The review of the Inspector-General of the Australian Defence Force (IGADF), kept secret for six months, turns out to be an in-house report into a military justice “cover-up shop”, writes Stuart McCarthy.
The report, accidentally published yesterday, is at odds with the Royal Commission report that called for sweeping reforms of what they call a “weaponised” system contributing to a suicide epidemic throughout the Australian Defence Force (ADF).
Secret report not so secret anymore. Inspector-General’s ADF report emerges.
Even before it saw the light of day, the report sparked accusations by firebrand Tasmanian Senator and former soldier Jacqui Lambie of a “toxic, cover-up culture” in the Albanese government. In extraordinary scenes in the Senate chamber on Tuesday, Greens Senator David Shoebridge attempted to table the unredacted report, but leave was not granted by Senate President Sue Lines.
An earlier motion by Lambie for Marles to “commit to a firm timeframe” for the report’s release was supported by cross-bench and opposition Senators but opposed by the government. Amid vocal interjections, Lines threatened to eject Lambie, who in recent days has “begged” for the report to be made public.
Just tried to table in the Senate the independent review of the Inspector General of the ADF that Senator Lambie has been fighting to make public for months.
The Government just stopped us.
Sometimes, it is hard to believe this government’s addiction to secrecy.
More to come. pic.twitter.com/3OHVBGsNEM
— David Shoebridge (@DavidShoebridge) September 17, 2024
Jointly commissioned by outgoing Chief of the Defence Force General Angus Campbell and Defence Secretary Greg Moriarty in September last year, the review was undertaken by former Minister for Justice and Justice of the Federal Court Duncan Kerr, assisted by former Defence Secretary and Australian Ambassador to the US, Dennis Richardson.
Flaws in the military justice system
Angus Campbell’s final two years of tenure as Australia’s uniformed military chief – extended by the Albanese government soon after coming into office in 2022 – has been mired in the controversial aftermath of the IGADF inquiry into alleged crimes by Australian special forces in Afghanistan.
In May last year, Campbell was accused of marking his own homework to keep the distinguished service cross he was awarded as the Australian military commander in the Middle East in 2011 after demanding mid-ranking special forces officers down the chain of command “show cause” as to why they shouldn’t be stripped of the same decoration.
At the heart of these controversies is the “independence” of the “military justice system” from that same chain of command.
Last week’s Defence and Veteran Suicide Royal Commission final report found that the military justice system had been “weaponised” after numerous witnesses provided evidence of the IGADF’s abuse of administrative law, mistreatment of witnesses and lack of support for the families of ADF personnel whose suicides were investigated by the peak military justice body.
The report made a series of recommendations to reform the IGADF, including the provision of information to the next-of-kin of deceased defence personnel, the conduct of IGADF inquiries into ADF suicides, and improving the transparency of its inquiries.
Royal Commission into Veteran Suicide confronts lawfare, cronyism and a bureaucratic nightmare
Justice Kerr’s terms of reference were to review the statutory basis for IGADF’s establishment and examine “the functions, operation and composition of the office established to support the IGADF.” His review was apparently commissioned in-house by Campbell and Moriarty mere days before current IGADF James Gaynor was grilled by the DVSRC in a public hearing.
Today the Royal Commission is delving deeper into institutionalised dysfunction and abuse in the @DefenceAust portfolio including the misuse of “administrative law”, with Inspector General of the Australian Defence Force James Gaynor under questioning by Counsel Assisting. https://t.co/4lM0tcaxYN pic.twitter.com/37irtPB71q
— Stuart McCarthy (@StuartMcCarthy_) September 7, 2023
IGADF recommendations
The report states that community expectations of a defence force includes “prioritise[s] the physical, mental and emotional health of those who serve in its armed forces.” Among the “key propositions” in Kerr’s 139-page report are that the duties and functions of the IGADF be “excised” from the Defence Act to become an independent entity under a new standalone act but still within the Defence portfolio.
The report says the “perception” of a lack of independence from the military chain of command “degrades the confidence that government can place on the institution as a guarantee to the community that members of the ADF have rights they can securely rely upon.”
Kerr’s 47 recommendations, in essence, amount to a rebranding exercise; indeed, one of the actual recommendations is that IGADF changes their email addresses from “defence” to “IGADF”.
This morning in parliament, Lambie said,
The IGADF might be a statutory office, but they are not independent, and for most veterans, they see the IGADF as an agency that just runs interference for defence.
The sources MWM spoke to tend to agree.
Dr Glenn Kolomeitz says “propositions” in the Kerr review “are a nice touch, but the recommendations lack substance.” The former military lawyer and defence analyst has an extensive background in defence, including as a military police officer and a military prosecutor, and in NSW Police, including as a coronial investigator.
The lack of substance, Kolomeitz told MWM, “is likely down to the terms of reference set by the IGADF organisation itself.” He says of the Kerr review’s “stark contrast” to the DVSRC: “The findings of the Royal Commission go to the heart of the problems with military justice – all roads lead to the IGADF. That disparity tends to explain why the internal review was hidden from public view for so long.”
Misuse of law
The IGADF has been the source of simmering controversy for many years, including concerns over the misuse of administrative law as a proxy for criminal justice.
