LEX 2675 Documents Final 1.pdf

ACT 1982
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ACT 1982
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ACT 1982
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Department of Defence and the Australian Defence Force (Defence)
Australian Federal Police (AFP)
Office of the Special Investigator (OSI)
(col ectively, ‘the Parties’)

Protocols for Referrals, Information Sharing and Communications in the
Context of Operation Emerald

1982

As at 21 March 2024  POLICE
ACT
Version 4.0
RELEASED
IS

FEDERAL
INFORMATION
References
OF
A.
Inspector-General of the Australian Defence Force Afghanistan Inquiry Report
DOCUMENT
of 10 November 2020
AUSTRALIAN
B.
Order to Establish the Off
THIS  ice of the Special Investigator as an Executive
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Agency of 10 December 202
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Contents

Part 1 – Purpose ...................................................................................................... 4
Part 2 – Definitions .................................................................................................. 5
Part 3 – Background ............................................................................................... 7
The Afghanistan Inquiry ..................................................................................................... 7
Establishment of the Office of the Special Investigator ...................................................... 8
Special Counsel ................................................................................................................ 9
Department of Defence Support to and liaison with Operation Emerald ............................ 9
Approach to Information Management ............................................................................. 10
Part 4 – General ..................................................................................................... 12
Application of these Protocols .................................................. . .. ................................. 12
Key Contacts for Matters Relating to these Protocols . ..... ... ..... .................................... 12
ACT 1982
Defence Contacts with Access to Afghanistan Inquiry Report Un-Redacted .................... 12
s 22(1)(a)(ii)
Duration and Review ............................. .. ...... .... .......................................................... 14
Signatures and Authorisation............ .. .... . ...........................................................
INFORMATION
......... 15
Annex A - Key Contacts for Matters Relating to these Protocols .................................. 16
Annex B - Current Defence access to Afghanistan Inquiry Report Un-Redacted ......... 18
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Part 1 – Purpose

1.1  The purpose of these Protocols is to formalise cooperative arrangements
between Defence, the AFP and the OSI that support the investigation of matters
within the scope of the Joint Investigation, and related matters.
1.2  Nothing in these Protocols is intended to have a legal or binding effect or
create a legally binding relationship between Defence, the AFP and the OSI.
1.3  Nothing in these Protocols is intended to affect the independence of the AFP’s
and OSI’s performance of their functions or exercise of their statutory powers to the
extent relevant.
1.4  These Protocols build upon and formalise arrangements already in place
between the Parties. They are to be read in a spirit of cooperation between the
Parties and read in conjunction with any other documentation relevant to the
relationship between the Parties.
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1.5  For the purpose of these Protocols, the Inspector-General o
ACT  f the Australian
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Defence Force (IGADF) is treated as a separate entity to Defence and is not a party
nor subject to the arrangements established under these P
RELEASED   rotocols. These Protocols
wil  not apply to, or regulate, the flow of Afgha
IS nistan Inquiry information from the
FEDERAL
IGADF to Operation Emerald (the name of the joint OSI-AFP investigation into
INFORMATION
allegations of criminal offences under Australian law, arising from or related to any
OF
breaches of the Law of Armed Conflict, by members of the ADF in Afghanistan from
DOCUMENT
2005 to 2016).  Communication arrangements between the OSI, the AFP and the
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IGADF are subject to a separate s
THIS  et of arrangements.

