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Thursday, 16 May 2013
Page: 3439


Mr STEPHEN SMITH (PerthMinister for Defence and Deputy Leader of the House) (09:36): by leave—The government is committed to providing regular updates to the parliament on Afghanistan generally, including detainee management, operational incidents and other issues associated with Australia's compliance with its legal obligations in Afghanistan.

Today, I provide an update on detainee management and Australian Defence Force (ADF) inquiries into civilian casualties and Australian Defence Force Investigative Service (ADFIS) processes as well as local source allegations.

Detainee Management Framework

Australia approaches its responsibility for treating detainees with dignity and respect with the utmost seriousness and is committed to managing detention matters in accordance with our domestic and international legal obligations.

Australia's detainee management framework for Afghanistan has two priorities:

First, removing insurgents from the battlefield, where they endanger Australian, ISAF and Afghan lives; and

Second, to ensure the humane treatment of detainees, consistent with Australia's domestic and international legal obligations.

Monitoring

As part of our detainee management framework, Australian officials monitor the treatment, welfare and conditions of all detainees transferred from ADF custody to Afghan custody.

Between 1 August 2010 and 15 May 2013, the monitoring team has conducted 140 monitoring visits. This includes: 64 visits to the National Directorate of Security facility in Tarin Kot; 24 visits to the Tarin Kot Central Prison; and 52 visits to the detention facility in Parwan, now called the Afghan National Detention Facility in Parwan.

Numbers of detainees apprehended

During the period 1 August 2010 to 15 May 2013, the ADF detained 1,898 suspected insurgents. Of these: 158 detainees have been transferred to the National Directorate of Security in Tarin Kot and 105 detainees have been transferred to the detention facility in Parwan.

Capture/recapture

Between 1 August 2010 and 15 May 2013, the ADF recaptured 15 people who had previously been captured and were subsequently released. Seven of the individuals in question were released as there was insufficient evidence to warrant their continued detention.

For eight of these detainees there was sufficient evidence to warrant their transfer and prosecution. Four were subsequently transferred to US custody at the detention facility in Parwan, and four were transferred to Afghan custody at the National Directorate of Security detention facility in Uruzgan.

Allegations of Mistreatment

Australia takes all allegations of detainee mistreatment seriously. Since August 2010, I have provided regular updates on complaints and allegations of mistreatment the ADF has received. During the period 1 August 2010 to 15 May 2013, there have been 198 allegations of mistreatment against Australian forces. Of these, 175 relate to treatment or an incident at the point of capture. To date, 193 of these allegations have been considered and have been assessed as being unfounded. Five allegations remain under review.

Treatment of detainees by ANSF

Australia is committed to holding our own personnel to the highest standards on detainee treatment. If ADF personnel become aware of concerns regarding the treatment of detainees by our International Security Assistance Force or Afghan partners, this is also treated seriously. During the period 1 August 2010 to 15 May 2013, 61 allegations of detainee mistreatment have been made against the Afghan National Security Forces at the point of capture.

On 11 March this year, Australian officials were informed of two allegations of mistreatment raised by non-Australian Defence Force transferred detainees at the National Directorate of Security detention facility in Tarin Kot. The allegations do not involve detainees apprehended by the ADF. In light of these allegations, on 15 March this year the ADF suspended the transfer of detainees to the National Directorate of Security detention facility in Tarin Kot.

At the time of suspension on 15 March there was one ADF transferred detainee in the NDS detention facility. He was visited by Australia's Interagency Detainee Monitoring Team on 12 March and he advised that he had not been mistreated. That detainee was transferred to the Tarin Kot Central Prison on 19 March, where he is still subject to regular monitoring visits.

No ADF transferred detainees remain in the National Directorate of Security detention facility in Tarin Kot. Since the suspension has been in place, the ADF has released 14 detainees from the international screening facility in Tarin Kot. One detainee has been transferred to the Afghan National Detention Facility in Parwan since the suspension has been in place.

Australia have raised our concerns about this matter with Afghan authorities, Afghan and international human rights organisations and the International Security Assistance Force. On 21 March, I advised Afghan Foreign Minister Rassoul of our concerns about this matter. This occurred during his visit that day to Canberra, the last day before the parliament rose before Easter.

Australia has reiterated the importance of the proper treatment of detainees and the need to investigate any allegations of detainee mistreatment in a robust and transparent manner. Afghan authorities advise they are taking these allegations seriously and are conducting a thorough investigation, which is ongoing.

It is appropriate for Australia to await the outcome of the Afghan investigation into this matter, and advice on any action proposed to be taken, before Australia considers a resumption of the transfer of ADF-apprehended detainees to Afghan authorities in Tarin Kot.

