The Coalition has used speedy timelines in the charging of former Victoria Cross recipient Ben Roberts-Smith to suggest authorities may have rushed the final stages of prosecuting the veteran.
The Office of the Special Investigator was set up in 2020 under the Morrison government to probe war crimes allegations, culminating in Roberts-Smith’s arrest last month. The charges set off a political debate on the justification for prosecuting a man previously considered a war hero, which the populist One Nation party has portrayed as an assault on those who defend Australia.
On Monday, it was revealed in a Senate estimates hearing that Attorney-General Michelle Rowland gave consent to the charges within two days of receiving a brief of evidence. Under law, such prosecutions can only proceed with the consent of the top law officer, the attorney-general, who sits in the Albanese government cabinet.
Rowland’s consent is considered largely procedural in that she is guided by prosecutors who built up over years what they believed was a credible case.
Officials from Rowland’s department said they received a request for prosecution and a brief from the Commonwealth Director of Public Prosecutions on March 30. The brief was forwarded to Rowland, who gave her consent on April 1. Roberts-Smith was arrested in Sydney on April 7.
“Why such a rush?” Coalition’s shadow attorney-general Michaelia Cash asked the officials in Monday’s hearing.
The Coalition has not been critical of the prosecution in the same way as Pauline Hanson. Although some Coalition MPs have made statements about the need to respect the sacrifice of veterans, Opposition Leader Angus Taylor and senior MPs, including Cash, have argued the rule of law must be allowed to run its course. Former prime minister John Howard has also echoed the call to respect Australia’s judicial process.
Liberal MP Andrew Hastie, who served with Roberts-Smith in the special forces, was one of 22 veterans subpoenaed to testify in a defamation trial brought by Roberts-Smith against this masthead.
Sky News host Andrew Bolt launched a defence of Hastie on Monday night, arguing he was the subject of a smear campaign by news outlets linked to media owner Kerry Stokes, who funded Roberts-Smith’s defamation case.
The court found against Roberts-Smith in the civil trial and determined, on the balance of probabilities, that he was involved in four unlawful killings. Prosecutors will need to prove beyond reasonable doubt, a higher standard of proof, in the looming criminal case.
Since 2020, the OSI has been probing allegations against veterans in Afghanistan. This masthead has previously reported that fog of war or split-second decisions were quickly dismissed by the OSI. The OSI was led by Mark Weinberg, KC, a senior judge well-known for being the lone dissenting judge in George Pell’s initial unsuccessful appeal against his child sexual abuse convictions. The fog of war applies to none of the five war crime-murder allegations faced by Roberts-Smith, this masthead has reported.
Luke Muffett, assistant secretary in the Attorney-General’s Department, said Rowland could theoretically withdraw the charges at any time.
“If the attorney didn’t provide consent, the proceedings would not be commenced,” he told the committee.
Muffett confirmed the charges were laid in a “very tight time frame” but said he needed to be cautious in how he spoke about purpose of the timing, citing operational considerations.
“We were able to consider the information … and provide that to the attorney-general in that timeframe,” he said.
A spokesperson for the Attorney-General, Michelle Rowland, said, “As each of these matters is currently before the Courts, it is not appropriate to comment further.”
The Coalition compared the short turnaround with what it said was a three-week period of consideration on whether to charge returning ISIS brides with crimes against humanity. However, it is unclear which factors led to the differing timeframes, or if the difference was an indication of any reluctance to charge the ISIS sympathises with slavery charges.
Federal authorities ultimately did lay charges immediately on return of the ISIS families. The government later clarified that Rowland received the brief on the ISIS brides four days before signing it off, two of which were weekend days.
An explanation for the speed may have been the OSI’s fear that the veteran had told his family he intended to travel overseas to Singapore for business reasons. The OSI revealed this information in a bail hearing last month.
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Paul Sakkal is Chief Political Correspondent. He previously covered Victorian politics and won a Walkley award and the 2025 Press Gallery Journalist of the Year. Contact him securely on Signal @paulsakkal.14.Connect via X or email.
