Smith criticises 'ill-informed' military justice comments
Updated
Mr Smith says Australia has always had a system of military justice. (Department of Defence)
Defence Minister Stephen Smith says the military justice system does not allow the Defence Force to tell military prosecutors whether soldiers should be charged over incidents in the field.
Mr Smith was responding to the Opposition, who say that three soldiers who have been charged over civilian deaths in Afghanistan have not received enough support and have been betrayed by the Government.
Opposition Defence spokesman David Johnston says he is disappointed the men were ever charged and believes the department did not provide the best legal defence possible under Section 5A of the Military Discipline Act.
However, Mr Smith says the vice-chief of the Defence Force made a submission to the military prosecutor on behalf of the soldiers and it was not appropriate to do any more than that.
"The Howard Government legislation provides for the Chief of the Defence Force to make representations to the Director of Military Prosecutions about the general interests of the defence forces, it does not go to whether charges should be proffered or not," he said.
"I think on this matter there has been too much ill-informed, inflamed language. I think we need to just very calmly understand what has occurred here."
Mr Smith says Australia has always had a system of military justice.
"It's very important that our defence forces operate within our domestic and international law," he said.
"We've prided ourselves on our high standards and we have a well-regarded international reputation about so doing. And when, for example, there are incidents involving civilians, we always investigate those."
Mr Smith says from time to time those investigations, historically and recently, have led to charges being laid.
"The only change we've seen in the current circumstance is the charges on this occasion were laid by the independent Director of Military Prosecutions, who was established by the Howard government under legislation they introduced and we, when we were in opposition, supported that process," he said.
"So historically Australia has confronted these issues before; the only change we're dealing with now, is that we have an independent Director of Military Prosecutions who's made the decision to press charges. Historically, of course, that decision has been made by military chiefs."
Senator Johnston says he is not convinced that the Defence Force retained experienced senior counsel to make full submissions to the Director of Military Prosecutions on behalf of the soldiers before they were charged.
But Mr Smith says any suggestion that the representations made by the Chief of the Defence Force, or the vice-chief on his behalf, went to the legal defence of the three concerned is simply wrong.
"When the Director of Military Prosecutions asked for the advice in accordance with the statute, she expressly made clear that it should not go to those matters about guilt or innocence, or whether charges should be proffered, because that would impact upon her independence," he said.
"[As for] the legal defence of the three concerned, the Chief of the Army, the Chief of the Defence Force and I have made it absolutely crystal clear that they have been and will be provided with all the necessary resources to deal with this matter, both legal and other support.
"[And] the Chief of the Army has made it clear to the families concerned that he will spare no expense to make sure that they get the legal support and counsel that they require and they need."
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