Defence fires back at ABC over war crimes probe

An ABC claim a criminal investigation is being held into a commando platoon has come under attack by Defence.

Defence has fired a broadside at the ABC, rejecting its claim there was an active criminal investigation into a commando platoon the network accused of a war crime in Afghanistan in 2012.

The network last week accused Defence of refusing to release audio recordings relating to missions by the 2 Commando Regiment November Platoon which the public broadcaster accused of killing a bound Afghan prisoner.

The ABC said it’s FOI for the audio recordings was refused as Defence “confirmed” there was an active criminal investigation.

Not so, according to Defence.

“Defence has not confirmed there is a current criminal investigation involving November Platoon in Afghanistan in 2012,” it said in response to the ABC report.

“Defence is not currently conducting an investigation into this matter.”

It confirmed ABC Investigations had sought access to documents and was denied under section 37 of the FOI Act as a matter of course since allegations of any war crimes fell to the Office of Special Investigator (OSI).

The OSI is currently investigating allegations related largely to the activities of the SAS that stemmed from the damning Brereton Inquiry.

Defence has denied a criminal investigation is happening. Picture: Department of Defence

It is not believed November Platoon is under OSI investigation; the platoon’s former commander Heston Russell confirmed no investigator had every asked him about allegations surrounding November Platoon in the year since Brereton report was released nor was he aware any of his men had ever been or were being spoken to about the ABC allegation.

Meanwhile, an inquiry into how public broadcasters the ABC and SBS handle complaints has been scotched, its continuation defeated by a single vote in the Senate chamber.

On November 11 the Senate’s communications standing committee agreed to look into the networks’ complaints handling, particularly to see if as taxpayer funded entities they remained “efficient, accountable and fit-for-purpose”.

About 14 public submissions had been received including from the recently retired NSW Appeals Court judge Ken Handley AO QC who said fairness and impartiality was questionable when the ABC alone investigated the ABC with no external oversight.

But Greens Senator Sarah Hanson-Young moved to block the inquiry’s continuation which she branded a witch hunt, and did so with the majority of just one, 23 to 22, in the Senate chamber.

Last week the Prime Minister Scott Morrison defended the inquiry saying no government agency was above scrutiny in a move the ABC’s chair Ita Buttrose branded an attempt to “intimidate” and “mute” the national broadcaster.

The inquiry’s deputy chair Senator Andrew Bragg said democracy had taken a backward step when a public inquiry could be defeated in the Senate.

“Restricting community access to the Senate Committees is a backward step for our democracy,” he said after the vote.

“Motions considered by the Senate to silence Australians are very troubling. It raises further questions.”

Australian Army soldiers from Special Operations Task Group prepare to be extracted by a US Army Black Hawk helicopter alongside their Afghan National Security Force partners after completing the clearance of a cave system in Uruzgan province, southern Afghanistan, in 2012. Picture: Department of Defence

Those questions included how the ABC could continue to review the ABC’s own impartiality and still claim independence.

“It sets a terrible precedent for the Senate to close public access, especially where more than a dozen submissions have already been received as evidence,” he said.

“While I am disappointed with the result, I respect the Senate’s right to do so but reserve my right to undertake additional steps. The Inquiry has already received several sensitive but critical submissions. We must not close the door on these Australians.”

One submission to have been made related to an ABC’s war crimes report in which it alleged a named platoon of soldiers was behind executing a prisoner, based on the testimony of just one unnamed American soldier.

Retired Special Forces officer Heston Russell. Picture: Steve Pohlner

But a new timeline showed that the platoon - accused by the ABC of murdering the “hog tied” Afghan prisoner - had not conducted outside-the-wire operations for more than a month after the alleged execution incident took place.

The timeline issued by the 2 Commando Regiment November Platoon former commander Major Heston Russell on behalf of the 30 members of his squad on Tuesday, came after the ABC again defended its report, issuing a lengthy brief to defend its accuracy.

According to the controversial ABC report, in mid-2012 the platoon had seven Afghan prisoners but when told there was room for only six on a US extraction helicopter, a US Marine heard a “pop” on his headphones and six prisoners were presented.

The ABC claimed the man was murdered by the platoon and no other military or law enforcement agency wanted to work with the platoon again.

But Mr Russell has maintained that not only did the incident not happen, there was no record of the prisoner extraction.

He said the platoon had not actually made any outside-the-wire operations in Helmand Province for more than a month after the alleged incident took place and since it was Ramadan, all operations were restricted.

The issue is to be debated in the Senate on Tuesday as the deputy chair of the communications reference committee Senator Andrew Bragg pushes for an inquiry into the ABC complaints process based on the platoon and experiences of others.

Mr Russell said no-one had ever heard of the allegation which as far as he was aware was not part of the Brereton inquiry into alleged war crimes or any US, Australian or NATO complaint into operations.

Mr Russell – who said it had been a 13-month ordeal since the ABC aired its report and since refused to remove it from online – has presented a lengthy brief to the Senate communications inquiry which is considering a probe into how the ABC handles complaints about its reports and journalists.

Deputy chair of the communications reference committee Senator Andrew Bragg. Picture: NCA NewsWire / Gary Ramage

Last Friday the ABC said it had lodged an FOI request seeking audio copies of mission communications and complaints specifically related to the November platoon in June and July 2012 when it says the alleged incident took place.

Defence turned the request down in a generic statement related to not releasing material that was subject to any probe.

“Incredibly, the ABC last week used the FOI response from Defence to claim there is a criminal investigation into their original story when Defence has said nothing of the sort,” he said.

The ABC ha defended its report. Picture: Supplied

“Defence simply confirmed what is already known; that they are co-operating with the Office of the Special Investigator set up by the Government to examine alleged crimes contained in the Brereton report and other sources.”

On Friday when specifically asked about November Platoon, the ABC issued a lengthy statement defending its journalists and reports which it said had been followed up by the Brereton inquiry into war crimes “and sparked a war crimes investigation by the AFP”.

There is no evidence the inquiry has extended to the November Platoon.