3
September 2020
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Karen
Elphick
Law and Bills Digest Section
Background
Framework for IGADF inquiries
The Inspector-General of the Australian Defence Force (IGADF)
is a statutory position outside the ordinary chain of command, established
under section 110B of the Defence Act 1903.
The IGADF ‘independently
and impartially monitors and assesses the health and effectiveness of the Australian
Defence Force (ADF) military justice system’. The IGADF may conduct inquiries
at his or her own initiative, or at the request of an individual, but only into
those matters specified in the Defence Act or in the Inspector-General of
the Australian Defence Force Regulation 2016 (IGADF Reg). However,
under section 110C of the Defence Act, the Minister for Defence or the Chief
of the Defence Force (CDF) may direct
the IGADF to inquire into or investigate ‘a matter concerning the Defence
Force’.
The direction is given to the IGADF; it is for the IGADF to
decide whether to personally conduct, or appoint
another person to conduct, the inquiry. In October 2018, amendments to the
IGADF Reg introduced the concept of an Assistant IGADF who is a judicial
officer (JO-AIG) and prescribed a new kind of inquiry in Part
4, Division 4A. Division 4A includes the unusual provision that ‘this
Division has effect despite any other provision of this instrument’, indicating
that JO-AIG are not subject to the rules which apply to other IGADF inquiries.
Instead they are required by section
28C of the IGADF Reg to ‘conduct the inquiry in such manner as the
Assistant IGADF considers appropriate having regard to the subject matter of
the inquiry’.
For further information on the role and independence of the
IGADF and the rules for IGADF inquiries, see K Elphick, Legal
Framework for Defence Administrative Inquiries into a ‘Matter Concerning the
Defence Force’: a Quick Guide, Research paper series, 2019–20,
Parliamentary Library, Canberra, October 2019.
Rumours of misconduct in
Afghanistan
Media reports alleging serious misconduct by ADF personnel
in Afghanistan began to be published in 2009.[1]
Several journalists have reported that in 2015, responding to rumours and
internal accounts of misconduct, then Special Operations Commander, Major
General Jeff Sengelman, commissioned Canberra-based sociologist Dr Samantha
Crompvoets to write a report on ‘Special Operations Command Culture
Interactions’. Journalists said the report was intended to gather accounts of
any wrongdoing[2]
and that it described
a culture of impunity that may have normalised allegedly disturbing behaviour.
The report also allegedly identified serious ‘governance and behavioural lapses’.
Major General Sengelman is reported
to have sent Crompvoets’ findings in a confidential report in early 2016 to
the Chief of Army, then Lieutenant General Angus Campbell.
Initiation of the IGADF Afghanistan
Inquiry
In March 2016, the Chief of Army requested that the IGADF
conduct a scoping inquiry to ascertain whether there was any substance to
rumours of unlawful conduct by the Special Operations Task Group (SOTG)
during deployments in Afghanistan. The IGADF Annual
Report 2016–2017 stated the Inquiry commenced in May 2016 but, as a
result of changes in legislation pertaining to the IGADF, since December 2016
the Inquiry has continued at the direction of the CDF.
The IGADF appointed Major General Paul Brereton, a Justice
of the NSW Court of Appeal, to conduct The Inspector-General of the
Australian Defence Force Afghanistan Inquiry, also known as the Brereton
Inquiry (the Inquiry).[3]
The date of that appointment is not known.