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Part 2 – Definitions

2.1  Unless stated otherwise, the acronyms and terms used in these Protocols
have the following meanings:

“ADF” means the Australian Defence Force.
“Administrative Release” means the release of documents by the Department of
Defence to the OSI under requests for information for the purposes of investigating
the commission of criminal offences under Australian law arising from or related to
breaches of the Law of Armed Conflict by ADF members in Afghanistan from 2005-
2016.
“Afghanistan Inquiry” means the inquiry established at the request of the Chief of
the Defence Force and conducted by the IGADF to inquire into rumours and
al egations of possible breaches of the law of armed conflict by members of the
Special Operations Task Group in Afghanistan from 2005 to 2016.
1982
ACT
“Afghanistan Inquiry information” means any information, doc
POLICE   ument or thing
received or obtained by the IGADF in the conduct of the Afghanistan Inquiry, or
obtained as a direct or indirect consequence of any such i
RELEASED   nformation, document or
IS
thing. For the avoidance of doubt, this includes any infor
FEDERAL  mation, document or thing
obtained by another agency, organisation or individual from t
INFORMATION he IGADF, if that
material was initially received or obtained by the I
OF  GADF in the conduct of the
Afghanistan Inquiry. Afghanistan Inquiry Inf
DOCUMENT ormation does not include information in
the redacted version of the IGADF Afghanistan Inquiry report published on 19
AUSTRALIAN
November 2020.
THIS
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“AFP” means the Australian F
BY  eder
THE  al Police.
“Defence” means the combined Department of Defence and the ADF.
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“IGADF” means the Inspector-General of the Australian Defence Force.
“Joint Investigation” means the investigation conducted jointly between the AFP
and the OSI which is investigating the commission of alleged criminal offences
raised by the Afghanistan Inquiry as well as any criminal matters arising from or
related to breaches of the Law of Armed Conflict by members of the ADF in
Afghanistan from 2005 to 2016.
“LOAC or Law of Armed Conflict” means the international law regulating the
conduct of states and combatants engaged in armed hostilities. Note: Law of Armed
Conflict is often termed the 'law of war'.1
1 Webpage - Australian Defence Glossary (mil.au)
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“Operation Emerald” means the operational and support arrangements between the
AFP and OSI in which the Joint Investigation is conducted.
“OSI” means the Office of the Special Investigator, an executive agency established
under section 65 of the Public Service Act 1999.
“Parties” means Defence, the AFP and the OSI.
“Request for Information” or “RFI” means any request from the OSI to Defence
made on behalf of Operation Emerald for the purposes of the Joint Investigation.
“ROE or Rules of Engagement” means Chief of the Defence Force (CDF)
directives issued to the Australian Defence Force, in consultation with the Australian
Government, which regulate the use of force and activities connected to the use of
force. Note: The document by which the CDF promulgates Rules of Engagement is a
Rules of Engagement authorisation.2

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2 Webpage - Australian Defence Glossary (mil.au)
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Part 3 – Background

The Afghanistan Inquiry
3.1  At the request of the Chief of the Defence Force (CDF), in 2016 the
Afghanistan Inquiry was established to inquire into rumours and allegations of
possible breaches of the Law of Armed Conflict by members of the Special
Operations Task Group (SOTG) in Afghanistan over the period 2005 to 2016.

3.2  To ensure the independence and integrity of the process the Afghanistan
Inquiry was conducted at arm’s length from the ADF chain-of-command and the
Government. The Afghanistan Inquiry was conducted by Assistant IGADF, Major
General the Honourable Paul Brereton AM RFD.

3.3  The Inquiry was an administrative inquiry, not a criminal investigation.

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3.4  CDF received the Afghanistan Inquiry Report (Reference A) from the IGADF
on 6 November 2020 and announced the findings on 19 Novem
POLICE   ber
ACT   2020.