Detainee Management Transition

In line with the broader transition of lead security responsibility from ISAF to the Afghan National Security Forces, Afghan forces are increasingly taking the lead in detention operations. As operations in Uruzgan transition to an Afghan lead, this will inevitably see the ADF apprehending fewer detainees in partnered operations with the Afghan National Security Forces. The ADF has taken 58 detainees from 1 January to 15 May this year.

Closure of the Initial Screening Area

The purpose-built initial screening area (ISA) is the central element of Australia's current detainee management framework in Afghanistan. On 26 March, the Prime Minister and I welcomed the decision by ISAF to close Multinational Base-Tarin Kot in Uruzgan Province by the end of the year. In line with the broader redeployment and remediation process at Tarin Kot, the initial screening area will be dismantled and remediated in the last quarter of this year.

Just as Australia reviewed the ADF's detainee management framework and requirements in the run-up to the withdrawal of the Dutch from Uruzgan and put in place the current detainee management framework in August 2010, Australia will review the ADF's detainee management requirements as the transition process proceeds.

Transfer of the detention facility in Parwan to Afghan control

I have previously provided the House with updates on the status of the transfer of the previously United States-run detention facility in Parwan to Afghan responsibility. On 9 March 2012, the United States and Afghanistan signed a memorandum of understanding to commence the transfer of the Parwan facility to Afghan control. The official ceremony to mark the transfer of the facility to Afghan authorities and the renaming of the facility as the Afghan National Detention Facility in Parwan occurred on 25 March 2013. The official transfer is a positive development for the Afghan government and is a reflection of the transition of security across Afghanistan.

Australia will continue to transfer ADF-apprehended detainees to the Afghan National Detention Facility in Parwan. We have received ongoing assurances from the Afghan authorities that our monitoring team access to ADF-transferred detainees at the Afghan National Detention Facility in Parwan will continue under our existing arrangement with the Afghan government. As at 15 May 2013, there are 68 ADF-apprehended detainees in the Afghan National Detention Facility in Parwan. These detainees are regularly monitored by the Interagency Detainee Monitoring Team and, to date, no concerns have been identified with their treatment. Australia will continue to engage with our partners to ensure that ADF transferred detainees continue to be treated humanely in accordance with the applicable domestic and international law.

Allegations of Procedural Misconduct

I first advised the House in my March 2011 ministerial statement to parliament, that in late January of that year, the Australian Defence Force Investigative Service (ADFIS) had initiated an investigation into allegations of non-compliance with the management and administrative procedures for the processing of detainees at the ADF detainee screening facility in Tarin Kot. As advised in my February 2013 update to the House, four previous members of the first Detention Management Team in Afghanistan, involved in managing the Initial Screening Area (ISA), had been charged with service offences of falsifying service documents which related to the administrative processing of detainees. Trials under the Defence Force Discipline Act 1982 have been concluded and I can now provide the House with a final update.

The Director of Military Prosecutions charged four members of the first Detention Management Team, including the former officer in command of the team. The trial of the former officer in command of the first Detention Management Team commenced on 19 March 2013 and concluded on 3 April 2013. The member pleaded not guilty to a range of charges, including suppressing a service document and making false entries in service documents.

He was convicted of two counts of making a false entry in a log book which provides a record of detainee processing, and acquitted of four related charges. The prosecution alleged that the false entries were made to conceal the fact that a detainee was held for four and a half hours longer than is permitted under the detainee management policy and to falsely represent that a subordinate member of the Detention Management Team had made the required entries in the log book. The former officer in command was reduced from the rank of major to the rank of captain for both offences.

Australian Defence Force Investigative Service (ADFIS)

I first advised in my 24 May 2012 ministerial statement to the House that a number of matters had been raised in the context of an Inspector General of the ADF (IGADF) inquiry into allegations of flawed ADFIS processes in the Middle East Area of Operations (MEAO). The allegations included: the incorrect orientation of caskets used to repatriate ADF human remains; that ADF human remains were not repatriated in accordance with Defence policy; that the remains of an Afghan local national were handled inappropriately; and that a 16-year-old Afghan minor was detained inappropriately.

Part 1 of the IGADF inquiry was completed on 15 October 2012. Part 2 of the inquiry was completed on 21 December 2012. I am now providing the House with a final update.

Allegations of mishandling the remains of Australian soldiers

With regards to the allegation that the human remains of ADF personnel were incorrectly oriented in their caskets, the inquiry found that on two occasions in 2011, ADFIS personnel initially placed the remains of ADF personnel in caskets which had been incorrectly inverted. At no time were the remains of ADF personnel upside down. The caskets themselves were incorrectly oriented. The incorrect orientation of the caskets was identified and the caskets were correctly oriented before being flown back to Australia. The soldiers' remains were treated with utmost respect and dignity at all times, while the caskets were corrected. The errors arose due to unfamiliarity of ADFIS personnel with the caskets themselves. Instructions on the use of the caskets have since been amended to provide clear guidance on the correct orientation.