Neither the instrument directing the Inquiry nor the terms
of reference of the Inquiry have been published. According to the Defence
Annual Report 2017–2018, the Inquiry was investigating ‘rumours of
breaches of the law of armed conflict in Afghanistan between 2005 and 2016 and
associated matters’. Major General Brereton cited (with redactions) his formal
appointment documents in the course of reporting a formal
decision on a complaint on 15 October 2018:
On 14 December 2016, the Chief of the Defence Force directed
the Inspector-General of the Australian Defence Force (IGADF), under s 110C(f)
of the Defence Act 1903 (Cth), to inquire into a matter concerning the
Defence Force, in substance whether there is any substance to rumours of
breaches of the Law of Armed Conflict by elements of the Special Operations
Task Group in Afghanistan during the period 2005 to 2016. As an Assistant
IGADF, I was directed under s 10(2)(a) of the Inspector-General of the
Australian Defence Force Regulation 2016 to conduct the Inquiry, and a
number of other Assistants IGADF, some of them lawyers and some of them not,
were directed to help me do so.[4]
[at p. 1]
When the amendments to the IGADF Reg commenced on 13 October
2018, the Inquiry automatically
became an inquiry governed by Part 4, Division 4A, because it was being
conducted by an Assistant IGADF who was a judicial officer. Section 37 of the
IGADF Reg ensures the 2018 amendments applied to the Inquiry since it was begun
but not completed before the 2018 amendments commenced.
Focus of the Inquiry
The IGADF
Annual Report 2017–2018 contained a description of the focus of the
Inquiry:
The Inquiry is an administrative process, not a criminal
investigation. This process is intended not only to ascertain whether there has
been misconduct, but equally to exonerate those who may be affected by
unsubstantiated rumours and allegations.
As CDF directed IGADF to conduct the Inquiry, the Inquiry has
powers to compel the production of evidence similar to those of a Royal
Commission. [at p. 7]
According to the IGADF
Annual Report 2018–2019, by the end of June 2019 the Inquiry was
examining:
- 55 separate incidents or issues covering a range of
alleged breaches of the Law of Armed Conflict (LOAC), predominantly
unlawful killings of persons who were non-combatants or were no longer
combatants, but also ‘cruel treatment’ of such persons and
- incidents relevant to the organisational, operational and
cultural environment which may have enabled the alleged LOAC breaches.
The IGADF noted the Inquiry was not focused on decisions
made during the ‘heat of battle’. Rather, its focus was the treatment of
persons who were clearly non-combatants or who were no longer combatants.
Powers and independence of Major
General Brereton
As a judicial officer conducting a Division 4A inquiry, Major
General Brereton has almost complete freedom in the conduct of his Inquiry.
This includes freedom from direction by the IGADF. He is required by section
28C of the IGADF Reg to ‘conduct the inquiry in such manner as the Assistant IGADF considers appropriate having regard to the
subject matter of the inquiry’.
The extensive powers and independence of Major General
Brereton are comparable to those of a Royal Commission. He may:
Self-incrimination
is not a sufficient ground for refusal to give evidence unless an individual is
concurrently facing related charges; however, evidence given cannot be used in
civil or criminal proceedings, or proceedings before a service tribunal,
against the person who gave it. Persons attending the inquiry to answer
questions may
have legal assistance.
Conduct of the Inquiry
Inquiry held in private
The IGADF
has explained that the Inquiry is being conducted in private:
- because
it involves matters of operational security and protected identities
- for
the protection of witnesses and of the reputations of individuals who may be
unfairly harmed by publication of rumours that turn out to be unsubstantiated,
and
- to
protect lines of inquiry. [at pp. 7–8]
The IGADF also noted the Inquiry conducts its proceedings so
as to minimise the impact on witnesses and ensure that they have access to
appropriate support mechanisms and that access to a range of legal,
psychological, medical, pastoral and social work support services was provided
to persons involved in, or concerned by, the Inquiry.
During
2017–2018, refurbishment works were carried out within the Office of IGADF
to enhance information security in connection with the Inquiry.
Five phases of the Inquiry
The IGADF
Annual Report 2017–2018 described, at pages 7–8, the Inquiry as being
conducted in five phases:
- Phase 1: Familiarisation—identify and gain a detailed
understanding of the operational, structural, cultural and historical
environment that existed during the period under inquiry and which potentially
contributed to the occurrence of the rumoured and alleged incidents—the cause
and effect aspects of each factor. Factors considered include:
- the
organisational structure of Special Operations Command (SOCOMD), including the
organisational structures within the units that comprise SOCOMD
- operational
procedures within SOCOMD and within its constituent units and
- the
operational environment in Afghanistan.
- Phase 2: Evidence and information gathering—details of
specific rumours or allegations (including dates, times and locations of
incidents of interest), and surrounding and associated information and evidence
are identified.