3.5  The full report is approximately 3,000 pages in leng
RELEASED   th and consists of three
IS
parts:
FEDERAL

INFORMATION
a.
Part One provides background and context. It explains the genesis of the
OF
Afghanistan Inquiry, the conduct of the Afghanistan Inquiry; the Afghanistan
DOCUMENT
Inquiry team’s view of the relevant legal issues and framework as well as the
AUSTRALIAN
rationale applied when m
THIS aking findings and recommendations. Part One also
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explains the applicable Law
THE   of Armed Conflict, the rules of engagement (in
general terms) and pro
BY  vides
THE   a historical overview of war crimes investigations
and inquiries.
b.
Part Two is the main body
UNDER   of the Afghanistan Inquiry Report. Chapter 2.01 is
an introductory chapter and provides commentary on witness credibility.
Chapters 2.02-2.58 examine 57 separate incidents and issues of interest,
setting out the relevant evidence, and the Afghanistan Inquiry’s findings and
recommendations in respect of each incident or issue. Each chapter has been
drafted so that it can be read as a stand-alone document. Chapter 2.59 deals
with discontinued incidents and issues. Chapter 2.60 details a further 10
incidents and issues which remain open, predominately because they came to
the attention of the Afghanistan Inquiry team at a relatively late stage in the
Afghanistan Inquiry process.
c.
Part Three addressed systemic issues. In particular the strategic, operational,
organisational and cultural issues which may have contributed to the creation
of an environment in which this conduct could take place. Part Three also
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considers why the mechanisms of the ADF administrative inquiries and other
oversight mechanisms failed to detect these behaviours; and the responsibility
of commanders.
3.6  The Afghanistan Inquiry report has been produced in three different versions:
a.
a full text version classified at the PROTECTED level,
b.
an identity-protected version where the names of the individuals have been
replaced with a code, also classified at the PROTECTED level, and
c.
a public release version (published 19 November 2020) classified at the
OFFICIAL level and available online at
https://afghanistaninquiry.defence.gov.au/.
Establishment of the Office of the Special Investigator
3.7  On 12 November 2020, the Prime Minister announced the creation of the OSI.
The OSI was established by executive order of the Governor-General, pursuant to
1982
section 65 of the Public Service Act 1999 (Cth), and commenced operations on 4
January 2021 (Reference B). A copy of the executive order is avai
ACT  lable online at
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https://www.legislation.gov.au/Details/C2020G01030.
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3.8  The functions of the OSI include:  IS FEDERAL
a.
review the findings of the Afghanistan Inquiry;
INFORMATION
OF
b.
investigate, jointly with the AFP, the commission of alleged criminal offences
DOCUMENT
under Australian law arising from or related to any breaches of the Law of
Armed Conflict by member
THIS  s of the ADF
AUSTRALIAN   in Afghanistan from 2005 to 2016;
and
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c.
develop briefs of evidence in respect of any offences that are established, for
referral to the Commonwealth Director of Public Prosecutions (CDPP).
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3.9  The OSI and the AFP are working together through a Joint Investigation,
known as Operation Emerald, to investigate the commission of alleged criminal
offences raised by the Afghanistan Inquiry as well as any criminal matters arising
from or related to breaches of the law of armed conflict by members of the ADF in
Afghanistan from 2005 to 2016.
3.10  Under the Joint Investigation, the OSI leads engagement with Defence on
behalf of Operation Emerald in respect of requests for information, and shares with
the AFP any information properly obtained by the OSI from Defence in accordance
with the terms of these Protocols.
3.11  These Protocols do not govern or apply to the use of investigative powers,
including the process of executing search warrants by Operation Emerald.
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Investigators working on Operation Emerald are either members or special members
of the AFP. Powers, duties and functions of members or special members of the
AFP are subject to the command, control and oversight of the AFP Commissioner
and, given the legislative basis for the exercise of those powers, fall outside the
scope of these Protocols.
3.12  The arrangements contained in these Protocols do not have any bearing on
arrangements between Defence and the AFP in respect of any other investigations
arising out of the Afghanistan Inquiry, or otherwise that the AFP is conducting
outside of the Operation Emerald construct.
Special Counsel
3.13  The Afghanistan Inquiry obtained information that is subject to legal
protections, including statutory use and derivative use immunities within the Defence
Act and IGADF Regulation. Those provisions have the effect that, if a person is to be
charged with a criminal offence, any of the information or documents they provided
to the Afghanistan Inquiry—and any other evidence derived from it—w
1982 ill be
inadmissible against them in criminal proceedings. An accused person has other
ACT
fundamental rights, such as the privilege against self-incriminat
POLICE   ion and the broader
right to silence. Investigators and prosecutors wil  take care to respect these rights.
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3.14  To help protect the integrity of the Joint
IS   Investigation and any future
FEDERAL
prosecutions, the OSI has established a separate Special Counsel function within
INFORMATION
the Australian Government Solicitor. The Special Counsel team is advising on
OF
requirements for handling and using information obtained by the Afghanistan Inquiry,
DOCUMENT
and undertaking a quarantined review of that Inquiry material to ensure investigators
AUSTRALIAN
only receive information which c
THIS an lawfully be obtained and used for investigative
purposes. Special Counsel review
THE   of informa
FREEDOM  tion received directly from external
sources (for example, member
BY  s of
THE   the public) may also be necessary where such
information includes or arises from information obtained by the Afghanistan Inquiry.
Department of Defence Suppor
UNDER
t to and liaison with Operation Emerald
3.15  In May 2020 as directed at Reference C, Defence established the Afghanistan
Inquiry Task Force to receive and respond to the Afghanistan Inquiry report. In
December 2020, the Afghanistan Inquiry Task Force transitioned to the Afghanistan
Inquiry Response Task Force (AIRTF) to lead Defence’s response to the
Afghanistan Inquiry (Reference D).
s 47E(d)
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Part 4 – General

