2. The source, nature and exercise of power regarding armed conflict and war
   1. One of the key questions that has formed part of the public debate regarding the decision to go to war is the source of the relevant power and who can exercise it. Generally, it is accepted that a “decision to commit the Australian Defence Force to operations as part of an international armed conflict is an exercise of prerogative power pursuant to s 61 of the Constitution”.[1] Historically, for example in World War II prior to the adoption of the Statute of Westminster, a decision to declare war was given effect via section 68 (s 68) of the Constitution via advice to the Governor-General as Commander-in-Chief of the ADF. However, in recent times it appears that section 8 (s 8) of the Defence Act 1903 (Defence Act) has more commonly been relied upon as the way by which the elected government exercises control over the ADF and could be used to give effect to executive decisions to participate in a war or warlike operations.
   2. This section discusses the potential sources of power to go to war and deploy the ADF internationally, the nature of how these powers operate, and who can and should exercise them.

Source of power to decide to go to war

2.3The Constitution does not expressly provide powers to deploy military personnel or the declaration of war or warlike operations, nor does it contain any powers for the Parliament in relation to any decision regarding armed conflict. In the Constitution’s early history, Australian Governments were ‘unsure as to whether it could even declare war against another country without British Government approval’.[2]

2.4Due to the Constitution’s absence of specific reference to war and other related operations, powers regarding these topics have been implied in Chapter II of the Constitution, which outlines the Executive Government’s powers and functions. The two provisions most relevant to the exercise of powers in relation to war or warlike operations are sections 61 and 68 of the Constitution.

2.5Section 61 of the Constitution provides that:

The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

2.6Following on, s 68 states:

The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.

2.7These two sections, when read together, have been interpreted as placing the prerogative power of the Monarch to declare war or conduct warlike operations in the Governor-General.[3] The placement of the two sections also indicates that the power is an executive power, exercised by the Governor-General. This section stipulates that the Governor-General is the commander in chief, rather than ‘in Council’. When understood through the lens of responsible government conventions, this section should be interpreted as being exercised on the advice of a Minister. By convention, the Governor-General exercises his or her power based on advice from the Prime Minister, which in the modern era would arise from deliberations of the National Security Committee of the Cabinet.

2.8The Governor-General’s power to exercise authority over the armed forces is consistent with most Westminster systems, which generally consider the command of the military to be ‘one of the oldest and most honoured prerogatives of the Crown’. The section more broadly also vests the power to ‘determine the organisation, structure, placement, arming and equipment of the ADF’ in the Governor-General.[4] Importantly, it enables the Governor-General to command the Chiefs of the Armed Forces to deploy the ADF, as opposed to advising them to do so.[5]

2.9The prerogative power provided by s 68 has been argued to be fundamentally different to the other executive powers in section 61 of the Constitution, confirmed by the High Court in White v Director of Military Prosecutions. Rather than forming part of the Executive Government and forming part or the entirety of a portfolio, the commander-in-chief exists separately to the elected government of the day.[6] As an executive power, the Parliament may regulate the command power via legislation, but the prerogative cannot be entirely removed from the Governor-General.

2.10The use of powers under sections 61 and 68 are not qualified with requirements to notify, consult, or seek approval from the Parliament.[7] There is also no requirement to issue certification that a decision to go to war or conduct warlike operations is consistent with the scope and authority of the constitutional provisions.[8]

The role of the Defence Act 1903

2.11While the Constitution is widely considered the source of authority by which the Executive decides to go to war or conduct warlike operations, there has also been commentary suggesting the Defence Act could be an alternative authority.

2.12Section 8 of the Defence Act provides that:

(1) The Minister has general control and administration of the Defence Force.

Note: Command in Chief of the Defence Force is vested in the Governor-General: see section 68 of the Constitution.

(2) In performing and exercising functions and powers under this Part, the Chief of the Defence Force and the Secretary must comply with any directions of the Minister.

