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Comment by the Australia Defence Association General. This page provides links to 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 a 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. 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):
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 instill 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.
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, 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 integrity of the ADF as the professional 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 a 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. 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 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).
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:
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
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.
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:
Four other minor aspects are also in play:
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:
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 control of the military (and the security intelligence services) by the government elected by the Australian people.
Every Australian (including Ministers), however, is subject to lawful investigation – but they also enjoy the presumption of innocence and have the right that such investigations are duly authorised and conducted legally and professionally.
Closing Guantanamo but Not by Closing Our Minds and Hearts
Most recent exchanges about accepting released Guantanamo Bay detainees into Australia are ahistoric. They often merely repeat the same factual, conceptual and legal mistakes and misapprehensions that have often bedevilled “debate” about Guantanamo in general and the case of David Hicks in particular.
When in doubt go back to the law
Proponents of varying views are either unaware, or ignore, that those detained at Guantanamo Bay are not suspected criminals (nor indeed mostly innocent victims) somehow being wrongly “held without charge for years”. They are instead captured belligerents being lawfully detained until the relevant war ends under that specialist body of international humanitarian law (IHL) known as the Laws of Armed Conflict (LOAC). The US Supreme Court has confirmed this several times over recent years. The first round of military commission criminal trials that a small number of detainees also faced was struck down by the US Supreme Court based on LOAC being the specialist body of international law applying - and the detainee's consequent status and associated protections under Common Article 3 of all four Geneva Conventions. Opponents of Guantanamo are particularly fond of citing the results of this and subsequent Supreme Court rulings but not to acknowledge their full or partial basis in LOAC.
In a war LOAC detainees - whether conventional prisoners-of-war (PW) under the Third Geneva Convention or other types of detainee (such as terrorists) who do not qualify for PW status but are still covered under Common Article 3 - can and usually are so detained until the relevant war ends. They can also be released earlier, either outright (as with Mamdouh Habib) or on LOAC parole. The decision to do so is the responsibility of a tribunal convened by the authorised detaining power under the Third Geneva Convention. In the case of the US, they describe these as Combatant Status Review Tribunals (CSRT).
Then look at the logic of the numbers
Only about 20 (around two per cent) of the 800 or so ever detained at Guantanamo also face separate criminal charges under US or international criminal law for terrorist offences or war crimes. As with David Hicks, their eventual release from detention under LOAC must wait until their separate criminal trials are over, one way or the other. The US can and probably will legally re-classify many of these particular detainees as solely remand or criminal prisoners, as applicable, and transfer them to US federal prisons.
For most of the remainder, since 2003 CSRTs have regularly reclassified Guantanamo detainees and around two-thirds of those ever detained have been released - not least because some should not have been transferred there from detention centres in Afghanistan and Iraq in the first place. Release is only justified where detainees are not or no longer a belligerent in the war concerned, or no longer a dangerous belligerent and therefore no longer a threat to the international community. Generally this is because they have renounced their allegiance to the Taliban or a terrorist organisation such as Al Qa’eda. Around 40 of those released from Guantanamo are known, however, to have illegally renewed their belligerency and have subsequently been killed or recaptured in the Iraq and Afghanistan wars. The actual number is probably greater but still a small minority of those processed and released.
International law remains universal even when it is inconvenient
Guantanamo has always been an interim and often far from ideal solution while international law catches up with new developments in international practice, especially concerning the lawful detention of belligerents (such as terrorists) who do not qualify as prisoners-of-war under the Third Geneva Convention. In the case of terrorists, they fail to qualify because, among other things, they are not commanded by a responsible authority able to take valid international responsibility for their actions – and their methods involve serious breaches of IHL such as indiscriminate attacks on non-combatants, the torture and murder of prisoners, the mutilation of bodies and general disregard for the principle of non-combatant immunity.
What many critics of Guantanamo of tend to ignore is that there will continue to be both a legal responsibility and a practical need to detain at least some of the belligerents captured in a war, somewhere, until the relevant war ends. Guantanamo may be soon closed but the legal and practical obligations, and moral dilemmas, involved under IHL do not somehow magically evaporate. Nor should they in a civilised world.
Those released from detention under LOAC usually go home (whether on parole or not). The problem with around 40 Guantanamo detainees is that some countries (China, Saudi Arabia, Yemen, etc) have either refused to take their citizens back (especially the paroled ones), or are not known for their adherence to IHL. Sending released detainees back to potential mistreatment or worse in such a country contravenes customary international law (especially the non-refoulement rule).
Resettling them in third countries is obviously an option because for legal, humanitarian and strategic reasons the problem is an international humanitarian one, not solely a US matter as some have oddly maintained.
Processing released detainees is little different to processing any asylum seeker, except where a CSRT has recommended their release on parole under LOAC until the relevant war (in most cases the Afghanistan one) ends. But even then, any breach of their LOAC parole, including renunciation of it, makes them liable for re-detention. Politically it hard to see such re-detention occurring often, and only in the most serious circumstances, but the threat of it would be an important legal constraint on the parolee and a strong contributor to their non-belligerence, broader compliance with IHL and, in our case, Australian law generally. Where and how such re-detention would occur, and perhaps by whom, are also issues, especially if the detention camp at Guantanamo is closed.
Inconsistency and hypocrisy
It is therefore doubly unfortunate and frankly illogical that the most vehement opposition to accepting released Guantanamo detainees has come from some longstanding Guantanamo critics. In many cases this stance has highlighted the hypocrisy, fragility and ideology of their former stances regarding Guantanamo.
