Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2026

Senator CASH (Western Australia—Leader of the Opposition in the Senate) (13:16): I'll just close off the previous line of questioning that I was pursuing. I have also been looking at answers to questions on notice that we have received via the budget estimates of 2026-2027. These are questions on notice BE26-124.

They were questions put to the Office of the Special Investigator. They were kind enough to respond to them in quite some detail. When I look at the timeline, they confirm that, on 1 April 2026, the current CDPP and Mr Moraitis, the current OSI director-general, met with the Attorney-General to discuss the consent to prosecute the submission.

That consent referred to the now prosecution of Ben Roberts-Smith. A number of other documents were provided to us, including media releases and drafts of media releases, pursuant to the OSI taking these on notice. A media release dated 7 April 2026 also clearly states: The OSI and AFP are investigating allegations of criminal offences under Australian law related to breaches of the Laws of Armed Conflict by Australian Defence Force personnel in Afghanistan between 2005 and 2016.

I just want to go back to this given we are currently discussing the change in law to how a conflict is now managed by the CDPP and just in terms of your evidence given on behalf of the Attorney-General. Raelene Sharp previously served, as we've established, as counsel assisting the Office of the Special Investigator. We know that was in relation to alleged breaches of the laws of armed conflict by Australian Defence Force personnel in Afghanistan between 2005 and 2016.

Her previous role as special counsel providing advice to the OSI was also acknowledged in the press release that was released by former attorney-general Mark Dreyfus when he announced her appointment. She subsequently obviously became the Commonwealth Director of Public Prosecutions. As we already established at a previous Senate estimates hearing and as we've again referred to today, in the capacity of CDPP, the consent of the Attorney-General was sought to prosecute Mr Roberts-Smith.

As I said, the OSI themselves provided the answer that on 1 April 2026 the CDPP and the OSI director-general met with the Attorney-General in relation to this. We've also discussed an actual conflict of interest and a perceived conflict of interest. The actual conflict of interest would arise, I would put to you, if Ms Sharp's previous involvement affected or was capable of affecting the exercise of her prosecutorial functions.

But, of course—and again you acknowledged this in particular when Senator Shoebridge put questions to you yesterday in terms of actual and perceived conflicts of interest—a perceived conflict is obviously different. It's different at law. It concerns whether the circumstances could reasonably give rise to a perception that the CDPP's independence or even impartiality might be affected, even if there were no actual conflict in fact.

Again, I want to get this on the record. Given Ms Sharp's prior role advising the OSI, her subsequent position as head of the prosecuting authority—this is all on the record at Senate estimates, but also now we've got the answers to the questions on notice, as I said, from the OSI, saying that on 1 April 2026 the CDPP and the OSI director-general met with the Attorney-General to discuss the consent to prosecution submission.

Ultimately, that was actually given that same day, on 1 April, by the Attorney-General. I'm going to again ask: is the Attorney-General satisfied that Ms Sharp's involvement gives rise to no actual, potential or perceived conflict of interest in relation to the prosecution of Mr Roberts-Smith?