2.13Further, the Defence Act provides the Governor-General with powers of conscription during times of war. Section 60 provides that, in ‘times of war’ as defined by the Act, the Governor-General may by proclamation call upon all persons who meet eligibility requirements in section 59 to serve for the duration of the time of war. In 1992, this power was amended to require that a resolution of both Houses of Parliament be passed for the proclamation to take effect in relation to conscription.[9]

2.14In addition, section 50D permits the Governor-General to callout the ADF Reserves during situations involving warlike operations and was until 2001 subject to the requirement that Parliament meet within ten days after the Proclamation is issued.[10]

2.15Section 8 is said to have two critical functions in relation to the conduct of war or warlike operations, which was that ‘it helps responsible government, but it also keeps the ADF apolitical’.[11] According to Professor Cameron Moore, the latter function provides a level of separation between the Executive (such as the Minister) and the armed forces.

2.16A small number of stakeholders suggested that s 8 could be read as providing an alternative to the constitutional power. Professor Charles Sampford, of the Accountability Round Table, suggested the provision in the Defence Act could potentially be viewed as an unintentional ‘duplicate’ mechanism, but that it ‘could not be interpreted as replacing the s61 prerogative’.[12] Professor Cameron Moore however argued that s 8 should not be considered as a ‘power of command’, as this would effectively provide that the Minister can direct the armed forces, creating an ‘obligation of obedience’.[13] This was echoed by Professor Sampford, who suggested the use of s 68 of the Constitution is ‘bulletproof, constitutionally’, whereas s 8 of the Defence Act is less reliable as a source of authority.[14]

2.17Professor Moore was in favour of the use of the constitutional powers as the primary mechanism for the Executive to declare war or engage in warlike operations for three key reasons:[15]

• It would promote transparency and clarity in the Executive and its decision, by ensuring that the decision is made formally by the only official empowered by the Constitution to do so
• It would enhance accountability to the Parliament ‘without removing the flexibility and decisiveness required by the executive for making such decisions’, thus promoting responsible government
• Ensuring the ADF (both heads of missions and deployed personnel) understand the legal authority and legitimacy of the decision, which would ultimately shift the onus of any uncertainty onto the government of the day rather than the ADF
  18. Defence clarified the intent and scope of s 8 in regard to decisions to go to war or conduct warlike operations:

Section 8 of the Defence Act 1903 sets out that the minister has general control and administration of the Defence Force and that both the Chief of the Defence Force and the secretary must comply with directions from the minister, which is a codification of the general principle of civil control of the military. The control and administration provisions of section 8 do not restrict the deployment of the Australian Defence Force overseas in international armed conflict under the executive power.[16]

2.19The Attorney-General’s Department (AGD) stated that Defence ‘is not aware of any practice or requirement, under successive Governments, for a direction to be made by the Minister for Defence under s 8 of the Defence Act in order to deploy the Australian Defence Force on operations’.[17]

Has the Defence Act been used previously?

2.20Research submitted in evidence to the inquiry suggested that s 8 was used by a previous government to enable the Executive to make the decision to go to war. According to Professor Sampford and Margaret Palmer, in 2003 the Defence Minister used s 8 in the Defence Act as a means to direct the heads of the ADF to deploy forces to Iraq.[18] They argued that s 8 was ‘not intended to be used for the decision to go to war, and that such instructions are for peacetime or in bello decisions’.[19]

2.21Sampford and Palmer asserted that there are three key reasons to reject interpreting s8 as a source of power to make decisions regarding war or warlike operations:

1Assuming that the power to go to war or conduct warlike operations was duplicated in the Defence Act, it would be unlikely that the power would be concentrated in only one person (i.e., the Minister for Defence)

2Such a change in interpretation would likely be preceded by an explanation by the Minister for Defence

3When amending s 8 in 1975, it was done within the context of the release of the Tange Report, which had suggested that the section be reframed to enable the Minister for Defence with the administrative command of the ADF. This suggests that the government’s intention was to achieve ‘more effective strategic and Defence policymaking and more efficient operational arrangements’[20]

