Features Australia

Honour the brave

Soldiers have rights, too

21 November 2020

9:00 AM

21 November 2020

9:00 AM

Why are politicians — elected public servants — so determined to run down morale in our defence forces, discourage enlistment and leave Australia defenceless?

In creating a four-year-long investigation into allegations about our soldiers in Afghanistan, why have they not honoured the presumption of innocence which all Australians, even cardinal archbishops, are entitled to?

Why were hostile left-wing media granted special access by Defence? And why weren’t those consequently forced to protect their reputations granted legal aid similar to that thrown at anyone claiming to be a refugee?

Instead of prudently keeping the report private until prosecutions are launched, the prime minister prejudged the issues as ‘brutal truths… which will constitute difficult and hard news for all Australians.’

Truths? Before a jury has reached its verdict?

And why wait until now to appoint yet another lawyer to prosecute?  Couldn’t that task have been rolled into the four-year investigation?

For just how many more years do the politicians plan to torture Australian soldiers who are entitled to be presumed innocent? And sadly, how many more young men may well decide to end it?

It is elementary that there is no more important function for politicians than the defence of the realm.

Yet not only is our biggest defence contract for what many experts think will be a dozen obsolete Turnbull-Pyne diesel submarines, some will not be delivered in time for our future King to review the fleet for the 2045 centenary of the Victory in the Pacific in the last war.

Meanwhile, the politicians seem intent on turning the armed forces into some social laboratory. From the selection criteria, you would think the very last people they want as soldiers are strong, young men.

There’s a history of our soldiers putting up with more than fighting in foreign wars. In the second world war, supplies were too often sabotaged on the waterfront with fatal consequences. As the late Hal Colebatch revealed in Australia’s Secret War (2013), the wartime government was rendered too weak by its left wing even to stop the stevedore saboteurs who, in any other country, would have been arrested.

Sometimes American troops did what Australians were stopped from doing They just trained their guns on the communist-led saboteurs The armaments and other supplies were then loaded with unusual speed and care.

Then, rather than politicians ensuring they were welcomed home with street parades, Vietnam veterans were subjected to personal attack by left-wing revanchists opposed to the US alliance.

The point is that without our close defence relationship with Washington, as leading defence strategist Paul Dibb insists, our defence force is not a credible military force.

The best way the politicians can fulfil their role of defending the realm is first, maintain the American Alliance, second, ensure our forces are well armed compatible with that Alliance, third, maintain and certainly not continue to undermine morale and fourth, encourage enlistment.

This is not the first time soldiers who risked their lives have been the subject of controversial prosecutions.

On one occasion when our soldiers came under fire in Afghanistan in 2009, they returned fire and lobbed grenades into a compound which also unfortunately but unavoidably resulted in the deaths and wounding of civilians.

Most would ask what else they could have done, but the calm re-assessment of this in a Canberra air-conditioned office led to a different conclusion.

Under the politicians’ unnecessary and poorly designed centralisation of military prosecutions, a system set up without any dissent in parliament, the soldiers were charged with manslaughter.

Just as well such an approach did not apply in the second world war, otherwise the Rising Sun would be flying over Canberra today.

Although the politicians had forgotten to provide for charges to be filtered through a committal hearing, the soldier presiding at the court martial, Major General (then Brigadier) Ian Westwood saved the day.

Through a pre-trial ruling, he undercut the prosecution by finding, correctly, that the charges were wrong in law. Compelled to take part in military operations, the soldiers had no legal duty of care for non-combatants, at least one set out in the relevant legislation.

Both that case and the ones yet to be launched demonstrate an important principle, one which should be included in the anti-corruption integrity commission legislation. This is the avoidance of injustice through pre-trial sensationalist publicity, something which still mars ICAC activities in NSW. Until a prosecution is actually launched, the presumption of innocence surely dictates that any examination or report remain private.

The solution lies in our ancient legal system. This is in the grand jury of up to 24, contrasted with the petit jury of 12 with which we are familiar. Grand juries are mentioned in the Magna Carta and survive in the United States under the constitution.

In medieval times, grand juries would be convened to consider, in private, bills of indictment concerning alleged crimes. After hearing witnesses, those cases judged sufficient for a trial before a visiting judge and jury would be endorsed on the back as a ‘true bill’. Those marked ‘not a true bill’ or ‘ignoramus’ did not proceed.

Replaced in England in more recent times by public committal proceedings before a magistrate, grand juries never made much impact in Australia. They remained on the Victorian statute book until 2009, when an unsuccessful attempt was made to convene one over a treason charge against Julia Gillard.

Grand juries should be reconsidered.

Not only do they rely on common sense where it is more prevalent — among ordinary Australians — but they avoid prejudicing a population, and thus any jury, more exposed to news, fake or not, than ever before.

Above all, when it comes to those willing to die for their country, politicians have an elementary duty to ensure they enjoy the presumption of innocence.

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