A military lawyer says hunting down Marokopa fugitive Tom Phillips is “completely” in the capability of the New Zealand Special Air Service (NZSAS), but would require sign-off from the Prime Minister and raises “constitutional issues”.

It comes after a former SAS tracker told the Herald elite NZSAS soldiers would be able to locate Phillips and his three children within two weeks if they were deployed to the remote central North Island farmland they were spotted almost two weeks ago.

The family have been missing since December 2021.

Jayda, Maverick and Ember’s mother, Cat, earlier said it feels like the search is “out of the police’s league” and questioned why more qualified authorities had not been brought in for assistance after a “credible” sighting of the children.

Military lawyer Grant Fletcher told the Herald police don’t have the ability to execute long-distance patrols through the bush looking for Phillips and his children.

Fugitive dad Tom Phillips and his three children were spotted tramping in the Marokopa bush nearly two weeks ago. Photo / Supplied

“They’d make all the noise in the world, they wouldn’t have any skillset in relation to harbouring up quietly at night... All operators from the SAS would have more capability than the entire Armed Offenders Squad, no doubt.”

But the spectre of armed soldiers wandering through the bush looking for Phillips – who is “basically on the lam” – raises important questions as the use of the military is “very tightly constrained” in New Zealand, he said.

‘Deadly force’ allowed by armed forces if justified

Military lawyer Matthew Hague told the Herald the armed forces were used “all the time” to support agencies like the New Zealand Police, Fire and Emergency NZ and Civil Defence, but using them independently to exercise an enforcement function was “very strictly controlled”.

Hague said for that to happen, the Commissioner of Police would need to be satisfied that a situation was beyond the capability of police to deal with, before seeking approval from the Prime Minister to ask armed forces to act in a domestic situation.

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If the Prime Minister approved the use of armed forces to find Phillips, Hague said, members and their commanders would be making every effort to avoid any confrontation where the use of force could be possible.

Prime Minister Christopher Luxon would need to sign-off a request by police to send armed forces to hunt Tom Phillips, a military lawyer says. Photo / Mark Mitchell

“If armed forces are deployed in a way where the use of force is a possibility, then they’d be subject to rules of engagement. Those rules of engagement in this situation would probably mirror the laws around use of force and self-defence that apply to all of us.

“If the Prime Minister did give that approval, then the members of the armed forces would have the same powers as a constable, so they could use force to effect an arrest, for example, and that could include deadly force if it was justified.”

Fletcher said he didn’t believe a request of that nature had ever been granted in New Zealand, but that it was “highly possible” that ‘stand-by’ warnings had been issued in the past.

“That is direct prime ministerial authority and not a step to be taken at all lightly,” he told the Herald.

“But I think there’s actually real, constitutional issues with that.

“It is pretty extreme where you’ve got the military looking for a fugitive. If you think about it, this is a bloke who is just on the run from the cops – he’s not a terrorist.”

The children of Tom Phillips: (left to right) Jayda, Maverick and Ember. Photo / NZME

Fletcher said if armed soldiers were given the green light to intervene, they would be given the highest possible rules of engagement and operate under “extremely tight restrictions” on what they could and couldn’t do.

Another military lawyer, David Pawson, added it’s a “big decision” as there are children involved, and questioned if the soldiers going in would be armed to protect themselves.

“The police are likely to say that a person with constabulary powers would be with each section or group of armed forces,” he said.

“However, that is a recipe for disaster as the military ‘actions on contact’ (if they are being ambushed or shot at) training is quite different from the police general fire orders.”

NZDF ‘ready to respond’ to any requests

Hague said police are in a “really difficult situation” as Phillips is with his children, has a firearm and doesn’t want to be found.

“The police are understandably and responsibly being cautious about how they’re going to engage with that person and his family because they don’t want anyone to get hurt if they can help it.

“What some people might perceive to be police inaction may very well be just police taking their time and not publicising what they’re doing and moving in to resolve things hopefully in a safe way. I know that would be the police’s objective.”

The New Zealand Defence Force (NZDF) had already been supporting police during the hunt for Phillips, and Hague thought it likely there would be other support from intelligence functions and maybe some tactical options within the capability of armed forces.

Police would not confirm if they had already called for assistance from NZDF, despite a Royal New Zealand Air Force NH90 helicopter providing air support after Phillips was spotted earlier this month.

Hague believed RNZAF helicopters would be used purely to support police at this stage in the investigation – either observing what is happening on the ground or transporting police from A to B.

A NZDF spokesperson said it was “ready to respond” to requests from any government agency and has a wide range of assets and expertise at its disposal.

“We have no comment to make on this type of situation and you are best to approach police for any further information.”

Benjamin Plummer is an Auckland-based reporter who covers breaking news. He has worked for the Herald since 2022.