Senate Legal and Constitutional Affairs Legislation Committee, , 5:55:23 to 6:31:21
The committee questions the department on the prosecution of Ben Roberts-Smith and receives an update on the Pacific Islands Law Officers Network (PILON).
Topics: Integrity, Pacific relations, Government legal services
Speakers: Senator Michaelia Cash, Rebecca Vonthethoff, Sarah Chidgey, Luke Muffett, Senator Lisa Darmanin, Interjection, Katherine Jones, Senator Jana Stewart, Speaker 26
>> Uh thank you. We'll move on to another topic. Um, if I could turn to the prosecution of Ben Robert Smith. Uh, just briefly, Secretary, on the 25th of May, I asked uh whether the department had any knowledge before it happened of the arrest of Mr. Robert Smith and the way it would be carried out. Your evidence was, and I quote, I was made aware by the director general of OSI that the investigation was progressing, but in terms of the nature of the arrest, I don't believe I had any detail on that. That was your evidence at the You then provided me with a written answer on notice uh BE26/046 and it states the secretary was notified on the 1st of April. It also states that OSA gave the department a copy of the media release on the morning of the 7th of April, which was the morning of the The CDP have provided me with an answer to a question on notice where I asked in obtaining the consent to prosecute Ben Robert Smith, was the jurisdiction of the arrest discussed with the AGD? Its answer, yes. So, can I ask when was the jurisdiction of the arrest discussed with the attorney general's department?
>> Um, I'd need to check because I don't think I was involved in that specific conversation.
>> Yes. Uh, and the first I was aware was the on that morning through the media materials from the OSI.
>> Okay. So, is there anyone else here that would be able to answer when was the jurisdiction of the arrest discussed with the attorney general's department?
I'm not sure if there'd be anyone else other than Miss Chigi, but we'll check just to make sure.
>> But can I confirm, Secretary, when was the first time you became aware of the jurisdiction of the arrest of Ben Robert
well I think uh I I refer back to my answers. So I think it was um
How about I put it simply to you given your evidence? I just want to reconfirm. Did you have any knowledge of the jurisdiction of the arrest of Ben Robert Smith before he was arrested on a plane in front of his family at Sydney >> This is a question to you, Secretary. Your own personal knowledge.
>> Um, I think it's just the day. Yeah.
Yes. I think I think we found out on the day um the team that was dealing with the um procedural documents might have more to add.
>> Thank you, Miss Samios. >> Sarah Seos, first assistant secretary, integrity and criminal law division. Um the instruments for consent do sometimes differ by jurisdiction. So we had we're aware of the jurisdiction by virtue of >> Uh and on what date did you become aware of the jurisdiction? In other words, it would not be Queensland, his home state, but it would be in Sydney, New South >> Senator, I would need to check whether at what time we became aware of that. >> Thank you. Um, when was the attorney general first made aware of the jurisdiction of the arrest of Ben Robert
>> Look, you I would need we would we would need to check with her, but I think the
her. And when you say the instrument was put to her, remind me on what date that
>> Sorry. Um I think we're just checking. Sorry, it's not correct that it would have been in in the instrument. There are variations to the way the instrument
>> Okay. >> But I would very simple question I have. The arrest took place in the jurisdiction of New South Wales on the 1st of April is my understanding. Prior to that, the attorney general was presented with a brief in relation to the consent to prosecute. On what date did the attorney general of Australia find out about the jurisdiction in which Mr. Robert Smith was to be arrested?
secretary, national security and criminal law branch. the the submission um that was provided to the attorney um in relation to her consent and authorization did not identify the location of of the arrest.
>> I'm not asking about the location. I'm asking about the jurisdiction.
>> Sorry, location jurisdiction um was not identified as part of that that package where consent or authorization was sought. Um and and I'm not aware of when the attorney would have um learned of the the plans for the arrest, including the jurisdiction in which they were occurring.
>> Um given that the answer from the CDP on notice, as I said, BE26187 in obtaining the consent to prosecute Ben Robert Smith was the jurisdiction of the arrest discussed with the AGD. Their answer is yes. Would you be kind enough to take on notice when the department was first advised of the jurisdiction uh by whom in what manner etc.
>> Happy to take that on notice.
>> Thank you very much. Could I just now go to um Ms. Sharp obviously an appointment um by the government to the role of Cap. Her previous role was council assisting the office of the special investigator that was investigating um alleged crimes in Afghanistan. Given that Miss Sharp's previous OSI role uh was disclosed in the attorney general's appointment press release or should I say the CPP's appointment press release. Um, was the potential for a conflict of interest between her former responsibilities and her subsequent role as CDP specifically assessed in relation to the prosecution of Mr. Robert Smith?
