On 4 May 2016, the last sitting day before Parliament rose for the forthcoming election, Attorney-General Senator Brandis tabled new guidelines in the Senate which ruled that no one in government, including the Prime Minister, could seek the Solicitor-General’s advice without getting permission from Senator Brandis.
This is a highly retrograde step. Australians for War Powers Reform have argued very strongly for the availability of high quality independent advice to the key decision makers – the Governor-General, the only person with the Constitutional power to authorise members of the Australian Defence Force to go overseas to kill or incapacitate people, take them captive, or destroy their property; the Prime Minister, who chairs the National Security Committee of Cabinet and the Cabinet itself; the Defence Minister, who under current arrangements purports to authorise deployments via an order under s.8 of the Defence Act; or the Chief of the Defence Force, who exercises command over all members of the ADF. It is essential that these people have the best available advice as to whether the decision they are about to make or act upon constitutes a crime of aggression and/or acting contrary not only to the UN Charter but Article 1 of the ANZUS treaty.
The Solicitor-General is the most senior and most independent lawyer in Australian Government Service. Senator Brandis’s decision means that it is now up to him (Senator Brandis) to decide whether these senior office holders, involved in the most critical decision a government can take, will receive independent legal advice or only the advice of lawyers of Senator Brandis’s choice.
This is no trivial matter. Governor-General Peter Hollingworth asked the then Attorney-General about the legality of the mooted invasion of Iraq in early 2003. The Attorney-General did not get back to him but Prime Minister Howard gave him advice provided by Messrs. Chris Moraitis and Bill Campbell, First Assistant Secretary-level officers in the Attorney-General’s Department and the Department of Foreign Affairs and Trade.
In commissioning these two public servants to provide advice on the matter, Prime Minister Howard bypassed not only the Solicitor-General, but also other readily available sources of more senior and qualified legal advice. As former Solicitor-General Gavan Griffith QC wrote on 21 March 2003:
‘I note that the Memorandum of Advice is not subscribed by Henry Burmester QC, former head of the Office of International Law and now Chief General Counsel of the Attorney-General’s Department and the most senior and experienced international lawyer in Commonwealth service. Nor by Professor James Crawford SC, Professor of International Law at Cambridge, who commonly advises and appears for the Government in International law matters. I could suggest none available to the Commonwealth better qualified to give disinterested and expert advice’.
Griffith went on to say he was at a loss that this important matter of legal support had not been supported at this highest expert level readily available to the Government. “Instead, the Government has been content to table a mere ‘memorandum’ of assertion, signed off at the departmental level of First Assistant Secretaries”.
It is well established that the Governor-General can seek direct legal advice from the Solicitor-General. Quentin Bryce did so in 2010 and again in 2013. Senator Brandis now seeks to cut off the Governor-General from this prime source of independent advice on critical issues of potentially great political moment.
As noted above, Senator Brandis’s assertion of the right to decide who may seek independent legal advice from the Solicitor-General has profound implications for whatever war powers framework we have – the existing one or any future one. In principle he now decides whether the Governor-General, the Defence Minister, the CDF, or a Service Chief may seek from the Solicitor-General an independent legal opinion on any proposed deployment of the ADF into armed conflict.
We saw how all this played out in Britain in 2003, and there remains a story to be unravelled about the advice tendered by UK Attorney-General Lord Goldsmith. In his initial advising Lord Goldsmith provided 13 pages of detailed high quality advice in which he canvassed the issues, the various views (including the view that it was legal, which he pointedly stated that only the Americans adhered to), the likely results if it ended up in court, (including a likely loss in the International Court of Justice and the possibilities of the Prime Minister facing criminal charges under English law). He advised that the safest legal position would be to secure a second UN Resolution; in the absence of that, reliance on Resolution 1441 “would need to demonstrate hard evidence of non-compliance and non-cooperation” on the part of Iraq. This document was not circulated to the Cabinet.
On 12 March 2003, with hope of a second resolution fading, Admiral Sir Michael Boyce, Chief of the UK Defence Staff, asked the Prime Minister for an unequivocal statement on the legality of war under UNSC Resolution 1441. The next day, Lord Goldsmith saw Lord Falconer and Baroness Morgan, two of Mr Blair’s closest advisers, at an unminuted Downing Street meeting, and expressed his “clear view” that war would be lawful under 1441.
There is evidence that Lord Goldsmith changed his mind in coming to this view. Elizabeth Wilmshurst, Deputy Legal Adviser to the Foreign Office, resigned in March 2003 because she did not believe war with Iraq was legal. Her letter setting out the reasons for her resignation said that Lord Goldsmith “gave us to understand” he agreed with Foreign Office lawyers that the war was illegal without a new UN resolution, but changed his advice twice just before the war, to bring it into line with “what is now the official line”.
A subsequently published summary of Lord Goldsmith’s position also revealed doubts about reliance, via Resolution 1441, upon reactivation of Resolution 678 which authorised the 1991 Gulf War. The Attorney-General said in his conclusion that he could not be sure that if the “reasonable case” for reactivating 678 ever came to court “the court would agree with the view”. In other words, Tony Blair took Britain to war knowing that there was doubt about what a court of competent jurisdiction would decide regarding its legality.
Despite British Attorneys-General having stronger traditions of independence than their Australian counterparts, this saga indicates that getting the advice of the Attorney-General, a member of Cabinet, is not an adequate safeguard in relation to as grave and political a decision as going to war – it must come from an independent statutory officer. It is not sufficient for the Attorney-General to pick and choose whose advice will be presented to his colleagues and key decision-makers, who are not only making decisions that could lead to deaths on a scale three or four orders of magnitude larger than the Orlando shootings, but might also lead to criminal charges. In 2003 it was a remarkable coincidence that the two lawyers chosen to give advice were both from the tiny minority of international lawyers who thought the Iraq War was legal. We cannot allow another such coincidence lest the world come to think that we are a country in which the Attorney-General was only choosing those lawyers who agreed with him.
There is one other point to be made about this. Australia has a strong interest in an “international rules based order”, in which all countries stick to the established rules and go to arbitration if they disagree. We are quite vocal in urging this approach on Russia and China, but we undermine our position if we engage in illegal wars and block access to the International Criminal Court and the International Court of Justice. And how can we satisfy ourselves whether or not a military action is legal if we deny the key decision-makers’ access to the Solicitor-General?
Senator Brandis’s move has profound implications not only for the nation but for the individuals involved. Whatever their institutional roles they would be personally liable for any action they took to give effect to a government decision that amounted to the crime of aggression. The Governor-General cannot say, “Please sir, they made me do it” on the basis that the Executive Council advised him so and sought his assent.
Senator Brandis’s new guidelines were introduced by way of disallowable instrument, which means that it remains to be seen whether they will remain in force when Parliament reconvenes or whether they will be disallowed by the new Senate. In the meantime, they are the law of the land.
Paul Barratt AO is President of Australians for War Powers Reform, a former Secretary to the Department of Defence, and a former Deputy Secretary of the Department of Foreign Affairs and Trade.