- Phase 3: Consideration of alleged incident(s)—inquiring
into each of the rumours and allegations.
- Phase 4: Consideration of cultural, psychological, operational
and organisational factors—these are being considered concurrently with the
evidence gathering and incident consideration phases. The aim is to determine
if and how any of these factors may have contributed to the rumoured and
alleged conduct, and/or to the proliferation of the rumours and how these
issues may be addressed for the future.
- Phase 5: Report preparation and finalisation—once evidence
gathering is complete, given the seriousness of the allegations, there will
have to be a rigorous procedural fairness process before the report can be
finalised (see IGADF
Annual Report 2018–2019).
The administrative law rules of natural
justice require that a person be given an opportunity to comment on
prejudicial or adverse information or findings that might be made by an
inquiry. In July 2020, journalist Ellen
Whinnett claimed that a number of current and former special forces
soldiers had been served with ‘potentially affected person (PAP)’ notices by
investigators. Issuing a PAP notice to a person would indicate that Major General
Brereton is considering making comments or findings in his report that are
prejudicial or adverse to those persons.
Reported progress
According to the IGADF
Annual Report 2017–2018, following the call for information from the public
(open from 1 September–3 November 2017), the Inquiry ‘gained significant
momentum’. By mid-2018, the Inquiry was in phase 3 and more than 200 witnesses
had been interviewed. The Inquiry was also ‘pursuing additional lines of
inquiry’.
During the 2018–2019 reporting period the Inquiry’s
focus shifted from phases two, three and four to phases three, four and
five. However, further lines of inquiry continued to emerge. From its
commencement in May 2016 to the end of June 2019, the Inquiry had examined 338
witnesses. In August 2019, journalist Dan
Oakes of the ABC reported Major General Brereton and staff had recently
travelled to Afghanistan to interview witnesses.
In late March 2020, journalist Karen Middleton reported
in The Saturday Paper that the IGADF will likely recommend that
police investigate and prosecute a range of alleged incidents. The AFP reportedly
declined to say whether it had already received referrals from the IGADF.
Offences under IGADF Reg including
contempt
There are offences in the IGADF Reg for failure
to comply with a notice, contempt
and taking
reprisals. Contempt means conduct insulting the person conducting the
inquiry; conduct disturbing or interrupting the inquiry; and conduct that
would, if the inquiry were a court of record, constitute a contempt of that
court. The offences are not limited in their application to service personnel.[6]
Staffing of the Inquiry
Table 1 below shows the number of Inquiry staff
2017–2019 who worked, varying according to the needs of the Inquiry over time. The
IGADF reported
in 2019 that it was a deliberate decision to keep the Inquiry team
relatively small:
This is because of the seriousness of the rumours and
allegations, and the classified nature of the operational circumstances of the
incidents under inquiry. A relatively small team facilitates the control of
inquiry information ... additional administrative support was provided from time
to time by the Office of the Inspector-General of the Australian Defence Force.
[at p. 7]
Table 1: Afghanistan Inquiry staff
| Rank |
2017–18 |
2018–19 |
| O7 [Brigadier equivalent] |
1 (Army
Reserve) |
1 (Army
Reserve) |
| O6 [Colonel equivalent] |
3 (2x
Navy, 1x Army) |
6 (3x
Navy Reserve, 3x Army Reserve) |
| O5 [Lieutenant Colonel equivalent] |
2 (1x
Navy, 1x Air Force) |
3 (1x
Navy Reserve, 1x Army Reserve, 1x Air Force) |
| O4 [Major equivalent] |
|
2 (1x Army
Reserve, 1x Air Force Reserve) |
| E07 [Warrant Officer equivalent] |
|
1 (Army
Reserve) |
| E06 [Staff Sergeant equivalent] |
|
1 (Navy
Reserve) |
| TOTAL |
6 personnel |
14
personnel |
Source: Table compiled by Parliamentary
Library July 2020, from material in IGADF Annual Report 2017–2018, p. 7; IGADF Annual Report 2018–2019, p. 7.