>> Uh, so uh that is a a matter for the director and her office and our understanding is that she did um consider that issue.
>> She did.
>> Yes,
>> she did. Why is that your understanding?
Um because uh that is what the director of public prosecutions has advised.
>> Ah right. So the director of public prosecutions has advised when you say has advised the department the attorney general both
>> uh the department
>> the department when did the director of public prosecutions advise and I just want to be clear here was the advice that there was no actual conflict of interest or was the advice there was also no perceived conflict of interest.
>> Uh we would need to take on notice when we first engaged with the CDP about that. Um uh uh and uh the Commonwealth Director of Public Prosecutions will be appearing later. So confir can confirm but the assessment as I understand it was that uh there was no conflict of interest.
>> Okay. I'm interested in the attorney general and the department's perception of this because obviously this is a very serious um set of charges and a perceived conflict of interest must also be taken seriously because as you would be aware public confidence in prosecutor prosecutotorial independence depends not only on the absence of actual bias but also on the proper management of circumstances that could reasonably give rise to concern. Uh so did the department request the CDP provide this advice to you?
Uh so uh we have discussed this issue when it arose uh with the director of public prosecutions.
>> when you say when it arose
>> I think it uh well I was aware that it arose in the context of debate on a bill
for example. Um no but my colleagues
might want to add to that and I have discussed it with Miss Sharp more recently as well.
>> So prior to that bill being debated in the parliament and you are correct. Uh I was the one asking the questions in relation to whether or not the government believed there was an actual conflict of interest or even a perceived conflict of interest between Miss Sharp's former role as councel assisting the office of the special investigator and her role now as the person prosecuting uh Mr. Roberts Smith. um how did the department satisfy itself uh that there was indeed not necessarily a direct conflict of interest but not even an indirect or a perceived conflict
of interest. Uh so uh Senator um the director will be able to take you through in further detail, but it is common practice for uh directors of public prosecutions and their officers to provide advice to investigating agencies um in the course of uh performing their responsibilities. And this instance is uh in some in the kind of substantive aspects not dis not not different to that in that as I understand it miss sharp gave some advice to the office of the special investigator. Um, and that often occurs in the engagement between the Office of the Commonwealth Director of Public Prosecutions and the enforcement agencies they're working with in informing um the brief of evidence that needs to meet the standards in the prosecution policy of
the Commonwealth. I'd put it to you, Miss Chiji, that this is different because you, the government, the attorney general of Australia and um the government have made a decision to have a Victoria Cross recipient charged with war crimes. So I would have thought that one might ensure that given the nature of the CDP and her previous role uh that a rigorous conflict of interest assessment would have been gone through in particular by the attorney general when the brief of evidence was presented to her to sign off on the prosecution. So, did the attorney general of Australia um undertake a rigorous conflict of
I I I'm not aware that there was a particular conflict of interest assessment. What I can say is that uh there is not a conflict of interest um in these circumstances for prosecutions because it is not a conflict for the director or officers of um the CDP to have provided advice and engagement to investigating agencies. That is a common part of the way um the DP uh all directors public prosecution and their officers operate and the decision that is ultimately then made on meeting the standards in the prosecution policy of the commonwealth uh nevertheless made independently um by the director and by that office.
>> What about though the fact again that these are some of the most serious charges that can actually be brought a person against a person in Australia. um war crimes along with obviously the ISIS brides and crimes against humanity. And again, I go to a perceived conflict of interest. um and in particular when it comes to the independence or the perception of the independence of the trial and also the the confidence of the Australian people um in relation to the proper management of the circumstances that could reasonably have given reason to the concern. So when you say a rigorous conflict or a conflict of interest assessment was undertaken, what does
that mean? Uh so that would be a matter for the director to take you through but um she and her office uh assessed uh well considered this issue um and uh for the reasons that I've given and the CDP prosecutes a lot of very significant matters with significant impact on individuals um and the engagement between the office and the director and investigating agencies and the provision of advice is part of the way they operate and it does not prevent the CDP from making independent prosecutorial decisions that meet the
>> I understand that but this is not an independent prosecutorial decision. This is a decision of the attorney general of Australia. The only person in Australia who can consent to a charge of war crimes being brought is the attorney general of Australia. So again, just for the Hansard record, um did the attorney general of Australia satisfy herself that a rigorous conflict of interest assessment had been undertaken in relation to Ms. Sharp as the CDP and the person who is now in charge of the prosecution and Ms. Sharp's previous role as special counsel assisting the office of the special investigator who investigated alleged war crimes in Afghanistan.
