Australian military commanders have not been “absolved” of their share of responsibility over alleged war crimes in Afghanistan, despite a controversial decision under the former government to suspend punishment.
Defence officials are anxious to confront any perception they are failing to act on the cultural failings exposed by the Brereton inquiry, according to new documents obtained by Guardian Australia.
In private briefings to the deputy prime minister, Richard Marles, officials have also called for “deep reform and urgent action” targeting the root causes.
The long-running inquiry found “credible” information to implicate 25 current or former Australian defence force personnel in the alleged unlawful killing of 39 individuals and the cruel treatment of two others in Afghanistan.
While criminal investigations are being overseen by the new Office of the Special Investigator, a related issue is how the ADF deals with responsibility higher up the chain of command.
A decision – made last year at the urging of then defence minister, Peter Dutton – to shelve decisions about internal disciplinary action against commanders is believed to have caused resentment among special forces soldiers.
Documents obtained under freedom of information laws reveal officials have prepared material to help Marles answer questions in parliament about commanders. A question time brief suggests such disciplinary action will be considered later.
“Suspending consideration of administrative action does not absolve commanders of accountability,” says a document provided to Marles in early July.
“It is imperative that any internal administrative actions do not risk compromising any relevant criminal processes.”
Another ministerial submission to Marles said Defence released its reform plan in July last year to “manage any risk of the perception that no action was being taken”.
“A year on from the reform plan’s release, the same considerations apply,” the head of the Afghanistan inquiry response taskforce, Rear Admiral Brett Wolski, wrote.
Wolski’s submission also warned against a “narrow and inadequate approach” to reforms. It said changes must be implemented across “many areas” in Defence, “not just Army or Special Forces”.
“It is vital that the failings identified by the inquiry are addressed in a deliberate, fair and transparent manner,” said the submission to Marles on 7 July 2022.
The submission notes media reporting and public commentary has focused on issues including command accountability, transparency and the proposed revocation of the meritorious unit citation.
The Greens, meanwhile, are calling for a new parliamentary inquiry to scrutinise Australia’s response to the Brereton report, arguing Defence must not be allowed to act as a “protected secret club” with a “culture of impunity”.
NSW senator David Shoebridge said: “Punishing lower ranked individuals for criminal conduct is critical, but without addressing command responsibility nothing will change.
“Treating this as a case of ‘a few bad apples’ fails to deliver accountability, leaves a question mark over the ADF and ultimately damages the national interest.”
Marles has previously told Guardian Australia he was “deeply committed” to reforming the ADF and promised to keep parliament informed of progress – a step avoided by Dutton, who said the Brereton response was “not a plaything”.
Marles has received his first report from the independent panel overseeing the Defence response to the inquiry, chaired by the former inspector general of intelligence Vivienne Thom.
Previous Coalition defence ministers received six reports from the Thom panel, but they were marked “protected cabinet” and initially kept secret.
Large portions of those oversight reports were posted on the Defence website earlier this month in response to a separate FoI request from The Australian.
In the final report to Dutton before the election, Thom’s panel raised concerns that “the failure for any accountability to be required from senior officers (as would occur in the Australian public service or the private sector) is widely resented in the SF [special forces] and a factor contributing to lowered morale.”
“Failure to address this issue could also seriously compromise the moral authority of current and future Defence leaders,” the panel added.
Maj Gen Paul Brereton, who oversaw the war crimes inquiry, wrote in late 2020 that troop, squadron and task group commanders “must bear moral command responsibility and accountability for what happened under their command and control”.
The chief of the ADF, Gen Angus Campbell, said shortly afterwards that he accepted there were “officers in command roles in the special operations task group and indeed in higher appointments who had a responsibility to deal with issues and to completely and openly report” on incidents.
In June last year, Dutton asked Campbell to “suspend administrative action that you might be considering in relation to personnel who held command positions”.
In the lead-up to the election, Dutton brushed off questions about why he had not kept parliament updated on progress in implementing the Brereton reforms despite Campbell’s publicly stated desire for transparency.
Dutton argued it would be wrong to comment “on whether a particular investigation is up to a certain stage” or “whether somebody is about to be arrested”.
The new question time briefing to Marles points out criminal investigations and any potential prosecutions “are being conducted independently of Defence”. The public release of the six Defence oversight reports “was a matter for the former government”.
