Victorian Supreme Court judge Mark Weinberg to lead war crimes inquiry

Victorian Supreme Court judge Mark Weinberg has been named the nation’s war crimes special investigator, among other key appointments.

Victorian Supreme Court judge Mark Weinberg.

One of the nation’s sharpest criminal law minds has been appointed to lead the complex investigation into alleged war crimes by Australian soldiers in Afghanistan.

Victorian Court of Appeal judge Mark Weinberg QC, who ruled that George Pell should be exonerated in a decision backed by the High Court, was named on Wednesday as the nation’s war crimes special investigator.

He will be backed by Attorney-General’s Department secretary Chris Moraitis, who has been appointed as the director-general of the Office of the Special Investigator, and former Queensland deputy police commissioner Ross Barnett, who will take the role of lead investigator.

In selecting the trio, to start work on January 4, the government has opted against legal figures with past military roles or direct war crimes experience.

In his new role, Justice Weinberg, 72, will be responsible for assessing the findings of the Brereton war crimes inquiry, and prepare briefs of evidence for the Commonwealth Director of Public Prosecutions.

The inquiry recommended potential prosecutions of up to 19 ­special forces soldiers over the ­alleged murders of 39 Afghan ­civilians and prisoners.

The OSI process will involve travel to Afghanistan to take statements from victims’ families, and high-risk decisions about the use of evidence obtained from witnesses under coercive questioning by Paul Brereton in his inquiry for the Inspector-General of the Australian Defence Force.

Justice Weinberg dissented with two other Victorian appeal judges when he ruled that Cardinal Pell’s convictions for sexually abusing two choir boys should be quashed because there was a significant possibility he may not have committed the offences. The High Court later unanimously threw out the convictions.

Justice Weinberg retired in 2018 from the Victorian Court of Appeal but has been an acting judge of the court, and has also served as a Federal Court judge.

He served as CDPP for three years to 1991, experience that may prove crucial in gathering evidence to build a prosecution case.

He also has significant criminal law experience as a barrister.

“Justice Weinberg has had a distinguished career and brings a wealth of experience to this very important work,” Home Affairs Minister Peter Dutton said.

Mr Dutton said Mr Moraitis, a former Department of Foreign Affairs and Trade official with international legal experience, would provide “strategic oversight and leadership to the operations of the Office of the Special Investigator”.

“Mr Moraitis is a highly ­regarded public servant with significant experience in complex policy and legal matters,” he said.

Mr Dutton said Mr Barnett, Queensland’s first racing integrity commissioner, was “one of the most distinguished officers in the Queensland police”.

Mr Moraitis has been the ­Attorney-General’s Department secretary since 2014.

His experience in international roles, including serving as Australia’s high commissioner to Papua New Guinea and diplomatic postings in Paris, Madrid and Geneva, will help the office gather evidence in ­Afghanistan to build cases.

Australian National University professor Don Rothwell said Justice Weinberg and Mr Moraitis were extremely well credentialed for their roles.

“Chris Moraitis was the co-author of the legal opinion in 2003 that the Howard government relied upon to intervene in Iraq,” he said.

“He has a very longstanding background as a government lawyer with a strong specialisation in international law. As a government lawyer, his credentials are very, very strong.”

Professor Rothwell said Mr Moraitis’ seniority within the public service meant he could navigate government in ways that those coming in from outside might find more difficult.

“That level of seniority within government lends weight to the seriousness with which the federal government is dealing with the matter,” he said.

He said Justice Weinberg also had “excellent credentials”. Although he did not have international experience as a war crimes prosecutor, he had the necessary qualities to perform the role of special investigator, Professor Rothwell said.

He said it was important, to maintain the credibility of the investigations process, that neither had served in military roles.

“It’s critical that they be at arm’s lengths from the military either as reservists or military lawyers … and don’t have previous associations with Defence,” Professor Rothwell said.