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When Prime Minister Anthony Albanese was asked in Singapore on Friday about the implications of the decision in the Ben Roberts-Smith case, he described it as “a determination … that didn’t involve the government”, adding that “it would be inappropriate to comment on the detail of that given the potential that is there for future action that the government might be a party to”.
A few days earlier, speaking on the controversy around the conduct of accounting giant PwC, he expressed similar caution, telling John Laws on Sydney radio station 2SM that the Australian Federal Police were investigating the matter and “I don’t want to pre-empt any of those processes”.
But there was a crucial difference between the responses. Albanese also told Laws that PwC’s conduct was “completely unacceptable” and that “in the fullness of time, of course, there needs to be proper transparency about all of this”. Treasurer Jim Chalmers added his voice, telling the ABC that Australians were “absolutely filthy” about the PwC case.
Such full-throated condemnation has been harder to come by regarding the Federal Court’s findings of war crimes committed by some members of our special forces overseas and Roberts-Smith’s conduct after returning to Australia.
Justice Anthony Besanko found that our most decorated living soldier murdered unarmed people, lied about it, colluded with witnesses and bullied a fellow soldier.
The court heard he told his then mistress that if she turned on him he would burn down her house and “it might not be you that gets hurt, but people you love and care about”.
Do our leaders really have nothing to say about any of this? In a time when politicians happily cast people as unfit for roles in public life over ill-judged social media posts, their silence on the resounding judgment against Roberts-Smith is deafening.
The government was certainly involved in the determination: it was an intervening party in the case. A squad of barristers, government solicitors and nameless operatives from the Department of Defence sat in court for every hearing for years – including the 110-day trial – at enormous taxpayer expense.
The Commonwealth suppressed the names of witnesses, raised constant objections to questions and insisted half of the trial be held in secret. It delayed the release of the full judgment for days over fears that the judge would accidentally publish national security information.
As The Age’s Michael Bachelard has pointed out, this was a civil case unlike any other, in that it involved detailed consideration of whether elite members of our nation’s military had committed war crimes and colluded to conceal them.
And while its focus was the reputation of a single soldier, it raised the same larger questions of transparency and accountability that have marked the PwC case, but in an area where our leaders often fear to tread: questioning those who wage war on our behalf.
The Office of the Special Investigator, established by the Morrison government in 2020, has faced many legal hurdles in its pursuit of criminal charges against those suspected of violating the laws of war, but the evidence of the Brereton report and the substance of its recommendations indicate that whatever charges are ultimately brought, it is time for the government to be proactive, rather than being forced to react to a steady drip of revelations.
For example, the Brereton report recommended that compensation should be paid to surviving family members of Afghan victims without waiting for the establishment of criminal liability.
The Department of Defence set a late 2021 deadline to establish a compensation scheme, without result. The Albanese government says it supports the move, but the matching of deeds to words cannot come soon enough.
Another issue that cannot be avoided if talk of maintaining the ADF’s reputation abroad is to be taken seriously is accountability in our military’s chain of command.
The Brereton report concluded that responsibility for the criminal behaviour it described rested “overwhelmingly” at the level of patrol commanders, adding that there had been a devolution of operational command of the Special Operations Task Group to our allies.
Given that no one at the highest levels of the ADF has disputed this, what precisely were the top-level commanders receiving medals for?
The Albanese government also needs to undertake a transparent examination of the responsibilities of senior ADF officers and how our military honours system works. In 2020, former ADF chief Admiral Chris Barrie suggested a royal commission to look into these matters.
While that may be a bridge too far for the government, the question remains: how many times can we afford to raise a soldier as high as we did Ben Roberts-Smith, only to find our admiration is so grievously misplaced?
Patrick Elligett sends an exclusive newsletter to subscribers each week. Sign up to receive his Note from the Editor.
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