With regard to the allegation that medical devices were inappropriately removed by ADFIS personnel from the human remains of ADF personnel, the inquiry confirmed that ADFIS personnel had removed medical devices from the remains of ADF personnel prior to their return to Australia.

The removal of medical devices by ADFIS personnel did not breach criminal or coronial legislation or guidelines, nor was there any requirement for the removal to be approved or undertaken by medical officers. Departmental instructions have been amended to provide clear guidance on the management of medical devices in human remains. These allegations that the remains of ADF personnel were not repatriated in accordance with Defence policy, the subsequent investigation and attendant publicity would have been distressing for the families of our war dead, and our thoughts are with them.

Allegations of mishandling of the remains of an Afghan insurgent

With regard to the allegation that the remains of an Afghan insurgent were transported off the multinational base Tarin Kot by taxi, the IGADF inquiry found that confusion appears to have arisen over two incidents in which the remains of two Afghan insurgents who died after engagements with Australian Forces were removed from the multinational base Tarin Kot.

In an incident in August 2010, the remains of an Afghan insurgent were transported back to the ISAF role 2 medical facility at the multinational base Tarin Kot by Australian Forces after an engagement between Australian forces and insurgents. The Afghan insurgent had died prior to his remains being located by ADF personnel. Accordingly this matter was not treated as a death in custody and ADFIS had no responsibility for nor involvement with the remains. The inquiry found that it is probable that the remains were transported by taxi to the local morgue, in accordance with standard operating procedures of the relevant ISAF partner who had custody of the remains and had established local arrangements in place.

In an incident in October 2010, an Afghan insurgent was wounded in an engagement with Australian forces. He was treated by ADF personnel and transferred under ADF custody to the ISAF role 2 medical facility at the multinational base Tarin Kot for further treatment, where he later died. As is normal procedure for a such a death, ADFIS personnel conducted an investigation, including a forensic examination. ISAF medical staff arranged for the remains to be handed over to the family, and the deceased Afghan insurgent was later buried. The remains were handled in accordance with ISAF role 2 practice at the time.

The inquiry found that Defence policy did not provide clear direction on the management of human remains of non-ISAF personnel who die in Australian custody, and recommended amplification and amendment of the policy.

Allegation of mistreatment of an Afghan minor

With regards to the allegation that an Afghan minor, who entered the multinational base Tarin Kot in October 2010 to locate his father, was arrested by ADFIS and transferred to US custody, the inquiry found that an Afghan minor did enter the base in October 2010 and was detained by ADF personnel after undergoing standard screening processes by ISAF security. The inquiry found that the juvenile, who was assessed during medical in-processing to be 16 years old, was detained for approximately two hours by the ADF before being released. The juvenile was questioned by ADF personnel.

While in ADF custody the juvenile was provided treatment appropriate to his age in accordance with Australia's detainee management policy. At no time was the juvenile mistreated or transferred to United States custody. The inquiry found the processing of the juvenile was conducted in accordance with Australia's detainee management policy, except for one minor error in completion of the paperwork, which was not found to be significant.

Inquiry report

The findings and recommendations of the inspector-general's inquiry have been redacted to comply with the requirements of the Privacy Act 1988 and these are available on the Defence department's website.

Civilian casualties

Australia remains committed to transparency and providing information on civilian casualties in Afghanistan. The ADF takes the question of civilian casualties very seriously. The ADF operates under strict rules of engagement intended to minimise civilian casualties, and deeply regrets any loss of innocent life. In my February update to the House, I advised on outstanding inquiries into suspected civilian casualty incidents. In the materials I present and will table in the House later I provide an update on those incidents and one additional incident.

Conclusion

The rule of law is an essential basis for international relations and for national security policy. On the ground in Afghanistan, the law of armed conflict—including the principles of military necessity, proportionality, distinction and discrimination—provides the framework for Australia's rules of engagement. International humanitarian law provides the basis for Australia's detainee management framework in Afghanistan.

The ADF has built a reputation over the years for professionalism. The ADF has prided itself on its high standards and it has a well regarded international reputation for doing so. When, for example, there are incidents involving possible breaches of the rules of engagement, such as in relation to civilian casualties, they are investigated and the results of those investigations are made public. Similarly, where there have been possible breaches of the detainee management framework, they are investigated and the results of those investigations are made public.

These two foundation principles—the rule of law and transparency—have served the ADF and Australia well in Afghanistan. Australians can be rightly proud of the professionalism and honour with which the ADF has conducted itself in Afghanistan.

I present a paper tabled in conjunction with my ministerial statement and I ask leave of the House to move a motion to enable the member for Fadden to speak in reply to the statement for a period not exceeding 18 minutes.

Leave granted.

Mr STEPHEN SMITH: I move:

That so much of the standing and sessional orders be suspended as would prevent Mr Robert speaking for a period not exceeding 18 minutes.

Question agreed to.