26/04/2026
It’s a long read but useful background
🟠🇦🇺 LEST WE FORGET? 🟠
More than $300 million has been spent building a case against Victoria Cross recipient Ben Roberts-Smith, who was arrested at Sydney Airport on 7 April in front of his teenage daughters and charged with five counts of war crime murder.
Ben is entitled to the presumption of innocence. He is entitled to a fair trial.
THE LAW BEING USED AGAINST HIM WAS SIGNED BY JOHN HOWARD
The reason Ben is standing in an Australian courtroom at all is a law the Howard Government passed in 2002. Howard signed Australia up to the Rome Statute of the International Criminal Court and passed the International Criminal Court Act, which wrote war crimes directly into the Australian Criminal Code. Ben is being charged under section 268.70 of that Code.
The United States refused to ratify. Bush unsigned the treaty and passed the American Servicemembers' Protection Act to make sure no American soldier would ever be dragged through it. China didn't sign. India didn't sign. Russia didn't sign. Israel didn't sign. Turkey didn't sign
This L aw is now being used, more than a decade after the fact, to prosecute Australian soldiers for decisions made in the fog of a war where the enemy wore no uniform, used civilians as human shields, and staged fake surrenders to ambush
the father of a murdered Australian soldier, has said it plainly. He doesn't believe Ben can get a fair trial in this country. He said the allegations have dragged on for so long, and the media coverage has been so saturated, that it is almost impossible to seat a jury of twelve Australians with open minds on the evidence.
A jury, we might add, of civilians who have never set foot on a battlefield. Never carried a rifle through a compound at night. Never been in a situation to decide whether the man in front of them is about to kill them or is working for them for the man who walked onto a patrol base and shot them.
CATCH AND RELEASE PROBLEM
And consider this. Australian special forces in Afghanistan operated under what was known as a "catch and release" policy. They would risk their lives capturing suspected insurgents, often men they had watched plant IEDs that killed Australians and coalition soldiers, and hand them over to Afghan authorities for prosecution. Within 72 hours, those same insurgents were back on the battlefield. Free. Killing again. Sometimes the same units that captured them.
Andrew Hastie, the former SAS captain and now Liberal MP, was one of 21 SAS veterans subpoenaed by Nine Entertainment in the Roberts-Smith defamation trial. His evidence was given against Ben in that case, and it formed part of the testimony Justice Besanko relied on in his 2023 finding that the substantive truth defence succeeded. Hastie has publicly stated he was present on one of the 2012 operational missions the Federal Court examined, the same mission Ben is now facing criminal charges over. He may be called as a witness against Ben again.
In that same trial, Hastie testified under oath that Australia's "catch and release" policy "incentivized extrajudicial killing" by coalition forces. That is sworn evidence in the Federal Court of Australia. In his own words.
So one Liberal MP gave evidence used to help end a Victoria Cross recipient's defamation case, may be called to give evidence against him again in a criminal trial that could put him in prison for life, and even acknowledged on the stand that the policy environment was incentivising the very conduct soldiers are now being prosecuted for.
The Australian Government has the legal power to end this prosecution.
The Commonwealth Attorney-General has direct statutory authority under the Director of Public Prosecutions Act to issue directions to the CDPP, and under section 71 of the Judiciary Act to discontinue any Commonwealth prosecution committed for trial.
In July 2022, then Attorney-General Mark Dreyfus used section 71 to personally discontinue the prosecution of Canberra lawyer Bernard Collaery, who was facing charges over the Timor-Leste bugging scandal. Labor was willing to intervene to protect a lawyer they considered unjustly prosecuted.
The current Attorney-General is Michelle Rowland. Ben Roberts-Smith, VC, is facing a potential life sentence under a law Labor's own Government is enforcing, and the Prime Minister has declined to comment.
Forty-one Australians were killed in Afghanistan. Roughly half from the SAS and 2nd Commando Regiment. The ones who came home are watching themselves and their mates be investigated, charged, or quietly broken, over a war fought against an enemy who followed no rules.
Throughout that war, commanders authorised strikes and operations that took unknown numbers of lives alongside identified targets. Not one general has been charged. Not one minister has answered for the orders they signed. Just the men at the bottom of the chain.
Martin Hamilton-Smith, National Chairman of the SAS Association and an SAS veteran himself, has called the handling of these allegations a great injustice. He has warned publicly that we are heading for another Welcome Home parade in fifteen years time,
Sources
Hugh Poate interview, news.com.au, 25 April 2026
https://www.news.com.au/
Ben Roberts-Smith charges, Commonwealth Director of Public Prosecutions
https://www.cdpp.gov.au/attorney-general-cth-v-benjamin-roberts-smith
Hekmatullah release and Qatar transfer, SBS News
https://www.sbs.com.au/news/article/defence-unsure-of-location-of-rogue-afghan-soldier-who-murdered-three-australians/2kjos1n76
Australia's ratification of the Rome Statute, International Criminal Court
https://asp.icc-cpi.int/states-parties/western-european-and-other-states/australia
United States position on the Rome Statute, Human Rights Watch
https://www.hrw.org/news/2020/09/02/qa-international-criminal-court-and-united-states
Pauline Hanson statement in support of Ben Roberts-Smith, The Nightly
https://thenightly.com.au/politics/ben-roberts-smith-pauline-hanson-slams-disgraceful-arrest-in-front-of-war-veterans-daughters-c-22103678
OSI cost and 10-year investigation, Military.com
https://www.military.com/daily-news/investigations-and-features/2025/10/24/australian-government-spending-318m-investigate-afghanistan-war-soldiers.html
Mark Dreyfus discontinues Collaery prosecution under section 71, CDPP
https://www.cdpp.gov.au/news/prosecution-mr-bernard-collaery
Martin Hamilton-Smith on the handling of war crimes allegations, ASPI Strategist
https://www.aspistrategist.org.au/the-afghan-saga-of-bravery-allegations-and-betrayal/
Michelle Rowland appointed Attorney-General, Attorney-General's portfolio
https://ministers.ag.gov.au/hon-michelle-rowland-mp
Learn more about the Attorney-General, including who she is, what she is responsible for and what she does.