First, on both sides of politics, particularly towards the extremes, the ones who have previously claimed the most humanitarian credentials now seem to be the ones adopting the most rejectionist stances.
Second, some have long claimed that those detained at Guantanamo Bay must be released from LOAC detention because they are not involved with Islamist terrorism or, if they were, would not now resume their belligerency if released. Many of the same people are now claiming that it would be far too dangerous for Australia to consider accepting any detainees as asylum seekers. This stance is surely inconsistent at best and oxymoronic in most cases.
Third, many unfortunately make no distinction between the different categories of releasable detainee and the different security threats involved. Detainees released absolutely, for example, would not generally constitute the same risk, or the same legal and practical monitoring and supervision difficulties, as those released on LOAC parole (where control orders would probably be necessary).
Fourth, most continue to ignore LOAC as the specialist body of IHL applying. They offer no moral or practical alternative to the time-tested Geneva Convention principle and practice of detaining those captured in war to prevent them rejoining the fight. They also ignore that not having some civilised method, and somewhere, to detain those captured in war only encourages and immorally sanctions their illegal killing at the point of capture.
Finally, most US allies in the Afghanistan War, for example, have been happy to hand over captured Taliban personnel and Al Qa'eda terrorists to Afghan and US detention respectively. In Australia's cases, we also long maintained a ridiculous legal fiction that the ADF was not capturing anyone in battle but that those we captured were somehow always nabbed by any accompanying US troops - even if only a solitary US individual among many Australians.
Close Guantanamo but what then?
The closing of Guantanamo Bay means many chickens come home to roost. This is not just a US problem because we have all been fighting the war in Afghanistan. Moreover, IHL, including LOAC, is universal in its applicability to the detained and those doing the capturing and detaining. When Guantanamo is closed, some detainees will still need to be detained somewhere because their release would contravene the LOAC and wider IHL responsibilities of the USA as the authorised (and delegated) detaining power, and various US allies as capturing powers, under the Third Geneva Convention.
Too many ignore that Guantanamo has always been an interim solution to a vexed series of IHL problems that will not go away with its closure.
The terrorist alternative to treating prisoners in accordance with IHL is to torture, murder and mutilate those captured. This is surely much worse in intent, scale, degree and detrimental humanitarian ramifications than anything perpetrated, however wrongly, at Guantanamo.
IHL in general, and LOAC in particular, only move forward when those who comply with them (even at some military cost) are rewarded and those who disregard or reject them are punished.
The reverse is happening at present as international attention is not concentrating on the transgressors in proportion to the intent, extent or contempt of their transgression.
Links to 2008 Comment: Mortimer Review into Defence Procurement and Sustainment Thoughtless Media Reporting of ADF Casualties Solving our Afghanistan dilemmas by understanding them Frustrations of the Modern Digger 2008 Defence Procurement and Sustainment Review (Mortimer Review)
Background
Excluding the often flawed political and policy processes involved with how such decisions are made (or not made) in Australia, and on what strategic assessment basis, properly equipping our defence force is a perpetual problem beset by five enduring difficulties:
• Australia is a continent not just a country on a continent. It is also located in a complex and diverse region in strategic, cultural, ethnic and political terms. Our population is relatively small in the region and our economy, standard of living and way of life are greatly dependent on sea-borne trade over vast distances. All these enduring geo-strategic factors result in a challenging and occasionally unique operational environment, including very large areas of land, water and airspace, enormous distances and wide climatic and sea-keeping variations. It necessitates a wider range of defence functions and tasks in comparison to most other countries. It means the need for a technological edge with weapons and equipment wherever possible to handle all these conditions generally, and to make up for our usual shortfall in numbers of personnel and equipments in particular. It also can mean needing to adapt foreign systems and equipment to unique Australian operational requirements and conditions, including the development of 'orphan platforms' (ships, vehicles, aircraft, etc) that no other country uses or uses in such a configuration. This latter aspect has often resulted in complex integration projects, compromises, delays, increased costs and fewer opportunities for economies of scale.
· • Long timescales are involved, including the time it takes to obtain equipment and the usually very long periods it remains in service with the ADF – often around 20-30 years and out to 45 years or more at times (such as the F-111 bombers, Caribou transport aircraft, M113 armoured personnel carriers and the Navy's heavy landing craft).
· • Reaching a decision on what needs to be bought is rarely simple even in professional or strategic terms – and can often become controversial if the strategic or operational logic involved is ignored or downplayed by political or ideological influences.
· • Agreement then needs to be reached on whether the equipment needed can be afforded (including over the life-of-type of the equipment concerned). If not, a decision then has to be made about what second, third or even lower-order choices are possible and available – and what continuing operational risks and perhaps longer-term financial penalties these less suitable choices involve.
· • Finally, reaching a decision on how each bit of equipment is to be purchased is rarely simple either, including whether this is from overseas or whether it should involve manufacture or assembly in Australia for genuine industry policy, strategic capability or balance of payments reasons. Local manufacture tends to increase the financial costs but some of these may be subsequently recouped if the industrial capacity developed leads to local economies of scale in manufacture, upgrading or sustainment over the long run.