The final report
Time frame for final report
On 19 October 2016, Acting Chief of the Defence Force, Vice
Admiral Ray Griggs, said at a Senate
Estimates hearing of the Senate Foreign Affairs, Defence and Trade
Legislation Committee the scoping inquiry was ‘likely to take up to two years
to draw out all of the issues’, but that there was no specified timeframe.
The IGADF
Annual Report 2018–2019 reported that the Inquiry was ‘approaching the
final stages of evidence-taking; however, evidence gathering remained ongoing
in relation to some lines of inquiry, concurrently with drafting of sections of
the Inquiry’s report’:
The time frame for the Inquiry is influenced by the number
and complexity of lines of inquiry; the number, location, availability and welfare
of witnesses; and above all the need for thoroughness and fairness. [at p. 8]
The IGADF explained the slow progress of the Inquiry is
partly because it did not have specific allegations to examine at the beginning.
Unlike most inquiries, the incidents, events and potential witnesses were not
already identified. Considerable time and effort was required to:
-
find out what rumours there were, and then to try to track each
rumour through multiple witnesses and documentary records back to its source
- gain the confidence and trust of the Special Forces community,
members of which have spent their careers in an environment where secrecy is
treated as fundamental and
- develop sufficient confidence in the Inquiry, and the genuineness
of Defence senior leadership’s desire to find out if the rumours were true,
that witnesses were prepared to make disclosures.
As this has been progressively achieved, the IGADF said more
witnesses have been prepared to make disclosures, and new evidence has
continued to emerge, some resulting in new lines of inquiry, and some
reinforcing or corroborating existing lines of inquiry.
On 16 December 2019,
journalists Masters
and McKenzie reported:
The inquiries by both Justice Brereton and the AFP have faced
significant challenges in piercing the code of silence in the special forces
and Justice Brereton has faced pressure from some politicians and media
commentators over the time taken to complete his inquiry. [at p. 2 of clipping]
On 19 July 2020, journalist Ellen
Whinnett reported that the inquiry had been expected to hand its report to
the Defence Minister in June or July 2020, but that it had been further delayed
and would not report until at least September 2020.
Reporting requirements
The IGADF Reg provides that Major General Brereton must
prepare a report once satisfied that all relevant information that is
practicable to obtain has been obtained. The report
must be given to the IGADF as soon as practicable and must set out
the findings and make any appropriate recommendations. It must be accompanied
by a copy of the transcript of oral evidence, copies of each document accepted
as evidence, and a list of other things produced to the inquiry and their
location. The IGADF must
not direct Major General Brereton to inquire further or to prepare a
further report.
The IGADF must
make an official record of the findings of the inquiry and attach any
transcripts of oral evidence and documents accepted as evidence.[7]
However, because the IGADF was directed to conduct the inquiry, the IGADF does
not exercise independent control over distribution and publication of the
report. The IGADF must send Major General Brereton’s full
original report, including the findings and any recommendations, to the CDF.
Major General Brereton may
independently inform any of the following persons of his findings or give
them a copy of the report, if he thinks it appropriate to do so:
- the Minister
- the CDF
- a service chief
- an employee of the Department
- a member of the ADF
- a person who is affected by a submission or the inquiry or
- any other person.
Major General Brereton may redact
information from the copy of the report given to a person if that
information would be inappropriate to include for reasons such as:
- considerations of privacy
- the person’s responsibilities
- the person’s interest in the matter or
- the information being classified or relating to national
security.
Public release of the report
The CDF may
publicly release all or part of the report.
The IGADF does not have power to release the findings or
report to individuals and to the public without consulting the Assistant IGADF
about the release. However, Major General Brereton is not required to consult
any other person before releasing a copy of the report or findings to any individual.
If he gives a person a report, Major General Brereton may, after
consultation with CDF, publicly
release all or part of the report (including a redacted version of the
report).
Planned content of the final report
The IGADF indicated in his 2018–2019
Annual Report that, on completion of the Inquiry, the IGADF will
provide a report to the CDF who will decide on further action. The IGADF said
the report will include:
- A
summary and analysis of the evidence pertaining to each significant line of
inquiry, and a conclusion as to whether or not and to what extent there is
evidence of a breach of the Law of Armed Conflict or other misconduct.
