Labor Rejects Link Between Roberts-Smith Case and New Rules for Top Prosecutor

The Australian government has rejected suggestions that proposed changes to conflict-of-interest rules for the nation’s top federal prosecutor are linked to the prosecution of former SAS soldier Ben Roberts-Smith, despite questions over the timing of the reform.Roberts-Smith is a former Australian SAS soldier and Victoria Cross recipient who was arrested at Sydney Airport on April 7 and charged with five counts of the war crime of murder relating to alleged incidents during his service in Afghanistan between 2009 and 2012.The charges before the court, which Roberts-Smith denies, followed an investigation by the Australian Federal Police and the Office of the Special Investigator (OSI), which was established to investigate alleged criminal offences arising from possible breaches of the laws of armed conflict by Australian Defence Force personnel in Afghanistan.Generally, the OSI is tasked with investigating and compiling evidence, which is then presented to an independent prosecuting authority, like the Commonwealth Director of Public Prosecutions (CDPP), who then decide if it is worth laying charges.In the Roberts-Smith case, the CDPP is the main prosecuting authority.However, current CDPP Director Raelene Sharp KC, who was appointed in December 2023, was previously counsel assisting the OSI.Debate in the Senate on Aug. 12 focused on Labor’s Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2026 that will amend the Director of Public Prosecutions Act 1983 to allow another senior CDPP official step in if a conflict of interest occurred.Under current law, the CDPP director would have to take leave of their duties in the duration of the case.Liberal Senator Michaelia Cash posed questions to Labor Senator Nita Green over why the government was introducing the reform now.“Why is there now a pressing need to resolve conflict of interest issues with the director of the CDPP?” she asked.“Was this legislation created in anticipation of this potential conflict?”Green said it was not the government’s view that there was a current conflict of interest.“This legislation is not motivated by a particular proceeding,” Green said.Cash also sought confirmation that the new process could apply to the current director.“So, despite the Ben Roberts-Smith prosecution commencing before this legislation passes the parliament, the current CDPP is still going to be subject to the new process in the event a conflict arises?” Cash asked.“Correct,” Green said.Green said mechanisms already existed to manage conflicts of interest involving the CDPP director, and that the bill would seek to change how those conflicts may be handled.“This legislation changes what that process would be, and so the director of public prosecutions is subject to the current provisions and would be subject to the future provisions,” she said.When asked how many times potential conflict of interests involving the CDPP director had arisen in the past five years, Green said she would need to take the question on notice.Senator Queries Finer DetailsGreens senator and former barrister David Shoebridge then joined the debate, querying whether perceived or potential—not actual—conflicts of interest could also trigger current laws.“Many people might recognise there’s a perceived conflict of interest, even if they don’t recognise there as an actual one,” he said.Labor Senator Green confirmed her earlier responses to Cash applied to actual, perceived and potential conflicts of interest.Shoebridge also sought clarification on whether the new provisions would operate retrospectively.The government confirmed the changes would operate prospectively and could apply going forward to proceedings already in process, but would not retrospectively remedy any conflict-related issue that arose before the provisions took effect.The bill currently remains before the senate.