Peter Dutton was briefed five times about sensitive discussions between the United States and Australia over whether war crimes allegations jeopardised military cooperation, Guardian Australia can reveal.
Australian officials also privately raised concerns with the then defence minister that the issue might be mentioned in the US state department’s annual reports on human rights around the world.
Warning that the issue was likely to become public, Defence prepared “talking points” to play down the potential friction with Australia’s top security ally.
They included the line: “It is testament to the strength of our relationship that we can discuss issues of such deep concern openly and transparently with our closest partner.”
The talks between the allies were sparked by the Brereton inquiry into alleged war crimes by Australian special forces in Afghanistan. The US considered whether this triggered its own “Leahy law” provisions, which ban assistance to foreign military units credibly accused of gross violations of human rights.
The fact that the US considered such restrictions on Australia’s SAS regiment did not become public until a Senate estimates hearing two months ago, when the Tasmanian senator Jacqui Lambie asked why a member had been moved out of the special forces to allay Washington’s concerns.
The new documents, obtained by Guardian Australia under freedom of information laws, give the most detailed timeframe yet of the sensitive discussions with the US and related briefings keeping the then Coalition government informed.
They show the acting defence minister Marise Payne was first provided with a written briefing on the issue in March 2021, and Dutton was briefed five times between April 2021 and April 2022. The issue was “finalised and the matter closed” shortly before the federal election.
The documents also show the chief of the Australian defence force, Gen Angus Campbell, was in regular correspondence with the US embassy to provide information and resolve the issue. Defence declined to release this correspondence, saying it could damage international relations.
“On 12 March 2021, the United States formally notified Australia that US authorities must make a formal determination in relation to US support to Australian special forces due to ‘credible information that gross violations of human rights were committed in Afghanistan’,” said the first briefing from Defence to Payne, dated 23 March 2021.
“The United States’ ‘Leahy Law’ prohibits the responsible units receiving US military training, equipment, or other assistance, until the US determines acceptable remediation has been conducted.”
The brief was updated and issued to Dutton the following month. The 16 April 2021 submission to Dutton was originally marked “Secret AUSTEO”, meaning “Australian Eyes Only”.
Dutton agreed to three recommendations, including to note that the US’s assessment of Australian special forces was “likely to become public” and that Campbell had already provided an initial response to the US defence attaché, dated 30 March 2021.
The submission said the state department published annual “country reports on human rights practices”. While the 2020 report made only a brief reference to the Brereton inquiry, the submission warned Dutton that “future reports may reflect on the Leahy Law implications”.
Other ministerial submissions to Dutton updating progress on the same issue were dated 30 June 2021, 23 September 2021, 26 February 2022 and 12 April 2022.
Defence lawyers prepared a background fact sheet explaining that Leahy law restrictions, when imposed, were applied at the “unit” level, so it “does not mean that the whole of a foreign government’s military (or other security forces) is restricted from receiving assistance”.
Defence lawyers advised that “corrective steps” could include “a credible, impartial and thorough investigation; judicial or administrative adjudication, addressing all of the GVHR [gross violations of human rights]; and sentencing or comparable administrative action”.
Guardian Australia has previously reported that the then chief of the army, Lt Gen Rick Burr, wrote to a special forces member in February 2022 to say that while the person continued to serve in the special forces, there was “no path” to alleviate the concerns of the US.
The person was informed that they would not be posted to support the SAS regiment or Special Operations Command, and would also not be able to join operations or exercises that involved the US.
Campbell told the Senate estimates committee on 31 May this year that he knew “of one member of the army whose employment arrangements – as in posted position – was adjusted based on consideration of the question in part of whether Leahy law issues may emerge”.
He said it was important to ensure “there is no uncertainty about the continuing relationship between Australian and United States special forces” and the change was made with “due care” to the individual’s “circumstances and opportunities and professional development”.
Lambie told the committee: “Quite frankly, I find it atrocious … They’re going to start dictating that this is what’s going to happen to our personnel?”
Campbell replied: “Senator, I can assure you there was absolutely no dictate or threat or inappropriate conduct in any way, shape or form.”
Lambie said on Wednesday the number of ministerial briefings showed the issue was “very significant”.
“I find it very hard to believe that Gen Campbell didn’t have this front of mind at every estimates [hearing], from when it started in 2021, not just at estimates in May this year,” she said.
The Greens’ defence spokesperson, David Shoebridge, said: “Instead of taking meaningful steps to address this, Defence prepared talking points to protect the optics.”
The US embassy has previously confirmed the “bilateral training review” ended with a finding “that no Leahy law restrictions are warranted for Australian security forces at this time”.