- Where
there is evidence of misconduct, appropriate and nuanced recommendations,
having regard to the available evidence and its strength, for consideration by
the Chief of the Defence Force, as to what action should be taken to address
it.
- A review
of the structural, operational, command and cultural environment in which these
acts may have occurred and which may have enabled them, and make
recommendations for consideration by the Chief of the Defence Force about
potential reforms and measures to address them, in order to minimise any risk
of recurrence.
- Provide
closure for SOCOMD by exposing past misconduct where appropriate to do so,
enabling it to be considered separate from but informing the present and future
development of the Command.
- Provide
closure for the many serving and former soldiers who have lived with concerns
about the subject matter of these rumours for many years. [at p. 9]
[1]. For example: N
McKenzie, ‘Military
in Afghan cover-up’, The Sydney Morning Herald, 11 May 2009, p.
1; M Carney, T Cookes and S Sharifi, ‘In
their sights’, Four Corners, ABC, 5 September 2011; J Kelly, ‘Anger
building as locals ask why young Afghan had to die’, The Australian,
31 October 2011, p. 2.
[2]. See D Oakes, ‘Claims
of “illegal violence”, drug and alcohol abuse alleged in leaked Australian
Defence report’, ABC News (online), 9 June 2018 and N McKenzie, D
Wroe and C Masters, ‘Beneath
the bravery of our most decorated soldier’, The Sydney Morning Herald,
10 August 2018, p. 1. Crompvoets’ report has not been publicly released;
however, journalists Nick McKenzie and Chris Masters claimed in 2018 to have
obtained a copy: N McKenzie and C Masters, ‘Former
spy chief heads new “war crimes” inquiry’, The Age, 11 June 2018,
pp. 1, 6; N McKenzie and C Masters, ‘SAS
soldiers committed war crimes: secret report’, The Sydney Morning
Herald, 8 June 2018, pp. 1, 6.
[3]. A Greene, ‘Supreme
Court judge examining conduct of Australia's special forces, including alleged
war crimes’, AM, ABC Canberra 666, 13 October 2016; Department of Defence,
Inspector-General
of The Australian Defence Force inquiry calls for information about possible
breaches of the laws of armed conflict in Afghanistan, media release, 1
September 2017; Major General Paul Brereton is an Army Reservist and Justice of
the NSW Court of Appeal, cited in M Speakman (NSW Attorney-General), Justice
Brereton to join the Court of Appeal, media release, 22 August 2018.
[4]. Footnote
references have been omitted from this quotation and can be viewed in the
source document.
[5]. On 25 October
2017, then Chief of Army, Lieutenant General Angus Campbell told the Senate
Foreign Affairs, Defence and Trade Legislation Committee that the scope of the
Inquiry would be determined entirely by Major General Brereton, except that it
was confined to activities in Afghanistan. Senate Foreign Affairs, Defence and
Trade Legislation Committee, Official
committee Hansard, 25 October 2017, pp. 92–94.
[6]. Justice
Brereton mentioned contempt offences in a paper he presented in 2010, The
Director of Military Prosecutions, the Afghanistan Charges and the Rule of Law,
in which he discussed the public criticism of the Director of Military
Prosecutions (DMP) for her decision to charge some commandos involved in a 2009
civilian casualty incident. He said the DMP’s decision:
... provoked
intense, emotional and largely ill-informed debate in military, political and
legal circles. Without knowledge of the evidence available to the DMP, many
have expressed intemperate views that the charges should not have been brought.
[at p. 91]
For a DPP to be
subjected to the type of criticism that the DMP has attracted could very well
be a contempt, and the various petitions and other very public attempts that
have been launched to endeavour to persuade high authorities to intervene in
the prosecution process would almost certainly be so, if directed at a
prosecution in a civilian court. Their proponents may be unaware that ... [the] Defence
Act 1903 (Cth), s 89, creates a similar offence, not limited to service
personnel, which extends to all. [at p. 93, emphasis added]
[7].
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