Mad Monk in a moral morass

Julia Gillard’s tactic of targetting Tony Abbott’s refusal of an offer to join her trip to Afghanistan was certainly a bit tacky, but it pales into insignificance beside the cynical efforts of Abbott and his team to extract maximum partisan advantage from the Afghan engagement by hook or by crook (mostly crook).

Indeed it’s abundantly clear that the real reason Abbott declined Gillard’s joint visit offer had nothing to do with either jet lag, the UK Tory conference or existing unchangeable plans.  It was solely to allow Abbott to profess a desire for responsible bipartisanship on Afghanistan while in practice doing exactly the opposite.  The Coalition would not have been able to maintain its idiotic call for more troops and tanks for as long as it managed had Abbott joined Gillard in Afghanistan and been briefed by military leaders on just how silly these demands were.

However, even this silliness has now been exceeded by Abbott’s thoroughly unprincipled politicking on the manslaughter charges against three Australian commandos over the killing of 5 Afghan children in Oruzgan province last year.  It seems that no stance is now too low for Abbott in his unrelenting efforts to attack the Gillard government at every conceivable opportunity and simultaneously appeal to the lowest common denominator of Alan Jones talkback audience ignorance:

The broadcaster Alan Jones has been railing against the charges and Mr Abbott, appearing on Jones’s program yesterday, empathised.

”The last thing people want to see is soldiers being stabbed in the back by their own government and … a lot of people think that’s what’s happening.”

As Jones savaged Brigadier McDade as ”this woman who’s never been on the frontline”, Mr Abbott said it appeared ”these soldiers have been doing the right thing by Australians” and ”are being thrown to the wolves by the government”.

He said the government had failed to provide the men with the best available legal counsel.

How are Australia’s soldiers being “stabbed in the back by their own government” by virtue of 3 soldiers being investigated and then charged for serious crimes under the “best practice” independent military justice system originally established by the Howard government with bipartisan support?  The charges have nothing to do with the government, which would have been acting improperly had it interfered in the military justice system.

How is it relevant that Brigadier McDade has never been on the frontline?  She’s a respected senior lawyer with long years of military service.  How many Commonwealth and State DPPs, for example (the civilian equivalent of Brigadier McDade’s office) have served on the frontline of police law enforcement?   I venture to suggest the answer would be zero.  It’s simply irrelevant.

How do we know ”these soldiers have been doing the right thing by Australians”?  Surely in part at least that is what will be tested in the forthcoming military justice proceedings.  Moreover, the primary question there will not be whether they did the right thing by Australians but whether they committed 5 homicides of Afghan children.

Abbott’s pandering to these sorts of ignorant prejudices is utterly disgraceful.  I wonder why the mainstream media has not so far condemned him for it?  Moreover it’s worse than disgraceful, it might in fact in a perverse way actually exacerbate the peril our troops face in Afghanistan.  As the SMH’s Peter Hartcher observes:

Firing blindly will never defeat an enemy hiding in the midst of a civilian population. It will only infuriate the civilians. And if you lose the support of the population, you lose the war. The enemy will always have a place to hide.

That’s why the current strategy is much more intelligent. It’s not counter-terrorism but counter-insurgent. And the best way to counter an insurgent is to have the local people do it for you.

This is the new mission, but the Australian commander in Afghanistan is frustrated that it’s not properly understood. Major-General John Cantwell said: “Our mission is not to defeat the insurgency in Oruzgan. That’s not our mission. It’s not our mission to hunt down and kill or capture every Taliban or insurgent in this province.

“Our mission is very clear – train the Afghans to manage security around the key population areas of Oruzgan. That’s a limited scope . . . Our mission is to train those guys. And we need, I think, to make that clearer to the public and in some case to our own soldiers.”

Perhaps the first person to whom this message needs to be made clear is the federal Opposition Leader.  If the Afghan people are given the message that Australian troops are effectively above the law and can behave with complete impunity towards Afghan civilians, they’re hardly likely to embrace the counter-insurgency strategy which is the Allies’ sole chance of resolving the Afghan engagement satisfactorily.  As last Monday’s Four Corners program depicted graphically in relation to the Americans’ initial ham-fisted tactics in Iraq, it’s all too easy to alienate a population you’re trying to help and end up being seen as enemy occupiers rather than saviours.

If there are plausible allegations of criminal behaviour against the three charged commandos, as is clearly the case, justice in all its dimensions requires that they be charged and given a fair trial just like anyone else alleged to have committed a homicide.  If they have a good defence, as may well be the case, then they can expect to be found not guilty. Like soldiers, police often have to act in highly confused dangerous situations too, but it’s highly unlikely that any politician would take the stance that daring to charge police officers who killed people on duty would amount by definition and without reference to the facts to “being stabbed in the back by their own government”.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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26 Responses to Mad Monk in a moral morass

  1. Gummo Trotsky says:

    Jones isn’t alone in railing against the prosecutions – I Can’t Believe He’s An Emeritus Professor (And of Law, No Less) David Flint has also pitched in at Quadrant and OLO.