>> Well, I think what I would say is that the attorney general made her own decision about whether to consent based on the information um that was provided to the attorney general. So the attorney general made that decision independently based on the advice she had. The decision of the Commonwealth director of prosecu public prosecutions to uh uh put a case forward um for consent uh was not affected by conflict of interest.
>> Okay. So I'm sorry we seem to be going around in circles then. Did the attorney general receive independent advice from the solicitor general or the Australian government solicitor about a conflict of interest uh in whatever way, shape or form it took from an actual conflict of interest all the way through to a perceived conflict of interest?
>> Um we I can say that we did not obtain advice on a conflict of interest. Did
you provide as the department any advice to the attorney general of Australia um independent of the CDP her own advice about herself that there was no conflict of interest? Did you as the attorney general's department obtain any independent advice given the nature of the crimes uh the charges?
uh the department provided advice to the attorney general to support the attorney general make her own decisions on consent in these matters. We did not provide specific advice on a conflict of interest. As I've said in the circumstances that arise in this matter is uh consistent with director of public prosecution's practice and did not present a conflict of interest.
I just put it to you that given this is a Victoria Cross recipient that served our country and we were the ones that actually awarded him for that service, one might have thought that perhaps a little bit of extra rigor might be appropriate when determining whether or not there was a conflict of interest. But you have basically accepted the CDP's advice to you that she believes there is no conflict of interest. Whether that be an actual conflict of interest, a potential conflict of interest, or a perceived conflict of interest. >> That's correct, Senator. >> Thank you. >> Is there
>> just wanted to know if you're going to move on to a different kind of
>> Oh, no. I'm just going to I move I just one another qu I will I have more questions here but this is on the conflict of interest. >> Yeah. Um, was any conflict management plan put in place when Miss Sharp became the CDP in relation to her previous work as the special counsel assisting the office of the special investigator and the person who would potentially bring and has in fact brought a brief of evidence to the attorney general requesting uh to prosecute Mr. Robert Smith for war
crimes. Uh, Senator, there was no conflict to be to be managed
>> because you CDP advised you of that pursuant to their procedures. >> Okay, I'm happy to rotate the call.
>> I'm just wonder if now's a good time to rotate the call. Thank you for your assistance, Senator Diamond.
>> Thank you. Um, I've got some questions about uh the with from the of the Um, I understand from previous hearings that the Commonwealth is a key supporter of the Pacific Island Law Offices Network. um was wondering if you could just update the committee on the work that the department has been doing on the network since the last estimates,
>> Uh thank you very much, Senator Rebecca Vonttov, assistant secretary of the Pacific branch at the department. Um, again, just like the February estimates, it's a great time uh to receive these questions because we're just recently back from the annual meeting of the Pacific Islands Law Offices Network, which Australia had the privilege of co-hosting with Tavalu uh in midocctober. Um at that annual meeting, the network agreed to an update to its strategic plan uh to really include a focus on uh illicit drugs and other transnational crime. So the design behind this is for lawyers across the Pacific, including from our team at the attorney general's department to really swing in behind Pacific leaders and Pacific police efforts uh to combat elicit drugs and other transnational crime which we know uh has been an increasing problem and an increasing concern uh across the Pacific. So it was um a real privilege and a real uh pleasure to be at the pillon annual meeting where members uh decided to make that change to their strategic plan. Uh what that means is we'll have a dedicated working group and dedicated funding to support that working group. uh to mean that lawyers across the Pacific can help make sure that the legislative frameworks that uh uh allow transnational crime to be combed. um are uh uh made fit for purpose. Uh and that uh lawyers such as prosecutors across the region have what they need to be able to effectively uh support law enforcement um in dealing with these really important uh regional issues for our Pacific partners uh uh and for ourselves as part of uh uh the Pacific region. Um the pillon uh network has uh continued throughout the year. It its work is not uh uh only limited to the annual meeting there. So um it's also continued important work on uh the other strategic priorities uh of cyber crime and also uh to combat sexual and gender- based violence. So uh by way of example um in uh August uh the pillon uh sexual and gender-based violence working group held an understanding trauma workshop in Fiji which was attended by 46 participants from across the Pacific which was really about helping uh lawyers, prosecutors, witness support officers and others involved in the criminal justice process to understand uh the risks and possible um methods of dealing with trauma both for themselves uh in dealing with sexual and gender- based violence matters which uh is very difficult I think for all involved including the lawyers but also continuing the work of that working group into how to support vulnerable witnesses which can include you know children and others in those uh SGB matters. So, I would say uh in in summary, Senator, it's been a really big um and important year for the Pacific Islands Law Offices Network and it remains a real privilege for the Attorney General's Department to be a member of that network and and to contribute funding and technical
assistance. Thank you. And um it sounds like a successful meeting um and update to the plan. Can you um share some of the feedback that the department received um from pillon members about Australia's contribution in particular?
