The arrest of Ben Roberts-Smith has already become much more than a criminal proceeding.
It’s a political, cultural and institutional test, and the speed with which public figures rushed into their preferred camps highlights this.
Before any indictment is tested in open court – indeed before the trial process has even begun – Australians are already arguing about this matter.
To some, Roberts-Smith remains a war hero and a Victoria Cross recipient who served in circumstances most civilians can’t even begin to understand.
To others, the arrest is an overdue reckoning after years of allegations, the Brereton inquiry, and a defamation case in which the Federal Court found, on the civil balance of probabilities standard, that allegations he murdered Afghan civilians were true.
The looming criminal case will be very different, and Roberts-Smith’s presumption of innocence remains formally intact, although you might not realise that if you only read certain commentary in the media.
Much of the country has already split behind two rival instincts that are now hardening almost beyond persuasion. Even Elon Musk weighed in on social media overnight.
The fracturing of opinions was visible in the language used by politicians and fellow travellers within hours of Roberts-Smith’s arrest on Tuesday.
Former SAS soldier Ben Roberts-Smith was charged with alleged war crimes on Tuesday
Pauline Hanson said that she remains steadfast in her support of Ben Roberts-Smith
Prime Minister Anthony Albanese chose evasion dressed up as restraint when he was asked about the case by journalists at a press conference on Tuesday. His first line was, ‘I have no intention of commenting on a matter that’s clearly before the courts.’
When pressed again by journalists, he said: ‘I have no intention of prejudicing a matter that clearly is a legal matter and that’s before the courts and any comment would do so.’
That was not a legal necessity; it was a political choice. There’s a vast distance between prejudicing a criminal proceeding and offering a measured statement about the gravity of the allegations, the importance of due process, the presumption of innocence, and the fact that the laws of armed conflict apply to Australians too.
Albo decided even that was too politically risky. In a case like this, silence is not neutrality.
It’s an attempt to stay clear of the blast radius. And by the way, Albo has been far from silent about other legal matters when it suited him to offer comment.
Former PM Tony Abbott went in the opposite direction and did so in a way that will resonate strongly with many conservatives, veterans and serving personnel.
‘Of course, there are rules that have to be observed and enforced, even against soldiers in times of war,’ he posted on X.
‘Still, it’s wrong to judge the actions of men in mortal combat by the standards of ordinary civilian life.
Ben Roberts-Smith (pictured) will spend the next two months behind bars after he was denied bail on Wednesday
‘I don’t understand how it can be justified to spend more than $300million to try for years to bring SAS veterans, who have served our country, towards criminal proceedings, and most recently the arrest of Ben,’ Gina Rinehart (pictured) said
The most sensible position is that Ben Roberts-Smith is entitled to the presumption of innocence in a criminal case, Daily Mail political editor, Peter Van Onselen (pictured) wrote
‘If Ben Roberts-Smith transgressed, why wasn’t this picked up prior to his gallantry awards and why wasn’t any culture of brutality towards prisoners detected by his more senior officers, and dealt with quickly, rather than being allowed to fester, as has been alleged, for over a decade?’
Fair points to be sure. It’s hard for many Australians to get their heads around those contradictions.
Abbott’s intervention does two things at once: It places Roberts-Smith inside a wider story about what governments ask elite soldiers to do, and it shifts some of the scrutiny back onto the chain of command and the state itself.
When governments deploy men into complex wars, with enemies who don’t fight by conventional rules, the state assumes certain obligations of care and command responsibility.
But Abbott’s formulation also risks blurring a crucial line. The law of war is not an optional peacetime luxury. It exists precisely for wartime.
Once the debate becomes one of civilian standards versus battlefield realities, it’s easier to imply that alleged murders of detained or unarmed men are just part of the fog of war.
One Nation leader Pauline Hanson was even blunter than Abbott, all but dismissing the rule of law as a process worth waiting for.
‘I remain steadfast in my support of Ben Roberts-Smith,’ she wrote. ‘Ben [and] his immediate and broader defence family need the Australian people’s support right now and I will not abandon him like so many other politicians.’
Former Prime Minister Tony Abbott (right) also extended his support to Roberts-Smith (left)
Ben Roberts-Smith (pictured with his partner Sarah) was arrested by AFP officers at Sydney Airport on Tuesday morning
That’s certainly not a show of support for due process, it’s political solidarity before any trial has even begun.
Hanson knows exactly where her constituency sits on this debate. Her reaction casts Roberts-Smith not as a defendant facing grave charges, but as a symbol of a broader betrayal – a decorated soldier cast aside by timid elites and agenda driven journalists.
