Tuesday, 16 June 2020
Questions without Notice
My question is to the Minister for Defence. On 19 March 2020 the minister confirmed that at least one incident of alleged war crimes in Afghanistan has been referred to the AFP. The Inspector-General of the ADF confirmed in his annual report that Justice Brereton is investigating 55 separate incidents, many of which may also lead to referral to the AFP. In the interim, families of affected current and former ADF members have told me they are being provided with internal ADF legal support through Defence Counsel Services for the IGADF inquiry, but what terrifies them is the uncertainty surrounding funding to pay for expensive criminal trials flowing from that inquiry. If provided, this funding would be made pursuant to a policy known as 'legal assistance at Commonwealth expense', which is discretionary. Members have no certainty that they will get the legal representation that they need for a fair trial. Is the minister aware that, because of this uncertainty, many of those under investigation are now contemplating mortgaging their family homes or commencing public GoFundMe pages to fund their criminal defence teams?
I thank Senator Lambie for raising this very important issue. Before coming to the specifics of this question and to the letter I provided in response to this issue, can I just say to all in this chamber that it is well known that this inquiry is underway. It is an extensive and a very complex inquiry, involving incredibly serious subject matters, and many witnesses and lines of inquiry have occurred. In the course of this inquiry I did table the Inspector-General of the ADF's annual report, a few months ago, which did make very clear the serious nature of the inquiries under review by him.
The Chief of Defence Force has advised me that the inquiry report will be handed to him in coming months. He will then consider its findings and, with my close oversight, will determine the actions required in consultation with the IGADF. Where there are serious rumours and allegations raised about the conduct of our ADF members, Australians would rightly expect that they are thoroughly examined according to the rigorous and well-established processes that are in place. Australians would also expect all ADF members to be treated with the utmost fairness throughout these processes and also, of course, their family members.
In relation to the specific issue that Senator Lambie has raised with me, I can confirm that legal support will be provided, and I'm currently discussing with the Chief of Defence Force and also the Attorney-General how that will occur. But, at all times during the conduct of the inquiry and through its conclusion to the next phases, a range of legal, psychological, medical, pastoral and social work support services will continue to be made available to inquiry witnesses and other individuals impacted.
When Australian ADF personnel last faced similar prosecutions in 2010, then Chief of Defence Force Angus Houston told this Senate that 'no expense will be spared' to fund the defence of soldiers facing prosecution. Will the minister—unlike just then—give a commitment and confirm that it is her expectation that legal assistance at Commonwealth expense will be afforded to any ADF or former ADF member facing criminal prosecution arising from their service in Afghanistan, including funding lawyers 'of their choice'?
As I said, Senator Lambie, you have raised this previously with me, and I have also confirmed these matters with you in writing. But, for the benefit of all senators, I want to be very clear that throughout the inquiry the IGADF has worked well in establishing the processes to ensure that witnesses are provided with access to legal support. As I confirmed in writing to Senator Lambie, it is a longstanding position that current and former serving ADF members can apply for Commonwealth financial assistance for civil or criminal legal proceedings that they are involved in. If the proceedings arise out of an incident relating to their service with Defence and they have acted responsibly and reasonably, then this will be provided. Senator Lambie, as I have just restated, it is absolutely my intent to ensure and it is the CDF's intent to ensure that those who are caught up in this process do continue to get the support— (Time expired)
The word 'discretionary'—let's go again. The IGADF state on their website that Defence 'cares about the welfare of all personnel involved in the Afghanistan inquiry'. We note the AFP are investigating now and the Commonwealth has already appointed a prosecutor. What I am hearing is that many ADF members strongly feel that this commitment to their welfare is nothing more than lip-service. If the minister is refusing to guarantee legal assistance, then what is the minister going to do to ensure that ADF members are placed on an even footing and get a fair bloody trial, like they deserve?
As I have said—I have already stated twice—the support is being provided and will continue to be required. Senator Lambie has raised a precedent in relation to this matter. Can I emphasise to all in this place that this earlier matter that Senator Lambie cites is not a precedent in the current circumstances. The IGADF annual report makes it very clear that the Afghanistan inquiry is not focused on conduct that occurred in the heat of battle. That is a very important differentiation in this circumstance. But, as has been provided throughout this process, all legal, psychological and family support will continue to be provided.