    Good article Ken. It was a particularly slimy performance from Abbott.

  2. The Beverage Curve says:

    Ken it is such a pity you almost ruin a good article by a very inaccurate opening sentence in an attempt to look evenhanded..

    As Phillip Coorey has constantly said ( He actually broke the story) he didn’t get the information from the government.

    Which means he got it from the …..

    She can hardly be accused of playing politics here if she or anyone else from the Government has neither leaked that information, backgrounded journalists on that or repeatedly talked about it.

    In the last case it has only been the Opposition who has been talking about it.

    Stick to your knitting Ken which is very good and leave the inaccuracies to sites like Catallaxy. They are used to it.

  3. hawthorne says:

    “Stabbed in the back” in relation to the military is a very inflammatory thing to say even for Jones.

  4. Gummo Trotsky says:

    More from Ben Saul at The National Times.

  5. Mark Heydon says:

    I have read in almost all articles on this issue that the independent military justice system was “originally established by the Howard government”.
    I understand why this now has to be tagged to anything related to the unprincipled opposition attacks on Australian institutions, but I still find it a bewildering and sad position for us to find ourselves in.

  6. Nicholas Gruen says:

    Ultimately however, the health of the political culture we live in depends on the way in which these kinds of episodes play out. Now if Gillard’s office didn’t leak or brief, then there was no set up – except perhaps the manoeuvring of Abbott into a situation in which the architecture of his involvement made it difficult for him not to reinforce bipartisanship.

    This then gets beaten up into ‘back alley bitchiness’ and all the rest of it. And where are the Labor heavies upping the ante and getting sympathetic heavies out drawing attention to the things you’re mentioning – that it’s a Howard Govt appointed process and all the rest of it. That Abbott is undermining our ability to fight an insurgency, and the rule of law and bringing on a good stoush?

    Nowhere. So the political tone of the country slips another notch. Why am I not surprised?

  7. Gummo Trotsky says:

    Great century isn’t it?

  8. Gummo Trotsky says:

    Just found out that I Can’t Believe He’s An Emeritus Professor (And of Law, No Less) David Flint is a signatory to the on-line petition mentioned in Ben Saul’s article. More naming and shaming as I get round to it.

  9. Gummo Trotsky says:

    Beverage Curve @2:

    As Phillip Coorey has constantly said ( He actually broke the story) he didn’t get the information from the government.

    Can youse provide an exemplary link, or am I in for several hours of Googling?

    Nicholas @ 5:

    …where are the Labor heavies upping the ante and getting sympathetic heavies out drawing attention to the things you’re mentioning – that it’s a Howard Govt appointed process and all the rest of it.

    Is the current Defence Minister heavy enough for you?

    I’ve just done a Google News search and only Piers Akerman seems to have managed a derisory mention of Smith’s comments on the matter. And why am I not surprised that Akerman doesn’t mention that it was the Howard government that introduced our current system of military justice?

  10. Ken Parish says:

    Michelle Grattan criticised Abbott’s performance in today’s Fairfax press, but it was fairly muted and half-hearted as opposed to the forthright condemnation it merits:

    There is a lot of populist passion surrounding these charges but, tempting as it might be to a no-holds-barred Opposition Leader, the principles involved are too important to take cheap political advantage of it.

  11. Nicholas Gruen says:

    Half hearted alright.

    These people wouldn’t notice a political principle if they fell over one. They are, after all, political commentators, and to paraphrase Lady Bracknell about statisticians, they are sent for our guidance.

  12. Gummo Trotsky says:

    …the debate has turned into a test of whether Abbott can position the opposition so that it looks bipartisan but with something constructive to add.

    In other words, Tony’s cactus.

  13. Tel says:

    People putting themselves forward as strong ultra-conservative supporters of law and order, are almost universally the same people who have absolutely no respect for due process or any court system.

    Although this might sound a bit inconsistent, it actually makes sense from the point of view of a Feudal Monarchy. The belief is that justice should be swift and singular, people are to be considered guilty the moment they are accused, and all powers should be concentrated into the hands of a small number of people. Thus, it is completely consistent that they also demand more powers for police to make on the spot decisions, they prefer mandatory sentencing to reduce the ability of judges to apply any nuance, and they believe that the soldier on the spot gets the final decision of life and death without any accountability.

    When you hear, “strong supporter of law and order”, it does not mean a supporter of a criminal justice system in the modern sense, it means Feudal justice, the unquestioned rule of the strong.

