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Bishop, Sen Mark
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Monday, 25 October 2010
Senator MARK BISHOP (9:28 PM) —In this debate I will deal with three principal matters relating to Australia’s engagement in Afghanistan: firstly, the nature of modern warfare as context for our engagement; secondly, the issue of parliamentary approval for such engagements overseas; and, finally, the implications for the reform of the military justice system flowing from charges laid against three Australian soldiers.
As many speakers have observed, modern warfare as experienced in Afghanistan is dramatically different from the historical norm. In the past, warfare has been the result of territorial aggression by one societal group over another, including between states. Its motives have been territorial expansion, the subjugation of one people by another, wealth and, of course, new markets. Just as frequently, it has sought to impose one ideology and culture on another, including religious values and systems. In many cases, these motives were complementary, as empires of the world through the ages have evidenced.
Warfare has been most successfully employed by the developed nations of the west, including the ancient Greeks, Romans and Turks. It was their wealth, highly organised systems of governance, technology, and societal discipline which produced the necessary standing armies which brought success. In modern times, however, large-scale warfare has been primarily conducted by one state over another, individually or in alliances.
In this case there is no nation-state as the enemy. Since the inception of the United Nations and other multilateral groups such as NATO, war has also been waged to secure peace. Indeed, as the multilateral campaigns in Iraq and Afghanistan have demonstrated, the motives for involvement in war have widened considerably. They now include the removal of despotic leadership, the establishment of democratic systems of government, the elimination of risk of warfare to third parties and the world in general, and the suppression of terrorist sources.
Some also see collateral benefits in the removal of the opium trade, the promotion of humanitarian ideals and, more cynically, the preservation of access to resources and trade. Others feebly argue that it is a matter of honouring our alliance with the United States, but that trivialises their own professed rationale. As we have heard in this debate, this is a moving feast, not assisted by inadequate information and poorly articulated rationale. The subjective views expressed reflect this confusion of motives. Indeed, there has been a confusion of motives, I suggest, for all nations involved. There has been exactly the same debate everywhere, ranging from hard practicality through hopefulness to the idealistic.
Inevitably, however, there are only four possible outcomes: the so called ‘war’ will be won—that is, the enemy, the terrorists, will be defeated, never to return; the war will be lost, with an allied withdrawal and retreat a la Vietnam, and a new government installed; there will be a negotiated truce, perhaps with a new government; or the war will drag on interminably. At this stage, unfortunately, none of these four options is a betting proposition. These are circumstances of war which have never been experienced, and Korea, Malaya, East Timor, Iraq and the Solomons provide little value as guides.
Put simply, my position is that, having committed, Australia should persist on its current course. However, I do wish to sound a note of caution. Inevitably, battle fatigue will set in socially and politically, if it has not already. At this critical time, however, we should have one concern paramount, and that is the commitment of our troops now engaged. Those fighting under our colours deserve complete loyalty and the fullest possible support. They must know and understand their mission and it is imperative that this parliament and the people of Australia understand it clearly as well. They need to know they have our full support and that at the instant it ceases they will be brought home.
That is why this debate is important: war is a terrible thing; it must always be a last resort. The suppression of one force by another involves death and the fear of death. That is why we all abhor war and why decisions to go to war are the most serious a government can make—hence the debate about the power to make those decisions and the evidence justifying the decision once made.
Australia’s engagements in Iraq and Afghanistan have prompted this debate here in the parliament on a number of occasions already. I do not wish to cover the detail of the debate here this evening, but I will refer to the report of the Senate Foreign Affairs, Defence and Trade Legislation Committee of February this year. All the issues were canvassed in great detail. Unfortunately for those who persist, the report has gone relatively unreported.
In essence the bill, which would have shifted the power to commit forces from the executive to the parliament, was rejected. One reason for rejection was the practicality of how to limit and define the purposes of overseas deployments requiring approval. However, the principal reason for rejection concerned the principles of the Westminster system and cabinet government, which have served us so well for over 150 years.
The Ludlam bill and its several antecedents appear motivated by one purpose: unchanging desire to restrict the power of executive government or a permanent desire to deny that the rationale for war might be legitimate in some circumstances. I say this because the manifest purpose of that bill has not changed in a generation, despite several inquires making numerous criticisms and identifying repeated shortcomings. However, overall the committee agreed that, for reasons of intelligence confidentiality, the need for flexibility and, in some cases, speed, the rationale for change was inadequate.
The parliament still has the power to vote for money for any such deployment. It also has the power to legislate for conscription if necessary, as we have seen during World War II and Vietnam. It also has the right to debate the matter regularly if it likes, as it is doing right now. Inevitably, public conclusions will be drawn and governments will be put on notice about their policy rationale and its acceptability—particularly its ongoing acceptability. I commend the committee report to those interested.
Finally, I want to address the policy controversy concerning the charges laid against three ADF personnel by the Director of Military Prosecutions, the DMP. The charges arise from action against the enemy in Afghanistan. As Chair of the Senate Foreign Affairs, Defence and Trade Legislation Committee, I am very dismayed at the level and content of the debate on this particular aspect of our commitment. In particular I refer to two articles that appeared in the Australian on 18 and 22 October, which are simply ignorant on fact and context.
