Legal Support for the Office of the Special Investigator: Alleged War Crimes in Afghanistan

Budget Review 2022–23 Index

Dr Shannon Maree Torrens

The Australian Government is undertaking an investigation into war crimes allegedly committed by members of the Australian Defence Force (ADF) in Afghanistan, carried out by the Office of the Special Investigator (OSI). The OSI is an independent Executive Agency situated within the Home Affairs Portfolio and its ongoing work will be supported by $6.7 million in additional funding in 2022–23 (Budget measures: budget paper no. 2: 2022–23, p. 60). This funding is offset by redirected funding from the Department of Defence.

The Brereton Report and the establishment of the OSI

An independent Inquiry, led by Major General Paul Brereton, a Justice of the New South Wales Court of Appeal and Assistant Inspector-General of the Australian Defence Force (ADF), was initiated by the Department of Defence in 2016 to investigate allegations that members of the Australian special forces had committed violations of the laws of armed conflict in Afghanistan between 2005 and 2016. The Inquiry was initiated following a request from the then Chief of Army, Lieutenant General Angus Campbell.

On 6 November 2020, the Chief of the ADF received the Inspector-General of the ADF Inquiry Report (Brereton Report). The findings of the report were then released publicly in a redacted version on 19 November 2020.

On 12 November 2020 Prime Minister Morrison announced the decision to establish the OSI. The Governor-General made an Executive Council Order to establish the OSI as an Executive Agency on 10 December 2020 under section 65 of the Public Service Act 1999 and the OSI was formally established on 4 January 2021.

The functions of the OSI include reviewing the findings of the Brereton Report and working with the Australian Federal Police to investigate criminal offences under Australian law relating to any breaches of the laws of armed conflict by members of the ADF in Afghanistan between 2005 and 2016. The OSI is also responsible for developing briefs of evidence on any established offences for referral to the Office of the Commonwealth Director of Public Prosecutions (CDPP) and undertaking relevant tasks as required by the Prime Minister and Minister for Home Affairs.

Funding to the OSI

The additional funding to support the work of the OSI in the 2022–23 Budget builds on funding previously allocated to the OSI in the Mid-Year Economic and Fiscal Outlook 2021–22 (MYEFO 2021–22, p. 256) (Budget paper no. 2, p. 60).

In December 2020 the Mid-Year Economic and Fiscal Outlook 2020–21 noted that $116.5 million was redirected to the OSI from Defence for its establishment from 2020–2021 (p. 164). It is not clear over how many years this funding will be split.

In May 2021 at the 2021–22 Budget, OSI had total resources of $75.5 million (Portfolio budget statement 202122, p. 214). The actual funding for the OSI in 2021–22 is estimated to be $57.1 million (PBS: 2022–2023, p. 210). In the MYEFO in December 2021, it was noted that $56.5 million in funding will be redirected to the OSI from the Department of Defence in 2022-23 (MYEFO 2021–22, pp. 191, 194, 256).

2022-23 federal Budget

In the current Budget, the Government will provide an additional $6.7 million in 2022–23 to provide legal support for the work of the OSI in its investigation and prosecution of alleged war crimes in Afghanistan (Budget paper no. 2, p. 60). This funding will be distributed between the Attorney-General’s Department (AGD) and the CDPP (Budget paper no. 2, p. 60). The funding will be offset through a $6.7 million redirection from the Department of Defence (Budget paper no. 2, pp. 33, 60).

AGD will receive the majority of the funding, with $3.9 million allocated to the AGD to ‘advise OSI on matters of international law, obtain legal assistance from foreign jurisdictions and to protect sensitive national security information in potential criminal proceedings’ (Budget paper no. 2, pp. 32, 60).

The CDPP will receive $2.8 million to ‘provide legal advice to OSI, including training for investigators and brief preparation’ (Budget paper no. 2, pp. 33, 60).

On 31 March 2022, two days after the Budget was delivered, Director-General of the OSI Chris Moraitis said at a Senate estimates hearing for the Home Affairs Portfolio: ‘there was some funding for both of those agencies to support our work. It didn't come to us; it's AGD financing for both the [C]DPP and the department. So that's working really well’.

At the 2022-23 Budget, total resourcing for the OSI in 2022–23 is $63.2 million, comprising $56.9 million in new funding (Agency resourcing: budget paper no. 4: 2022–23, p. 84; Portfolio budget statements 2022–23: budget related paper no. 1.8: Home affairs portfolio, p. 210).

The estimated Average Staffing Level (ASL) for the OSI in 2022–23 is 158 (PBS: 2022–2023, p. 210). The Government previously estimated the ASL for the OSI in 2021–22 to be 190, with the ASL for that financial year now estimated to be 115 (PBS: 2022–2023, p. 210; Budget paper no. 4: 202021, p. 161).

The future of the OSI

At the recent 31 March 2022 Senate estimates hearing the Director-General of the OSI, Chris Moraitis, noted continuing complex challenges which include the inability of the OSI to gain access to materials obtained for the purposes of the Brereton Report as well as not being able to view the Brereton Report in its entirety. The Director-General also noted issues relating to the security situation in Afghanistan and the practicalities of interviewing people still in the country, saying ‘in term of people in country, it's difficult. It's very difficult—extremely difficult’.

In announcing the establishment of the OSI in November 2020, the Government had stated that the OSI ‘would exist as long as needed to carry out its brief’. The complexities involved in the OSI’s work, made more difficult by the changed political situation in Afghanistan, suggest that the agency will require additional funding in future years to achieve its goals aside from the funding outlined in this Budget.



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