stemmed from old-guard bureaucrats in the Department of Defence seeking to undermine the Secretary as discussed above. The odds of the latter being the case is perhaps strengthened because these elements have been particularly busy spreading misinformation and even fantasy in the media about the extent, nature and motivation of supposed bureaucratic and military opposition to recent and projected government policy on key defence matters.
Constitutional principles and conventions
Finally, there is, of course, the general principle that no Australian is above the law or their citizenship responsibility to help defend Australia and protect its secrets and people.
With two practical exceptions, all persons having access to classified information or secure areas are therefore vetted to the degree necessary to allow and control the access they need to do their job. In recent years the threat of terrorist attack has broadened the application of this principle. Everyone working airside at an airport or on the docks, for example, is now vetted (including police record and often ASIO checks). Everyone, without exception, is also subject to lawful investigation.
Vetting processes are not foolproof because they are always a compromise between the time available, the expense involved and the risk management consequences if the person concerned is only vetted to the degree possible or affordable. Often the deterrent value of vetting far outweighs its ability in detecting existing or potential vulnerabilities.
National defence matters are obviously ones requiring the highest levels of protection and individual conduct. All public servants, ADF personnel and civilian commercial contractors involved with our defence efforts are vetted to the degree necessary.
Ministerial political staff are also vetted to the same degree as their Public Service equivalents. This was resisted by some for narrow ideological reasons when the Whitlam Government was elected but the policy has been universally accepted by both sides of politics since the mid 1970s.
The two exceptions to vetting before appointment are the Governor-General and Ministers of the Crown. By convention, they are not vetted on the commonsense assumption that a Prime-Minister would be unlikely to appoint an unreliable person or potential traitor as a Minister. They are also not vetted to avoid the potential for a minor constitutional crisis should a nominee Minister be found wanting in this regard and a Prime-Minister still insistent on his or her appointment.
The convention regarding vetting does not provide absolute security but it is preferable to any realistic alternative. In practice, the career development and election of a Prime-Minister to lead a government constitutes a form of vetting involving the establishment of fundamental trust. At the apex of our constitutional system the trust implicit in this convention helps preserve the key principle of civil con |
