The release of some of the cabinet documents from 2003 calls attention to how the war power is exercised in Australia.
In 2023 the major parties recommended against assigning a greater power over war-making to the parliament. There was agreement, however, that decisions to make war should remain within the Prerogative to be exercised by the Governor-General based on advice. This mode of decision-making is not only constitutionally sound but offers opportunities for checks and balances on the power of ministers through the Governor-General’s powers to ask for assurances, particularly on the legality of the use of force.
Until World War II, the war power in the British Dominion of Australia was a prerogative of the King, whose decisions bound the dominions and colonies of the British Empire.
Thus, it was in 1939, that Prime Minister Robert Menzies declared that ‘in consequence of the persistence of Germany in her invasion of Poland, Great Britain has declared war upon her and that, as a result, Australia is also at war’.
In 1942, the Curtin Government put through the House of Representatives and the Senate a law adopting the 1931 Statute of Westminster, which made the Commonwealth parliament independent from the parliament at Westminster.
A year earlier, Prime Minister Curtin took steps for declarations of war on Finland and Japan to be issued by the Governor-General rather than to be made for Australia by the King on the advice of his British ministers.
In a cablegram to the High Commissioner in London, Stanley Bruce, on 3 December 1941, Curtin explained the new procedure for declarations of war.
A proclamation will be issued by the Governor-General of the Commonwealth of Australia on the advice of the Executive Council here, declaring that a state of war with (name of country or names of countries) is in existence, or has come into existence, in the Commonwealth of Australia and its territories …
Giving the Governor-General this role accorded with his role as commander-in-chief of the Commonwealth’s military forces. In 1901, Sir John Quick and Robert Garran said of Section 68 of the Constitution:
The command in chief of the naval and military forces of the Commonwealth is, in accordance with constitutional usage, vested in the Governor-General as the Queen’s representative. This is one of the oldest and most honored prerogatives of the Crown … All matters …. Relating to the disposition of the federal forces will be regulated by the Governor-General with the advice of his ministry.
When committing the Australian Defence Force (ADF) to war through the process established by Curtin, the Governor-General can be expected, by convention, to assent to advice from his or her ministers.
But those same conventions give the Governor-General the opportunity to ask questions and to seek assurances, especially in relation to the legality of actions to which he or she is being asked to assent.
From the 1980s, Australian governments moved away from the procedure established by Curtin.
They have taken advantage of the Defence Act 1903, as amended in 1975. Section 8 of the act made clear that the Minister for Defence had ‘general control and administration’ of the Defence Force and could give directions to both the Secretary of the Department of Defence and the new position of Chief of the Defence Force.
But as the late Paul Barratt has argued, Section 8 of the Defence Act was never intended to create a new power to make war (Paul Barratt. ‘It’s too easy to take us to war’, Pearls and Irritations, 22 November 2019).
The provision was useful, however, in early 2003, when the Howard Government faced a situation where the United States was preparing for war with Iraq. At the same time, it was uncertain whether the United Nations Security Council would vote to authorise military intervention as it had in 1990.
Another difficulty for the Australian Government was that it was already deeply involved in planning for military intervention with the United States. A report compiled by Dr Albert Palazzo of the Australian Army’s Land Warfare Centre and released in 2018 has revealed that ADF personnel were despatched to US CENTCOM headquarters in Florida in 2002 to begin planning for the war, a year before Howard’s announcement of the decision.
Professor Clinton Fernandes of the University of New South Wales, Canberra, has argued that:
What [Dr Palazzo’s] document shows is that the Howard Government had decided early in 2002 that it was going to join the United States in any operation in Iraq whatever it might be, but it could not admit this to the public or even to the Australian Defence Force (ADF) at large.(Andrew Greene, ‘Australian Defence Force’s Iraq War Secrets revealed in newly declassified report’, ABC, 26 November 2018.)
How much the Governor-General, Peter Hollingworth, knew about all this is unclear. He did, however, regard war in the Middle East as one of the most ethically challenging questions facing the world (‘PM and churches clash over Iraq’, Sydney Morning Herald, 5 October 2002).
As Hollingworth later told Professors Charles Sampford and Margaret Palmer:
I had previously read public statements made by some academics and international lawyers, and, on the advice of the Official Secretary, I sought clarification from the Attorney-General as to technical ramifications that could arise under international law (Charles Sampford and Margaret Palmer, ‘The Constitutional Power to Make War: Domestic Legal Issues Raised by Australia’s Action in Iraq’, Griffith Law Review, vol. 18, no. 2, 2009, pp. 350-84).
At the time Hollingworth made this request, it appeared that Howard was preparing to take the commitment of the ADF in Iraq to the Executive Council. This was apparently ‘for noting’, rather than for the Governor-General to assent to advice.
There was a precedent for the Governor-General seeking reassurance and legal advice from the Attorney-General on domestic matters.
In 1977, Sir John Kerr sought advice from the Attorney-General, Peter Durack, before assenting to advice from Prime Minister Malcolm Fraser on the appointment of Doug McKay as Secretary of the newly created Department of the Special Trade Negotiator. On Durack’s advice, Fraser was forced to rescind earlier advice provided to Kerr and to put special legislation though the parliament before asking the Governor-General to appoint McKay to the position. Nearly fifty years earlier, in 1932, the Governor of New South Wales, Philip Game, dismissed the Premier, Jack Lang, after warning him that his withdrawal of state’s funds from government bank accounts was illegal.