Trade-offs are inevitable, not least because Governments are always keen to spend the money they should be investing in defence over the long term somewhere else, generally where the perceived short-term political advantage is highest. The urge to build or assemble locally is also often unduly influenced by political pork-barrelling rather than sound strategic or operational decision-making. Moreover, the military generally want the best they can get because they are primarily interested in operational efficiency and in minimising the danger to its ADF operators in worst-case scenarios. Various political and budgetary imperatives often take the opposite tack for reasons of finance, party-political expediency, unconscious indifference and, at times, bureaucratic arrogance. The military are therefore sometimes accused of “gold-plating” the requirement, sometimes justifiably but more often not. The politicians and 'bean counters' are often accused by the military of groundless optimism or parsimony based on short-term thinking, insufficient expertise or a perceived lack of the focus and commitment that comes from not having to personally operate the equipment concerned in actual battle.
Then there are the problems of financing and staffing the equipment during its operational life. For many years the way the annual way the federal budget works meant these aspects were managed quite separately to the initial procurement decision. Government parsimony with defence investment also encouraged the Services to downplay these ongoing costs during initial procurement decision-making in order to obtain the equipment they needed in the first place. How it would be paid for over the long run was wrongly regarded as a separate problem.
Until the mid 1990s once a decision was taken by the Government to purchase a specific weapons platform (ship, vehicle, aircraft, etc), weapon or other equipment for the ADF, the procurement was undertaken by the Navy, Army or Air Force. The logistic support and maintenance engineering involved during the life-cycle of the equipment involved was also undertaken by the relevant Service. It is worth noting that in this era each Service undertook these functions supervised by only a two-star Chief-of-Materiel and a two-star Chief-of-Logistics respectively. Cost over-runs and delays where they occurred were also much smaller than in the modern era, even for complex projects by the technological standards of the time.
This system was efficient in its day but needed to become better integrated as the defence force increasingly became joint-focused in its capability development, command structures and operations. The commercialisation of base-level logistic support and maintenance engineering in order to save money (even where this resulted in operational inefficiencies) also had a large effect. As did the trend for less and less equipment, especially larger platforms or more complex items, to be manufactured in Australia for economic and technological reasons. This latter aspect included the rise of the analogue and then the digital age, with the result that procurement programs often involved complex software integration challenges. Finally, more and more procurement contracts involved the contractor providing through-life support and sustainment, thus displacing much of the former Service requirement for maintaining associated maintenance engineering and logistic capabilities in-house (particularly in uniform).
This has significantly reduced the ADF’s surge capabilities in this regard. It also has had the unintended consequence of technologically de-skilling each Service to some degree. This latter aspect has unfortunately affected the ADF’s capacity for capability development adversely, especially as many higher-level decisions appear to now be made exclusively by operators without the traditional expert input from the engineering and logistic disciplines.
All these factors and developments, and the ever-increasing bureaucratisation of the Department of Defence, eventually resulted in the creation of the Defence Materiel Organisation (DMO) in 2003.
It is worth noting at this juncture, that for all the alleged faults of the Services with regard to procurement in the past, they undoubtedly did most of it very efficiently in terms of results and staffing. The centralised procurement and sustainment of defence force equipment now undertaken by the 7000-strong DMO is supervised by an Associate Secretary equivalent (the highest paid Public Servant in the Commonwealth), three – soon to be four if the Mortimer Review has its way – deputy secretary (three-star) equivalents and some 13 two-star equivalents; nearly all of them public servants.
The Mortimer Review
Under both the former Howard Government, and the current Rudd one, there has been a general political consensus that the DMO needs to be more commercially oriented and organised. Few outside government dispute this either. In May 2008 a further review led by Mr David Mortimer was commissioned, with Going to the Next Level: The Report of the Defence Procurement and Sustainment Review duly tabled in parliament by the Minister for Defence on 23 September 2008.
The review makes 46 recommendations for consideration by the Government. In most cases they are commonsense ones intended to formalise experiments and practices resulting from the operations of the DMO since its birth after the 2003 Kinnaird Review into defence procurement. In some cases recommendations are somewhat vague or contradictory and with a few they appear to have drawn back from advocating substantive reform. Some of this impression may be as much the accidental result of jargon and obtuse expression in the review as deliberate policy.
The report’s recommendations about better prescribing responsibilities for defining the defence capabilities required in the first place are relatively uncontroversial. The proposed assistance to this definitional process from the DMO in regard to financial costings and project management estimates is similarly logical, but care will be necessary to ensure the tail does not end up wagging the dog. The ADF is, after all, the only customer involved and its moral and institutional situation as an unlimited liability company is unique in Australian society. What specific defence capabilities (including equipment) are needed for our defence force, and what should be recommended to the Government for decision, must remain primarily a matter of military professional judgement – albeit with appropriate input from policy areas of the Department of Defence and, where relevant, the wider government apparatus.
The major bureaucratic decision recommended in the review is to establish the DMO as an executive agency, as well as a prescribed one, within the Defence portfolio. This means the CEO of the DMO will answer directly to the Minister for Defence, through the Parliamentary Secretary for Defence Procurement, rather than through the Secretary of the Department of Defence and the Chief of the Defence Force (CDF). It is not resurrecting the failed concept of the Hawke-era Department of Defence Support but there are some similar potential pitfalls with too much independence, and ignoring the customer, that will need careful consideration by the Government. As an executive agency the DMO would be larger than most government departments in numbers of staff, budget and breadth of responsibilities. Whatever the eventual decision, the report further strengthens the case for upgrading the DMO's supervising parliamentary secretary to a junior minister within the defence portfolio.
