David Savage’s Comcare case
The circumstances that led to aid worker David Savage being severely injured by a child suicide bomber in Afghanistan were never investigated under Australian workplace laws because Comcare consulted his employer and decided it was a “security” incident unrelated to safety.
Comcare is supposed to police, both domestically and overseas, the adherence to workplace health and safety laws by federal departments, government agencies and, in relation to civilians, the Australian Defence Force (ADF).
It chose not to investigate how Savage came to suffer permanent injuries after consulting his employer AusAID and deciding it was a security matter.
This was despite the 2012 incident appearing to fall within the scope of the Work Health and Safety Act and not any other workplace safety law.
Savage’s objection to Comcare’s decision prompted a review two years after the bombing that left him with severe injuries to his limbs and torso. The government insurer determined its own investigation was not required, relying instead on the findings of an inquiry in which the Department of Defence exonerated itself, AusAID and the Department of Foreign Affairs and Trade (DFAT).
David Savage was a full-time DFAT employee seconded to AusAID and designated as a “defence civilian” at the time the bombing occurred near the town of Chora on March 26, 2012. He had gone to Afghanistan with the then newly established Australian Civilian Corps to set up and run local development projects alongside Australia’s military operations.
Savage’s case highlights the government’s failure to clearly establish legal responsibility for the defence civilians before sending them to a war zone. Rather than his unclear status making AusAID, Defence and DFAT all accountable, each behaved like he was someone else’s problem.
Comcare’s refusal to investigate also raises questions about whether civilians who are injured while working with military personnel have any independent investigative recourse to hold government employers to account under the Work Health and Safety Act.
Breaches of the act carry criminal penalties, including jail terms for government officials – and huge fines for agencies – if their actions jeopardise the safety of their employees.
Two weeks ago, the federal Environment Department was convicted under the act, over the death of a contracted helicopter pilot who fell into a crevasse in Antarctica in 2016. The department could face a fine of up to $3 million.
Criminal penalties were added to the law in late 2011 and took effect on January 1, 2012 – almost three months before the incident that left David Savage with a mild traumatic brain injury and injuries to his legs. He now uses a wheelchair and has undergone 23 separate surgical procedures over seven years, with three more scheduled.
Savage sought a Comcare investigation in 2013 after the Defence inquiry excused not only the three Australian agencies but also the United States soldiers tasked to protect him in Chora. US soldiers were responsible for the personal security of all Australian civilians on remote bases at the time.
Defence has declined to say why Savage’s protection was not the ADF’s responsibility. Former military officers have told The Saturday Paper the ADF had complained about “babysitting” civilians.
Savage’s assigned US protectors on the day of the attack were mostly reservists, members of the Rhode Island National Guard. Three US soldiers were also wounded in the blast.
In what is known as an inquiry officer inquiry (IOI) report, Defence dismissed as irrelevant a 47-minute helmet-camera video of the attack, which revealed serious mistakes in the American soldiers’ operational procedures. The report not only failed to criticise the US soldiers, it praised them as “professional, competent and composed” and said their actions were “commendable”.
That has prompted speculation in some military, diplomatic and bureaucratic circles that Defence was reluctant to criticise its ally, the United States.
“If police were to do an investigation like this and cover up all the facts, someone would go to jail,” says Savage, a former detective and international war crimes investigator. “If you leave out all of the exculpatory evidence, there can only be one reason, and that is to cover up the truth.”
Some military personnel have alleged that prior intelligence was received of a specific threat involving child suicide bombers.
Defence has told The Saturday Paper that “records indicate that there was no known specific threat in Chora at the time of the incident”. It does not say whether a less location-specific threat had been received.
The US soldier’s video captured what happened as Savage and the Americans made the 700-metre journey on foot from the local governor’s compound back to Forward Operating Base Mirwais.
It revealed the US soldiers made significant errors: foreshadowing their planned route to locals, failing to question suspicious individuals, ignoring basic signs of a possible imminent attack and not challenging the distinctively dressed child bomber as he approached.
A respected former Special Air Service Regiment soldier and a former military investigator have provided Savage with separate analyses of the video, detailing the serious mistakes.
Another soldier who has seen key parts of it describes the Americans’ efforts as “worse than amateurish”.
Since details of what happened to David Savage were revealed in The Saturday Paper and on ABC’s 7.30 two weeks ago, a number of civilian and military personnel with knowledge of the incident and related matters have come forward offering more information.
None agree with the findings of the Defence IOI report.
