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Speaker 1: In April this year, Ben Robert Smith was arrested and

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Speaker 1: charged with five counts of the war crime of murder.

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Speaker 1: He's now out on bail and maintains his innocence, and

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Speaker 1: One Nation has swung their support behind him. Now, the

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Speaker 1: minor party says it's also seeking to make a change

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Speaker 1: to the criminal code, a change that could make a

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Speaker 1: big difference to Robert Smith's upcoming trial. I'm Ruby Jones,

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Speaker 1: and you're listening to 7am. Today, journalist Ben McKelvie on

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Speaker 1: the law One Nation wants changed and what that could

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Speaker 1: mean for Australia's international standing. It's Thursday, October 1. So Ben,

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Speaker 1: there is this term in the Australian Criminal Code, order combat.

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Speaker 1: What does it mean?

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Speaker 2: Well, it's basically a definition that applies to people who

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Speaker 2: had been in combat previously and are no longer in combat.

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Speaker 2: So they're no longer directly participating in hostilities. So it's

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Speaker 2: essentially the term for somebody who is considered a prisoner.

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Speaker 2: And if somebody is a prisoner or a prisoner of war,

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Speaker 2: a person under confinement, even if they've been a combatant previously,

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Speaker 2: they can't be targeted now. So it's essentially the term

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Speaker 2: that stops people from rounding up prisoners and executing them.

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Speaker 2: Can you talk me through.

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Speaker 1: An example of how that might play out on the battlefield?

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Speaker 2: Yeah, well, I mean, it played out on the battlefield

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Speaker 2: in Afghanistan a lot. So it's particularly applicable to Australian

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Speaker 2: Special Forces actions in Afghanistan because something that happened a

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Speaker 2: lot was the Australian helicopters would come in, they might

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Speaker 2: be looking for a target, they'd sort of roll into

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Speaker 2: a village, everybody would pick up their weapons and they'd

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Speaker 2: start firing at the SAS or the commandos. And when

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Speaker 2: it became apparent that the Afghans were not going to

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Speaker 2: prevail in these engagements, They put their guns down and

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Speaker 2: basically put their hands up. And then they knew that

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Speaker 2: they would be captured by the Australians and then processed

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Speaker 2: by the Afghan legal system that was particularly porous. And

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Speaker 2: they'd basically be back in their village a few days later.

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Speaker 2: So all those people who, after they'd shot at Australian

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Speaker 2: soldiers and put their guns down, they were under Australian

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Speaker 2: law and international law, all to combat and could no

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Speaker 2: longer be targeted.

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Speaker 1: And so all to combat, this idea that people who

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Speaker 1: have surrendered shouldn't be harmed. That principle, it's enshrined in

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Speaker 1: Australian law. Tell me about how that came about.

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Speaker 2: Well, it's something that sort of existed in international law

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Speaker 2: for a long time. And then a long time previously,

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Speaker 2: there were sort of conventions around it. So, you know,

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Speaker 2: it's something that Shakespeare makes reference to in the Battle

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Speaker 2: of Ashencore and Henry V. It talks about the fact

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Speaker 2: that Henry V actually did kill some prisoners. And then

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Speaker 2: there's a character who talks about the fact that that's

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Speaker 2: really not the thing to do. So it was something

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Speaker 2: that wasn't a written convention for a long time. Sun

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Speaker 2: Tzu talks about it as well. You do not target prisoners.

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Speaker 2: And then slowly it's sort of become codified and it's

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Speaker 2: part of international humanitarian law now. In 2002, Australia was

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Speaker 2: becoming a signatory to the Rome Statute. Once we became

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Speaker 2: a signatory, then the International Criminal Court would have the

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Speaker 2: opportunity to bring Australian soldiers to the Hague and try

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Speaker 2: them for war crimes. And Australia wanted to have mirroring

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Speaker 2: legislation just to ensure that you can only take Australian

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Speaker 2: soldiers to the Hague if they haven't been tried by

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Speaker 2: an Australian court. And it was sort of done in

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Speaker 2: a little bit of a rush because we wanted to

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Speaker 2: get all those laws in before we signed up as

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Speaker 2: a signature of the Rome Statute. In the 2002 legislation,

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Speaker 2: there were stipulations for somebody to be order combat. You

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Speaker 2: had to have all those things apply. So you had

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Speaker 2: to be in the power of an opposing force and

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Speaker 2: you had to express an interest in surrendering. And then

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Speaker 2: come 2024, Oliver Schultz has been charged, an SAS trooper.

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Speaker 3: But tonight, a member of the SAS is in custody,

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Speaker 3: refused bail and charged with war crimes over the death

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Speaker 3: of a civilian in Afghanistan.

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Speaker 2: The Office of Special Investigator is looking at potentially charging

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Speaker 2: other people, including Ben Robert Smith. And then I would

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Speaker 2: imagine that somebody in the government went, let's go and

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Speaker 2: have a look at these laws and just make sure

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Speaker 2: that they are what they should be. And they found

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Speaker 2: what the government says is an error in the definition

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Speaker 2: of order combat.

