SECTION 2. ACCOUNTABILITY MECHANISMS – PROBLEMS & OPPORTUNITIES FOR REFORM
6. GOING TO WAR
Going to war is the most important decision any government takes. It has long been listed as the first and most important prerogative power of the Crown. The US Constitution requires congressional approval and the UK now has a convention that parliamentary approval should be sought. Under the Australian Constitution and Defence Act Australia has two ways to go to war: first by the Governor General under s61 (by convention following the advice of the Prime Minister) and the second is by the Defence Minister under s8 of the Defence Act following, according to political practice, a meeting of the Cabinet or its Security sub-Committee. Despite very strong doubts as to whether s8 was ever intended for this purpose when introduced in 1975[i] it has been used since then to legally authorise commitment of troops in both Iraq wars and Afghanistan. This means that, if Australia goes to war with China, ‘the hand that signs the paper’ will be that of the Defence Minister!
For nearly two decades there have been calls for a prior resolution of parliament before going to war and this has become convention in Canada and UK. Australia should be careful of expecting too much of such requirements by themselves. Such votes are highly political with legislatures fed misleading information and accusation of disloyalty to the troops levelled at any dissent. In the US, this constitutional provision is a limited deterrent to wars of aggression. Indeed, the mischief that the proposed parliamentary vote is proposed to address is one that only arises if the US Congress approves a war.
More is needed. We suggest, as a minimum, that truly independent legal[ii] and military advice is sought by, and presented to, a parliamentary committee made up of the cabinet security sub-committee and their shadows – all of whom either have, or would have in government, security clearance. Those giving legal advice would have to hold practising certificates and Australia should recommit fully to the compulsory jurisdiction of the International Court of Justice as well as signing the amendments to the Rome Statute to ensure the government would be accountable for any illegal wars in which it engaged.[iii] Accepting this accountability would show respect for the international Rule of Law and the rules based order.[iv] It would also be in accord with Article 1 of the ANZUS Treaty which commits Australia to “settle any international disputes in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations.”
[i] Sampford, Charles and Margaret Palmer, ‘The Constitutional Power to Make War: Domestic Legal Issues Raised by Australia’s Action in Iraq’ (2009) 18(2) Griffith law review 350-384.
[ii] This could be provided by the Solicitor General or a panel of former Chief Justices.
[iii] Note that the Australian government avoided accountability in the International Court of Justice by limiting its acceptance of compulsory jurisdiction to those countries which had accepted such jurisdiction for at least a year before they sued us. This change occurred almost exactly 12 months before we joined in the attack on Iraq.
[iv] Sampford, Charles and Margaret Palmer, ‘The Constitutional Power to Make War: Domestic Legal Issues Raised by Australia’s Action in Iraq’ (2009) 18(2) Griffith law review 350-384; Sampford, Charles, ‘A better Westminster way to war? The pro-ANZUS case for an inquiry into Iraq and Australian war powers’ (2012)(10) Viewpoint 30-34
Recommendation 4
Going to War: Before entering a ‘war of choice’ truly independent legal and military advice is sought by, and presented to, a parliamentary committee made up of the cabinet security sub-committee and their shadows followed by a vote of both houses. Australia should ratify the Rome Statute amendments that allow prosecutions for the crime of aggression.