Just a couple more points on BRS, responding to messages and comments.

“If it’s not a witch hunt from the government, how come they spent $300 million trying to convict him, and how come they changed the law in 2024 so he could be charged?”

“Why didn’t the government stop the Brereton enquiry?”

“Why don’t people leave him alone? He’s entitled to the presumption of innocence.”

There are four questions here, and I will answer them separately.

1.         The claimed amount of $300 million does not relate only to the cost of prosecuting Ben Roberts‑Smith. It is the total budget allocated to the Office of the Special Investigator (OSI) and related war‑crimes investigations in Afghanistan over about a decade. It covers dozens of cases involving multiple soldiers.

The OSI itself has clarified that this budget covers 53 investigations into alleged war crimes by Australian personnel in Afghanistan, with 39 already closed as of early 2026. The allegations against Ben Roberts‑Smith are only one of those cases.

2.         The 2024 changes to the Commonwealth Criminal Code had two major effects. These will take a bit longer to explain.

Firstly, Before 2024, section 268.121 of the Criminal Code required the Attorney‑General’s personal consent before an Australian citizen or resident could be prosecuted for genocide, crimes against humanity, or war crimes under Division 268. Section 268.122 also blocked judicial review of the Attorney‑General’s decision to grant or refuse that consent, except via the High Court’s original jurisdiction.

Both sides of politics agreed this provision was unnecessary, and made prosecutions for alleged war crimes potentially subject to political interference. It was removed in the 2024 amendments. This has no bearing on charges against crimes alleged to have been perpetrated by Australian servicemen in Afghanistan.

Secondly, the 2024 amendments clarified what was meant by “hors de combat.” This change was made better to reflect the original intention of the legislation, and to bring Australian legislation into line with international law. A person who is hors de combat is an enemy combatant, someone who had been taking an active part in hostilities, who:

  • Has surrendered or shows a clear intention to surrender.
  • Or is in captivity, that is, is a PUC or person under control.
  • Or is incapacitated because of unconsciousness, being shipwrecked, or severely disabled by wounds or sickness.
  • And in addition to one or more of the above, completely abstains from any hostile acts and does not try to escape.

Persons who meet these conditions are not subject to attack and must be treated humanely. Killing or torturing such a person is a crime under Australian and international law.

These changes are retrospective; they apply to any conduct engaged in on or after 26 September 2002, which is when the original war‑crimes division of the Criminal Code came into force. They may apply to future charges against Australian personnel. They have no relevance to any of the charges against BRS, because all of those charges relate to alleged murder of civilians – people who were not enemy combatants.

According to the Commonwealth Director of Public Prosecutions (CDPP) and the Australian Federal Police, those charges are as follows:

  • Charge 1 (12 April 2009, Kakarak, Uruzgan): War crime – murder (principal offence). Allegedly killing an Afghan man who was not taking active part in hostilities.
  • Charge 2 (12 April 2009, same incident): Aiding, abetting, counselling or procuring that same murder.
  • Charge 3 (11 September 2012, Darwan): Aiding, abetting, counselling or procuring a war crime – murder of a civilian.
  • Charge 4 (20 October 2012, Syahchow): Aiding, abetting, counselling or procuring a war crime – murder of a civilian.
  • Charge 5 (20 October 2012, Syahchow): Jointly committing a war crime – murder of a civilian.

The CDPP explicitly states the allegation is that Roberts-Smith “intentionally caused the deaths of five Afghan nationals who were not taking an active part in the hostilities” between 2009 and 2012. AFP Commissioner Krissy Barrett said the victims were “unarmed Afghan nationals who were not taking part in hostilities at the time of their alleged murder.”

3.         The government did not shut down the Brereton Inquiry for three reasons.

First, it had no legal authority to do so. The Brereton Inquiry was commissioned and overseen by the Inspector-General of the Australian Defence Force (IGADF). The IGADF is an independent statutory office created under Part VIIIB of the Defence Act 1903 (Cth). By law, the IGADF is free from direction; it and any assistant inspectors appointed to conduct inquiries (such as Justice Paul Brereton) operate independently of the ordinary military chain of command and direct executive government interference.

Second, shutting down a lawful enquiry into credible allegations of war crimes would severely damage our relationship with valued allies.

As one example, according to testimony by then‑Chief of the Defence Force, General Angus Campbell, to an Australian Senate committee in 2023:

In March 2021, the U.S. defence attaché in Canberra sent a letter to Australia’s Defence Department stating that the Brereton Report (the 2020 IGADF inquiry into Australian special forces in Afghanistan) raised “credible information regarding allegations of what the United States would classify as severe human rights violations”.

The letter warned that those findings “may invoke Leahy Law considerations concerning the relationship between the U.S. Armed Forces and a partner unit or organisation”.

The Leahy Laws (U.S. legislation) prohibit the U.S. government from providing military assistance or training to foreign security units where there is credible evidence of gross human rights violations, unless the host government takes steps to hold perpetrators accountable.

The third reason is that it is a matter of integrity, of truth and justice, that allegations of serious crimes be investigated. That is why investigations must proceed impartially and without interference, and, if there is going to be discussion, it needs to unemotional, clear, and careful.

4.        Finally, Ben Roberts Smith certainly is entitled to the presumption of innocence. No one has said otherwise. The argument online has not been between those who call the prosecution a conspiracy or a witch hunt and demand it be stopped, and those who say he is guilty. It is between the former and people who ask that the investigation and prosecution be allowed to run its course, that evidence be considered carefully.

In reality BRS has been granted that presumption to an extraordinary degree. This is evident in his having been granted bail, despite several factors which would normally be a barrier to release on bail being allowed.

Flight risk: The likelihood that the accused will fail to attend future court dates.

Roberts-Smith has travelled overseas 28 times since 2018, when public allegations of war crimes were first made against him. Unsealed court documents revealed that arrest was made necessary because Roberts-Smith was in the process of permanently relocating overseas. He had vacated his Brisbane rental apartment, hired an immigration lawyer, and booked a one-way flight to Spain scheduled for just five days after his arrest.

Community safety: The danger the accused poses to the public, victims, or family members.

It is entirely reasonable to have concerns that someone credibly accused of the multiple murder of civilians, and with a history of bullying witnesses (more on this below) poses an ongoing threat to members of the community.

Interference: The risk that the person might tamper with evidence, harass people, or interfere with witnesses.

Justice Besanko found that Roberts-Smith had threatened potential witnesses, had bullied and smeared fellow soldiers who could give evidence against him, and had hidden and conspired to hide evidence.

Strength of evidence: The weight and credibility of evidence against the accused.

Two Australian courts have already found the case against Roberts-Smith to have been demonstrated beyond the balance of probabilities.

Seriousness of the offence: The nature and severity of the alleged crime.

It is difficult to imagine more serious offenses than deliberate murder and aiding or abetting war crimes.

Under the Commonwealth Crimes Act, bail is not permitted to be granted for a person accused under Commonwealth law of causing the death of a person unless exceptional circumstances exist. Bail having been granted to BRS is exceptional, but is a clear application of the principle of the presumption of innocence.

All of this matters because justice matters. Justice for BRS, certainly, and also justice for his fellow soldiers, and most importantly, justice for those who were killed by the people whose job it was to protect them, and for their families.