In 2003, even a submission on Iraq to Hollingworth ‘for noting’ need not have prevented the Governor-General asking for advice from the Attorney-General on the war’s international legal aspects. Perhaps with this in mind, Howard advised Hollingworth that his predecessors had not been involved in past decisions that committed the ADF to war and that no involvement by him was necessary.
The legal means by which the Howard Government committed Australia to the war was the power of the Minister for Defence under the Defence Act to give directions to the Secretary of the Department of Defence and the CDF. This involved neither the Executive Council nor the Governor-General.
The Attorney-General, Daryl Williams, did not reply to Hollingworth’s request for advice. Howard did so ‘from available legal advice’.
The legal advice proffered by the Government was prepared at the level of first assistant secretary in the Department of Foreign Affairs and Trade (DFAT) and the Attorney-General’s Department in close consultation with the British Government. The ultimate decision to go to war was based on this advice (the ‘Memorandum of Advice’) and made by the cabinet (without written submission and based on an oral report by Howard) on 18 March 2003.
On 21 March 2003, the day after the invasion of Iraq, the former Solicitor-General, Gavan Griffith, ridiculed the legal advice written by two public servants without practising certificates rather than by more senior legal advisers, including the Solicitor-General (‘This war is illegal: Howard’s last top law man’, Sydney Morning Herald, 21 March 2003).
When they become available, records from the Attorney-General’s Department of 2003 will be able to confirm a suspicion by Sampford and Palmer that earlier more equivocal advice on the legality of the proposed international action was prepared in that department. If so, the Government chose the legal view of the first assistant secretaries (a minority among international lawyers) because it accorded with its political position.
This raises a counterfactual question. What could the Governor-General have done if he continued to expressed dissatisfaction with advice to him on the international legality of the war, especially as this was not from the Attorney-General whose advice he had sought?
It was open to the Governor-General, for example, to ask for the Attorney-General’s advice as first law officer or to insist that the advice deal with the competing arguments.
The Leader of the Labor Opposition, Simon Crean, wo opposed the Howard Government’s commitment to the war, was reinforced by independent legal advice that he said was ‘consistent with the overwhelming weight of legal opinion from international law experts from around the world and from here in Australia’ (Leader of the Opposition, Speech to the National Press Club, 20 March 2003).
Crean might have had more success by focusing directly on the shortcomings of the Government’s legal advice (including the level at which it was proffered) and the role of the Governor-General in the decision making.
By May 2003, the Governor-General had resigned over his previous handling of allegations of sex abuse in the Anglican archdiocese of Brisbane.
By this time, a large section of the Australian media was solidly behind the war. Since 1987, Rupert Murdoch owned the most important newspapers in in Sydney and Melbourne and the only papers in Brisbane, Adelaide, Hobart and Darwin. As Robert Manne observed, between ‘2002 and 2004 harsh and frequently shrill criticism of the Labor Party was mounted throughout the Murdoch Press (Robert Manne, ‘Murdoch’s War’, The Monthly, July 2005).
In Britain, the Iraq War prompted resignations by some of Blair’s ministers and a senior legal adviser from the Foreign Office. There were no similar resignations in Australia. In 2009 Blair’s successor, Gordon Brown, announced the Chilcot Inquiry into Britain’s role in the Iraq War. Despite indications by Crean’s successor as Opposition Leader, Kevin Rudd, no inquiry was ever convened in Australia.
Twenty years later, in 2023, the Joint Standing Committee on Foreign Affairs, Defence and Trade commenced an inquiry into armed conflict decision making. The majority, reflecting the major parties, vetoed a role for parliament in making decisions on armed conflict. It did, however, recommend amending the Cabinet handbook to:
restore the primacy of the Governor-General under Section 68 of the Australian Constitution to give effect to decisions of government in warlike operations, particularly in relation to conflicts that are not supported by resolution of the United Nations Security Council, or an invitation by a sovereign nation.
Another desirable outcome is a clear stipulation that future decisions on war, given their importance, should always be taken by the full cabinet and not just one of its committees.
Moreover, In the absence of a Chilcot-like inquiry in Australia, a report drawn from relevant documents on the decision to join the Iraq War in 2003 could be commissioned by the Government to illuminate the joint committee’s recommendations on the war power.
Just such a report was commissioned by the Whitlam Government from the Department of Foreign Affairs on Australia’s decision to join the Vietnam War in the 1960s (Australia’s Military Commitment to Vietnam, tabled in accordance with the Prime Minister’s Statement in the House of Representatives, 13 May 1975).
This report should be drawn from all relevant records, including those of cabinet’s national security committee, DFAT, the Department of Defence, the Department of the Prime Minister and Cabinet, the Attorney-General’s Department and the Office of the Official Secretary to the Governor-General.
login
who are we?
contact us
qosheapp
Toi Staff
Gideon Levy
Belen Fernandez
Andrew Mitrovica
Mort Laitner
Nikkei Editorial
Rami G Khouri
Ali Fathollah-Nejad
visit website
