# Ben Roberts-Smith and the One Nation law change that could impact his trial

An episode of [7am](https://invisiblenetwork.ai/podcast/1461999702), 30 Sep 2026, 13 min.

Audio: https://p.podderapp.com/2544644999/traffic.omny.fm/d/clips/2fb3740d-3436-44af-8cc0-a91900716aa5/62723a1f-3e96-4fc4-882c-b25e0181da4d/42af60ba-0c0f-4961-a3c2-b4d500570674/audio.mp3?utm_source=Podcast&in_playlist=70f29d90-2a63-48aa-bf8f-b25e0181da70

In April this year, Ben Roberts-Smith was arrested and charged with five counts of the war crime of murder. He’s now out on bail and maintains his innocence – and One Nation has swung its support behind him. Now, the minor party says it’s also seeking to make a change to the criminal code — a change that could make a big difference to Roberts-Smith’s upcoming trial. Today, journalist Ben McKelvey on the law One Nation wants changed — and what that could mean for Australia’s international standing. If you enjoy 7am, the best way you can support us is by making a contribution at 7ampodcast.com.au/support. Socials: Stay in touch with us on Instagram Guest: Journalist Ben McKelvey Photo: AAP Image/Russell Freeman See omnystudio.com/listener for privacy information.

## Transcript

[0:00] Speaker 1: In April this year, Ben Robert Smith was arrested and
[0:03] Speaker 1: charged with five counts of the war crime of murder.
[0:06] Speaker 1: He's now out on bail and maintains his innocence, and
[0:09] Speaker 1: One Nation has swung their support behind him. Now, the
[0:13] Speaker 1: minor party says it's also seeking to make a change
[0:15] Speaker 1: to the criminal code, a change that could make a
[0:18] Speaker 1: big difference to Robert Smith's upcoming trial. I'm Ruby Jones,
[0:25] Speaker 1: and you're listening to 7am. Today, journalist Ben McKelvie on
[0:31] Speaker 1: the law One Nation wants changed and what that could
[0:34] Speaker 1: mean for Australia's international standing. It's Thursday, October 1. So Ben,
[0:49] Speaker 1: there is this term in the Australian Criminal Code, order combat.
[0:54] Speaker 1: What does it mean?
[0:55] Speaker 2: Well, it's basically a definition that applies to people who
[0:58] Speaker 2: had been in combat previously and are no longer in combat.
[1:02] Speaker 2: So they're no longer directly participating in hostilities. So it's
[1:06] Speaker 2: essentially the term for somebody who is considered a prisoner.
[1:10] Speaker 2: And if somebody is a prisoner or a prisoner of war,
[1:12] Speaker 2: a person under confinement, even if they've been a combatant previously,
[1:15] Speaker 2: they can't be targeted now. So it's essentially the term
[1:19] Speaker 2: that stops people from rounding up prisoners and executing them.
[1:24] Speaker 2: Can you talk me through.
[1:25] Speaker 1: An example of how that might play out on the battlefield?
[1:29] Speaker 2: Yeah, well, I mean, it played out on the battlefield
[1:30] Speaker 2: in Afghanistan a lot. So it's particularly applicable to Australian
[1:34] Speaker 2: Special Forces actions in Afghanistan because something that happened a
[1:36] Speaker 2: lot was the Australian helicopters would come in, they might
[1:40] Speaker 2: be looking for a target, they'd sort of roll into
[1:42] Speaker 2: a village, everybody would pick up their weapons and they'd
[1:44] Speaker 2: start firing at the SAS or the commandos. And when
[1:47] Speaker 2: it became apparent that the Afghans were not going to
[1:50] Speaker 2: prevail in these engagements, They put their guns down and
[1:52] Speaker 2: basically put their hands up. And then they knew that
[1:55] Speaker 2: they would be captured by the Australians and then processed
[1:58] Speaker 2: by the Afghan legal system that was particularly porous. And
[2:01] Speaker 2: they'd basically be back in their village a few days later.
[2:04] Speaker 2: So all those people who, after they'd shot at Australian
[2:07] Speaker 2: soldiers and put their guns down, they were under Australian
[2:10] Speaker 2: law and international law, all to combat and could no
[2:13] Speaker 2: longer be targeted.
[2:15] Speaker 1: And so all to combat, this idea that people who
[2:18] Speaker 1: have surrendered shouldn't be harmed. That principle, it's enshrined in
[2:23] Speaker 1: Australian law. Tell me about how that came about.