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Speaker 1: So.

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Speaker 2: What they changed in 2024 was you either had to

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Speaker 2: be in the power of an opposing force or you

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Speaker 2: had to be actively trying to surrender.

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Speaker 1: So then the Albanese government, it updates the law in

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Speaker 1: 2024 to make it clear that a person doesn't actually

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Speaker 1: have to be captured and also say, I surrender, one

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Speaker 1: or the other is enough. But now One Nation, they

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Speaker 1: want to revert back to the old definition under which

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Speaker 1: a person has to really do both of those things

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Speaker 1: to get that legal protection.

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Speaker 4: One Nation will also be raising another amendment. The amendment

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Speaker 4: will restore the definition of whores to combat.

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Speaker 1: Tell me what One Nation have said about why they want.

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Speaker 4: To do that.

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Speaker 2: Well, they say that it's a question of procedural fairness.

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Speaker 4: There is a threshold of behaviour that is never acceptable.

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Speaker 4: But retrospectively, changing the legal expectations of combat puts veterans

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Speaker 4: in needless legal jeopardy.

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Speaker 2: And they were essentially saying that when people are allegedly offended,

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Speaker 2: this is the test that should apply when they go

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Speaker 2: to court because that's what happened when they allegedly offended.

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Speaker 2: That was also the case when they were arrested.

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Speaker 4: Our veterans should be judged by the law that existed

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Speaker 4: when they acted.

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Speaker 2: Basically what they were saying was that the rules of

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Speaker 2: the game can't be changed afterwards.

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Speaker 1: Do they have a point there about retrospective changes? Is

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Speaker 1: it fair to judge someone under a new standard when

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Speaker 1: whatever their actions were, they fell under a different definition

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Speaker 1: of the law at the time in which they allegedly

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Speaker 1: did it?

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Speaker 2: I actually have no idea. And I'm not sure that

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Speaker 2: anyone knows because, you know, Australia hasn't tried anyone for

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Speaker 2: a war crime previously. So war crime murder is going

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Speaker 2: to be something that's going to be brand new for

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Speaker 2: an Australian court. You know, will it be a case

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Speaker 2: of going back to what the intention of the law

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Speaker 2: was and that'll be accepted by a judge? You know, possibly.

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Speaker 2: You know, the letter of the law and these, you know,

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Speaker 2: these retrospective changes, is it something that a judge is

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Speaker 2: not going to accept? I don't think that's likely, but

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Speaker 2: I guess it's possible. We don't really know what's going

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Speaker 2: to be the case here.

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Speaker 1: Coming up, would a change put us out of step

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Speaker 1: with international humanitarian law? Ben, can you tell me a

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Speaker 1: bit more about the potential consequences here if the law

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Speaker 1: was to revert to its 2002 definition, what that might

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Speaker 1: mean for a case like Ben Robert Smith's?

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Speaker 2: Yeah, I mean, it could mean everything for a case

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Speaker 2: like Ben Robert Smith's and especially for Oliver Schultz's as well,

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Speaker 2: because it's going to be relatively easy to argue that

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Speaker 2: those people have been combatants previously. And if the law

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Speaker 2: had been changed, then the onus is essentially on the

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Speaker 2: person that was killed. saying, can you prove that that

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Speaker 2: person did actually try to surrender? And we've seen the

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Speaker 2: video of the Oliver Schultz killing. That was something that

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Speaker 2: was on Four Corners. The victim or alleged victim is

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Speaker 2: certainly somebody who was under control of an adverse power.

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Speaker 2: But did he say, I surrender? Was he indicating that

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Speaker 2: he wanted to surrender? I don't know. Okay.

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Speaker 1: And so in terms of the timing of all of this,

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Speaker 1: is One Nation directly linking their proposal for change to

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Speaker 1: these cases?

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Speaker 2: Yeah, they haven't said that this is specifically linked around

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Speaker 2: the Ben Robert Smith case or the Oliver Shultz case,

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Speaker 2: but they have said that this is something that they

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Speaker 2: would like to do before these matters are heard before

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Speaker 2: a judge or potentially before an appeal as well, because

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Speaker 2: they might be salient to the outcomes.

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Speaker 1: And obviously, this is becoming entangled with this much broader

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Speaker 1: political argument around Ben Robert Smith. Why do you think

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Speaker 1: it is that One Nation is throwing its support behind

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Speaker 1: Robert Smith in the way that it is?

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Speaker 2: Well, I mean, we have seen some polling talking about

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Speaker 2: the support of Ben Robert Smith in potential voters for

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Speaker 2: One Nation. I do think that they think that it's

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Speaker 2: a winner for them. The senator says her support of

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Speaker 2: Ben Robert Smith is anything but political. Instead, she says

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Speaker 2: she identifies with the former soldier.