Um thanks senator for the question. Um while we were at the annual meeting um uh I think both during the uh sort of formal parts of the meeting itself formal sessions there were um um sort of thanks passed on I guess to the attorney general's department uh for the funding and for the technical support we provide uh just as there was for New Zealand as well. Australia and New Zealand are are long-term co-founders of the Pacific Islands Law Offices Network. Um in addition to that I guess more formal recognition during the sessions though what really comes home to me every time I attend the pin pillon annual meeting and engage with fellow members for example of the executive committee is um uh their comments on how meaningful it is for their lawyers on the ground and back in their offices to have access to a network like pillon uh to support them in their work. So at the annual meeting for example this year we launched I think it was a record five uh publications produced by pillon and that included um things like a cyber crime legislation implementation handbook um with really practical checklists um uh and case studies and ideas um for jurisdictions thinking about developing and implementing cyber crime legislation. There was a revised effective asset management guide which um comes into play when you're looking at assets that are seized um through proceeds of crime sort of frameworks for example. And the feedback we get from members both senior senior officers and I guess the more junior officers who make up their supporting delegations is that that kind of publication and that kind of work um is a really practical resource that each jurisdiction can take back and uh adjust so that they can actually use it on a day-to-day basis um back home across the the sort of 19 Pacific jurisdictions uh that we're working with. So, um, uh, in short, again, Senator, I'd say there's formal recognition of Australia's role and support, um, in in the meeting sessions, but possibly even more important for me is that feedback from members about how practical and useful these resources are for their work. M
and um I guess just finally that engages with Pacific law and justice issues or is it you know are there other kind of resources that um are deployed in this area and also what's the FTE of the Pacific um branch?
>> Excellent. Uh thanks Senator just to take uh the last question first. I think the um FTE for Pacific branch uh in this 26 27 financial year is approximately 21 uh which includes uh myself as well. Um but uh it is also correct that there are many other areas across the department and the portfolio that are engaged with Pacific law and justice uh work. So um the last time I gave uh evidence in February, I spoke about the work of the Australian government solicitor in uh providing pro bono uh training for um uh lawyers uh from across uh Papa Newu Guinea in particular. They've done a lot of work with the office of the state solicitor and the office of the solicitor general in Papa Newu Guinea. That training has continued this year. Uh we also have areas uh like um the modern slavery and human trafficking branch who I certainly don't want to speak in detail sort of about about the work um that they can speak to themselves but are engaged with Pacific law and justice partners um uh and Indopacific partners in in the work that they carry out across the region there. Otherwise, I could probably talk your ear off all day on it.
>> Thank you. I'm sure the chair would not
>> Thank you very much. We'll now return to Senator Cash.
>> Uh, thank you. If I could just continue with my line of questioning. Um, a prosecution in relation to alleged war crimes obviously carries significant public importance and that importance makes it essential that the process is demonstrabably impartial and fair and uh I would believe any potential conflicts be properly examined uh rather than accepted without further explanation. So, can I ask since the issue of the conflict of interest was raised in the Senate in relation to the bill? Um, when did the department seek extra information from Miss Sharp as to the extent of her previous involvement in matters concerning Mr. Robert Smith?
Senator, um during the line of questioning um in in the Senate um around that conflict, I I sought further information from the CBP um around uh the director's assessment of whether a conflict um existed or not.
>> Uh sorry. So again, you went back to the Cap herself.
>> Uh I I went back to her office.
>> Oh, so not to the CDP herself. I
>> I did not go directly um to Miss Sharp. I went to um members of her team
>> and um how long did it take for them to respond to you?
>> Um it would have been in the um in the course of of the um
>> the Senate debate.
>> Senate debate.
>> Understood. Um does the department know whether Miss Sharp had access while working for the OSI to evidence, legal advice, witness material, or investigative material concerning Mr. Robert Smith?
>> You'd have to ask Miss Sharp. Sorry.
>> Okay. So you didn't satisfy yourselves in accepting uh her word that there was no conflict of that.
>> I mean I think it goes to the same issue I've discussed before that engagement between the CDP and investigating agencies is a feature of the way that the CDP performs its functions. So there wouldn't necessarily be anything inappropriate or a conflict in having engagement. including CDPs will sometimes get draft briefs of evidence and provide some advice on any further work that's needed. Uh and those briefs obviously contain evidence and material.
