Legal ‘landmines’ could blow up future prosecutions

ADF chief Angus Campbell is under pressure to remove legal ‘landmines’ from the Brereton report that could prevent alleged murderers from punishment.

Chief of the defence force General Angus Campbell during estimates in Parliament House, Canberra. Picture: NCA NewsWire / Gary Ramage

Chief of the Defence Force Angus Campbell is under pressure to remove legal “landmines” from the public version of the Brereton war crimes report that could prevent punishment of alleged murderers of Afghan civilians and prisoners.

General Campbell will release a summary of the report on Thursday, which is expected to detail at least 12 alleged war crimes by special forces soldiers in Afghanistan without identifying any of 10 or more serving and former operators allegedly involved.

High-level immunity covering evidence to the Inspector-General of the Australian Defence Force will give alleged war criminals huge scope to claim future legal cases against them are tainted.

Some in the legal community believe a soon-to-be-appointed war crimes special investigator should urge the government to legislate to wind back the level of immunity provided to IGADF witnesses.

The IGADF, which has coercive questioning powers, offers an extraordinary level of ­immunity to witnesses known as “derivative use immunity”.

It means prosecutors are unable to use “any information, document or thing obtained as a direct or indirect consequence” of evidence to the inspector-general by a witness who is later charged.

A legal source with direct knowledge of allegations made in the report said if General Campbell publicly released too much information, it would “kill every trial — no one would get prosecuted”.

“They could plant a landmine on Thursday that could blow up a criminal trial in three years,” the source said, saying there was “a level of ignorance in Defence about derivative use immunity”.

“If they think that just redacting a name is enough, they could find themselves very embarrassed three years from now.”

Another legal source familiar with allegations examined by the inquiry said the application of derivative use immunity was largely untested in Australia’s courts, ensuring drawn-out legal challenges. “One of these guys will inevitably say ‘No, you’ve got to stay this whole prosecution, because all of this is fruit from the poisoned tree’.

“That’ll take years to play out, and it will go all the way to the High Court.”

Evidence to the Australian Securities and Investments Commission attracted derivative use immunity until 1992, when it was abolished following successful lobbying by the regulator arguing it made prosecutions too difficult.