The government agency investigating alleged war crimes by Australian soldiers in Afghanistan expects to hand its first brief of evidence to commonwealth prosecutors by the middle of this year.
The Office of the Special Investigator – established in the wake of the Brereton report, which found “credible” evidence to support allegations that 39 Afghan civilians were unlawfully killed by Australian special forces soldiers – is investigating “between 40 and 50” alleged offences.
Appearing before Senate estimates late Monday, the director general of the OSI, Chris Moraitis, said he expected to hand a first, single brief of evidence to commonwealth prosecutors by the middle of 2023.
“I’m quietly confident of a brief of evidence in the first half of this year.”
He said “at this stage” it would be a single brief for prosecutors.
Moraitis declined to say how many Australians were being investigated, telling the Senate the alleged offences were a “complex web”.
He said some of the allegations under “active investigation” had been raised in the Brereton report, while others “have come to our attention through other avenues”.
Moraitis said “anywhere between 40 and 50” alleged offences were being investigated, some of which may have had multiple participants.
“Investigations are under ongoing review and that number may increase if additional matters are raised, but over time I expect it will reduce overall as it becomes clear which allegations may be substantiated to the high threshold required for a criminal justice process.
“As always, we are conscious of the potential impact on anyone affected by our investigations and my teams are unwavering in their commitment to ensuring allegations of war crimes within our remit are subject to fair, thorough and impartial investigation without unnecessary delay.”
Moraitis said the OSI was limited in its capacity to gather evidence inside Afghanistan, since the fall of that country’s republican government to the Taliban in August 2021. Investigators had not been able to go into the country.
“We’re not a humanitarian agency, we’re not a special rapporteur, we’re not an NGO; we’re an investigative body trying to enforce Australian criminal law, and that brings its own dynamic.
“I’m not stratified that the necessary conditions for engaging in that country, at this stage, exist.”
However, the OSI has interviewed witnesses who are currently outside of Afghanistan: “Investigators have travelled outside Australia and not Afghanistan.”
Questioned by the Greens senator David Shoebridge about the possibility of using technology to interview witnesses and gather evidence from inside Afghanistan, Moraitis said there were legal barriers to that course of action.
“I think you need a formal arrangement with the host country to seek evidence and to adduce evidence that can be used in a court of law in Australia.
“There are some legal problems with that. We need to have a relationship with the state to do that, for that to be admissible.”
The four-year Brereton inquiry – led by the New South Wales court of appeal judge Major General Paul Brereton – reported in 2020 that it had found “credible information” to implicate 25 current or former Australian Defence Force personnel in the alleged unlawful killing of 39 people in Afghanistan.
The inquiry recommended that allegations against 19 of those individuals be referred for criminal investigation. The government established the Office of the Special Investigator in response.
• Anyone affected by the Brereton report should call Hayat Line on 1300 993 398, a free and confidential line for those going through difficulties. In Australia, support and counselling for veterans and their families is available 24 hours a day from Open Arms on 1800 011 046 or www.openarms.gov.au and Safe Zone Support on 1800 142 072 or https://www.openarms.gov.au/safe-zone-support
