Peter Dutton’s department says the defence minister is in possession of six reports from the oversight panel regarding the Brereton reforms – but he is yet to disclose any details about what they found.
Meanwhile, the Office of the Special Investigator is considering further allegations of war crimes against Australian defence force personnel allegedly committed in Afghanistan, in addition to the matters specifically referred to it for investigation by the Brereton inquiry, a letter tabled in parliament shows.
The former defence minister, Linda Reynolds, established an oversight panel in late 2020 to give the Australian community confidence the ADF was putting in place lasting cultural reforms. She promised to report “regularly to the parliament on their reports to me”.
But Dutton, who took over as minister in late March 2021, has never spoken about the Brereton reforms in parliament, even though the number of reports from the panel is growing. The chief of the ADF, Gen Angus Campbell, has previously said transparency would be key to the broader reform process.
A Defence spokesperson said on Monday night: “The Afghanistan inquiry implementation oversight panel has provided six reports between February 2021 and May 2022.”
The panel, headed by former intelligence watchdog Dr Vivienne Thom, reports directly to the defence minister.
The timeline suggests that the first report went either to Reynolds or Marise Payne, who acted in the role before Dutton’s appointment. But Dutton has now been defence minister for more than 13 months and would have access to all of the reports.
Responding to a question on notice from the Greens senator Jordon Steele-John, the department of defence said the oversight reports were provided every three months but “timing associated with release of the reports and related reporting is a matter for the minister”.
Executive director of the Australia Defence Association, Neil James, said the defence minister should keep parliament updated on the progress of implementing the Brereton reforms, with some limits.
“It would be helpful – on matters that don’t risk prejudicing a criminal conviction or a disciplinary hearing under the Defence Force Discipline Act – if the minister updated the parliament,” he said.
“The first reason is it’s an appropriate thing to do, but the second is it would make discussion of the matter less emotive.”
James said updates to parliament would be a “control measure” to ensure reforms were bedded down.
He said those responsible for implementing the reforms – both in parliament and outside it – would be held accountable for progress if they knew the commitments were recorded in Hansard.
When asked last week why he had not kept the public informed via parliament, Dutton said the issue was “not a plaything” and it would be wrong to comment “on whether a particular investigation is up to a certain stage” or “whether somebody is about to be arrested”. He has also called Guardian Australia a “trashy” publication.
But the terms of reference show the panel was asked to focus on Defence issues including the “thoroughness and effectiveness” of the chief of the ADF’s implementation plans.
Thom’s panel was required to alert the defence minister of “any challenges and difficulties which may be identified”.
Criminal investigations are handled separately by the OSI.
Dutton did not respond to written questions on the matter on Monday, but a Defence spokesperson confirmed “neither the terms of reference, nor the panel members have changed since the panel’s terms of reference were finalised in November 2020”.
The shadow defence minister, Brendan O’Connor, said the government had “failed to show leadership in its response to the Brereton war crimes report” – but he stopped short of specific commitments.
“Federal Labor will keep a very close eye on the process and won’t make unilateral decisions without consultation with the chief of defence force and the department, including as to whether there has been any change in advice between multiple defence ministers,” O’Connor said on Monday.
“Labor supports the creation of the Office of the Special Investigator. As there are complex and difficult legal processes underway, a process which will likely take many years, we will need to leave them to be completed and unhindered by political commentary.”
A newly released letter shows the OSI assured the prosecutor of the International Criminal Court of “Australia’s resolve to thoroughly and independently investigate, and, where appropriate, prosecute the allegations of criminal offences in Afghanistan from 2005 to 2016 by members of the Australian defence force”.
The ICC is known as a court of last resort, meaning that it only acts if domestic processes are not adequate.
In the letter dated 18 June 2021, the director general of the OSI, Chris Moraitis, promised a “spirit of cooperative engagement” with the ICC.
Moraitis had previously disclosed in Senate estimates that he had written to the ICC, but the full contents of the letter had not been released until the latest round of answers to Senate questions on notice.
Moraitis wrote that the agency was taking advice to “ensure investigators only receive information which can lawfully be obtained and used for investigative purposes”.
“In the meantime, consistent with its functions, the Office of the Special Investigator is receiving and considering information relevant to allegations of criminal offences by ADF personnel in Afghanistan between 2005 and 2016 in addition to the 36 criminal matters recommended for investigation by the IGADF Afghanistan inquiry,” the letter said.
Moraitis added: “I would welcome the opportunity to meet with you should you wish to discuss these matters further.”
A spokesperson for the OSI said on Monday: “As the director general told the Legal and Constitutional Affairs Legislation Committee on 14 February and 31 March 2022, there has been no formal response from the International Criminal Court.”
