Posted 28 November 2019.<\/p>\n\n\n\n
Where we are today is that the practice of the last twenty years has purportedly taken away the power to send Australia to war from the Governor-General, and placed it at the disposal of junior ministers in the Defence portfolio. This cannot be allowed to stand. The war powers must be relocated to the Australian parliament. <\/p>\n\n\n\n
Most\nAustralians would be surprised to learn how easy it is for our Government to\ncommit the Australian Defence Force (ADF) to armed international conflict\n(war). They would be even more surprised to learn, given Australia\u2019s often\nproclaimed affection for the rule of law and for a rules-based international\norder, that our deployments in the 21st century have avoided the clear\nConstitutional path that involves the Governor-General (the commander in chief\nof the Australian armed forces), and most of them have been in violation of\ninternational law.<\/p>\n\n\n\n
Regarding\nour domestic law, our Constitution placed the power to go to war on the British\nKing until 1942 and on the Governor-General thereafter. (It was in 1942 that\nAustralia ratified the Statute of Westminster which gave \u2018dominions\u2019 like\nAustralia the right to choose independence \u2013 the Australian ratification was\nbackdated to the start of the war, just in case!) The Governor-General was, of\ncourse, expected to act on the advice of the Australian Prime Minister. The\nGovernor-General issued declarations of war on Axis latecomers like Hungary and\nsigned peace treaties after the second world war.<\/p>\n\n\n\n
What this\nmeans is that in order lawfully to deploy the ADF into armed conflict, the\nGovernment would be expected to first obtain the assent of the\nGovernor-General. By convention, the Governor-General would be expected to give\nassent, but those same conventions allow the Governor-General to ask questions\nand seek assurances, especially about the legality of the action to which s\/he\nis being asked to assent. While the Governor-General is not expected to refuse\nministerial advice, the minister is under a duty to ensure that the\nGovernor-General is not asked to act illegally. The conventions do not\ndistinguish between legality under domestic or international law.<\/p>\n\n\n\n
Instead\nof adhering to this clear constitutional path, successive Governments appear to\nhave relied upon section 8 of the Defence Act 1903<\/a>, a provision which in its\ncurrent form was introduced in 1975 to make clear that the Minister for Defence\nhad \u201cgeneral control and administration\u201d of the Defence Force and that both the\nSecretary and the newly created position of Chief of the Defence Force were\nsubject to the Minister\u2019s direction. Section 8 was never intended to create a\nnew power to make war.<\/p>\n\n\n\n Reliance upon section 8 strips the checks and balances from the process for deciding matters of war and peace, a process that already places too much power in the hands of executive government. At least when the constitutional niceties are observed, the Governor-General is entitled to be assured that the proposed deployment is lawful. <\/p>\n\n\n\n For example, the 2003 invasion of Iraq was condemned by most international lawyers and none of the few who argued that it was legal was prepared to argue that it would have succeeded in the International Court of Justice. It is noteworthy that on 21 March 2003, the day after the invasion, former Solicitor-General Gavan Griffiths QC ridiculed the legal advic<\/a>e proffered by the Howard Government, advice which was written by two public servants without practising certificates rather than by the Solicitor-General on whom the government would normally rely. <\/p>\n\n\n\n Did Prime Minister Howard refrain from approaching the Governor-General because he knew the lawfulness of the endeavour was dubious to say the least? Governor-General Hollingworth had, in fact, asked the then Attorney-General (Daryl Williams) about the legality of the mooted war, following which Prime Minister Howard withdrew an undertaking to take it before the Federal Executive Council \u201cfor noting.\u201d<\/p>\n\n\n\n As\nmatters stand, reliance on section 8 effectively puts the power to make war at\nthe sole discretion of the Prime Minister. All that is required is for the\nPrime Minister to request the Defence Minister to sign a direction under\nsection 8, and away we go. If the Defence Minister declines, the Prime Minister\ncan arrange for him\/her to be replaced within 24 hours. Bad enough, but the\nsituation is even worse than that.<\/p>\n\n\n\n Under our\nparliamentary system, the Administrative Arrangements Order (which sets out\nwhich Ministers administer which Acts of Parliament) assigns all of the powers\nof the relevant legislation to all of the Ministers in a given portfolio. This\nmeans each of the Ministers in the Defence portfolio has the power to give the\nChief of the Defence Force a direction under section 8 of the Defence Act. The\nPrime Minister would not even have to replace a Defence minister who refused to\norder an illegal war but could simply find one who would.<\/p>\n\n\n\n Where we\nare today is that the custom and practice of the last twenty years has\npurportedly taken the power to send Australia to war away from the\nGovernor-General and placed it at the disposal of junior ministers in the\nDefence portfolio.<\/p>\n\n\n\n This\ncannot be allowed to stand.<\/p>\n\n\n\n The war powers must be relocated to the Australian Parliament so that, in circumstances short of a direct attack on Australia requiring an immediate response, the consent of Parliament must be obtained before Australian forces can be deployed into international armed conflict. The Parliament (or, if necessary, a cross-party committee) can ask the questions that must be asked and honestly answered. <\/p>\n\n\n\n We owe this to our armed forces, our people, and, yes, our allies too. We do none of them any favours by cheer-leading illegal or foolish wars. We also owe it to the millions of civilians whose lives are cut short or devastated in wars fuelled by outside interference.<\/p>\n\n\n\n Finally,\nit must be remembered that Article 1 of the ANZUS treaty<\/a> requires the US and Australia to\nrefrain from the threat or use of force in any manner contrary to the UN\nCharter.<\/p>\n\n\n\n Paul Barratt. Posted 28 November 2019. Where we are today is that the practice of the last twenty years has purportedly taken away the…<\/p>\n","protected":false},"author":2,"featured_media":16188,"comment_status":"open","ping_status":"open","sticky":true,"template":"","format":"standard","meta":{"sfsi_plus_gutenberg_text_before_share":"","sfsi_plus_gutenberg_show_text_before_share":"","sfsi_plus_gutenberg_icon_type":"","sfsi_plus_gutenberg_icon_alignemt":"","sfsi_plus_gutenburg_max_per_row":""},"categories":[36,58,46],"tags":[466,464,465,467],"_links":{"self":[{"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=\/wp\/v2\/posts\/16139"}],"collection":[{"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=16139"}],"version-history":[{"count":4,"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=\/wp\/v2\/posts\/16139\/revisions"}],"predecessor-version":[{"id":16213,"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=\/wp\/v2\/posts\/16139\/revisions\/16213"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=\/wp\/v2\/media\/16188"}],"wp:attachment":[{"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16139"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16139"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16139"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}Who authorised our role in the Iraq invasion?<\/h3>\n\n\n\n
Paul Barratt AO is President of Australians for War Powers Reform. He is a former Secretary, Department of Defence and a former Deputy Secretary, Department of Foreign Affairs and Trade. This editorial first appeared in the Australians for War Powers Reform bulletin<\/a> 8.11.19. It is republished from John Menadue\u2019s blog, Pearls & Irritations<\/em> of 22 November 2009.<\/h5>\n","protected":false},"excerpt":{"rendered":"