Even abandoned by the state itself and its institutions, once they took from him what they wanted. Such framing has a populist audience, and a sizeable one at that.
Hanson’s comments will also intensify the tribalism around this case, because she’s effectively asking supporters to see any criticism of Roberts-Smith as abandonment, and any legal scrutiny as ingratitude.
Australia’s richest person, Gina Rinehart, went for a related but more nuanced argument.
‘I don’t understand how it can be justified to spend more than $300million to try for years to bring SAS veterans, who have served our country, towards criminal proceedings, and most recently the arrest of Ben,’ she said in a statement released late Tuesday night.
‘Surely, the more than $300million of taxpayers’ money would have been far better spent strengthening Australia’s security and keeping Australians safe from terrorism, including removing terrorists and their supporters from our country.’
That line of attack is politically potent right now because it speaks to state priorities, defence morale and the belief that Australia has turned inward against its own servicemen while becoming weaker externally.
Ben Roberts-Smith was a low-ranking corporal, a fact often forgotten given his high profile
It will certainly land with people who already think the country is too eager to moralise about its soldiers and too reluctant to defend itself.
But it doesn’t really engage with the substance of the allegations. To be fair to Rinehart, how can it at this early stage.
It does, however, suggest that even investigating such allegations may cost too much, take too long and damage military culture.
It therefore comes close to suggesting that accountability itself is the problem, or it has a price point beyond which it’s not worth the effort, at least in this case.
If Australia is serious about having an army bound by law, then investigating credible allegations of war crimes isn’t a distraction from national security, because discipline, legitimacy and lawful command are not enemies of military effectiveness.
But Roberts-Smith was a low-ranking corporal, a fact often forgotten given his high profile, which brings us back to Abbott’s queries about the chain of command and its accountability.
On the other side of this messy political divide, Greens senator David Shoebridge posted a screenshot of an article about the arrests, simply writing ‘Good’ alongside it.
The senator’s albeit glib one-worder captures the attitude that some Australians now have, after years of reporting and civil litigation:
Roberts-Smith (pictured) fronted a NSW court later on Wednesday
Greens senator David Shoebridge posted a screenshot of an article about the arrests, and wrote: ‘Good’
The bigger scandal isn’t the arrest but the delays until now. For one political camp, the disgrace is that a Victoria Cross recipient was arrested at all. For the other, it’s that it’s taken this long.
The AFP and the Office of the Special Investigator made matters worse by staging the arrest in a way that invited a spectacle.
The AFP and OSI put out a joint media release noting that: ‘Arrest vision [is] available via Hightail’ – a portal for sharing video – after which they issued another media release saying ‘Images of the arrest and the press conference are available via Hightail’, in case anyone missed the first cry for attention.
Soon afterwards the footage was everywhere, across the media and social media. All supplied by the Office of the Special Investigator, and released by the AFP.
This wasn’t simply an arrest witnessed by bystanders and captured by the media. It was done in a public place and distributed by the state.
There may have been operational reasons for arresting Roberts-Smith at Sydney domestic airport, but operational necessity doesn’t explain the decision to package the arrest visually and feed it out.
Nor does it explain why a man who has been in the public eye for years, who was hardly unknown to investigators, needed to be turned into an arrest video asset for public consumption.
His face may have been blurred, but everyone knew who it was. The effect was obvious: a dramatic public fall, captured and circulated by the authorities themselves. That looks cheap, to say the least.
It also looks theatrical: an agency more interested than it should be in the optics of a trophy arrest.
Even people who think Roberts-Smith should face trial ought to be able to see the problem there.
He’s not some criminal bikie nabbed at the airport attempting to flee the country, captured in grainy footage by bystanders who distributed the footage to the media. It was a classless display.
And this is what the next few years risks being like, unless a court sharply narrows the public space around the case.
Every development will be interpreted through prior loyalties. If the prosecution advances strongly, one side will say justice is finally catching up with Roberts-Smith. If it stumbles, the other side will say the whole thing was always an establishment vendetta.
Roberts-Smith isn’t just a defendant. He’s a vessel into which Australians are pouring their views about everything from the military to the moralising of elites and institutional overreach.
The most sensible position is that Roberts-Smith is entitled to the presumption of innocence in a criminal case.
The charges are grave and must be proved beyond reasonable doubt, not on instinct, not on reputation, and certainly not on a civil finding using the balance of probabilities, which is little better than a coin toss.
At the same time, being wrapped in medals doesn’t absolve anyone from serious allegations if they are found to be substantive.
A serious country can honour military service, insist on lawful conduct, reject trial by media, reject hero worshipping, and still object when police turn an arrest into a piece of state-produced visual theatrics.
We are about to find out if Australia still deserves to be taken seriously.
