Grant Fletcher: military lawyer explains why the SAS can't be sent in to track down Tom Phillips and children in Marokopa

It's been suggested that the New Zealand Special Air Service (NZSAS) could be the ones to find Tom Phillips and his three children in Marokopa - but one expert has voiced disapproval about the optics.

The four were recently filmed walking through the bush by pig hunters - the first sighting of them together since December 2021.

Barrister and military lawyer Grant Fletcher says within the Commonwealth legal system, there are tight restrictions on when armed forces can be used to help the Government internally.

"Obviously, there is a slightly murky area between what is a public service and what is a law enforcement role - and I think what's going to affect the decision makers in relation to this is that this is really stepping into a law enforcement role. Which is not the job of the military."

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Episode Transcript

Speaker 1 (00:00):
Togever Do for ce Ellen.

Speaker 2 (00:02):
Now it's being suggested that the right team to track
down the missing medical for a dad and his kids
are not the police, but actually the essays. The family
has been missing since about twenty twenty one and despite
a few cracks out of the cops haven't been able
to track them down yet. Now. Grant Fletcher is a
barrister and military lawyer. High Grant good.

Speaker 1 (00:19):
An evening, I think, how are you?

Speaker 2 (00:21):
I'm very well, thank you, Grant. Listen, Why can't the
n ZT essays just be sent in right? If these
guys can track the family down, why haven't we done it?

Speaker 1 (00:29):
It's a good question. And the reality is that in
a constitutional democracy like New Zealand, like the United States,
like the United Kingdom, the military is designed to be
dealing with external situations, where it's the police and conventional
law enforcement that deals with internal situations. And if we
think about a banana a public say, you've got the

(00:50):
vision of soldiers patrolling in the streets, an armored personnel
carriers on every corner. That's why in most democracy is
the use of the conventional military eternally is very very
tightly constrained. It's okay, for the New Zealand Army, for example,
to assist with civil civil defense, disaster relief, and the

(01:10):
defense that allows that it's called a public service. It's
when they start to get into actual law enforcement that
it starts to get constitutionally quite murky. And under New
Zealand's framework, it's very very tightly constrained, right.

Speaker 2 (01:24):
And so what you need prime ministerial sign off?

Speaker 1 (01:26):
Do you pretty much? So for effectively disaster relief, no,
it doesn't need Prime minister prime ministerial sign off because
that's a civil service. But if it is for the
military to have the power of the police, which would
include the ability to detain someone, then that needs prime
ministerial approval. Now, obviously there's a slightly murky area between

(01:49):
what is a public service and what is a law
enforcement role. And I think a thing that's also going
to affect the decision makers in relation to this is
that this is really stepping into law enforcement role, which
is not the job of the military.

Speaker 2 (02:05):
Do you reckon that the cops can't track this family down?

Speaker 1 (02:09):
I don't know, to be quite honest, what their capabilities
they've got to bring to barrs. So I can't really comment,
but I could certainly say that the New Zealand military
would easily have this capability under their belt, because I.

Speaker 2 (02:24):
Would have thought the police would. I mean, they have
the Eagle helicopter available to them. The Eagle helicopter has
a heat sensor and surely you just have to shoot
that thing around the place and eventually you'd see four
warm bodies in the bush, wouldn't it.

Speaker 1 (02:38):
Again, I don't know. I mean, anyone who does any
hunting at all will will have it looked through. Thermal capabilities,
and the modern thermal equipment is pretty god but in
some situations it doesn't work thack bosh or if there's
a lot of heat signature in the background. I genuinely
don't know the level of capability that the police would have,
So I can't really speculate.

Speaker 2 (03:00):
Now that we've got the media from around the world
who are interested in this, and I mean fascinatingly actually
lead the Daily Mail apparently a couple of times over
the weekend in the UK, do you think it's going
to put pressure on authorities to step the efforts up
to catch us this family.

Speaker 1 (03:15):
I hope not. And the reason I say that is
that the decision makers within the police and indeed within
wider government shouldn't be influenced by public opinion and media pressire.
With all due respect to your profession, they need to
be the calmest heads in the room and work towards
a peaceful and a peaceful resolution.

Speaker 2 (03:37):
And I agree with you because there may be things
that we do not even know. They're having to consider
it right that they may have it. They may be
having to weigh up all kinds of weird stuff that
we're not aware of.

Speaker 1 (03:47):
I think they would be right. And you know, I
hate to quite Donald Rumsfeld, but any person planning any
sort of activity needs to bear in mind three things.
There is no knowns. This blokes in the North Island.
There's known unknowns. We don't know where he is. But
the most dangerous thing that a decision maker has to
deal with in what should enter every single planning process
that they're doing, is unknown unknown. I mean, there may

(04:09):
be things out there that they literally do not know,
and they need to have contingency planning for that.

Speaker 2 (04:15):
Grant, this is really fascinating. Hey, thanks for talking us
through it. Really appreciated. That's Grant Fletcher, Barrister and military lawyer.

Speaker 1 (04:22):
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