    By the way, Andrew Bolt has been moaning that this court case might turn into a “fact finding mission”, and I have to wonder why he thinks it’s a bad idea for a court to waste time with findings of fact. People like Andrew Bolt seem to genuinely believe that the only purpose of a court is to go straight to the sentencing.

  14. Ken Parish says:

    Like Gummo I had a go at Googling to verify Homer’s assertion that the journo who broke the story that Abbott had refused Gillard’s invitation to Afghanistan did not get the story from the government. I failed. But luckily Peter Hartcher has helped us out:

    But the reporter who broke the story, Coorey, says that ”the government didn’t give me the information”.

    Accordingly I’ll strike out my initial criticism of Gillard for tackiness. It appears that the unprincipled conduct here is wholly that of Abbott and the Coalition in politicising Australia’s military involvement in Afghanistan in an utterly dishonest and irresponsible manner.

    Thus, as Nicholas highlights, the puzzle here, as in contemporary Australian politics more generally, lies in the evident inability of the federal Labor government to robustly and effectively defend and promote its own policies, and the equally evident unwillingness of the mainstream media to see its role as doing anything beyond “horse race” reportage.

  15. Geoff Honnor says:

    “But the reporter who broke the story, Coorey, says that ”the government didn’t give me the information”

    Which means what, exactly? That neither Gillard nor her staff were aware of Abbott’s impending trip before she invited him to join her? There’s no doubt that Abbott believes that Gillard and/or those acting in her interest used this knowledge for a political tactic and I’ve seen nothing so far that disproves this. Gillard hasn’t denied knowing about it. All she’s said is that she wasn’t aware of a ‘fixed date.’

    It hardly excuses Abbott’s lameass excuse and intemperate response but it does demonstrate that both sides have utilised the Afghanistan visit for political point scoring.

  16. The Beverage Curve says:

    err No Geoff,

    Find out when the invitation was made maybe even read Coorey’s original article and Abbott still is unsure and by the way he completely bypassed PMC in arranging his visit.

    If Coorey didn’t get the story from the Government guess who he got it from?

    Who prolonged this farce.Was it the government or was it the Opposition?

    It would be nice to have at least one fact on your side before asserting something Geoff.

  17. Geoff Honnor says:

    And you on your’s, Homer, I opine. It’s inconceivable that PMC would not have been aware of an intended visit to Afghanistan by the Leader of the Oopposition.

  18. Gummo Trotsky says:

    Ken @ 15:

    In fairness to the parts of the MSM, the Fairfax web-sites have been pretty well on to it for quite a few days. And even the Oz seems to have come out of its usual stupor, a little (although the criticism of Abbott in the linked article is pretty limp wristed – the underlying message is that it was all Alan Jones fault).

  19. Nicholas Gruen says:

    Gummo, no the Defence Min is not enough. He’s a good fellow, but there’s not much sense of outrage in “That remark misunderstands either inadvertently or deliberately the nature of the representations that can be made under the Howard government legislation,” Mr Smith said.

    What is required is someone to fight for our democracy and who sees themselves as doing so. I recall the expression of Paul Keating. “Where do you people get off?” Sadly even though PJK had a good sense of outrage, none of our major politicians ever had much sense of real principle, so it’s all pretty hollow.

    So I’m not taking the ALP’s side in this – I’m not saying we need the ALP to restore decency. If I needed the ALP to do that, I’d be a scared man. I’m saying that we need some equilibrium between the sides and that without it the Opposition are tempted to increasingly unprincipled acts of opportunism because they pay off handsomely.

    This is politics. It’s like a legal case and depends upon a kind of equilibrium between brigands whereby some reasonably balanced position is reached. But in this case one side doesn’t seem to have their heart in the fight.

    Why is a little beyond me. But I just can’t believe their lack of fight.

  20. Anthony says:

    “both sides have utilised the Afghanistan visit for political point scoring.”

    Surely that’s the nature of visiting troops in combat zones.

    “Can youse provide an exemplary link, or am I in for several hours of Googling?”

    Poor baby, you might have to spend several hours Googling, if that’s your wont. Heck, we can’t do your work for you.

  21. Richard Phillipps says:

    What a pleasant surprise to see Troppo upholding the rule of law and the function of courts and lawyers!

    It may be of assistance to cut and paste part of the 5 July 2006 Departmental press release ( about Brigadier McDade’s appointment:

    “Minister Assisting the Minister for Defence Bruce Billson today announced two important military justice appointments that will further enhance the impartiality and fairness of the Australian military justice system.

