Where we are today is that the practice of the last twenty years has purportedly taken the power to send Australia to war away 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.
Most Australians would be surprised to learn how easy it is for our Government to commit the Australian Defence Force (ADF) to armed international conflict (war). They would be even more surprised to learn, given Australia’s often proclaimed affection for the rule of law and for a rules-based international order, that our deployments in the 21st century have avoided the clear Constitutional path that involves the Governor-General (the commander in chief of the Australian armed forces), and most of them have been in violation of international law.
Regarding our domestic law, our Constitution placed the power to go to war on the British King until 1942 and on the Governor-General thereafter. (It was in 1942 that Australia ratified the Statute of Westminster which gave ‘dominions’ like Australia the right to choose independence – the Australian ratification was backdated to the start of the war, just in case!) The Governor-General was, of course, expected to act on the advice of the Australian Prime Minister. The Governor-General issued declarations of war on Axis latecomers like Hungary and signed peace treaties after the second world war.
What this means is that in order lawfully to deploy the ADF into armed conflict, the Government would be expected to first obtain the assent of the Governor-General. By convention, the Governor-General would be expected to give assent, but those same conventions allow the Governor-General to ask questions and seek assurances, especially about the legality of the action to which s/he is being asked to assent. While the Governor-General is not expected to refuse ministerial advice, the minister is under a duty to ensure that the Governor-General is not asked to act illegally. The conventions do not distinguish between legality under domestic or international law.
Instead of adhering to this clear constitutional path, successive Governments appear to have relied upon section 8 of the Defence Act 1903, a provision which in its current form was introduced in 1975 to make clear that the Minister for Defence had “general control and administration” of the Defence Force and that both the Secretary and the newly created position of Chief of the Defence Force were subject to the Minister’s direction. Section 8 was never intended to create a new power to make war.
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. 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 advice 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. 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 “for noting.”
As matters stand, reliance on section 8 effectively puts the power to make war at the sole discretion of the Prime Minister. All that is required is for the Prime Minister to request the Defence Minister to sign a direction under section 8, and away we go. If the Defence Minister declines, the Prime Minister can arrange for him/her to be replaced within 24 hours. Bad enough, but the situation is even worse than that.
Under our parliamentary system, the Administrative Arrangements Order (which sets out which Ministers administer which Acts of Parliament) assigns all of the powers of the relevant legislation to all of the Ministers in a given portfolio. This means each of the Ministers in the Defence portfolio has the power to give the Chief of the Defence Force a direction under section 8 of the Defence Act. The Prime Minister would not even have to replace a Defence minister who refused to order an illegal war but could simply find one who would.
Where we are today is that the custom and practice of the last twenty years has purportedly taken the power to send Australia to war away 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 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. 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.
Finally, it must be remembered that Article 1 of the ANZUS treaty requires the US and Australia to refrain from the threat or use of force in any manner contrary to the UN Charter.
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. (18.11.19)