Under its administrative legal framework, IGADF has the power to compel testimony from witnesses, even where that testimony may be self-incriminating. The inadmissibility of self-incriminating or compelled testimony from witnesses to the IGADF’s Brereton Inquiry into alleged war crimes in Afghanistan saw criminal proceedings against former SAS soldier Ben Roberts-Smith dropped by the Commonwealth Director of Public Prosecutions in June last year.
A stronger criticism previously made by military whistleblower David McBride is that the IGADF is “a cover-up shop for the generals.” Major General Paul Brereton’s Afghanistan Inquiry into as many as 39 unlawful killings in Afghanistan cleared the senior ADF hierarchy of wrongdoing while recommending criminal proceedings only against soldiers of Sergeant rank or below.
Numerous sources close to Brereton’s inquiry believe it was part of a campaign of “plausible deniability” around direct knowledge of war crimes allegations among top ADF generals and Rudd-Gillard government ministers at least as early as mid-2012.
They didn’t know, really? Pursue top brass over alleged war crimes in Afghanistan, says veteran
Kolomeitz, who authored last year’s referral of some of the ADF’s most senior generals to the International Criminal Court Prosecutor in The Hague, says, “The Royal Commission has recommended root and branch reform of the IGADF – that’s appropriate. A recommendation that the IGADF initiates an inquiry into the weaponisation of the military justice administrative system by 2024 is sound, but
should be viewed through the lens of the failings of the IGADF identified by the Royal Commission.
Deflecting accountability
On Friday last week, Defence Minister Marles “closed out” the Brereton Inquiry’s recommendations by stripping distinguished service decorations from a number of mid-ranking ADF special forces commanders in a final act of what many defence personnel and veterans say is a scapegoating campaign to deflect command accountability from the ADF leadership and government for any wrongdoing in Afghanistan.
The 2015-16 IGADF inquiry into the notorious Australian Army antimalarial drug trials in Bougainville and East Timor at the turn of the century also cleared senior ADF leaders and medical officers of any wrongdoing.
MWM can reveal that the terms of reference for that inquiry, conducted by Assistant IGADF Brigadier Andrew Dunn, excluded the most serious allegations made against a senior ADF medical officer who was the subject of the original written complaint. That officer was promoted to Brigadier while he was under investigation by the Assistant IGADF, and since his departure from the defence force has been employed in a senior role in the Department of Foreign Affairs and Trade.
Fmr Commando Kevin Frost, a witness to the IGADF inquiry into allegations of unlawful killings, suicided in December. He was also subjected to unlawful @AustralianArmy drug trials. What happened to the other ~50 witnesses to that previous IGADF “inquiry”?https://t.co/9fLvfZ9mCD https://t.co/pk7Mgj2ZuE pic.twitter.com/HUat2fIkVJ
— Stuart McCarthy (@StuartMcCarthy_) February 25, 2020
Former Army Warrant Officer Colin Brock, one of the witnesses to the IGADF inquiry into the drug trials, told MWM,
That inquiry was a bloody rockshow, designed to cover-up the officers’ cover-ups.
Among the casualties of the East Timor drug trials was former commando Kevin Frost, who later served in Afghanistan and then died by suicide in December 2019 after being interviewed by the Brereton Inquiry. A decade-long advocacy campaign for improved medical care for the Army drug trial subjects last week finally saw the DVSRC recommend the government establish a brain injury program for the affected veterans.
Significant numbers of the soldiers subjected to the East Timor drug trials – involving a drug the U.S. Food and Drug Administration warns can cause “lasting or permanent” neurological or psychiatric side effects linked to numerous suicides – went on to serve in Australian special forces units deployed to Afghanistan.
The secretive Richard Marles
Kerr’s IGADF review is only the latest in a string of reports concealed by Marles for months, only to be released when politically convenient.
These include a review of a report critical of Brereton’s flawed findings on higher ADF command responsibility for the alleged Afghanistan war crimes. Marles released that report the same day McBride was sentenced earlier this year to more than five years in prison for leaking documents to the ABC that were likely to have incriminated senior ADF officers and members of the Rudd-Gillard government.
McBride made a formal complaint to the IGADF in 2014 regarding the handling of investigations into some of the war crimes allegations before eventually leaking classified documents that were selectively covered in ABC’s 2017 ‘Afghan Files.’
From here, the Albanese government has not one dilemma but two. Back a three-year Royal Commission recommending an overhaul of a “weaponised” military justice system contributing to suicides, or an in-house report commissioned by defence chiefs that recommends a re-brand of the status quo.
And, to rush through a “band-aid” veteran affairs reform bill, or extend a Senate inquiry to give the Royal Commission’s main advocates their say to the democratic institution they risked their lives for.
“Band-Aid Bill”: expert advice ignored in tepid response to Suicide Royal Commission
Stuart McCarthy is a medically retired Australian Army officer whose 28-year military career included deployments to Afghanistan, Iraq, Africa, Indonesia and Papua New Guinea. Stuart is an advocate for veterans with brain injury, disabilities, drug trial subjects and abuse survivors. Twitter: @StuartMcCarthy_