With this in mind, a major difficulty in deciphering Going to the Next Level is its apparent lack of recognition or understanding of the diarchical control of the Department of Defence by the Secretary and the CDF. Now this diarchy, for reasons best not elaborated on here, in part results from the constitutional and statutory responsibilities vested in the CDF that authorise his command of the defence force (under the civil political control of the Minister and the elected Government). This command by the CDF includes his ultimate responsibility for the equipping of the ADF. This is a responsibility he may partly delegate to a subordinate ADF commander (such as Service Chief) but not otherwise avoid. It also involves an accountability to the Minister (and the Government) held by no other person or appointment in the ADF or the Department of Defence.
This underlies the review’s somewhat convoluted discussion of the sustainment of equipment through its operational life as opposed to its procurement in the first place. Even more than the initial procurement, this through-life support of equipment is inextricably and directly bound up with the operational efficiency and employment of the ADF. In both legal and practical terms the command and control of sustainment is a military not a public service or commercially-contractable responsibility. The bottom line here is that it all very well to further define the responsibilities of the ADF’s capability managers, especially the CDF and the three Service Chiefs, but somewhat contradictory to lessen their ability to exercise their command responsibilities by hiving off actual control of some of them to the DMO too readily. The same argument applies to further divesting the CDF and the Service Chiefs of budgetary responsibilities, especially their capacity for discretionary procurement spending to meet urgent capability or operational needs. If a commander is responsible for an output they must also have primary control over their financial or personnel inputs. The CDF and Service Chiefs also need to retain sufficient staff capacity and analytical capability to achieve their responsibilities, including the ability to monitor how well the DMO is achieving procurement and sustainment functions (such as fleet management) on their behalf. The Mortimer Review does not clearly address how this could be done if the DMO was to become an executive agency fully independent of the ADF chain of command. In a nutshell, we must always remember to let commanders command – and that proper accountability in both peace and war requires a clear chain of command.
Finally, the most wishy-washy recommendation in the whole review is that the Defence Procurement Advisory Board instituted in 2003 ‘should continue’. There is little discussion of why (beyond its apparent success so far), and no mention of how, or just as importantly how it should be protected from any future bureaucratic urge to abolish it. The review also ducks the question of whether the DMO needs to be overseen by a statutory board given the intended commercial role and culture, and its projected independence as an executive agency. Surely if such a board structure works so well in commerce and industry, and worked so well in the old Department of Supply up until 1974, it seems odd the review did not bite the bullet in this regard.
In 1997 the thoroughly mis-named Defence Efficiency Review (DER) was ostensibly focused on reorganising the Department of Defence and the higher echelons of the ADF using the principle structured for war, adapted for peace. Over the next ten years, in keeping with the Orwellian terminology of the DER, the bureaucratisation of the Department of Defence grew even worse in size, complexity and inertia. The few genuine reforms stemming from the DER were largely neutered or reversed within a few years, sometimes deliberately, sometimes not. The Mortimer review, for all the fact that most of its recommendations seem logical, at least in principle, also seems to have been prepared with a view more to harmonising bureaucratic and financial responsibilities in peacetime even at the cost of complicating the CDF’s command of the ADF in both peace and war.
The Department of Defence and the DMO primarily exist to support the ADF not vice versa. The Australian Government must have useable and relevant defence force capability at its disposal when needed. Consequently, the prime output of our defence efforts is the development and maintenance of such capability, not marginal endeavours or quasi-outputs such as "policy", "paper" or "financial efficiency". Saving money, rationalising bureaucratic processes or introducing a more commercial approach to procurement functions are not ends in themselves where the defence force is concerned, particularly if they come at the price of greater strategic and operational risks, flawed command structures, increased casualties, potential strategic humiliation or actual military defeat. We should not forget why Australia maintains a defence force. Nor why the operational efficiency alone of that force must always remain the over-riding principle in how it is controlled by Ministers, how it is employed by the Government to execute national resolve, and how it is commanded, structured, equipped, supported and financed.
Hopefully the Government recognises this and will be logical in its consideration and implementation of the relevant recommendations.
More Thoughtless Media Reporting of ADF Casualty Matters In recent years the ADA has strongly protested media intrusion into the grief of families mourning the death of defence force personnel. In at least two recent cases, reporters have door-knocked ADF housing areas on the day of a fatal casualty trying to find the widow so she can be interviewed. In both cases the reporters concerned (and their newspapers) have denied any breach of ethics and claimed their behaviour was somehow "in the public interest". This is an invalid excuse for clearly unprofessional journalism.
The ADA has also raised with each television network the problem for families and friends when file footage concerning previous casualties, such as ADF ramp ceremonies or military funerals, is continually reused insensitively to illustrate the reporting of new casualties. Such thoughtless use of file footage, especially where the deceased Service member or family concerned are readily identifiable, has caused renewed grief and sometimes significant offence for the families and friends of such deceased ADF personnel.
The fundamental principle involved is that it is up to the grieving family alone to make the decision – in their own time and without any pressure (or indeed contact) from the media – if or when they will speak publicly or issue a statement. Every family grieves differently but it is particularly outrageous for the media to bother grieving families in the first 24-48 hours following notification of death or to do so at any time if the grieving family have requested privacy.
There is no legitimate public interest in intruding on the private grief of a bereaved family and it is simply wrong for the media to claim otherwise. Furthermore, this is well understood by the public at large and most Australians would be rightly horrified if they knew the details of such media intrusions.
Media speculation about the recent death in combat in Afghanistan of Signaller Sean McCarthy is yet another example of irresponsible and extremely disappointing media behaviour in this regard. Based on a single source, and even then one covering just a single aspect of a complex battlefield situation, the Australian has published allegations that have no public benefit and indeed have caused considerable public harm.
