Order to Establish the Office of the Special Investigator as an Executive Agency

Overview

The Public Service Act 1999 was enacted by the Parliament of Australia to provide a legislative framework for the operation and administration of the Australian Public Service. This Act was introduced to address the need for a robust and structured system to oversee the activities and ensure the accountability of the public service. In 2020, an Order was made under section 65 of the Public Service Act 1999 to establish the Office of the Special Investigator as an Executive Agency. This was enacted with the advice of the Federal Executive Council and signed by the Governor-General, General the Honourable David Hurley AC DSC (Retd), with the objective of reviewing the findings of the Inspector-General of the Australian Defence Force Afghanistan Inquiry and investigating potential criminal offences committed by members of the Australian Defence Force in Afghanistan between 2005 and 2016. The policy objective of this Order is to ensure thorough and independent investigations into serious breaches of the Laws of Armed Conflict, thereby upholding justice and accountability within the defence force.

Scope and Application

The Public Service Act 1999 has been amended to establish the Office of the Special Investigator as an Executive Agency, with specific functions that include reviewing the findings of the Inspector-General of the Australian Defence Force Afghanistan Inquiry and collaborating with the Australian Federal Police to investigate criminal offences arising from breaches of the Laws of Armed Conflict by members of the Australian Defence Force in Afghanistan from 2005 to 2016. This legislation applies to the conduct and transactions of the Office of the Special Investigator, which is tasked with developing briefs of evidence for referral to the Commonwealth Director of Public Prosecutions and undertaking other relevant tasks as required by the Prime Minister and the Minister for Home Affairs. The geographic and jurisdictional reach of this Act is national, as it is an order under Commonwealth legislation. The Act does not specify any exclusions, exemptions, or thresholds, and it is not explicitly stated whether the application of the Act extends or restricts through subordinate instruments. The Order establishing the Office of the Special Investigator as an Executive Agency will commence on 4 January 2021.

Key Provisions

The Public Service Act 1999, through the Order to Establish the Office of the Special Investigator as an Executive Agency, establishes the Office of the Special Investigator as a distinct entity within the public service (section 1(a)). This office is tasked with a specific set of functions, including the review of findings from the Inspector-General of the Australian Defence Force Afghanistan Inquiry and collaboration with the Australian Federal Police to investigate criminal offences related to breaches of the Laws of Armed Conflict by members of the Australian Defence Force in Afghanistan between 2005 and 2016 (section 1(e)). Furthermore, the Office is responsible for developing briefs of evidence for referral to the Commonwealth Director of Public Prosecutions and undertaking other relevant tasks as directed by the Prime Minister and the Minister for Home Affairs (section 1(e)). The Act imposes certain obligations on the Office of the Special Investigator, including the requirement to work closely with the Australian Federal Police and other relevant authorities in the investigation of criminal offences (section 1(e)). It also mandates the Office to develop briefs of evidence for the Commonwealth Director of Public Prosecutions, ensuring that any established offences are properly referred for legal action (section 1(e)). Additionally, the Office must be responsive to any additional tasks or directives issued by the Prime Minister and the Minister for Home Affairs, as outlined in the Order (section 1(e)). In terms of consequences for non-compliance, the Public Service Act 1999 does not explicitly detail offences, penalties, or consequences for breaches within the Order itself. However, failure to adhere to the requirements and obligations set out in the Order could potentially lead to administrative or disciplinary actions within the public service framework. Given that the Office of the Special Investigator is established under the authority of the Public Service Act 1999, breaches of its functions or obligations might be subject to internal public service regulations and procedures, which could include investigations, performance reviews, or other corrective measures. It is important to note that the specific legal consequences for non-compliance would depend on the broader public service laws and administrative policies in place.