The report sought to blame Savage for his own injuries because he was wearing non-ADF-issued body armour provided by the Americans. His Australian-issued ballistic vest did not fasten properly. The report blamed him for being overweight.
Defence has confirmed that some of the helmet-camera video, which depicted the approach of the 12-year-old suicide bomber dressed all in white – the colour of the martyr in Afghanistan – was subsequently shown to incoming media and ADF personnel during pre-deployment orientation sessions.
The Saturday Paper has also confirmed the video was widely circulated among ADF personnel at both the Mirwais base and at the multinational base at Tarin Kowt, used as an informal what-not-to-do teaching tool. The precise scenario involved in the attack was also used to train ADF soldiers assigned to protect civilians in Tarin Kowt.
The Saturday Paper has been told some visiting US officials and high-ranking US military officers requested the ADF – and not their own soldiers – be assigned to protect them on trips to Uruzgan Province in the months after the incident.
“It got to the stage where there was some competition for our services,” one soldier says. “The Americans were asking for us rather than going out with their own people.”
After Savage’s incident, the ADF assumed primary responsibility for protecting all Australian civilians working in Afghanistan.
In a 2016 report, “Lessons from Australia’s Whole-of-Government Mission”, former Defence Department secretary Ric Smith included ADF protection of civilians high on his list of recommendations. “The ADF should be regarded as the force protection provider of choice and the default provider,” he wrote.
Smith’s report effectively confirms that the Australian government sent its civilian corps to Afghanistan without having properly established who was responsible for those civilians. He notes that the civilian corps’ place within DFAT was not resolved until after the Afghanistan deployment.
The Defence IOI report also prompted questions about the protective equipment issued – and not issued – to David Savage. ADF and US personnel stationed in Afghanistan were provided with bike-shorts-style ballistic underwear and gel-pad inserts for their helmets to protect against lower-torso and blast-wave head injuries. Because he was a civilian, Savage was given neither – and suffered both kinds of wounds.
Savage’s initial request for a Comcare investigation was rebuffed. When he followed up by email, an official wrote back to him in June 2014, saying, “Based on the information at hand and our initial enquires [sic] with AusAID the determination was made at that time that this matter would not be investigated further considering the incident being in the area of military operation and hence noted primarily as a security incident.”
The email said Comcare was still considering “jurisdictional issues”, including “whether or not the current exemptions for Defence force activities was enlivened by their operations in Afghanistan”. The official wrote that Comcare had “not sought a copy of the Defence inquiry report into this incident”.
After Savage challenged this again, Comcare assigned an investigator to make further inquiries.
Comcare then wrote back to him in September that year saying its inspector had “pursued a number of lines of inquiry” with the ADF and DFAT, which by then was responsible for AusAID, and had “not uncovered any information that warrants Comcare investigating a work health and safety breach”. It had obtained the Defence report and endorsed its findings. It did not view the video.
Comcare said there were “a number of exemptions” for the ADF in warlike environments and this fell into the category of “decisions ‘made in the management of combat operations’”. It did not cite any sections of the Work Health and Safety Act or acknowledge that Savage was actually a civilian.
The Saturday Paper sent Comcare a detailed set of questions seeking further explanation of its decision and whether it considered Savage’s injuries to have been preventable. The insurer responded with a single paragraph.
“Comcare cannot provide you with information or documents obtained through exercising a power or function under the Work Health and Safety Act 2011,” it wrote, citing confidentiality reasons.
After his case went back and forth between various government departments for seven years, Savage and his wife, Sandra, received an “act of grace” payment earlier this year – a one-off acknowledgement of moral, rather than legal, obligation. The couple also reached a settlement with Comcare through the Administrative Appeals Tribunal to cover ongoing medical treatment and the care Savage still requires.
But among the unexplained government acts that most hurt David and Sandra Savage was the failure to deliver a letter of thanks to the Australian soldiers who rushed out of the Mirwais base after David’s attack, helping to save his life.
The couple asked AusAID to draft the letter on their behalf to be delivered to the soldiers. It was written and passed to Defence but never to the soldiers. Defence says it cannot confirm what happened but would usually share such a letter if asked to do so.
Some soldiers say they were told not to visit Savage in hospital, incorrectly advised he did not want to see anyone.
Many have subsequently contacted him. Since his story became public, others connected to the events have joined them.
Their views reflect one common theme: that what happened to David Savage in the service of his country is just not right.
This article was first published in the print edition of The Saturday Paper on Dec 21, 2019 as "Savage mistreatment". Subscribe here.