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Speaker 4: I just hope that he gets a fair trial.

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Speaker 2: Pauline Hanson herself has spoken about Ben Robert Smith, saying that,

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Speaker 2: you know, he's one of us.

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Speaker 4: I can't stress enough. I've worn his shoes with this.

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Speaker 4: I've faced a criminal trial for six weeks.

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Speaker 2: You know, if the government can do what they're doing

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Speaker 2: to him, then they can do that to us also.

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Speaker 2: The thing that is actually more surprising isn't that One

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Speaker 2: Nation is trying to do this. The thing that sort

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Speaker 2: of surprised me is that the coalition is behind them

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Speaker 2: in the Senate with the wording.

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Speaker 5: The Coalition will be supporting the amendments moved by us

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Speaker 5: in the Bell on behalf of One Nation.

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Speaker 2: Michaela Cash has said that they were misled by the

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Speaker 2: government in 2024.

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Speaker 5: In 2024, the Coalition supported the government's amendment to the

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Speaker 5: definition of whores to combat on the basis of clear

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Speaker 5: assurances by the then Attorney-General Mark Dreyfus.

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Speaker 2: Which was a little bit surprising because the definition is, you.

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Speaker 1: Know, perhaps.

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Speaker 2: 80 words, you know, it had been 80 words previously,

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Speaker 2: then 80 words afterwards. And, you know, it changed pretty

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Speaker 2: significantly with a plain reading of those definitions.

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Speaker 3: Okay.

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Speaker 1: And so if the concern here is that if Australia

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Speaker 1: restores that 2002 definition, is it that our war crime

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Speaker 1: laws then wouldn't line up with international humanitarian law anymore?

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Speaker 1: And what would that mean?

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Speaker 2: Well, I mean, that could potentially mean that after people

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Speaker 2: like Ben Robertsmith and Oliver Shultz had cleared in an

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Speaker 2: Australian court, then the ICC could step in and issue

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Speaker 2: a writ for an appearance at the Hague for these people.

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Speaker 2: I think it's highly unlikely from a practical perspective, but

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Speaker 2: when Australia drafted these laws in 2002, it's the last

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Speaker 2: thing that they wanted. What they actually had in mind

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Speaker 2: is ensuring that there's no daylight between Australian law and

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Speaker 2: international criminal law just to ensure that having signed the

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Speaker 2: Rome Statute, the Australian soldiers can't be prosecuted in The Hague.

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Speaker 1: And that's all part of this, isn't it? Because ultimately

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Speaker 1: there is this much bigger argument from One Nation that

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Speaker 1: Australia shouldn't be bound by international institutions and international law

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Speaker 1: in the first place. So how do you see that

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Speaker 1: playing out?

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Speaker 2: Yeah, I mean, I think the incorrect drafting of this

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Speaker 2: definition of order of combat could have huge ramifications going forward.

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Speaker 2: There hasn't really been a public argument yet about, well,

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Speaker 2: do we actually care about the International Criminal Court? And,

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Speaker 2: you know, do we want to be bound by their rules?

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Speaker 2: But this is something that could sort of force an

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Speaker 2: argument on that. And kind of the worst part about it,

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Speaker 2: I guess, if you're the government, is that, you know,

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Speaker 2: One Nation does have a relatively compelling argument. You know,

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Speaker 2: this was the Australian law for 22 years. And then

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Speaker 2: we actually have an application of this law and then

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Speaker 2: we'd like to change it because we potentially made a

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Speaker 2: mistake and, you know, we haven't sort of gone back

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Speaker 2: and figured out where and why there was a mistake. So,

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Speaker 2: you know, on its face, I do think that the

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Speaker 2: One Nation argument is relatively strong.

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Speaker 1: Well, Ben, thank you so much for your time.

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Speaker 5: Cheers, Renee.

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Speaker 1: Also in the news, the Greens have chosen David Shoebridge

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Speaker 1: as their new federal leader after Larissa Waters stepped down

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Speaker 1: earlier this week. Senator Shoebridge from New South Wales won

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Speaker 1: a three-way contest against former Deputy Leader and Senator Maureen

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Speaker 1: Faruqi and Senator Sarah Hansen-Young. The decision comes after Larissa

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Speaker 1: Waters resigned as leader on Monday, revealing she was stepping

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Speaker 1: aside from the role to deal with chronic kidney disease.

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Speaker 1: And new figures show annual headline inflation jumped to 4%

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Speaker 1: in August, up from 3.5% in July. Trimmed mean inflation,

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Speaker 1: the Reserve Bank's preferred measure of underlying inflation, remained steady

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Speaker 1: at 3.6% for the third month in a row. It

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Speaker 1: comes after the Reserve Bank lifted interest rates for the

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Speaker 1: fourth time this year to their highest level in 15 years.

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Speaker 1: I'm Ruby Jones. This is 7am.

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Speaker 2: Thanks for listening.

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Speaker 1: You