2.22Professor Moore argued that the lack of public documentation on which power is used and on what legal basis effectively opacifies effective scrutiny of the decision to engage in conflict, particularly in situations where the source of the power is unclear (for example, in a situation where the Minister has directed the Chief of the ADF to act).[21]

2.23When asked to clarify the use of s 68 of the Constitution and s 8 of the Defence Act, the AGD advised that it was unable to provide further clarity. However, they confirmed that the constitutional prerogative power is the recognised mechanism in relation to war and warlike operations in the context of international armed conflict.[22] Defence similarly stated that it had obtained advice from AGD and the Australian Government Solicitor, which indicated that:

[T]he decision to commit the Australian Defence Force to operations as part of an international armed conflict is an exercise of prerogative power pursuant to section 61 of the Constitution. Defence is further advised by these departments there is no constitutional requirement for the Government to act through the Governor-General in such circumstances.[23]

2.24Drawing on submissions, hearings and advice including from Professor Cameron Moore and the Parliamentary Library, the arguments for the s 8 approach of the Minister directing the CDF to order the ADF to use major force can be summarised as follows:

• It is the current practice. No new thinking or processes are required to use the s 8 approach
• It gives the CDF more latitude to contest the Minister’s direction. Advice from the Parliamentary Library states that it does not involve the s 68 constitutional considerations of advising the Governor-General
• It is likely to be quicker. There is essentially a direct path from the National Security Committee of Cabinet to the CDF, without involving the Office of the Governor-General. It is important to note that this would not prevent the subsequent making of a s 68 order by the Governor-General, which could be backdated to take effect from the date of the ministerial direction. In any case, it would be a likely and preferable course of action to have a ministerial direction under s 8 prior to obtaining any s 68 order from the GG. The CDF would still have the opportunity to contest any ministerial direction, and even resign, before the making of any subsequent s 68 order by the Governor-General
  25. The arguments against the s 8 approach provided by submitters are as follows:
• The process lacks clarity and transparency. There is no public document clearly stating the authority to deploy the ADF in war or conduct warlike operations. There is no detailed specific record of the decision which can be debated in parliament or pleaded in defence to a disciplinary or criminal prosecution. This may be more significant when relying upon the foreign affairs prerogative and act of state doctrine, such as for INTERFET in Timor, which has a more uncertain basis in law than the war prerogative
• In the case of war, there is also no clear statement of who the enemy might be. This is relevant to the pleading of the combat immunity doctrine in domestic law or claiming combatant immunity (or privilege) in international law. It is also relevant to the prosecution of military disciplinary offences such as conduct in relation to the enemy, and civilian criminal offences involving the enemy, such as trading, treason and so on
• There is no immunity deriving from an administrative direction. Given that it is not an offence for CDF to fail to comply with the direction, there can be no defence in domestic or international law of following lawful orders for CDF. Other members of the ADF may argue lawful orders but there would be no public document to rely upon
• The minister’s direction may still be justiciable. It is more open to seek judicial review, and an administrative law remedy such as an injunction or declaration of unlawfulness, for a decision of a minister than a decision of the Governor-General. A court may decide that the subject matter of a decision to go to war is itself non-justiciable, but minister’s decisions are not normally immune from judicial review in the way that those of the Governor-General normally are. Even if CDF issued a public order following a ministerial direction, it could still be subject to judicial review in the same way as for the Minister
• An unseen administrative s 8 direction process may lack the legitimacy of an open constitutional s 68 process invoking the duty of members of the ADF. This could be a significant consideration for ADF operations which involve deliberate causing of death, destruction, and capture, particularly in foreign countries, and even more so in circumstances where there is no UN Security Council Resolution or invitation of the foreign country in question

Who can exercise the power?

