Andrew Hastie says he is unlikely to testify against Ben Roberts-Smith in war crimes trial

After five months of attacks over his opposition to Victoria Cross awardee Ben Roberts-Smith, Liberal MP Andrew Hastie has offered his opponents what looks like an olive branch: he does not expect to give evidence against the man he first met as a fellow member of the famed Special Air Service regiment.

Mr Hastie told television interviewers on Sunday and Monday he wasn’t on a preliminary list of witnesses in the war crimes trial and is therefore unlikely to be required by prosecutors to take the stand.

The little-noticed development is significant for Mr Hastie in two main ways.

It may lower the temperature in a debate that has consumed the shadow industry minister since Anzac Day, when a post of him laying a wreath in his electorate was overwhelmed with pro-Roberts-Smith comments.

The post marked an escalation of online criticism so intense and persistent that Mr Hastie alleged enemies were launching mass attacks using Indonesian “bot farms” — an assertion ridiculed in One Nation’s now-famous “Don’t be Hastie” satirical cartoon. He received extra security.

The second consequence concerns the future, and Mr Hastie’s aspiration to lead the Liberal Party, which he repeated Sunday.

No one knows when, or even if, Mr Roberts-Smith’s trial will be held. But lawyers familiar with the case have spoken of four or even five years until Mr Roberts-Smith enters the dock in the NSW Supreme Court.

By then, Mr Hastie could have lost his seat to One Nation — or be leader of the opposition. Making history as a witness in the first murder trial of an Australian Victoria Cross recipient would likely be uncomfortable for a political conservative and fellow veteran.

Change in position

Learning he will not have to repeat his appearance at Mr Roberts-Smith’s defamation lawsuit must have been a relief. How he found out is a mystery.

When Mr Roberts-Smith was charged in April, Mr Hastie said his involvement meant he couldn’t discuss the case.

“Mr Roberts-Smith is now facing criminal charges in relation to this operational mission, so it is possible that I will be called as a witness to this trial,” he wrote in a press release at the time.

As the only other SAS veteran involved identified by name, he became the target of anger towards the prosecution. One Nation has campaigned for Mr Roberts-Smith, raising the prospect that the next election that Mr Hastie’s Canning electorate could become a proxy referendum over the five murder charges.

Then, after a week attacking One Nation founder Pauline Hanson over the “traitor” cartoon, he discussed the allegations on Sunday with News24 journalist Andrew Clennell, who said: “You found out you’re not going to be a witness in the Ben Roberts-Smith case, and you’ve got a bit more freedom now?”

Mr Hastie said: “Exactly right. There’s a number of things. There was a non-publication order made which protected the identities of the witnesses involved in the proceedings. I’m not on that list.”

In case anyone missed the revelation, which many did, Mr Hastie repeated the story to Sylvia Jefferies of the Nine network on Monday: “As you’re aware, there are legal proceedings underfoot regarding war crimes, and only a week or so ago, a non-publication order was made for all the witnesses involved in that case, and my name was not included in that non-publication order. So, I’m free to speak about some of these issues, as I think I’m unlikely to be called as a witness.”

Hard to understand

Mr Hastie’s explanation is hard to understand, according to three lawyers who have followed the case and asked that their names not be published because of the sensitivity of the matter.

There is no direct connection between a judge’s decision to issue non-publication orders over the identities of 11 witnesses and the well-known Mr Hastie’s status as a potential witness, the lawyers said.

The 11 secret witnesses won’t be the only people giving evidence for the prosecution. So far, investigators have amassed some 200 witness statements. While all may not have to appear in court, many will. Why Mr Hastie’s name would need to be suppressed is unclear given he identified himself as a potential witness in April.

Mr Hastie’s office didn’t respond when asked to clarify the confusion.

The Office of the Director of Public Prosecutions declined to comment when asked if any potential witnesses had been told they would not be needed. At this stage the DPP cannot be certain there will be a trial, given the charges haven’t been certified by a local court judge and Mr Roberts-Smith hasn’t entered a plea.

Mr Hastie knows many Australians would prefer justice had taken a different route.

In his News24 interview, he said residents of his electorate had told him they did not want Australian soldiers tried for war crimes. Asked about a rumour some Coalition MPs would like Mr Roberts-Smith’s case switched to a military court, he said anyone “who’s trying to run arguments against the process now is doing people like Ben Roberts-Smith no favours”.

“I think he deserves a fair trial,” he said.

“I think he deserves the presumption of innocence. And in the end, I come back to the general principle. Do we think it’s OK to execute prisoners? They’re very severe allegations.”

The charges are as serious as they get, not only for Mr Roberts-Smith, but the SAS, the Army and the nation.

By excusing himself from the case, Mr Hastie is taking a step away from a war — legal, moral, physical and political — that has preoccupied him for over a decade.