“It has been reported that the failure to convict Roberts-Smith of criminal offences means that he cannot be stripped of the medals. This is nonsense,” writes legal columnist HUGH SELBY. 

Ben Roberts-Smith was awarded two military medals, the Victoria Cross and Medal for Gallantry for his service in Afghanistan.

According to the Special Air Service Historical Foundation, the Victoria Cross is awarded for the most conspicuous gallantry, or a daring or pre-eminent act of valour or self-sacrifice, or extreme devotion to duty in the face of the enemy. 

The Medal for Gallantry is awarded for acts of gallantry in action in hazardous circumstances. 

“Gallantry” is a component of both awards. “Gallantry” refers to courageous conduct, bravery and noble-minded behaviour.

Roberts-Smith was a living war hero, but he had feet of clay.

In 2023 Roberts-Smith was found by Justice Besanko in the Federal Court to have carried out unlawful killings in Afghanistan.

In May 2025 his appeal was dismissed by three judges. Their judgment shows that the following, among other acts, were established (on the balance of probabilities, which is lower than the criminal trial standard of beyond reasonable doubt):

• He murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot that man.

• He committed murder by pressuring a newly deployed and inexperienced soldier to execute an elderly, unarmed Afghan in order to “blood the rookie”.

• He committed murder by machine gunning a man with a prosthetic leg.

• He authorised the execution of an unarmed Afghan by a junior trooper. 

• He broke the moral and legal rules of military engagement.

• He disgraced his country and our Army by his conduct.

In September, the High Court declined to hear his appeal from that outcome because it had “insufficient prospects of success”.

But he still has his medals. Why?

How to revoke the unearned honours

The process for cancellation of a military honour is: “A Defence honour or award may only be cancelled by the Governor-General… the Chief of the Defence Force may request that the Minister for Defence make a recommendation to the Governor-General to cancel an honour or award. 

“Before requesting that the Minister make a recommendation to the Governor-General, Defence must determine that a member or former member of the Australian Defence Force is no longer eligible for, or should no longer be entitled to be recognised by, the honour or award. 

“The Minister will review the recommendation and if he agrees, will refer it to the Governor-General.” 

None of that has been reported.

Meanwhile, the Australian War Memorial (AWM) continues to display his valour. 

That it does so is a matter of national embarrassment.

The purpose of our AWM, as stated on its website, “is to commemorate the sacrifice of those Australians who have died in war or on operational service and those who have served our nation in times of conflict. Its mission is leading remembrance and understanding of Australia’s wartime experience.” 

The Australian War Memorial Act, 1980 does not require the AWM exhibits to be accurate. The closest it gets is section 5.2: “The Memorial shall use every endeavour to make the most advantageous use of the memorial collection in the national interest.”

There is no guidance as to what to do with any matter of individual or collective disgrace.

Meanwhile, busloads of school kids visit the AWM. They are not going to read the recent changes to the notes to the exhibit. Is he the kind of soldier we want them to emulate, one who has disgraced his country and our army?

There is, it seems, no will on the part of the Army, the Defence Department, the minister or the AWM to get on with the job.

They have had two years, since Justice Besanko’s decision, to prepare.

It has been reported that the failure to convict Roberts-Smith of criminal offences means that he cannot be stripped of the medals. This is nonsense. 

Had those responsible for approving his awards known of his murderous conduct he would never have got them. End of story.

The solution is hiding in plain sight. What is needed is a short act of parliament. It should start with a statement that our medals of honour are awarded for acts of heroism, valour and gallantry, free of the taint of any ignoble conduct.

It should state:

• That the award of medals reflects not only the achievement of the recipient but also the collective spirit of every Australian’s admiration for selfless heroism.

• That the reputations and memory of all those rightly awarded a medal of valour should not be tarnished by an award bestowed upon an undeserving recipient.

• And the Australian courts have found on the balance of probabilities that the recipient Ben Roberts-Smith acted contrary to the conduct expected and required of any recipient of a medal of valour.

In light of all those matters the parliament revokes the military honours (as listed in the schedule to the act) from the recipient Ben Roberts-Smith.

God forbid that Hamas, Netanyahu, Putin or Trump should be able to say that we, too, condone the murder of innocents.

Former barrister Hugh Selby is a CityNews columnist, principally focused on legal affairs. 

‘I have shame, a lot of it. Shame it took so long to uncover the truth’