Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I seek leave to table a document relating to an article 15 communication to the International Criminal Court which calls on the International Criminal Court to investigate the responsibility of senior ADF officers for potential war crimes committed in Afghanistan.

Leave not granted.

Simon Birmingham (SA, Liberal Party, Shadow Minister for Foreign Affairs) Share this | Link to this | Hansard source

I want to express obviously at least the willingness on behalf of the opposition—and I imagine of the government as well—once we have seen the document, to consider whether we can give leave for it to be tabled, Senator Lambie. Those are the normal courtesies.

Sue Lines (President) Share this | Link to this | Hansard source

Thank you, Senator Birmingham. Both the government and the opposition have indicated they haven't seen the document and would like an opportunity to do so. It's up to you if you wish to rise again, Senator Lambie.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

Pursuant to contingent notice standing in my name, I move:

That so much of the standing orders be suspended as would prevent Senator Lambie moving that the document be tabled.

Yesterday I called on the government to acknowledge and take responsibility for the shocking lack of accountability at the top of our Defence Force. The government didn't support my call to admit that we have a problem, and we have a massive problem. I have been asking for a meeting with the Minister for Defence for months to talk about this. Like the Chief of the Defence Force and the top brass, the government are, no doubt, hoping this will all just go away. They're hoping that Australians will forget that, when alleged war crimes in Afghanistan were investigated, our senior commanders got a free pass while the diggers got thrown under the bus. Well, we don't forget. I won't forget. Lest we forget.

There is a culture of cover-up at the highest levels of the Australian Defence Force. It is the ultimate boys club. Today I say enough is enough. There will be no more marking your own homework. There will be no more throwing our diggers under the bus. When the war crimes investigation was formed, Major General Brereton ruled out investigating senior commanders, and the previous government said: 'Yes, sir. No worries.' But what do you know? This government is following suit. Let's be quite clear here: the senior commanders have not been examined through the hard-core legal lens that they have put our diggers through.

When the Chief of Defence was asked in estimates if his command accountability review was an investigation, he admitted that it was not. So I guess it was just another 'marking your own homework' exercise. It seems that those who are most responsible are the least accountable. There is evidence from multiple sources—independent of the Brereton inquiry—including witness testimony before a civil defamation trial, which said:

The leadership knew. This went beyond the patrols. This was known up the chain.

Some of these sources confirmed that the leadership knew for years about the allegations of unlawful behaviour, including an SAS patrol commander. The incident was reported all the way up the special forces chain of command. The former patrol commander says that he was told by a senior officer:

… the regiment is bigger than an individual and the integrity of the regiment must come first … he informed me the regiment will handle this internally.

The former SAS patrol commander had one message: 'Everyone knew.' Everyone knew, and still our government is silent. Worse, they put the guy who gave the senior commanders a free pass the top job at our National Anti-Corruption Commission.

So this morning we are taking action. We have filed with the Prosecutor of the International Criminal Court in the Hague an article 15 communication. This asks him to look at Australia's higher commanders through the lens of command responsibility. An enormous amount of work has gone into this. I thank all of them for their contribution, especially Dr Glenn Kolomeitz, veteran and lawyer. The law of command responsibility is a method of criminal liability where commanders have failed to do their duty. The International Criminal Court is a court of last resort. It isn't an easy task to get them to investigate. They can only do this if the state party, in this case Australia, has failed to investigate high command for their breach of duty.

Alexander Downer fought hard to get Australia to sign up to the International Criminal Court. I'm sure he never considered that we would need the International Criminal Court because Australia was shielding its own military commanders from accountability. But that is what has happened. Australia has in effect set up two systems of criminality—one for Australia's top military commanders and another for commanders from the rest of the world.

Quite frankly, I feel embarrassed that Australia is in the situation, so I am helping the government today. I am giving you a second chance to get this right and fix this mess. It is your turn. You are the government of the day. I want to see what leadership you have. With a heavy heart once again, I am asking you to allow me to table these goddamned documents, because high command needs to be held responsible. Please allow me to table these documents.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I commend Senator Lambie for her submission to the International Criminal Court. I support her on behalf of diggers and members of the SAS Regiment. If any Australian is going to be put in jail for war crimes, the first ones to be jailed should be the generals and politicians that led us into illegal wars based on lies. Where is the command accountability for the allegations? Where is the accountability for the war criminal John Howard, who led us into an illegal war based on a lie about weapons of mass destruction?

