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A recent ABC Lateline program ^[2] has stirred fresh debate about the exercise of war powers in Australia, following the Chilcot Report ^[3]’s criticism of the United Kingdom government’s decision-making in the lead-up to the Iraq War.

Prominent voices demanded that parliament should have to approve any decision to go to war although there is no particular reason to suppose that a larger group of politicians would necessarily make a better decision than a small group. Regardless of whether the parliament or the executive decides, there’s much that could be done to improve existing executive practices. Decision-making by the National Security Committee (NSC) of Cabinet alone, as is currently the case, is undesirable.

The NSC decides on the use of the most extreme powers available to government. This includes deliberate killing, destruction and capture in war. Such action may also be militarily offensive rather than defensive in character. Despite this, an NSC decision does not in itself provide a clear legal basis for the use of military force. As a result, parliamentary and public debate is less informed and effective in holding the government to account; it’s less clear which actions of the ADF are within the scope of lawful authority and which are not; and members of the ADF are potentially exposed to personal legal liability for following orders for which the source and legal basis are unclear.

There’s no positive authority in Australian case law or statute to kill, capture or destroy in war. Such matters have traditionally been part of the war prerogative. Such case law hasn’t directly authorised actions against the enemy, but instead rendered such actions immune from legal liability. The extent of that immunity is unclear and the subject of continuing litigation before the courts in the United Kingdom.

Until 1942, declarations of war clearly invoked the war prerogative. This had the advantage of identifying the enemy as well as the duties of those in the armed forces. The King gave the Governor-General the power to declare war separately against Japan and other Axis powers by special royal instruments in 1941 and 1942. This meant that the Governor-General could exercise all aspects of the war prerogative. This power only passed to the Governor-General in very precise terms. It did not pass to any other Commonwealth official.

Importantly, members of the ADF have a duty to obey lawful orders. As put by Justice Murphy in A v Hayden in 1984, ‘Military and civilians have a duty to obey lawful orders, and a duty to disobey unlawful orders’. An order from the Governor-General to the ADF invoking the war prerogative would make it a duty for ADF members to kill or capture the enemy, and destroy enemy property, where it’s lawful to do so under the law of armed conflict. Only the Governor-General has that power, through having command-in-chief of the Australian Defence Force. Despite a general power of direction, no minister has command over any member of the ADF. Therefore there’s no defence of lawful orders available to a member of the ADF for following an NSC direction.

This isn’t a hypothetical issue. The prosecution of two commandos before a court martial in 2011 raised the important question of what the authority was for them to be using force in Afghanistan.

One way to address these issues would be to have an order from the Governor-General to the Chief of the Defence Force to deploy the ADF for a particular purpose. It could look like this:

Whereas:

the Republic of Iraq is under armed attack by forces known as the Islamic State in Syria and Iraq, and

the Government of Iraq has requested military assistance from Australia to repel that attack;

I, General Sir Peter Cosgrove, Governor-General of the Commonwealth of Australia and Commander-in-Chief of the Australian Defence Force, on the advice of my ministers and acting in accordance with the war prerogative exercisable by me, order the Chief of the Defence Force to use force to assist the Government of Iraq to resist enemy forces known as the Islamic State in Syria and Iraq, in accordance with such directions as my ministers may give.

Such an order identifies the legal basis to act in international law, which is collective self-defence of Iraq at the invitation of the Government of Iraq. It also provides a clear strategic intent, which is resisting the enemy of Iraq, even if there’s no strategic end state. It acknowledges the convention of acting upon ministerial advice but also that the order relies upon the war prerogative as exercisable by the Governor-General.

An order like that could provide the basis for informed parliamentary and wider public scrutiny and debate. It could also be helpful in scrutinising ‘mission creep’ beyond the scope of the order. Equally, an order could be pleaded in court as a defence of lawful authority or a defence of lawful superior orders. This would be a significant and necessary improvement to the legal procedures by which Australia decides to go to war.