The thoughtless attempt by the Australian to contact Signaller McCarthy's parents for comment on its allegations was particularly insensitive and contrary to any reasonable reading of the code of ethics supposedly governing the activities of Australian journalists. The McCarthy family have lost their son. In their grief and anguish they have enough to worry about at this stage without being compelled to comment on unprofessional and sensationalist media speculation as to how he might have died – including speculative inferences and suggestions that his death might have been preventable.
The details of Signaller McCarthy's medical treatment will be known soon enough when the post-action analysis and reporting of the tactical incident involved is completed. Moreover, these details will form part of the operational account of the entire operation concerned so his medical treatment at the scene, his aero-medical evacuation and his further medical treatment can be examined in light of all the tactical, medical and battlefield transport factors involved. Speculation without knowing all the facts and factors involved is simply pointless as well as insensitive.
If something did go wrong with Signaller McCarthy's medical evacuation we will know soon enough. We can also have confidence that if anything did go wrong the ADF will move heaven and hell to prevent a recurrence. It is simply naive to believe otherwise because defence force operations are so reliant on the principles of teamwork, mutual trust and leadership at all levels. Nothing has been gained by the Australian publishing this story and much unnecessary distress has been caused to Signaller McCarthy's family, friends and ADF comrades.
It is also worth noting in general, of course, that combat is an extremely complex and dynamic environment. Casualty evacuation on the battlefield in Afghanistan is obviously a much more difficult and nuanced situation than ambulance care in civilian life in Australia. Any media coverage of combat casualties should bear these facts in mind rather than insensitively speculate on the circumstances of the operation concerned merely to sell newspapers or further the career aspirations of reporters at all costs.
Solving our Afghanistan dilemmas by understanding them The operations and prospects of the current coalition campaign in Afghanistan are often mistakenly compared to the 1978-1988 Soviet occupation or to various 19th Century British-led invasions and punitive expeditions. Such simplistic thinking ignores that the NATO-led force is supporting a democratically elected Afghan Government and is not an occupying army. Or that it does so with extensive UN authorisation. The strength of opinion on the current war in Afghanistan is often inversely proportional to actual knowledge of the country and its recent history. In the 1970s Australia had only a handful of Afghanistan experts and one was Dr Beverley Male, who taught political science at UNSW's Faculty of Military Studies at the Royal Military College, Duntroon. When the relatively moderate Afghan monarchy was overthrown in mid 1973, Dr Male noted that the country’s many fractious pressures tended to encourage warfare rather than co-operation with any government in Kabul that sought to impose centralisation and/or radical change. As the new republic subsequently gave way to a communist dictatorship and then two even more violent changes of rule between communist factions – the last involving a full Soviet invasion – Dr Male kept reminding her students of Afghanistan’s long traditions in this regard. Following the Soviet withdrawal in early 1989, and once the unifying effect of a hated common enemy was removed, traditional Afghan disunity became turbo-charged. Much of the country’s surviving physical, civic and intellectual infrastructure was destroyed in a decade of vicious civil war. The destruction of Afghan civil society above village or clan level became almost complete in much of the country. Those Afghans most needed to rebuild the country – members of the professions and the educated middle class – were heavily over-represented in refugee flows and particularly among those who permanently resettled in distant countries (including Australia). Afghan society collapsed so badly that many initially welcomed the rise of Taliban control because it brought peace – albeit that of the graveyard and at the cost of a retreat to medievalist theocracy, neo-Luddite socio-economics and pervasive political and cultural repression. Some ethnic groups and outlying provinces never accepted the Taliban and civil war continued at some level across much of the country. Over three decades of war and disruption has resulted in a near-total collapse of national sovereignty and national morale. Afghanistan’s civil society base is extensively damaged. The physical, cultural and demographic terrain for counter-insurgency campaigning is therefore quite complex. The insurgents are at least partly sustained by a politico-religious fervour separate from, but interwoven with, the Afghan conflict itself. What socio-economic infrastructure that does exist in many highly contested areas is effectively that of a narco-state. The new parliament is the most representative ever, but not yet effective in converting broad representation into unified effort. The government is outwardly democratic in form and intent but the president’s nickname is “the mayor of Kabul” and his writ is limited. The government has few resources and is inefficient, riddled with corruption at national, provincial and local level, and often lacks grassroots support in terms of confidence, hope or relevance. Finally, there is a physically, ethnically and politically porous border with Pakistan that provides significant insurgent sanctuaries – and Pakistan has serious domestic and strategic vulnerabilities of its own that destabilise Afghanistan, the region and potentially global stability. Helping rebuild Afghanistan as functioning society, polity and country will therefore be a long-term, complex and expensive task. So maybe we should just give up now say some. This begs the question that the doomsayers usually prefer to duck – what are the likely alternatives and what is the risk that they would be worse versus the chance they might be better? Do we just leave the Afghans to it, as largely occurred with such spectacular lack of success after the Soviets were forced out? Is this option viable even if we ignore any moral consequences or responsibilities? Given the sanctuaries the Taliban gave Islamist terrorism throughout the late 1990s and early 2000s, can we risk that happening again? Can we actually quit? Or do we, as one of the participants in the UN-endorsed, US-led coalition intervention in 2001, have legal and moral responsibilities to stick it out? What might happen in Pakistan if we quit Afghanistan and what could happen there if we stay? Whether we stay or go, there remains a real risk that it would cost more blood and treasure in the long run if we quit now but subsequently have to return and help fix an even bigger mess? These are all valid questions, often with interlocking dilemmas and nuanced, uncertain or unknowable answers. At the end of the day all wars are contests of will and end when one side gives up. It may be that faltering will among key European NATO members