Prosecution of Ben Roberts-Smith

Question

1. Does the Department agree with the conclusion of the Senate Standing Committee for the Scrutiny of Bills report "Scrutiny Digest 12 of 2024" where it stated the following: "No information has been provided as to whether the retrospective application of this definition will have a detrimental impact on any person. This is particularly relevant noting that this could potentially make a person liable to a criminal offence of having committed a war crime, punishable by life imprisonment, that they may otherwise not be liable for (under Australian law). It may also apply to existing court proceedings (if they have not been finally determined)." 2. If the amendment to the hors de combat definition was simply to clarify its operation, why was it necessary to make it retrospective? 3. In the Estimates hearing of 25 May, 2026 Ms Chidgey said in relation to the hors de combat changes "Parliament's intention back in 2002 was for consistency", how can you determine Parliament had a different intention to what was explicitly passed by that Parliament? 4. Are you aware of other differences between the Rome Statute and what Parliament passed in 2002? If Parliament's intention was consistency, wouldn't it have simply templated the treaty in all respects, yet it didn't? 5. If the parliament was to carve out the retrospective application of this amendment, meaning it is only prospective, what would the consequences of that be? 6. In the consent to prosecute approved by the Attorney General, was the jurisdiction of arrest included in the consent?

Answer

Please see attached answer.

Documents

• Question with answer (PDF) (opens in a new tab)
• BE26-173.pdf (opens in a new tab)