[2:26] Speaker 2: Well, it's something that sort of existed in international law
[2:30] Speaker 2: for a long time. And then a long time previously,
[2:32] Speaker 2: there were sort of conventions around it. So, you know,
[2:35] Speaker 2: it's something that Shakespeare makes reference to in the Battle
[2:37] Speaker 2: of Ashencore and Henry V. It talks about the fact
[2:40] Speaker 2: that Henry V actually did kill some prisoners. And then
[2:44] Speaker 2: there's a character who talks about the fact that that's
[2:45] Speaker 2: really not the thing to do. So it was something
[2:48] Speaker 2: that wasn't a written convention for a long time. Sun
[2:50] Speaker 2: Tzu talks about it as well. You do not target prisoners.
[2:53] Speaker 2: And then slowly it's sort of become codified and it's
[2:56] Speaker 2: part of international humanitarian law now. In 2002, Australia was
[3:02] Speaker 2: becoming a signatory to the Rome Statute. Once we became
[3:05] Speaker 2: a signatory, then the International Criminal Court would have the
[3:09] Speaker 2: opportunity to bring Australian soldiers to the Hague and try
[3:12] Speaker 2: them for war crimes. And Australia wanted to have mirroring
[3:16] Speaker 2: legislation just to ensure that you can only take Australian
[3:20] Speaker 2: soldiers to the Hague if they haven't been tried by
[3:23] Speaker 2: an Australian court. And it was sort of done in
[3:25] Speaker 2: a little bit of a rush because we wanted to
[3:27] Speaker 2: get all those laws in before we signed up as
[3:30] Speaker 2: a signature of the Rome Statute. In the 2002 legislation,
[3:34] Speaker 2: there were stipulations for somebody to be order combat. You
[3:38] Speaker 2: had to have all those things apply. So you had
[3:40] Speaker 2: to be in the power of an opposing force and
[3:44] Speaker 2: you had to express an interest in surrendering. And then
[3:48] Speaker 2: come 2024, Oliver Schultz has been charged, an SAS trooper.
[3:52] Speaker 3: But tonight, a member of the SAS is in custody,
[3:56] Speaker 3: refused bail and charged with war crimes over the death
[4:00] Speaker 3: of a civilian in Afghanistan.
[4:02] Speaker 2: The Office of Special Investigator is looking at potentially charging
[4:05] Speaker 2: other people, including Ben Robert Smith. And then I would
[4:08] Speaker 2: imagine that somebody in the government went, let's go and
[4:10] Speaker 2: have a look at these laws and just make sure
[4:12] Speaker 2: that they are what they should be. And they found
[4:15] Speaker 2: what the government says is an error in the definition
[4:18] Speaker 2: of order combat.
[4:20] Speaker 1: So.
[4:21] Speaker 2: What they changed in 2024 was you either had to
[4:24] Speaker 2: be in the power of an opposing force or you
[4:27] Speaker 2: had to be actively trying to surrender.
[4:36] Speaker 1: So then the Albanese government, it updates the law in
[4:40] Speaker 1: 2024 to make it clear that a person doesn't actually
[4:43] Speaker 1: have to be captured and also say, I surrender, one
[4:47] Speaker 1: or the other is enough. But now One Nation, they
[4:50] Speaker 1: want to revert back to the old definition under which
[4:53] Speaker 1: a person has to really do both of those things
[4:56] Speaker 1: to get that legal protection.
[4:58] Speaker 4: One Nation will also be raising another amendment. The amendment
[5:01] Speaker 4: will restore the definition of whores to combat.
[5:04] Speaker 1: Tell me what One Nation have said about why they want.
[5:06] Speaker 4: To do that.
[5:07] Speaker 2: Well, they say that it's a question of procedural fairness.
[5:10] Speaker 4: There is a threshold of behaviour that is never acceptable.
[5:14] Speaker 4: But retrospectively, changing the legal expectations of combat puts veterans
[5:20] Speaker 4: in needless legal jeopardy.
[5:22] Speaker 2: And they were essentially saying that when people are allegedly offended,
[5:26] Speaker 2: this is the test that should apply when they go
[5:28] Speaker 2: to court because that's what happened when they allegedly offended.
[5:31] Speaker 2: That was also the case when they were arrested.
[5:33] Speaker 4: Our veterans should be judged by the law that existed
[5:35] Speaker 4: when they acted.
[5:36] Speaker 2: Basically what they were saying was that the rules of
[5:39] Speaker 2: the game can't be changed afterwards.
[5:41] Speaker 1: Do they have a point there about retrospective changes? Is
[5:44] Speaker 1: it fair to judge someone under a new standard when
[5:48] Speaker 1: whatever their actions were, they fell under a different definition
[5:52] Speaker 1: of the law at the time in which they allegedly
[5:55] Speaker 1: did it?