So there would be nothingual about >> just to understand your evidence. Does the department have actual as to whether Miss Sharp as the CDP had accessed whilst working for the OSI to evidence, legal advice, witness material or investigative material concerning Mr. Robert Smith? Do you have actual knowledge of that?
>> We don't have the details of what what
>> Okay. But you would say sorry and I just want to get this evidence very clear. It would not be unusual for that to have occurred and for there still not to be a conflict of interest.
>> That's correct.
>> Okay. Thank you. Um can I just go very briefly to the consent. Um, Miss Chiji, your answer to BE26055 says the attorney general, and I quote, may vary or withdraw an authorization provided under subsection 268.121 in brackets 2 for proceedings to be brought in the attorney general's name, and we discussed this last time at the last estimates. The prosecution of Mr. Robert Smith is brought in her name as we established under that subsection. Can I confirm the attorney general can then withdraw her authorization for the prosecution of Mr. Robert Smith?
Um I think there's a slight nuance in that uh the attorney general gives both consent and an authorization. Um and I think um I think it's the authorization that can be withdrawn. Um one of them is just a moment in time. So
>> which was the consent.
>> Yes.
>> So the authorization is it an it is an ongoing authorization until the authoriz authorization is withdrawn.
>> That's right. Because it allows the proceedings to continue in the attorney.
So if an author so an authorization >> to withdraw the proceedings could actually therefore be issued at any time right up until a judgment is actually issued.
>> There has to be an authorization for the commencement of proceedings.
>> Yes.
>> And but then yes it could be withdrawn at any time subsequently while the proceedings
>> these are ongoing. So at any time the attorney general of Australia in the same with the um ISIS brides. >> Yes. Uh you could withdraw consent when sorry author when the if the authorization is withdrawn what is the effect on the proceedings?
>> Uh the proceedings would need to be withdrawn.
>> Yes. So they come to an end.
>> That's correct.
>> Understood. Are you able to recommence proceedings? Would are you able to again give consent or does double jeopardy
>> Uh if there hasn't been a a final judgment in the matter, I think you could uh reen proceedings. Okay. >> I mean a court would consider whether there was still fairness to the accused
and all the circumstanc Yeah. It's a very serious matter obviously to withdraw proceedings. Can I also confirm section 71 of the judiciary act allow so a separate section now we can withdraw authorization and the proceedings against Mr. Robert Smith uh and Mr. Schultz for that matter could come to an end today. Section 71 of the Judiciary Act lets the attorney general decline to proceed further with any indictable Commonwealth prosecution once the accused has been committed for trial. Is that correct?
>> Yes.
>> So my understanding is Mr. Drafest used section 71 the former attorney general of the judiciary act to end the colleri prosecution in July 2022. >> Yes, understood. Um nothing in section 268 displaces that. So is it also then the legal position that the current attorney general could also end the prosecution against Mr. Robert Smith and indeed Mr. Schulz um under section 71 in the same way that the former attorney general Mr. Drafus uh determined that he would end the caller prosecution in July 2022.
>> Uh I think that would be legally possible. I think in this circumstance because there's an authorization that would be the more obvious.
>> Yes. I'm I'm just trying to work out. There are several legal paths available to the attorney general of Australia. One has been exercised by Mr. Drafus uh in relation to a prosecution brought by the CDP. He brought that to an end. Is that decision reviewable?
>> Um I need to take that on notice. I think generally these kind of decisions are not
>> they're final because it's the attorney general of Australia making
>> other than potentially the constitutional provisions.
>> Can you tell me also section 8 of the CDP act allows the attorney general of Australia to direct the Commonwealth director of public prosecutions? the first way to end the prosecutions is to withdraw the authorization. The second way if you chose not to do that is to go down the section 71 of the judiciary act path which former attorney general Mark Drafus did in relation to proceedings authorized I think by Christian Porter when he was the attorney general. Section 8 of the DPP act. Would that mean that the attorney general could direct the director to stop the But effectively, you'd be withdrawing the authorization.
>> Yeah, it it would be that would be a withdrawal of authorization because the authorization says the director can carry this on in the attorney general's name. If the attorney general directed the um the director not to continue, that would be taken as a withdrawal of the authorization.
>> Okay. Um but the point being the proceed the attorney general here is the sole arbiter in terms of whether or not the proceedings actually continue because the attorney general by their position is the only person in Australia who is able to bring the proceedings to an end prior to um a final judgment being
>> Uh yes, that is the attorney general's
>> Okay. Thank you. I might move on to another topic.