TRANSCRIPT: INTERVIEW WITH LYNDAL CURTIS, ABC 24
TRANSCRIPTION: PROOF COPY E & OE
DATE: 21 JUNE 2012
TOPICS: Military Court Bill; DLA Piper.
LYNDAL CURTIS: Stephen Smith welcome to News 24.
STEPHEN SMITH: A pleasure.
LYNDAL CURTIS: You've spoken on the legislation introducing a military court- Governments have had a few stabs at a military justice system that works, when will this one be up and running given the legislation is likely to go to a parliamentary committee?
STEPHEN SMITH: The starting point for this one was a threshold Senate committee report in 2005/2006, which essentially said for serious offences we should move away from the court-martial, the old style court-martial system and establish a military court. The Howard Government had a go at establishing it, enacted legislation which we supported but which in the event in 2009 the High Court said it wasn't constitutional. The legislation was revised, we put legislation into the Parliament to effect a military court, it didn't pass before the 2010 election. So we've reintroduced that legislation. There are some technical and other changes to it, but we are now very confident that it won't be disturbed constitutionally, that it does satisfy Chapter III of the Constitution-
LYNDAL CURTIS: And it will get passed before the next election?
STEPHEN SMITH: Well I'm confident of that- of course it's a matter for the House and a matter for the Senate, but one of the good things about the Senate report a few years ago was that it was strongly supported essentially by all sides of the Senate and all sides of the chamber. There is, I think, a strong view that we should move in the serious offences area to a full military court, and that's what we're doing.
LYNDAL CURTIS: It won't have serving military personnel on it- can you ease the concerns of some who say the people on the military court may not have a good understanding of the way that Defence operates?
STEPHEN SMITH: That's been addressed since the previous legislation was introduced. It's now a requirement that, whilst you can't be a serving member of the ADF or a reserve member of the ADF because that puts you in the chain of command and you have to be independent, the legislation requires relevant experience to understand the ADF, to understand the notion of disciplinary proceedings, and to have some concepts about how things work in practice on the ground.
LYNDAL CURTIS: There'll be no appeal by the Director of Military Prosecutions if someone is acquitted before the court- does that mean that the court's decision is absolutely final? And why shouldn't there be a right of appeal if the Director of Military Prosecutions believes there's been a problem with the decision?
STEPHEN SMITH: Well there's a right of appeal on a matter of law, but even if that is successful, it doesn't disturb the outcome of the initial hearing. So there's a full right of appeal that the Director of Military Prosecutions can take to clarify issues of law, but it doesn't disturb the outcome effected by the military court.
LYNDAL CURTIS: You've also tabled the Director of Military Prosecutions annual report, in which she makes clear she wasn't convinced the decision to throw out the charges she brought against Commandos after an incident in Afghanistan was correct in law, she doesn't seem to have been sure about whether she actually had the right to appeal, but she also says that she didn't have the funds available to take such action because of a previous decision that meant the discretion over whether a case is funded was not in her hands but in the hands of the Department?
STEPHEN SMITH: Well this was a very important case. There were civilian casualties in Afghanistan in February 2009, and the independent military prosecutor brought charges against three ADF personnel- and they were brought under the old style military court-martial system, because the military court hadn't been effected at that time.
In the event, none of those prosecutions were successful. The court-martial ruled in respect of two that there was no case to answer in law, and in the third case the Director of Military Prosecutions received fresh evidence which caused her to effectively withdrawal the case. That experience is one of the things that we looked at as we worked through whether we wanted to have any changes from the previous bill introduced to the current model.
LYNDAL CURTIS: But in this case were her hands tied because she as she says the funds weren't available?
STEPHEN SMITH: No, I don't think that's a correct interpretation. In the past when she had wanted to have matters reviewed - in 2007 from memory the Acting Secretary of the Department said that if you want to take an external review to the Federal Court you need to (a) let me know and (b) get my authority, because it goes to allocation of resources.
There was a subsequent example where the Director of Military Prosecutions asked for external review and that authority was granted. I am very confident that if she had approached the then Secretary of the Department and said I want this externally reviewed, that that authorisation would have been given. For her own reasons, and it doesn't matter what those reason are, it's very important that people understand and she continues to be respected as an independent decision-maker, for her own reasons she decided not to approach the Secretary seeking approval to do that.
My own judgement is that if she had made that approach it would have been authorised.
LYNDAL CURTIS: If I could ask you now, you're considering whether the outcome, the next actions from the DLA Piper review, have you made a decision whether there should be a Royal Commission or not?
STEPHEN SMITH: No, I've had further discussions as you would expect in recent days, not just with the Attorney-General but with the Chief of the Defence Force and the Secretary. You know as I said last week I think on the ABC, the Attorney-General and I aren't too far away from coming to conclusions-
LYNDAL CURTIS: Because there are 800 plausible cases of potential abuse that arise out of the DLA Piper review, do those 800 people deserve a relatively quick answer to the question of what the next steps are?
STEPHEN SMITH: What the 700 plausible cases deserve is serious consideration which brings about a correct outcome. A correct outcome for the handling of those individual cases and a correct outcome for addressing any systemic issues in Defence itself.
Now, DLA Piper are responding to people individually if they want an update on where their case sits. But if this were a simple exercise, then I could make a decision relatively quickly. But we're dealing with what is described as 700 plausible cases over a period of five or six decades at different levels. So what I want to do is to get it right, not to make a decision or make a judgement because commentators or people are clambering for it.
The most effective and important thing we can do here so far as I'm concerned and my colleague the Attorney-General, is to get the decision that we make and I don't think that's too far away, get that right, so that there is a proper process where people if they have made an allegation or want to make an allegation get a fair hearing. But where people have made [indistinct] allegations that are made also get a fair process to respond. But we also make sure that we pick up any systemic issues so that these sorts of allegations, these sorts of alleged instances don't occur into the future.
LYNDAL CURTIS: Stephen Smith, thank you very much for your time.
STEPHEN SMITH: Thank you, thanks very much.