[5:56] Speaker 2: I actually have no idea. And I'm not sure that
[5:58] Speaker 2: anyone knows because, you know, Australia hasn't tried anyone for
[6:01] Speaker 2: a war crime previously. So war crime murder is going
[6:04] Speaker 2: to be something that's going to be brand new for
[6:05] Speaker 2: an Australian court. You know, will it be a case
[6:10] Speaker 2: of going back to what the intention of the law
[6:12] Speaker 2: was and that'll be accepted by a judge? You know, possibly.
[6:16] Speaker 2: You know, the letter of the law and these, you know,
[6:19] Speaker 2: these retrospective changes, is it something that a judge is
[6:21] Speaker 2: not going to accept? I don't think that's likely, but
[6:24] Speaker 2: I guess it's possible. We don't really know what's going
[6:26] Speaker 2: to be the case here.
[6:33] Speaker 1: Coming up, would a change put us out of step
[6:35] Speaker 1: with international humanitarian law? Ben, can you tell me a
[6:48] Speaker 1: bit more about the potential consequences here if the law
[6:52] Speaker 1: was to revert to its 2002 definition, what that might
[6:56] Speaker 1: mean for a case like Ben Robert Smith's?
[6:59] Speaker 2: Yeah, I mean, it could mean everything for a case
[7:01] Speaker 2: like Ben Robert Smith's and especially for Oliver Schultz's as well,
[7:04] Speaker 2: because it's going to be relatively easy to argue that
[7:08] Speaker 2: those people have been combatants previously. And if the law
[7:11] Speaker 2: had been changed, then the onus is essentially on the
[7:15] Speaker 2: person that was killed. saying, can you prove that that
[7:17] Speaker 2: person did actually try to surrender? And we've seen the
[7:21] Speaker 2: video of the Oliver Schultz killing. That was something that
[7:23] Speaker 2: was on Four Corners. The victim or alleged victim is
[7:26] Speaker 2: certainly somebody who was under control of an adverse power.
[7:30] Speaker 2: But did he say, I surrender? Was he indicating that
[7:33] Speaker 2: he wanted to surrender? I don't know. Okay.
[7:36] Speaker 1: And so in terms of the timing of all of this,
[7:39] Speaker 1: is One Nation directly linking their proposal for change to
[7:43] Speaker 1: these cases?
[7:44] Speaker 2: Yeah, they haven't said that this is specifically linked around
[7:46] Speaker 2: the Ben Robert Smith case or the Oliver Shultz case,
[7:48] Speaker 2: but they have said that this is something that they
[7:50] Speaker 2: would like to do before these matters are heard before
[7:53] Speaker 2: a judge or potentially before an appeal as well, because
[7:55] Speaker 2: they might be salient to the outcomes.
[7:58] Speaker 1: And obviously, this is becoming entangled with this much broader
[8:01] Speaker 1: political argument around Ben Robert Smith. Why do you think
[8:05] Speaker 1: it is that One Nation is throwing its support behind
[8:08] Speaker 1: Robert Smith in the way that it is?
[8:10] Speaker 2: Well, I mean, we have seen some polling talking about
[8:12] Speaker 2: the support of Ben Robert Smith in potential voters for
[8:15] Speaker 2: One Nation. I do think that they think that it's
[8:18] Speaker 2: a winner for them. The senator says her support of
[8:21] Speaker 2: Ben Robert Smith is anything but political. Instead, she says
[8:24] Speaker 2: she identifies with the former soldier.
[8:26] Speaker 4: I just hope that he gets a fair trial.
[8:30] Speaker 2: Pauline Hanson herself has spoken about Ben Robert Smith, saying that,
[8:34] Speaker 2: you know, he's one of us.
[8:35] Speaker 4: I can't stress enough. I've worn his shoes with this.
[8:39] Speaker 4: I've faced a criminal trial for six weeks.
[8:41] Speaker 2: You know, if the government can do what they're doing
[8:43] Speaker 2: to him, then they can do that to us also.
[8:45] Speaker 2: The thing that is actually more surprising isn't that One
[8:48] Speaker 2: Nation is trying to do this. The thing that sort
[8:49] Speaker 2: of surprised me is that the coalition is behind them
[8:53] Speaker 2: in the Senate with the wording.
[8:55] Speaker 5: The Coalition will be supporting the amendments moved by us
[8:58] Speaker 5: in the Bell on behalf of One Nation.
[9:02] Speaker 2: Michaela Cash has said that they were misled by the
[9:05] Speaker 2: government in 2024.
