Nick McKenzie, Richard Baker July 14, 2012
At least two Australian soldiers are almost certain to be sacked over catastrophic safety failures that contributed to the death of commando Mason Edwards during a live ammunition training exercise in 2009.
The revelations that the two soldiers, including the exercise's safety officer, have been issued termination notices comes with the Director of Military Prosecutions facing fresh criticism over her handling of high-profile cases.
Fairfax has learned there is growing disquiet among officers in Australia's special forces community about Brigadier Lyn McDade's decision to avoid a full-blown prosecution over allegations that negligence contributed to Lance-Corporal Edwards' death.
Instead of prosecuting the Edwards matter, Brigadier McDade referred it to the commanding officer of the commandos to deal with. This means accusations of negligence will not be tested before a military court.
Brigadier McDade's handling of the Edwards matter appears to starkly contrast with her decision in 2010 to prosecute a commando over the unauthorised discharge of a weapon - a matter routinely dealt with by commanding officers - in Afghanistan which inadvertently left another soldier with minor shrapnel wounds. That prosecution did not result in any punishment.
Five soldiers are facing administrative action over Corporal Edwards' death, with at least two having already been issued termination notices requiring them to show cause as to why they should not be sacked.
The Defence Force has overhauled its training program for elite soldiers after Corporal Edwards' death, after inquiries by national safety watchdog Comcare and an internal probe by Andrew Kirkham, QC, identified a series of shortcomings which contributed to Corporal Edwards' death.
Two senior Defence Force sources said some of the alleged negligence that contributed to Corporal Edwards' death was so serious it should have been prosecuted before a court martial, rather than being handballed to a commanding officer.
''The CO [commanding officer] deals with minor discipline issues like soldiers running late. A case involving negligent performance of duty causing death is too serious to send off to the CO,'' one military source said.
''What is the point of having a military justice system if it is not going to be used when a series of stuff-ups leads to an avoidable death?''.
Brigadier McDade declined to answer questions about why she decided not to prosecute those allegedly responsible for the training tragedy. She had lawyers send a letter to Fairfax on her behalf to threaten possible legal action if certain criticisms of her were published.
Corporal Edwards was shot through a flimsy wall during the training exercise at the Cultana military base in South Australia and the accident has already led to multiple inquiries and the overhauling of the army's live-firing training.
Brigadier McDade's handling of another high-profile case - that of two commandos she attempted to prosecute for manslaughter - has continued to see her performance scrutinised by sections of the Defence Force.
Fairfax has learned that senior personnel associated with the 1st Commando Regiment have this week written to federal MPs to raise concerns about Brigadier McDade's latest annual report to Parliament.
In that report, Brigadier McDade attacks the decision of a military judge last year to dismiss her prosecution of two commandos accused of killing Afghan civilians, including children, after they were fired on by an Afghan man hiding in a compound in Afghanistan in February 2009.
Brigadier McDade claims that the ''wholly unexpected'' judge's decision may have been legally flawed and that she did not have the power and resources to appeal it. But several military lawyers who spoke to Fairfax on the condition of anonymity queried her claims.
''The charges were dismissed because of a well-known decision of the High Court from 1940, so it's hard to understand how the result came as a surprise to the DMP,'' one source said.
A well-placed source said Brigadier McDade's comments had caused widespread ''dismay'' throughout the special forces community and deeply upset the two soldiers who had been cleared of the manslaughter charges.
''They are very upset by it. The DMP [Brigadier McDade] is questioning a military justice system which found that these soldiers had no case to answer. She should accept the umpire's decision rather than undermining the Defence legal system,'' the source said.
Although she claimed there was uncertainty about whether she could have launched an appeal before the Federal Court, Fairfax has identified at least one case in which the DMP has previously had matters tested before a civilian court.
Defence Minister Stephen Smith has recently indicated that he would have provided Brigadier McDade with funding to appeal against the Afghan shooting case but she never asked.
In response to questions, a Defence spokeswoman said: ''As a result of the Commission of Inquiry into the death of Lance Corporal Edwards, an ADF Investigative Service investigation was instigated and focused on the actions of individuals involved in the incident.
''This investigation is now complete. On 17 April 2012, Defence initiated formal administrative action against five members involved in the incident.
''Administrative responses to individual shortcomings may include termination of service, reduction in rank, censure, and/or written formal warning.
''As this administrative action is still ongoing, it would not be appropriate to make further comment.''
The spokeswoman said Defence supported the role of the military prosecutor as an independent statutory authority. Defence gave no response to criticisms of Brigadier McDade.