Special Counsel

​The OSI’s approach to managing IGADF Inquiry information

A key function of the Office of the Special Investigator (OSI) is to review the findings of the Inspector-General of the Australian Defence Force (IGADF) Afghanistan Inquiry and investigate, jointly with the Australian Federal Police (AFP), the potential criminal matters raised by the IGADF Afghanistan Inquiry.

The IGADF Afghanistan Inquiry, conducted by Major General the Hon Paul Brereton AM RFD, inquired into rumours and allegations relating to the conduct of Australia’s Special Forces Task Group and Special Operations Task Group in Afghanistan between 2005 and 2016.

There are important differences between the IGADF Afghanistan Inquiry – which was a statutory inquiry – and a criminal investigation. Witnesses who provided evidence to the IGADF Afghanistan Inquiry were afforded certain legal protections in relation to that evidence. The operation of those legal protections means that witness evidence provided to the IGADF Afghanistan Inquiry – and other evidence derived from it – will be inadmissible in criminal proceedings against the individual who provided it. ​An accused person has other fundamental rights, such as the privilege against self-incrimination and the broader right to silence. Investigators and prosecutors will take care to respect these rights.

In order to ensure investigators manage information in a way that protects these rights, the OSI has established a Special Counsel legal function and has engaged the Australian Government Solicitor to perform that function. The Special Counsel team will advise the OSI on the legal principles guiding the OSI’s access to, and use and management of, IGADF Afghanistan Inquiry information. The Special Counsel team is undertaking a quarantined review of the IGADF Afghanistan Inquiry information as part of providing that advice, to ensure investigators only receive information which can lawfully be obtained and used for investigative purposes. This will help protect the integrity of investigations and any future prosecutions. Special Counsel review of information received directly from external sources (for example, members of the public) may also be necessary where such information may contain information obtained by the IGADF Afghanistan Inquiry using statutory notice powers.

Given the size and complexity of this task, the Special Counsel legal review process will take time. As the work of the Special Counsel team progresses, information will be made available to the OSI’s joint investigation with the AFP.

More broadly, consistent with its functions and in addition to the potential criminal matters previously considered by the IGADF Afghanistan Inquiry, the joint OSI and AFP investigation is receiving and considering information relevant to allegations of criminal offences arising from or related to breaches of the Laws of Armed Conflict by ADF personnel in Afghanistan between 2005 and 2016.