Legal aid for war crimes defence

Taxpayers will fund the legal defence of special forces veterans facing war crimes charges under new advice agreed to by Linda Reynolds.

Defence Minister Linda Reynolds. Picture: AFP

Taxpayers will fund the legal defence of special forces veterans facing war crimes charges for alleged offences in Afghanistan under new advice agreed to by Defence Minister Linda Reynolds.

Victoria Cross recipient Ben Roberts-Smith is among former and serving special forces members who could successfully apply to have legal expenses paid by the government under updated guidelines published by Defence.

The advice sets out key criteria to be considered by departmental decision-makers when assessing applications for legal support in criminal and civil cases, ahead of findings by the Australian Defence Force’s Inspector-General into at least 55 alleged war crimes.

The criteria include the commonwealth’s duty of care to current and former members and their families, and “the need to ensure a fair trial by enabling adequate and competent legal representation”. The likely complexity of trials arising from the allegations being examined will also be specifically considered by decision-makers, along with the “welfare of applicants”.

One Defence source said: “Every bloke who went to Afghanistan and is facing charges resulting from the IGADF investigation will get the legal assistance they need.”

Previously, a Defence decision-maker considering an application for legal funding assistance needed to establish whether the applicant “acted reasonably and responsibly”. Special forces welfare organisations argued that would require members to disclose details of their legal defences, posing what they argued were unacceptable legal risks.

The cost of the ruling could run into the tens of millions of dollars, with those accused of war crimes likely to face legal bills of more than $1m each. Holding Redlich partner Howard Rapke, acting for at least one special forces soldier facing potential war crimes charges, said the new directions were welcome.

“These will not be like any ordinary criminal trials,” Mr Rapke told The Australian.

“These soldiers were ordered to deploy in our name into harm’s way. It is vital the ADF protect their presumption of innocence, and that means providing them with every means necessary to defend themselves in a fair trial.”

Defence confirmed it had already approved a number of applications in relation to the IGADF investigation or AFP investigations into special forces operations in Afghanistan.

The decision follows lobbying by independent senator Jackie Lambie, who called on Senator Reynolds in parliament to guarantee legal assistance to ADF members and veterans to ensure they “get a fair bloody trial”. “Is the minister aware that, because of this uncertainty, many of those under investigation are now contemplating mortgaging their family homes or commencing public GoFundMe pages to fund their criminal defence teams?” Senator Lambie asked in June.

In a letter to Senator Lambie last Friday, Senator Reynolds said government decision-makers would take into account “the unique situation of moral peril to which the commonwealth exposes ADF personnel through deployment on combat operations”.

The IGADF inquiry, led by NSW Supreme Court judge, Major General Paul Brereton, is due to report within weeks on alleged breaches of the laws of war by SAS and Commando operators in Afghanistan.

Mr Roberts-Smith – Australia’s most decorated living soldier – has been publicly accused of committing war crimes while serving with the SAS in ­Afghanistan. He has denied the allegations, claiming his anonymous accusers were motivated by professional jealousy and personal vendettas. He is suing Nine Entertainment over those allegations he says are false.

The AFP launched an investigation into Mr Roberts-Smith in 2018 over allegations he committed war crimes in Afghanistan after a referral by the IGADF.

The AFP is also investigating the killing of an apparently unarmed man in Afghanistan by an SAS soldier – seen in footage aired by Four Corners – following a referral from Senator Reynolds.