Defence has revealed three soldiers were charged over the deaths of six Afghan civilians because they allegedly threw a grenade into a room where they knew there were women and children.
A Defence ministerial submission, released under Freedom of Information, says the soldiers believed they were under insurgent fire but evidence indicated it was an Afghan national defending his home and family from attack in the middle of the night in February, 2009.
Charges of manslaughter against three special forces personnel were dismissed by Chief Judge Advocate, Brigadier Ian Westwood, in 2012 on the grounds that soldiers had no legal duty of care to civilians during combat.
Then Defence Minister Stephen Smith subsequently sought an explanation from the Director of Military Prosecutions, Brigadier Lyn McDade, as to why the men were charged in the first place.
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She said she considered a number of factors but concluded "the primacy of the rule of law through proper, fair and orderly hearing of allegations of serious service offences" prevailed.
"The fundamental issue ... was that evidence disclosed that they chose to deploy grenades, an indiscriminate weapon system, into a very confined space when they ought to have known, and during the attack knew for certain, that women and children were present," she said in the submission.
She said she would not ordinarily expect to explain her decision-making to the minister as that would undermine her independent status.
But in this case it was appropriate for the minister to be well-informed "given the peculiar public interest in this matter."
Prosecuting Australian soldiers for acts committed in the confusion of the battlefield was deeply controversial and there were demands at the time for Brigadier McDade to drop all charges.
In the raid, the Australian commandos entered an Afghan residential compound, with one soldier firing at an Afghan man, who fired back.
Brigadier McDade said assertions that he was an insurgent were conjecture and that the weight of evidence indicated he was defending his home and family.
Two soldiers said they could hear women and children screaming after a grenade was thrown into the building.
The Afghan man continued to return fire and a second grenade was thrown into the room.
The attack killed the man and five children.
Brigadier McDade said she believed the soldiers breached their duty of care.
In dismissing the charges, Brigadier Westwood created a new law which found Australian soldiers had no duty of care to protected persons or friendly forces during armed conflict, she said.
