Here is the full text of the email response to Dateline's questions sent by a Defence Spokesperson...
Please find below a response to your media enquiry regarding the 12 February 2009 incident in Oruzgan Province.
1. Why did Defence initially choose to conduct its own internal inquiry into this incident rather than refer it immediately to ADFIS?
2. Why did it take six months for this matter to be referred to ADFIS?
3. Why wasn’t an ADFIS major incident team sent to Afghanistan in the days after this incident to begin an investigation?
Response to Qs 1, 2 and 3:
The ADF takes civilian casualty incidents very seriously, and the Feb 12 incident has been examined thoroughly and properly through the inquiry process.
Legal processes are continuing and a determination by the Director of Military Prosecutions with be announced in the near future.
Internal inquiries are routinely undertaken as a first step to determine the facts of an incident, as per Defence (Inquiry) Regulations.
Immediately following the incident (13 February 2009), the Chief of Joint Operations initiated an internal inquiry to determine what happened on 12 February 2009. The Inquiry Officer, supported by a Military Police Officer and a Legal Officer, carried out the inquiry in Afghanistan. The Inquiry Officer was required to undertake a detailed review of the operational circumstances.
The matter was very complex and it took time to establish the facts in an extremely dangerous and hostile environment. Once the inquiry was concluded, the matter was then referred for independent legal review. As a consequence of this review the matter was referred to ADFIS for investigation. The ADFIS investigation began immediately on referral in July 2009.
4. Is it correct, as our interviewees claim, that on the night of the incident on February 12th 2009, Australian soldiers were on a mission to kill or capture the Taliban leader, Mullah Noorullah?
On the night of February 12, the Special Operations Task Group was conducting an operation to disrupt Taliban activities and target a significant Taliban leader.
5. The Afghan interviewees in our story claim that they were told immediately after the attack by a translator with the Australian troops that it was a case of mistaken identity. That is, Australian troops killed a man called Amrullah, not Noorullah. Does Defence dispute that account?
Defence is unable to confirm if an Afghan interpreter stated it was a case of mistaken identity. Defence will not comment on the detail of the claims until the military legal process is complete. However, we can confirm that Australian forces were involved in an exchange of gun fire with an Afghan man. The man was wounded. He received immediate first aid from the SOTG at the incident scene however he later died while receiving medical treatment at a coalition military medical facility at Tarin Kowt.
6. The civilians in our story also say that no one has ever told them what operation was performed on a young girl called Shuri Nor (shown in our story with a large scar on her stomach) after she was taken away on the night for medical treatment.
7. Will Defence provide a copy to the family of all medical records in their possession that relate to Shuri Nor and any other children treated by the ADF following the attack?
8. Further, will the ADF endeavour to explain the nature of the operation to Shuri Nor's family and whether further treatment is required?
Response to Qs 6, 7 and 8:
At this stage we do not know if the civilians in your story are the ones who received medical treatment arising from this incident. However, Defence can confirm that treatment was provided to those injured at a coalition military medical facility at Tarin Kowt.
The military medical facility is not run by Australia. We have not been previously advised of a request for medical records. If we were to receive a request from the family that was involved in the incident, we will pass on the request to the coalition medical facility staff and work with them to locate any treatment records regarding the 12 Feb incident.
If these treatment records exist and are releasable then copies will be provided to an appropriate intermediary such as a tribal elder or representative of the family.
9. Will Defence commit to providing follow up medical care for the children injured on the night, if required?
Yes. If required, Defence will assist with follow-up treatment for any children who were injured on the night of the Feb 12 incident.
10. Dateline understands that following the attack US$10,000 was given in compensation to a local government official rather than to the family involved. Can you confirm this?
11. The family claims they never received any of this payment. Is Defence aware of this?
12. If true, can Defence state why the official received the money and not the family?
Response to Qs 10, 11 and 12:
The standard practice is to follow local custom. A meeting, or shura, was held with a senior provincial official and district elders to effect the Act of Grace payments. Defence uses this mechanism to make Act of Grace payments in order to respect the cultural norms in Afghanistan. To act in any other way would undermine well established local customs and practices. For reasons of privacy and security, Defence does not provide individual case details.
Defence has not been advised of any issue related to the payments
13. The family also claims that land ownership documents were taken from them during the raid, and that despite repeated requests these have never been returned. Is this true?
14. If so, will Defence endeavour to return the land documents taken during the raid?
Response to Qs 13 and 14:
If the family involved in the Feb 12 incident is missing land ownership documents, the ADF will return them.
15. If the Director of Military Prosecutions (DMP) decides to charge or discipline any ADF personnel in relation to this incident - is the DMP obliged to make public the names of people charged or disciplined?
16. Are there privacy provisions that Defence can use to withhold those details?
Response to Qs 15 and 16:
Until a decision is made regarding what course of action will be pursued it is inappropriate for Defence to speculate. Action may be taken against ADF members. However, what that action will be and what charges, if any, is yet to be determined. At this point it would be inappropriate to speculate on the decision of the DMP.
17. Do you believe the Afghan civilians involved in this incident should be interviewed as part of this investigation?
18. Do you believe the ADFIS investigation into this incident was compromised by the failure to interview the Afghan civilians involved? If not, why?
19. The DMP received this brief in November - when will a decision be made on this case?
Response to Qs 17, 18 and 19:
The DMP has this matter under consideration and it would be inappropriate for any public comment to be made about the investigation of the incident or about the progress of the DMP's deliberations. The DMP does not comment publicly on any matter that is referred to her for consideration and possible disciplinary action.
20. Why is it taking so long?
It is absolutely vital that incidents such as February 12 are investigated thoroughly and comprehensively.
Initially, an Inquiry Officer was appointed to conduct an inquiry into this incident. As a result of this initial inquiry the matter was referred to the Australian Defence Force Investigative Service (ADFIS) in July 2009. ADFIS concluded its investigation in late 2009 and submitted a Brief of Evidence to the Director of Military Prosecutions (DMP) for review and consideration. The DMP requested further information from ADFIS in January 2010 prior to making a determination as to whether prosecutorial action will be initiated. ADFIS has now completed this action and the matter is under consideration by the Director of Military Prosecutions.
As the Chief of the Defence Force has previously indicated, he intends to make public the outcomes as soon as is possible.
21. If the DMP recommends a criminal trial - how does that process work?
22. How does it differ, if at all, from a criminal trial in the civilian justice system?
Response to Qs 21 and 22:
The legal process followed within the Military Justice system parallels civilian criminal practices. Timeframes for our processes are similar to the civilian justice system and in the majority of cases we are able to deal with matters in a more timely fashion than our civilian counterparts. This is a complex issue. Like the civilian justice system, matters need to be appropriately reviewed and due process upheld.
4th March 2010