Only Cheats Change the Rules Mid-Game

If someone changes the rules mid-game because it looks like they’re going to lose, we’d instantly call them out for cheating. When a government slyly changes the long-established definition of a war crime, right in the middle of a trial (with another, high-profile trial looming), what should we call it, then?

Because that’s exactly what the Albanese government has done.

In 2024, while the first Australian soldier charged with a war crime in 30 years was already before the courts, the Albanese government quietly rewrote the definition of ‘hors de combat’ (out of combat) in the Criminal Code. The change was slipped into an omnibus bill, retrospective to 2002, and now applies to the prosecution of Oliver Schulz and the looming case against Victoria Cross recipient Ben Roberts-Smith.

Labor successfully changed the definition in 2024 to make it less difficult for the prosecution to prove a victim was “out of combat” by establishing just two grounds that must be satisfied, instead of all three.

Since the law was introduced in 2002, the prosecution had to prove a victim was under the power of an “adverse party”, expressed an intention to surrender or could not defend themselves, and did not act in hostility and attempt to escape.

The argument collapsed if all three criteria could not be met, but the government’s changes require only that the victim was not hostile and tried to escape, along with any one of the other elements.

The watered-down changes were also applied retrospectively, capturing “any conduct engaged in or after September 26, 2002”, including court cases that have not been finalised.

Two grounds instead of three. Easier to ‘prove’. Harder to defend.

That’s on top of such egregious actions as the government actively fishing for complaints and ‘witnesses’ being showered with accommodation and expenses for dozens of their extended families. Not to mention taking at face value the claims of barely-intelligible hill tribesmen who openly stated their hatred of the “infidels”.

The government insists it was merely fixing a ‘drafting error’ and aligning Australia with international law. If the original definition really was a 22-year-old mistake, why wait until the moment it mattered most to Australian soldiers?

A Senate standing committee was not convinced. It warned that retrospective application back to 2002 breached the basic rule of law that people cannot be charged with offences that were not illegal at the time. The committee noted Labor had provided “no information” about the impact on individuals already facing proceedings.

A legal expert, who preferred to remain anonymous, said retrospective legislation “increases the likelihood that a person will be tried and found guilty of criminal offences, particularly serious criminal offences”.

In the common law tradition that underpins our system, retrospective criminal laws are treated with deep suspicion precisely because they allow the state to move the goalposts after the play has begun. Nulla poena sine lege – no punishment without law – is not some academic nicety. It is the foundation of fairness. Many jurisdictions, most notably the United States under its constitutional prohibition on ex post facto laws, make such changes impossible for criminal offences. Australia has no equivalent constitutional bar, which makes the political choice to do it anyway all the more revealing.

International humanitarian law under the Geneva Conventions and the Rome Statute defines hors de combat with deliberate care. The purpose is to protect those who are genuinely hors de combat while preserving the right of combatants to fight until they clearly surrender or are incapacitated. Lowering the domestic threshold for proof does not strengthen that protection. It tilts the field in favour of prosecutors in politically charged cases.

So, two Australian soldiers, including one of the most decorated living veterans, will face trial under rules rewritten by the government while their cases were active. That is not how a serious nation treats its own warriors.

When the state starts changing criminal definitions mid-proceeding to secure convictions it might otherwise struggle to obtain, it is not upholding international humanitarian law. It is playing games with justice.

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