eventually takes the decision out of our hands. But we do not live in Europe. The ideologies that brew and feed in Afghanistan impact on Australia differently, and generally more directly – as has been shown by the Bali and Jakarta bombings, and Islamist terrorism throughout southeast Asia generally. Part of deciding our policy on Afghanistan is to grasp the timescales involved. Counter-insurgency warfare on this scale is not a matter of instant or quick results and Afghanistan will be more difficult than most. The campaign against communist insurgents in Malaya ran for around 15 years with the last remnants not surrendering for another 15. Defeating the IRA in Northern Ireland took over 30 years. Our active counter-insurgency involvement in South Vietnam lasted a decade (with that war later ending by conventional invasion from North Vietnam). Our military, economic and development efforts in Afghanistan are also likely to grow, not shrink, in the near to mid term if we are to win. But at the same time, there is little point emphasising this now, and thereby further bailing out those Western European countries who are still treating their NATO commitments in Afghanistan as a peacekeeping mission and not a war. Finally, there are the humanitarian considerations both altruistic and those stemming from strategic self-interest. The people of Afghanistan need our help to make or keep the bootstraps that they can then use to haul their country up by. The day will come when we are not needed to help. The day may come sooner than we expect when the Afghans choose to finish the job without foreign assistance. The day may come when we need to wean them from dependence on outside help. But none of these days seem likely in the next half-decade or decade at least. Frustrations of the modern digger
Australians are generally proud of their country’s military efforts since the mid 1880s but this has never developed into a militaristic culture. As a community we salute our war veterans meeting together each Anzac Day. As a nation, we honour the sacrifices of our war dead on Remembrance Day. While the image of the ‘digger’ as a successful soldier and force for good in the world is a national icon, for the other 363 days each year our veterans and the efforts of our current defence force are rarely at the forefront of the thoughts, interests and understanding of most Australians. The withdrawal of our small infantry-cavalry force from southern Iraq, and spirited professional debate in the Autumn 2008 Army Journal, have prompted media commentary – much of it superficial – on how our current diggers see themselves and how our allies see them, both set against this iconic folk memory of ‘the digger’. The confidence building and back-up role of our Overwatch Battlegroup (OBG) is no longer required and the operational need for the OBG on the ground has tapered off over the last year or so. There would always come a time when the Iraqis no longer required such assistance in Al Muthanna and Dhi Qar provinces (which were the first two handed back to full Iraqi control for internal security) and this juncture has now arrived. The withdrawal of the OBG does not harm our strategic interests in Iraq and more broadly (including the Australia-US alliance). Nor does it invalidate our broader efforts and continuing responsibilities to help rebuild a new Iraq. Our other military and foreign aid commitments are not being withdrawn. The OBG has continued to suffer casualties (mercifully none fatal) and it is arguable whether further sacrifices need to be risked relative to the operational and strategic interests now involved. The withdrawal is also driven by the need to reconstitute our limited military resources for higher priority contingencies, not least because nearly half our infantry and cavalry forces have been deployed overseas in Iraq, Afghanistan, East Timor and the Solomons, and this is simply unsustainable in the long run As debate in the Army Journal indicates, the OBG’s increasingly limited roles have also resulted in growing professional frustration among its well-trained troops – especially when compared to US efforts elsewhere in Iraq and indeed our military commitment to Afghanistan. Now we should never go to war merely to update the professional skills of our defence force or to ‘blood’ a new generation of diggers in the stark realities of combat. But if our government decides to go to war for moral, legal and strategic reasons, there are obvious long-term professional and strategic benefits to rotating as much of our defence force through the conflict concerned, and in as many facets of combat, as is possible, relevant and justified. And to allow our diggers to fight, and if need be risk death or wounds, for causes they believe in and the war-afflicted people they believe in helping. Finally, there are also matters of personal and national honour, including their desire to uphold the proud digger traditions, and long-established international military reputation, they have inherited and safeguard on our behalf. It has therefore smarted somewhat for our diggers in southern Iraq (but not elsewhere) to cop the odd jibe of ‘South Pacific French’ from American and British compatriots with broader roles, different rules-of-engagement and a professional pride that they could demonstrate more freely. Iraq has not fundamentally undermined how our allies view the professionalism of our defence force, far from it. But we have unduly risked comparison with those European NATO members Australia has rightly criticised in Afghanistan – for treating that war as a peacekeeping operation by placing stringent operational caveats on the location and employment of their forces. Our diggers are pulling their weight internationally but many do chafe at not being able to do more. Legitimate concerns of longer-term professional decline in the combat arms (and the Special Forces recruited from them) if they are not employed more broadly have also been expressed. Most modern wars are fought by coalitions with different countries providing complementary capabilities. In Uruzgan Province in Afghanistan, for example, we provide the engineers and the Special Forces, and the Netherlands provides the infantry, artillery and attack helicopters. We also provide enough infantry and cavalry to protect our engineers in their reconstruction efforts so the latter do not have to down tools constantly and fight off Taliban attacks. While such primarily defensive combat by our infantry and cavalry is vital and highly dangerous, it is somewhat galling for them in terms of limiting their ability to take the fight to the Taliban as their allies (and our Special Forces) are able to do. The relatively small numbers of our infantry and cavalry involved also contributes to the professional frustration This in turn stems from political concerns about public acceptance of higher casualties – however valid or unfounded they may be And because Australia’s ability to deploy the larger forces required for sustained offensive operations is so limited; hence the current program to rebuild ADF strengths, including two more infantry battalions in the Army and better equipment for the others. These are complex and nuanced moral, strategic and professional issues, but letting our diggers do their job is certainly part of any resolution.
