Now that Ben Roberts-Smith has been arrested, it’s too late to eliminate the main threat to the fairness of his war crimes trial – the prospect of a biased jury.

But it’s not too late for dozens of other veterans of the Afghanistan war who risk facing exactly the same problem: civilian jurors who are biased against them ­because of years of prejudicial media reports.

Judges have a range of options for dealing with this, including the law of sub judice contempt and instructing jurors to consider only what they hear in court. But when judges preside over war crimes trials, they are denied the tactic of last resort: ordering a judge-alone trial.

The reality confronting every former soldier is that unless something changes all war crimes trials will continue to be decided by a jury.

Everyone in this country has been exposed to years of campaigning against former soldiers by parts of the media. The risk of bias is real.

But that risk cuts both ways: while some have embraced the views of campaigning journalists, others are just as passionate in their support for veterans.

If the goal is a fair trial, this is a terrible starting point.

There is a solution but it ­depends on whether federal ­parliament is prepared to act promptly before more former soldiers face charges over their time in Afghanistan.

What I suggest is giving former soldiers a way of having war crimes charges determined by a judge without a jury – not in every case, only in those where a judge considers this necessary to preserve a fair trial.

This would not mean skewing the scales of justice. It would mean the reverse: eliminating the risk that a tainted jury pool would lead to a perception – and possibly the reality – of an unjust outcome.

This change, which could be made within the existing constitutional framework, would have no impact on Roberts-Smith, or on another veteran, Oliver Schulz, who is awaiting trial next year.

But it would eliminate the risk of unjust outcomes for any former soldiers who are still under investigation but have not been ­arrested or charged.

When Roberts-Smith was ­arrested last week, the Office of the Special Investigator made it clear the legal fallout from the ­Afghanistan war was not over.

The OSI said it had launched 53 investigations involving allegations of war crimes and 39 had been “provisionally finalised unless new evidence emerges”, ­according to Ross Barrett, who is director of investigations.

So that means 14 investigations have not been finalised and the other 39 could be reopened. If we are going to try these men in a civilian court for conduct that took place on the field of battle, the least we can do is ensure every possible step is taken to ensure they receive a fair trial.

Here’s what should happen.

Section 80 of the Constitution requires federal indictable offences to be tried by a jury. But the Constitution leaves it up to parliament to determine which offences are indictable.

Parliament has done that in section 4G of the Commonwealth Crimes Act, which says indictable offences of those that carry a penalty of more than 12 months in prison “unless a the contrary ­intention appears”.

So because the war crimes ­offences in Division 268 of the Criminal Code can send former soldiers to prison for life, they are therefore indictable offences which invoke the constitutional requirement of jury trial.

The bottom line is this: There is nothing sacrosanct about requiring the war crimes offences to be commenced with an indictment.

If parliament wanted to, it could require these proceedings to be commenced summarily in the local courts.

That would mean section 80 of the Constitution would not apply. There would no longer be an ­unavoidable requirement that all war crimes trials should be before a jury.

This is not a radical idea. It was foreseen by the High Court in a 1985 case known as Kingswell v The Queen.

The joint judgment of chief justice Harry Gibbs and justices ­Ronald Wilson and Daryl Dawson provides the clearest possible indication that parliament has it within its power to avoid mandatory trial by jury for certain federal offences.

They wrote that section 80 of the Constitution does not mean that the trial of all serious federal offences shall be by jury.

“The section applies if there is a trial on indictment, but leaves it to the parliament to determine whether any particular offence shall be tried on indictment of summarily,” their joint judgment says.

“This result has been criticised but the court has consistently ­refused to reopen the question and the construction of the section should be regarded as settled,” they wrote.

So if federal parliament wanted to, it could enact a small change to the Criminal Code that would have the effect of placing former soldiers facing war crimes charges on the same footing as anyone facing criminal charges in NSW.

In that state, they can apply to a judge for a judge-alone trial whenever the interests of justice require such a change.

If the experience of NSW is any guide, judge-alone trials would take place in only a handful of cases.

In 2024, the NSW Bureau of Crime Statistics and Research produced a report showing that between 2011 and 2019 judge-alone trials comprised about 13.7 per cent of trials in that state.

The time to act is now. It will be too late if more veterans are ­arrested.

Chris Merritt is vice-president of the Rule of Law Institute of Australia.