In June 2005, under the chairmanship of Senator Evans—the current Leader of the Government in the Senate—the committee tabled a comprehensive report on military justice. That report was supported by now opposition senators Payne and Johnston. The committee recommended sweeping changes to the system of military justice. It addressed fully the application of military justice in Australia and overseas. It addressed the application of military justice in a domestic context and in theatre. Most critically, it did not address the alleged or actual commission of offences in combat or direct combat, or actual engagement with the enemy.
The Senate report did not just concern behavioural misdemeanours of bastardisation and, bullying; it also concerned the entire gamut of complaint handling and the inefficiency and ineffectiveness of military police investigations. Principally, it dealt in detail with the court martial system which had become a huge source of unfairness, bias and compromise. The committee’s far-reaching reforms were accepted in large part and are now in operation. The committee has continued its scrutiny of the matter by receiving from the Chief of the Defence Force four subsequent implementation reports and maintains today a close watching brief.
The military justice system has now been reformed almost from top to bottom. It has been fully and critically reviewed by Justice Street and appears to be working as successive governments intended. New processes for handling grievances are in place and the military police operation has been renovated. Importantly, the court martial system was thrown out in favour of a new Military Court. The principle behind this was simple, particularly given the huge weight of evidence against the fairness of the then court martial system. It did not, in many cases, deliver quality justice and was inferior to the standard of justice enjoyed by the general Australian population. In particular, the court and the entire process were to be independent of the military hierarchy and the chain of command. The position of DMP was created, as well as the Military Court system itself. As you are all aware, the constitutionality of the court has been challenged and the process has been suspended pending legislation for reinstatement.
Of course, the traditionalists have never liked the new system. They want to see a complete return to the old court martial system. In fact, the entire debate against the new system has been based on what is termed the ‘civilianisation’ of military justice. The committee’s view is that it simply gives military personnel a standard of justice equivalent to the civil system. For the recidivists, though, it is about tradition and the status of command and the uniqueness of military service and discipline. However, the committee did respect the need for the new independent DMP, summary trials processes and for the court system at large to have some empathy with the nature of military service.
The debate has now taken another leap: the suggestion has been made that private silks ought to be able to advise and represent the accused at their trial. In other words, reliance on lawyers of military background is inadequate—a suggestion that, I suspect, will be resisted by the military as a step too far. I remain wedded to the committee’s view—that is, that the appointment of judicial officers with military experience is important, if not critical. However, just as civilian lawyers are involved in many defence inquiries, I have no difficulty with private barristers being engaged.
This brings me to the case in point: the prosecution of three soldiers serving in Afghanistan for allegedly causing the death of a number of civilians in battle. It has nothing to do with the DMP whose independence must and should be respected and nothing to do with the evidence, about which we know very little. Putting aside all of the misinformation about the reforms to the military justice system and the constitutionality of the Military Court, there is a serious gap in the system.
We accept that military and civil criminal law run in parallel, and the military are not exempt from investigation and prosecution by civil authority, but there does seem to be a gap in the way in which offences in action are treated within the system. I do not mean behaviour in the theatre during the deployment; I mean in combat. This was not an issue that the committee addressed, and to my knowledge is an event relatively unknown in the jurisdiction. If it did occur within the court martial system and its known deficiencies, it just never saw the light of day. Certainly we know where public sentiment rests when people’s lives are put at risk and what is expected of them in the heat of life-threatening conflict. The independence of the DMP forbids any disclosure of evidence, the processes of obtaining that evidence and the detail provided from commanders. That’s only right; it is only proper.
With that in mind, I propose that the Foreign Affairs, Defence and Trade References Committee revisit military justice with a view to examining and reporting on the adequacy of military justice provisions as they apply to live combat circumstances. Why is this necessary? Firstly, because a new situation has emerged without precedent in the history of the armed forces in Australia since Federation. My research indicates there is no precedent for such prosecution. Accordingly, the issue needs critical examination. Secondly, a brief examination of relevant statute, particularly sections 9 and 36 of the Defence Force Discipline Act, suggests the drafting does not comprehend an enemy of the nature we face currently in Afghanistan. By this I mean an enemy apparently motivated by religious zeal, not controlled or directed by a nation state, consequently engaged in insurgent activity, not that of a traditional military force, and whose purpose appears dynamic, flexible and fluid. I suggest that a DFDA whose antecedents lie in 18th and 19th century British army regulations may not be the appropriate vehicle for disciplinary regulation of troops engaged in 21st century conflict. I believe this inquiry is vitally important for the ongoing integrity of the system.
Arising out of the High Court decision in Laine and Morrison last year, the government will bring a range of amendments to the parliament, I am advised, early next year. Around that time, I believe it would be appropriate for the Foreign Affairs, Defence and Trade References Committee to conduct an inquiry into the matters I have raised today. Ideally, it would be best done by that committee because it would be handled by senators from all sides of the parliament who have had lengthy experience in all matters relating to military justice. That proposed inquiry is not about the interests of the civilian legal community and their access to well-paid work; it is about the interests of our armed forces engaged in combat overseas. It is about developing a modern legal system that comprehends modern warfare. This necessarily means having experienced legislators in this field conducting such an inquiry. I commend the motion to the Senate.