The announcement by the Minister for Defence, Joel Fitzgibbon, of the outline process for writing the 2008 Defence White Paper is tentatively welcomed.
Although disappointingly expressed in much Department of Defence jargon, and with much detail unclear or unexplained, it is encouraging to see Minister Fitzgibbon’s announcement avoid some of the major pitfalls that so beset the development of previous defence white papers.
Most importantly the Minister acknowledges that our defence capabilities are needed to defend Australia and promote our national interests. The ill-defined and unrealistic concentration on just the former has caused numerous problems with the development and implementation of previous white papers.
But by what process?
The Minister’s announcement was oddly short of much detail about the process to be used. It is also somewhat puzzling to see any public servant described as the principal author of a government white paper. Surely any such individual is no more or no less than the leader of a team drafting such a paper at the direction of the National Security Committee of Cabinet (NSCC).
It is hoped the NSCC will be actively engaged in directing the paper’s development, checking its analyses and examining its recommendations, not just act as a passive recipient of bureaucratic conclusions and wishes. Even the best white paper, of course, can only provide guidance. The NSCC also needs to remain aware that white papers should not be drafted, approved, promulgated or implemented as rigid or doctrinaire statements that brook no review in light of subsequent events.
It is also hoped that the team assisting Mr Michael Pezzullo in preparing the white paper will be broadly drawn to ensure adequate consultations occur across the defence force and the Department of Defence, and indeed across the whole of the government. This was a significant contributor to the failure in intellectual coherence of previous white papers and their inability to predict or assess many future strategic trends accurately.
Although absent from the announcement, and only hinted at in other remarks, it is further hoped that the steerage of the white paper within the Department of Defence will be actively led by the Minister with the full, active and continuous involvement of the CDF, Service Chiefs and Secretary. This has not occurred with previous white papers – to the marked detriment of the country's long-term defence preparedness and to the range of strategic options available to various governments when eventually needed.
The poor or insufficient direction, or unthinking acceptance of flawed or biased, white papers in the past has often resulted in considerable professional frustration throughout the ADF, not least because it has meant needlessly increased operational risks to the men and women serving in it. This has occurred when Australian governments have committed the ADF to crises, ill-equipped, under-gunned, under strength or otherwise unprepared, because white paper "guidance" has been very rigidly or narrowly interpreted, or such crises were not even foreseen or acknowledged in white paper "guidance". As a direct consequence the defence force has been too often not resourced, structured, equipped, trained or focused appropriately for the operational tasks it eventually has had to undertake at the government's direction and on the nation's behalf.
Finally, the announcement that a formal community consultation process will again be used is an encouraging sign. This type of inclusive and educative activity was one of the few enduring successes of the 2000 white paper process and well worth repeating in 2008.
Ministerial advisory panel
The three external appointments to the Ministerial Advisory Panel are welcome from several points of view. Although it remains unclear what their responsibilities and involvement will be, Major General Peter Abigail (Retd), Dr Mark Thomson and Dr Ross Babbage all bring widely acknowledged expertise to the task of reviewing Australia’s defence policy. Furthermore, just as important as the individual knowledge and objectivity they bring, is their shared experiences of policy development failures within the Department of Defence in the past.
It is also refreshing to see that the new Labor government appears to be continuing its intellectual renewal in the arena of defence policy since the election of Kevin Rudd as leader at the end of 2006. Just as important as the breadth in expertise of the three external experts, is the fact that the government appears to have continued to move on from the grip of those controversial strategic theorists who have unfortunately held many Labor figures in such thrall throughout the 1986-2006 period – even after the clearly demonstrated failures of their strategic nostrums over the last decade or so.
It would, of course, disappoint many in the defence force and wider Australian society if such failed theorists had more influence in the preparation of this white paper than any other Australian should have. We cannot afford to ever be mugged by strategic reality again as Australia was during and after the 1999 East Timor crisis.
The only minor note of concern is that all three external experts are not entirely independent of the wider government apparatus, being employed by think-tanks largely dependent on federal government funding. This is perhaps somewhat inevitable in the Australian setting, but we hope appropriate steps will be taken to prevent any real or perceived conflicts of interest.
Follow through
Finally, preparing Defence White Paper 2008 is only the first step of a journey well into the future and one well beyond the day-to-day perceptions or future thinking of most current politicians and virtually all electors.
In particular, it is worth noting that the 1976, 1987 and 1994 white papers were never followed by the levels of defence investment they assessed as necessary to fulfil the strategies and defence capability programs they envisaged as needed. Indeed, the increases in defence investment of the last seven years or so have been necessary in part to cancel out the sustained under-investment over nearly three decades by both Coalition and Labor governments.
These recent increases in defence investment have also been necessary to cope with a strategic situation not envisaged, or in some cases openly rejected as likely or even possible, by flawed or rigid thinking in previous defence white papers. There are obvious lessons here for the development and implementation of Defence White Paper 2008.