[9:06] Speaker 5: In 2024, the Coalition supported the government's amendment to the
[9:10] Speaker 5: definition of whores to combat on the basis of clear
[9:14] Speaker 5: assurances by the then Attorney-General Mark Dreyfus.
[9:19] Speaker 2: Which was a little bit surprising because the definition is, you.
[9:22] Speaker 1: Know, perhaps.
[9:23] Speaker 2: 80 words, you know, it had been 80 words previously,
[9:27] Speaker 2: then 80 words afterwards. And, you know, it changed pretty
[9:30] Speaker 2: significantly with a plain reading of those definitions.
[9:34] Speaker 3: Okay.
[9:34] Speaker 1: And so if the concern here is that if Australia
[9:38] Speaker 1: restores that 2002 definition, is it that our war crime
[9:44] Speaker 1: laws then wouldn't line up with international humanitarian law anymore?
[9:49] Speaker 1: And what would that mean?
[9:51] Speaker 2: Well, I mean, that could potentially mean that after people
[9:55] Speaker 2: like Ben Robertsmith and Oliver Shultz had cleared in an
[9:57] Speaker 2: Australian court, then the ICC could step in and issue
[10:00] Speaker 2: a writ for an appearance at the Hague for these people.
[10:04] Speaker 2: I think it's highly unlikely from a practical perspective, but
[10:06] Speaker 2: when Australia drafted these laws in 2002, it's the last
[10:09] Speaker 2: thing that they wanted. What they actually had in mind
[10:12] Speaker 2: is ensuring that there's no daylight between Australian law and
[10:16] Speaker 2: international criminal law just to ensure that having signed the
[10:20] Speaker 2: Rome Statute, the Australian soldiers can't be prosecuted in The Hague.
[10:24] Speaker 1: And that's all part of this, isn't it? Because ultimately
[10:27] Speaker 1: there is this much bigger argument from One Nation that
[10:31] Speaker 1: Australia shouldn't be bound by international institutions and international law
[10:36] Speaker 1: in the first place. So how do you see that
[10:38] Speaker 1: playing out?
[10:39] Speaker 2: Yeah, I mean, I think the incorrect drafting of this
[10:42] Speaker 2: definition of order of combat could have huge ramifications going forward.
[10:46] Speaker 2: There hasn't really been a public argument yet about, well,
[10:49] Speaker 2: do we actually care about the International Criminal Court? And,
[10:52] Speaker 2: you know, do we want to be bound by their rules?
[10:54] Speaker 2: But this is something that could sort of force an
[10:56] Speaker 2: argument on that. And kind of the worst part about it,
[10:59] Speaker 2: I guess, if you're the government, is that, you know,
[11:01] Speaker 2: One Nation does have a relatively compelling argument. You know,
[11:06] Speaker 2: this was the Australian law for 22 years. And then
[11:10] Speaker 2: we actually have an application of this law and then
[11:12] Speaker 2: we'd like to change it because we potentially made a
[11:15] Speaker 2: mistake and, you know, we haven't sort of gone back
[11:17] Speaker 2: and figured out where and why there was a mistake. So,
[11:20] Speaker 2: you know, on its face, I do think that the
[11:23] Speaker 2: One Nation argument is relatively strong.
[11:26] Speaker 1: Well, Ben, thank you so much for your time.
[11:29] Speaker 5: Cheers, Renee.
[11:42] Speaker 1: Also in the news, the Greens have chosen David Shoebridge
[11:45] Speaker 1: as their new federal leader after Larissa Waters stepped down
[11:48] Speaker 1: earlier this week. Senator Shoebridge from New South Wales won
[11:52] Speaker 1: a three-way contest against former Deputy Leader and Senator Maureen
[11:55] Speaker 1: Faruqi and Senator Sarah Hansen-Young. The decision comes after Larissa
[12:00] Speaker 1: Waters resigned as leader on Monday, revealing she was stepping
[12:03] Speaker 1: aside from the role to deal with chronic kidney disease.
[12:09] Speaker 1: And new figures show annual headline inflation jumped to 4%
[12:12] Speaker 1: in August, up from 3.5% in July. Trimmed mean inflation,
[12:17] Speaker 1: the Reserve Bank's preferred measure of underlying inflation, remained steady
[12:21] Speaker 1: at 3.6% for the third month in a row. It
[12:25] Speaker 1: comes after the Reserve Bank lifted interest rates for the
[12:28] Speaker 1: fourth time this year to their highest level in 15 years.
[12:31] Speaker 1: I'm Ruby Jones. This is 7am.
[12:34] Speaker 2: Thanks for listening.
[12:40] Speaker 1: You

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