Application of these Protocols
4.1  The Parties wil  conduct meetings as often as appropriate to discuss matters
relating to these Protocols. Schedule includes:
s 47E(d)
Key Contacts for Matters Relating to these Protocols
4.2  The Parties wil  nominate contact officers within their respective organisations.
When a contact officer is nominated, their role and contact details are
1982 to be provided.
A list of key contacts wil  be maintained by the Parties as set out in Annex A. The
Parties may amend the details of their key contacts at any time
POLICE   by
ACT   notification in
writing.
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4.3  Subject to the independence of the AFP
IS   and the OSI, any relevant legislation,
or investigative sensitivities, the Parties will:  FEDERAL
INFORMATION
a.
keep each other informed of development
OF  s within the scope of these
Protocols that may be of interest to e
DOCUMENT  ach other;
AUSTRALIAN
b.
consult with each other on
THIS  media matters which may impact other Parties;
and
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c.
consult with each other during the drafting of sections of their annual reports,
relevant aspects of respective Senate Estimates briefs or other publications,
which are of mutual inter
UNDER  est.
Defence Contacts with Access to Afghanistan Inquiry Report Un-Redacted
Version
4.4  The persons listed at Annex B work in or with the Department of Defence and
have been granted access to Afghanistan Inquiry information up to and including full
access to the un-redacted version of the Afghanistan Inquiry report as approved by
the Chief of the Defence Force through the AIRTF. Annex B contains tables of
current and historic access as well as the current location of documents. Defence will
keep the names at Annex B up to date and regularly advise OSI of any changes.
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4.5  The persons listed at Annex B should ensure that, in communicating with OSI
and the AFP, particularly in respect of any information that may flow through to
Operation Emerald, that:

s 47E(d)
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Duration and Review
4.7  Duration. These Protocols wil  operate until the Parties terminate them or
agree to their modification.
4.8  Review. The Parties may, in consultation with each other, review this
covering document or any of the attached Protocols at any time as agreed between
them. Such review may include the development of new protocols for the purpose of
supporting Operation Emerald. Revised versions of this covering document or the
supporting Protocols wil  come into effect when agreed to by all parties.
4.9  Updates to approved protocols wil  be issued as a variation to the most recent
version (for example, Version 1.1) and can be agreed at the Band 1 / 1 Star level.
New protocols wil  be issued as new versions (for example, Version 3.0) and wil  be
agreed no less than annually at the Band 1 / 1 Star level.
4.10  The Parties wil  review the appropriateness and effectiveness of these
Protocols, and this covering document, annual y to coincide with the end of the
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financial year.
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4.11  Staff Duties. The desk officer responsible for managing
POLICE    this document is
AIRTF SO1 Future Operations, Lieutenant Colonel
s 47E(c)
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contactable on:
IS
a.
Mobile:
s 47E(d)
FEDERAL
INFORMATION
b.
Email:
s 47E(d)
@defence.gov.au
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4.12  From the OSI, the desk officer respons
DOCUMENT  ible for managing this document is
s 47E(c)
OSI Legal and Policy contactabl
AUSTRALIAN  e on:
THIS  FREEDOM
a.
Mobile:
THE
s 47E(d) BY  THE
b.
Email:
s 47E(d)
@osi.gov.au

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Annex B to
Part 4 - Operation Emerald Protocols
March 2024
Current Defence Contacts with Access to Afghanistan Inquiry Report Un-Redacted Version3
Position
Name
Version
Held /
Access
Access issue date
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3 The persons listed below, work in or with the Department of Defence and have been granted access to Afghanistan Inquiry information up to and including ful  access to
the un-redacted version of the Afghanistan Inquiry report as approved by the Chief of the Defence Force through the AIRTF. The list provided does not include Major
General Paul Brereton or officers from the IGADF who have had any involvement in the Afghanistan Inquiry or any other officers involved in inquiries involving incidents in
Afghanistan in the period 2005 to 2016 (for example, Inquiry Officer inquiries). The list is current as at 1400h on Tuesday, 5 March 2024.
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Position
Name
Version
Held /
Access
Access issue date
s 47E(d)
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Historic Defence Contacts with Access to Afghanistan Inquiry Report Un-Redacted Version4
Position
Name
Version
Held /
Access
Date
Access  issue date  removed
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IS
s 47E(d)
FEDERAL
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4 The persons listed above, work or previously in or with the Department of Defence and have been granted access to Afghanistan Inquiry information up to and including
ful  access to the un-redacted version of the Afghanistan Inquiry report as approved by the Chief of the Defence Force through the AIRTF. The list provided does not include
Major General Paul Brereton or officers from the IGADF who have had any involvement in the Afghanistan Inquiry or any other officers involved in inquiries involving
incidents in Afghanistan in the period 2005 to 2016 (for example, Inquiry Officer inquiries). The list is current as at 1400h on Tuesday, 5 March 2024.
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Position
Name
Version
Held /
Access
Date
Access  issue date  removed
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Position
Name
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Held /
Access
Date
Access  issue date  removed
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Current Full Report Holding Location
Copy No
Location
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Current Identity Protected Report Holding Locations
Copy No
Location
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