Links to 2007 Comment: DNA Database for the ADF. The institution of a DNA database for defence force personnel is a commonsense addition to current pre-deployment medical, legal and administrative measures but only if there are sufficient privacy safeguards. These safeguards include specific legislation restricting use of the database to post-mortem identification purposes only, the destruction of all physical samples after the DNA sequence is entered in the database and the destruction of database entries after 60 years. The use of the database for any other purpose than post-mortem identification (paternity testing, insurance vetting, criminal investigation, etc) must be absolutely prohibited by legislation and punishable by lengthy gaol sentences. ADF Support to the Federal Intervention in NT Aboriginal Communities. The federal government’s extraordinary intervention in several Northern Territory Aboriginal communities has bipartisan support among the mainstream political parties but has attracted wider political and social controversy. The use of defence force elements in the intervention has already involved the ADF in some of this disputation. Because of this, and because the overall whole-of-government effort necessarily encompasses civil policing functions, it would be better if this long-term operation, emergency or not, was now headed by a civilian official (say a senior physician) rather than a serving military officer. The current government has often relied on the professional ‘can do’ approach of the ADF to overcome bureaucratic and other obstacles, but leaving Major General David Chalmers in the position much longer is inappropriate on a range of constitutional, professional and national-unity grounds. He should be released to return to his core business as a senior ADF officer. Gap-year program for ADF Service. The ADF gap-year program launched on 09 August 2007 is an imaginative step to help solve defence force recruiting shortfalls. But just as importantly the program also has important implications for the integrated relationship between the defence force's full-time and reservist components, and for the future relationship between the ADF and Australian society generally. Troop Strengths in Afghanistan. The latest fluctuation in the strength of our military commitment to Afghanistan needs to be put in perspective. Much commentary has concentrated on its supposed meaning for domestic political debates in Australia. This is largely irrelevant. How to Release David Hicks: On the fifth anniversary of his detention at Guantanamo Bay after capture during the early days of the continuing war in Afghanistan, many Australians remain confused about the international law underlying the detention of David Hicks as a belligerent captured in that war. The apparent unfairness and delay of the proceedings for his separate criminal trial have resulted in most Australians focusing on this issue alone. This, in turn, has led to the spread of two related but false assumptions: that David Hicks is merely a criminal prisoner awaiting trial and that if the criminal proceedings are dropped then he would be freed. Both assumptions ignore the relevant international law. Arguments to release him based on such serious misunderstandings are actually delaying the option of releasing him on captured belligerent parole. A comprehensive discussion of the vexed legal situation of David Hicks may be found below. Links to 2006 Comment: Just Trying David Hicks or Releasing Him is Not the Point: As confirmed by the late June 2006 US Supreme Court ruling in the Hamdan test case, David Hicks' detention under the Laws of Armed Conflict is a fundamentally separate legal issue to whether he can or indeed should be tried for terrorism offences, and if so, how and by whom. This distinction and its underlying principles of international law are not understood or are simply ignored by too many on either side of the David Hicks controversy. Women in Combat: The battlefield remains an unforgiving environment where the laws of physics and bio-mechanics apply without necessarily respecting the nostrums of academic gender-equity theory. Operational capability must be the prime determinant of employment policy. The recent commonsense tweaking of longstanding principles was sensible but there continue to be sound operational reasons for retaining some separate rules governing the exposure of female soldiers to close physical combat on a continuous basis. National Service: By all means have a debate on conscription but it should be an informed one. Equipping the Troops: The ADA welcomes the report of the Review of Combat Clothing Procurement and the Government's adoption of the review's recommendations. Such procurement, of course, is only a small part of the complex problem of adequately equipping and sustaining the entire defence force for the future. How Stretched is the ADF? The defence force is stretched but not over-stretched by current deployments but its ability to handle additional crises may be constrained (depending on the nature of the crisis). Defence Woes: Why are there so many problems in the Department of Defence at present? Appointment of Dr Brendan Nelson as Minister for Defence Afghanistan and Iraq: New commitment to the former reflects the dynamic situation, as does the exit strategy for the latter What's in a Name: Much criticism of the new sedition laws is missing the point Links to 2005 Comment: Counter-Terrorism Laws: They do need tightening and the debate must be calm and informed. Senate Inquiry into the Military Justice System: Yes it is broken. Holistic but careful reform is required ADF Recruiting, Retention and Remuneration: Genuine improvements not just more lip service needed Defence Budget 2005/06: The real situation behind the budget-day hype, gunsmoke and mirrors Abduction of Douglas Wood: It really depends on who seized him and who now has him New Chief of Defence Force: The ADA welcomes the appointment of Air Marshal Angus Houston as CDF Sea King Helicopter Crash on Nias: Tragic results from deeper causes Iraq: The commitment to Al Muthanna Province underlines real deficiencies in our defence force Iraq: An air of inevitability surrounded our increased commitment in Al Muthanna Province Links to 2004 Comment: Inquiry by the Inspector-General of Intelligence and Security: More questions than answers again The Real Problem with Our Intelligence Agencies: Its the bureaucratisation not the politicisation stupid! Inadequate and Declining Defence Spending: The real situation of defence spending over the last three decades and the probable effect of further changes to the federal-state compact 2004 Federal Election: Another wasted opportunity to discuss defence issues effectively Negotiating with Terrorists: The peril of negotiating in terror rather than in a disciplined manner Women in Combat: Calm and dispassionate discussion not ideology is needed Credibility Overboard Again: Rank disorganisation continues in the Department of Defence The Letter from the 43: A most unhelpful contribution to effective public debate from 34 retired diplomats, 3 former Defence officials, 6 retired defence force officers (and no former intelligence officers) Defence Budget 2004/05: More gambling with our children's future Too Much Politicking: Not enough regard for the national interest in posturing on defence issues
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