ANDREW FARRAN. The legal spat in Canberra – more serious than we may think.Oct 16, 2016
Legal advice on a government decision to go to war.
The legal spat between the Commonwealth Solicitor-General and the Attorney- General is potentially more serious than it might appear.
It is not uncommon that certain actions or proposed actions by governments raise either constitutional or international legal issues of questionable validity. In this context the Governor-General, the Parliament, the bureaucracy, the military and others in the official sphere may seek assurance that what they or the country are being committed to do is legal. Should it not be legal there may be serious personal consequences for them.
There are many examples of such situations but one of great concern are decisions to go to war or commit Australian military forces abroad. One only needs to recall the legality issue in relation to the invasion of Iraq in 2003 about which the Australian government of the time was highly circumspect. The UK government under Prime Minister Blair is known to have doctored the initial opinion of its Attorney-General in the face of objections from its senior legal officers. A former Australian Solicitor-General (Gavin Griffiths) has stated that that war was illegal.
Such legal conflicts can arise because the Attorney-General is a political figure being a member of the government and beholden to it whereas the Solicitor-General is an independent statutory officer. If the latter is compromised the public purpose of his/her office may be compromised if not defeated.
The declaration this week by a former SAS soldier as to the murder of an Afghan prisoner is relevant to this as the committal of Australian forces to recent overseas conflicts has not followed lawful procedures in relation to the source of the power to do so – the Royal Prerogative which can only be exercised by the Governor-General in Council. Instead governments have resorted to provisions (Section 8) of the Defence Act alone which are subordinate to the Prerogative Power and not an exercise of that power. This may seem a fine point but while we have the Constitution we have failure to adhere to its provisions could invalidate all that follows. Hence acts causing death or destruction abroad by the military may not be legal, exposing the military and others to accountability in other jurisdictions as well as here.
In the case of the 2003 invasion of Iraq the Governor-General at the time was neither consulted nor informed before the government’s decision was taken. The government has since advised that all that is required is a decision of the Cabinet. But the Cabinet is not mentioned in the Constitution and of itself cannot be the source of the legal power.
Therefore any compromise of the statutory independence of the Solicitor-General on these and other issues as a result of political gate-keeping by an Attorney-General can have serious consequences for those acting under supposedly superior orders. The best solution involving war and warlike issues concerning the Prerogative Power may be that the Attorney-General and the Solicitor-General should be required to submit a joint opinion to the Governor-General in Council and to the Parliament before decisions to commit military forces abroad in conflict situations are approved. If they cannot agree on the legality or otherwise of the proposed action each should be required to give reasons as to why. That way we may avoid further military follies such as has occurred in Iraq.
Andrew Farran is a former diplomat, former senior academic in public and international law.