    In response to the Senate Foreign Affairs, Defence and Trade References Committee ‘Report on The Effectiveness of Australia’s Military Justice System’, the Australian Government agreed to establish a statutorily independent Director of Military Prosecutions (DMP) at brigadier rank.

    “The statutory appointment of the DMP is a significant change which concentrates the prosecution powers once vested in 33 command-based convening authorities into a single independent authority,” Mr Billson said.

    “This appointment will enhance the rigour, fairness and timeliness of military justice by removing perceptions of command influence. It will also promote confidence among Australian Defence Force personnel regarding the independence and impartiality of the appointee and the functions of the Office.”

    Mr Billson said the Minister for Defence has selected Lieutenant Colonel Lyn McDade to be appointed as the first Director of Military Prosecutions.

    “LTCOL McDade will be promoted to the rank of Brigadier and will hold the DMP appointment for a term of five years. She will also transfer from the Army Reserve to full-time service,” Mr Billson said.”

    LTCOL McDade has 23 years’ military law experience gained through a mix of full-time and reserve Army service. She also has extensive legal experience in the Northern Territory as a Civil and Police Prosecutor, Deputy Coroner, Relieving Magistrate and at senior levels in Courts Administration. More recently LTCOL McDade has been practising as a Barrister-at-Law.”

  22. Ken Parish says:

    I note that Tony Abbott’s latest position on the charges against Australian soldiers (which I can’t find online but heard on ABC radio news this morning) is that it’s the government’s job to defend the military justice system and his job as Opposition leader to stand up for for the rights of the charged soldiers!

    Why this should be so in the absence of any evidence of deficiencies in the military justice system that the Howard government created is not explained. If you have any doubts that there are adequate checks and balances in that system and that the decision to charge was not that of an excessively powerful, unaccountable Director of Military Prosecutions, read this article by Tom Hyland.

    Some e.g. Peter van Onselen in the Oz have attempted to exculpate Abbott by claiming that he was just railroaded by the repulsive Alan Jones, but that can’t explain the fact that he continues to take this cynically populist approach of pandering to ignorant prejudice and inflaming sentiment against a military justice system and DMP which/who are performing precisely as any reasonable person cognisant of the rule of law would expect and demand. Abbott is a disgrace and unfit to lead any Australian political party.

  23. Gummo Trotsky says:


    More from me on Abbott’s latest position (under my real life name) here.

    Also, this article by Samantha Maiden (in the Oz) is pretty revealing:

    On September 14, after discussions with Defence Force chief Angus Houston, Abbott’s chief of staff, Peta Credlin, confirmed the Opposition Leader’s plans to visit Afghanistan the weekend after his visit to Britain. The arrangement was confirmed in an email obtained by The Weekend Australian.

    Eight days later, Gillard, too, knew about Abbott’s plans — because the Liberal leader had told her in her office in Parliament House on September 22…

    Gillard and her office maintain she did not know of Abbott’s plans before the September 22 meeting. This was “almost certainly dead wrong”, Abbott said, suggesting her offer to travel with her was “a carefully laid political ambush”.

    Perhaps. But even Abbott’s Coalition frontbenchers concede there would have been little controversy without his “jet lag” error.

    There was another reason Gillard may have lacked information about Abbott’s trip: he had taken the unusual step of attempting to organise the visit to Afghanistan directly through Houston’s office.

    Abbott did appear to entertain the idea of a joint visit for some days. A final rejection emerged, according to Gillard’s office, only after contact from Credlin on September 29 to say Abbott would stick to his original plans…

    There was another problem. Somewhere in the preceding days, a journalist who was invited on the Gillard trip chanced upon the discovery that Abbott might join the travelling party.

    Ultimately, it was Abbott’s office that confirmed to Fairfax reporter Phillip Coorey — before the Prime Minister left the country — he would not be joining them. This fact could not be reported at that time because of security protocols…

    In brief, Abbott was playing silly buggers with the organisational arrangements for his visit, got a bit too sharp, and cut himself.

    And yes, he’s about as fit to lead a political party as he was for the priesthood.

  24. Gummo Trotsky says:

    Paul Sheehan wants to have it both ways:

    Nothing in this column should be interpreted as a criticism, overt or implied, of Brigadier McDade. She, not I, has seen all the evidence from the incident in Afghanistan, and is a lawyer of long standing, and has spent 23 years in the military and military reserve. I do not question her judgment or credentials.

    So this case begins its belated, glacial, excruciating progress though the justice system. The army has already lost. If the commandos are exonerated, it will have been a disastrously pointless ordeal for the army. If the commandos are convicted, it will be an even bigger disaster.

    “…” consists mainly of criticisms of the prosecutions from various retired members of the military.

  25. The Beverage Curve says:

    Geoff, any time you wish to change your opinion because you now know you are wrong is quite okay.

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