Defence Minister's Interview With Sabra Lane Abc Pm

< BACK TO DEFENCE starstarstarstarstar   Government - Defence Press Release
14th October 2010, 10:08pm - Views: 455







MARK COLVIN:  The Opposition is not letting up over the charging of three Australian

soldiers over the deaths of six civilians in Afghanistan last year.

The Opposition Defence spokesman, Senator David Johnston, said on AM today that he

thought the soldiers in question have been betrayed by the Government and he was

disappointed that they had been charged in the first place.  The soldiers were charged last

month after an 18 month investigation by the Director of Military Prosecutions.


Johnston says that he’s not convinced that the Department did all it could to retain senior

and experienced counsel to defend the soldiers before they were charged.

The Defence Minister, Stephen Smith, has now responded to the claims.  He spoke to

Sabra Lane.

STEPHEN SMITH:  I think on this matter there has been too much ill informed,


language.  I think we need to just very calmly understand what has occurred here. 

Australia has always had a system of military justice.  It is very important that out Defence

Force operates within our domestic and international law.  We’ve prided ourselves on our


higher standards and we have a well regarded international reputation about so doing.  And

when, for example, there are incidents involving civilians we always investigate those.

From time to time, those investigations historically and recently have led to charges being

laid.  The only change we’ve seen in the current circumstance is the charges on this

occasion were laid by the independent Director of Military Prosecutions who was

established by the Howard Government under legislation they introduced and we, when

we were in Opposition, supported that process.  So historically Australia has confronted

these issues before.  The only change we’re dealing with now is we have an independent

Director of Military Prosecutions who has made the decision to press charges and

historically of course that decision has been made by military chiefs.  Under the Howard

Government, the Parliament believed having that independence was a sensible thing to do

and I agree with that.  

SABRA LANE:  Senator Johnston says he’s not convinced though that Defence retained

very senior or experienced counsel to make full submissions to this Director of Military

Prosecutions on behalf of these soldiers before they were charged.  Can you confirm, were

these soldiers … did they get QC advice before they were charged?

STEPHEN SMITH:  Well again I think people have to be very clear about the thrust of the

legislation.  It was Howard Government legislation.  Senator Johnston himself was a

Senator at the time.  And provision of the legislation Section 5A of the Defence Force

Discipline Act

enables the Chief of the Defence Force or his representative –

on this

occasion it was the Vice Chief –

to make representations to the Director of Military

Prosecutions on general implications for the Force.

Now when the legislation went through the Parliament the legislation made it clear that

any such representation was not to impact adversely on the independence of the Director

of Military Prosecutions.  Some people including Senator Johnston are out there somehow

suggesting that the representations made by the Chief of the Defence Force or the Vice

Chief on his behalf went to the legal defence of the three concerned.   They don’t indeed. 

When the Director of Military Prosecutions asked for the advice in accordance with the

statute she expressly made clear that it should not go to those matters about guilt or

innocence or whether charges should be preferred because that would impact upon her

independence.  The second point goes to the legal defence of the three concerned and the

Chief of the Army, the Chief of the Defence Force and I have made it absolutely crystal

clear that they have been and will be provided with all the necessary resources to deal with

this matter, both legal and other support; and the Chief of the Army has made it clear to

the families concerned that he will spare no expense to make sure that they get the legal

support and counsel that they require and they need.   



The Senator says that he’s been told that people inside Defence that the

pre-charge submission made on behalf of these soldiers was a bit of a doddle.  Is that your



I would be not making such pejorative remarks.  But again, that

remark misunderstands either inadvertently or deliberately the nature of the representations

that can be made under the Howard Government legislation.  

SABRA LANE: But it’s still not clear from what you’re saying Minister, did these soldiers

get adequate legal advice before these charges were laid?

STEPHEN SMITH:  The Howard Government legislation provides for the Chief of the

Defence Force to make representations to the Director of Military Prosecutions about the

general interest of the Defence Force.  It does not go to whether charges should be

preferred or not.   

SABRA LANE:  Isn’t it just a simple case of yes or no?

STEPHEN SMITH:  It is a simple case of carefully understanding the legislation that the

Howard Government put through the Parliament which Senator Johnston supported and

which the Labor Party supported.

SABRA LANE:  Given what you’re saying now then, after this case is heard and is

finished is it a

case that this legislation should be reviewed to allow a defence to be

mounted on behalf of soldiers before they are charged?

STEPHEN SMITH:  A defence will be mounted on behalf of these soldiers and that

defence will be mounted as they are given access to the prosecution brief by the Military

Prosecutor and have access to all the necessary legal and other support that will be


MARK COLVIN:  The Defence Minister Stephen Smith speaking to Sabra Lane. 

news articles logo NEWS ARTICLES
Contact News Articles |Remove this article