Tony Blair in Britain, George W Bush in America and John Howard in Australia said that there were weapons of mass destruction, justifying our invasion of Iraq. Just a short while later, they admitted there was no evidence of weapons of mass destruction. Not one politician, to my knowledge, has held any of those three accountable—not one. They put our diggers, our young men and women, in harm's way and asked them to do state sanctioned killing. Where's the Chief of the Defence Force, General Angus Campbell? He's ready and willing to throw the diggers, the men who were on the ground and in contact with the enemy, under the bus. Here is, in action, the theatre of war. The accountability comes from the top. That is the Yamashita standard. It is enshrined in international law. Our parliament is saying, 'To hell with that.' General Angus Campbell cleared himself. After Angus Campbell investigated himself, he found he had committed no wrongdoing and that command accountability didn't extend to him. War is different from any industrial enterprise.

But let me tell you about my belief, my position, as a mine manager of several underground coalmines. If a junior person were hurt on night shift while I was on holiday in Fiji—not that I've been on holiday in Fiji—I've always considered it to be my responsibility that that young person were injured. A 17-year-old new-starter on night shift would be my responsibility, even if I weren't at the site, because I would be responsible for the systems and the culture that caused that injury. Whether it's a slight injury or a serious injury, I am responsible. That same thing applies to the Australian defence forces. It applies to this building. Let me tell you another story. I can recall Alexander Downer—Senator Lambie mentioned him—on his last day in parliament. He appeared on The 7.30 Report that night, and he told us the story of John Howard coming back from America after the Twin Towers collapsed. He said that John Howard walked into cabinet and said, 'We're off to Iraq.' Is that the way that things are done around here? I commend Senator Lambie for what she has done. I remind everyone here of a statement she used just recently: 'Those most responsible are often not accountable.' We need accountability. If you want accountability amongst the diggers—

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

That was me.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

My apologies to Senator Shoebridge, through you, Deputy President. I'll say it again: those most responsible are often not accountable. If we want accountability in the diggers, it must come from accountability in the brass and it must come from accountability in this building. We support the diggers, and we say this on behalf of the diggers.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Senator Lambie is seeking to suspend so much of standing orders as would prevent her from tabling certain documents. The Australian Greens have been provided with these documents, but it was literally within the last two minutes that we were provided these documents by Senator Lambie. There are numerous documents in the bundle that Senator Lambie would like to table, and many of those documents are very lengthy. I haven't had a chance to count the pages, but I wouldn't hazard a guess that there are hundreds of pages of documents here.

The Australian Greens take a very generous view on tabling documents, but we do have a threshold, and that is that we will support the tabling of documents if we believe it is in the public interest for those documents to be tabled. We apply that threshold with a very generous view because we genuinely believe in transparency. I want to place on the record that Senator Shoebridge has worked very closely across the aisle with Senator Lambie on matters associated with the ADF leadership, and that constructive relationship, I have no doubt, will continue. We thank Senator Lambie for, within the last couple of minutes, providing us with those documents; however, we have not had enough time to satisfy ourselves that tabling these documents is in fact in the public interest. So we're not going to support this suspension right now, but I do say to Senator Lambie that we're very happy to engage constructively with her and very happy to work with her to deliver on the things that she is trying to achieve in this space. The Greens have expressed many similar and, in some cases, identical views to Senator Lambie about matters associated with the ADF—in particular, senior leadership in the ADF. We are absolutely committed to continuing that close working relationship with Senator Lambie and to prosecute the issues that need to be prosecuted in the space. So even though we can't support the suspension right here, I place it on the record that we will engage with Senator Lambie. Now that we have received those documents, we will engage with Senator Lambie and work with her on those issues.

Simon Birmingham (SA, Liberal Party, Shadow Minister for Foreign Affairs) Share this | Link to this | Hansard source

I largely echo the sentiments of Senator McKim. As I indicated when Senator Lambie sought leave, at that point we hadn't seen the documents. I understand there are a series of documents. I've been trying to look at them on my phone in the chamber in the time since. At a superficial level, I would imagine that if they are public documents and they serve the case that you are seeking to make, Senator Lambie, we would be in a position in the next little while to grant leave. But we do just need long enough to actually have a glance at the documents.

We have nothing but respect for the passion and focus that you bring to these issues. We do understand and appreciate that and in no way seek to impede your ability to prosecute that. We don't always agree, but we certainly respect the approach that you bring and the conviction that you have attached to these matters. So we will not be supporting the suspension at this time for the reasons that Senator McKim has outlined, but we certainly will give it prompt consideration and I indicate that we will come back to you. I would anticipate that, barring any problems with the documents, we should be in a position to grant that leave.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I concur with Senator Birmingham and Senator McKim as well in terms of our approach to this issue. We, too, understand Senator Lambie's passion and the importance that she places on these matters. We understand they are important to her and many people across the country. We do, however, follow a normal protocol where we get the chance to peruse these documents before we make a decision. That's what we would be asking for in this circumstance. But, similar to the opposition, we would be hopeful that that can be resolved as soon as possible today so that these documents will end up being tabled.

Question negatived.