2.26As outlined above, the constitutional prerogative power to go to war is vested in the Governor-General by virtue of s 61. While the Governor-General has the formal power to make decisions regarding armed conflict and exercise control of the armed forces, by convention the Executive branch of government – that is, the Prime Minister and the Cabinet – will ultimately decide whether to go to war or conduct warlike operations.[24]

Criticism of current arrangements

2.27A significant majority of stakeholders expressed their opposition to the longstanding constitutional prerogative of the Governor-General, in practice exercised by Executive Government, to make decisions regarding Australia’s involvement in international armed conflict. This section succinctly summarises their arguments without seeking to repeat the detail contained in the publicly available submissions.

2.28The key criticisms of the current arrangements included:

• The perception that current arrangements, which vest the power in a single person in authority (or small group of people), is outdated and out of step with broader developments in other legislatures[25]
• Suggestions that the current system is ‘undemocratic’ and open to potential misuse
• Arguments that the Australian public has higher expectations for open and accountable government, which includes stronger accountability via parliamentary engagement[26]

‘Outdated’ concentration of power

2.29The concept that one person or one branch of government (i.e., the Executive) should be solely responsible for exercising the power in relation to war or warlike operations was strongly criticised by a number of witnesses. Submitters argued that this model does not match public expectations of how decisions of such magnitude should be made in modern government.[27]

2.30Professor George Williams argued that the current legislative arrangements reflect ‘the best state of the law in the 1800s’ and are inconsistent with contemporary expectations regarding armed conflict decisions.[28] He noted that the Constitution and the Defence Act were drafted and enforced prior to Australia’s submitting to the UN Charter framework relating to international obligations regarding the use of force.[29]

‘Undemocratic’

2.31Other witnesses argued that the current system, in which the Executive has the ultimate power to determine whether to engage in armed conflict, is ‘fundamentally undemocratic’.[30] The current process was suggested to be open to potential ‘distortion and … political manipulation’.[31]

Lack of accountability and transparency

2.32A prominent issue raised was whether the executive’s power to decide to go to war or conduct warlike operations is appropriate and balanced against contemporary expectations of accountability and transparency in government.

2.33The current model’s lack of transparency was argued by most submitters and witnesses to be a key flaw in how Australia decides to go to war or conduct warlike operations. As discussed above, the Constitution does not require on the decision-maker to provide any form of public accountability for the decision to go to war or conduct warlike operations. Williams and Hall noted that there is no requirement for governments to explain any criteria for going to war.[32]

Support for the status quo

2.34While most submitters criticised the current arrangements, some submitters took a different view and argued in favour of the retention of Executive prerogative regarding the power to make decisions regarding war and warlike operations.[33] Dr Alex Bristow argued that changes to current arrangements would not be ‘conducive to Australia’s national security interests’.[34]

2.35Defence asserted its strong view that current decision-making arrangements ‘remain appropriate’. The Department stated that current practices permit the Executive to have access to a complete range of intelligence which enabled considered and informed decisions regarding whether to commit resources to war or warlike operations. Defence argued that ‘[a]ny shift in these decision-making powers to the Parliament would risk significant adverse consequences for Australia’s national security interests’.[35]

The power in practice

2.36As reflected broadly in submissions, there is limited public understanding of how the Australian Government practically decides to go to war. Defence provided an explanation as to how this decision may be arrived at:

The process, of which I appreciate many committee members are aware—decisions on the employment (sic) of the ADF, in my experience, have all been taken through the National Security Committee of cabinet, for the consequential deployments we have experienced. It is based on the advice of the Department of Defence matched by Foreign Affairs and Trade and other key stakeholders, informed by the national intelligence community, through advice, in our case, offered through the Minister for Defence into the National Security Committee, where the decisions are made, and it then translates back into the orders the ADF uses as the executive authority to deploy.[36]

2.37As indicated above, a range of other entities are involved with the decision to go to war or conduct warlike operations. These include:

• The National Security Committee (NSC), which ‘considers matters related to Australia’s national security, including strategic priorities, operational matters and activities of the intelligence community’[37]
• The Federal Cabinet, which includes formerly established specialised subcommittees of Cabinet, such as the War Cabinet established by Prime Minister Robert Menzies in 1939[38]
• A range of other government entities, such as the Department of Defence, the Department of Foreign Affairs and Trade, and other security agencies
  38. Participants argued that the current arrangements in determining whether Australia should go to war are problematic. Some witnesses argued passionately that the decision to go to war has historically not considered aspects such as whether a genuine threat was present and the costs of war (including monetary costs, costs to Australia’s international reputation, and the cost of lives lost by both personnel and civilians).[39]
  39. A particular issue noted was the long-term consequences of Australian Governments committing to war. Armed forces veterans explained that their experiences in wars without approval or appropriate scrutiny from the Parliament had impacted their mental health over the course of their lives. They particularly expressed concern that ‘wars of choice’ (i.e., where Australia had not been responding in self-defence) were particularly damaging to the morale and long-term psychological health of ADFpersonnel.[40] This group of witnesses also strongly argued that the Executive should cautiously approach the decision to go to war or conduct warlike operations, considering a range of factors:

The factors that I would include in terms of my criteria would be whether it’s legally justified under international law, which has already been referred to, and I agree with that; whether it’s morally justified in all the circumstances; whether the economics stack up—Can we afford to go to war? Is it justified?—whether it is environmentally justified; whether it will have a positive or negative impact on building a culture of world peace, which is also referred to by other people; and, then, whether in all the circumstances, over and above those previous five criteria, it's in the national interest, and there are a number of suggestions as to what kind of list would go on to that.[41]

2.40Similarly, the Australians for War Powers Reform argued that humanitarian considerations must be a factor when determining whether to engage in conflict, including the impact on civilians and the consequential costs of caring for potential displaced persons and refugees.[42]

International comparisons

2.41There is a wide variety of models across the world in terms of how governments engage with the legislature on matters regarding international armed conflict. See Appendix C for an overview of comparative international jurisdictions and their legislative frameworks in relation to international armed conflict.

2.42It should be noted, however, that comparative analysis in considering international armed conflict decision-making powers may be of limited benefit. Mr Justin Bassi, Ms Bec Shrimpton and Dr Alex Bristow argued that there are risks in comparative analysis between like Westminster countries. They noted that while other systems may have similar models of parliamentary engagement or are strategic partners (for example, the United Kingdom and the United States of America), each country’s system must be contextualised within their own strategic and political environments. Consequently, they warned against an exact copy of a model from another jurisdiction to be imported into the Australian context.[43]

The ‘threshold issue’

2.43At what point the Parliament should be engaged to become involved or be consulted or notified in relation to a particular operation was a key theme during the inquiry. This question drew a diversity of opinions from stakeholders, which ranged from the relatively high threshold (such as, only operations which were deemed ‘wars of choice’) to the significantly lower threshold (i.e., all operations should be subject to parliamentary debate and approval, regardless of any particular factor).

2.44Representing the ‘low’ threshold case, Professor George Williams AO and MsWinsome Hall argued:

The threshold should remain the same regardless of the “type” of military operation: if a cyberspace operation, for example, required an exercise of executive prorogation power to commence the operation that should be subject to approval by parliament.[44]

2.45In contrast, many submitters argued that there should be a lower threshold for any potential conflict or warlike operations which could be considered ‘wars of choice’, or conflicts which do not arise out of self-defence, whereas some forms of conflict which should not be considered as requiring the same level of scrutiny by the Parliament. Professor Clinton Fernandes described the distinction between the two categories of conflict, describing ‘wars of necessity’ in the following terms:

Wars of necessity refer to military actions taken in self-defence. If any part of Australia is attacked or threatened, the Executive must have the freedom to act without parliamentary involvement. It then notifies the United Nations Security Council, as provided for in Article 51 of the UN Charter. A war of necessity is not restricted to circumstances when an attack on Australia has already occurred; it has long been understood that whoever fires the first shot is not always the aggressor. Under certain circumstances, self-defence may be justified even before an enemy has fired the first shot or sent its troops across the border. Australia cannot stand by idly whilst her enemies’ preparations result in an actual strike, preventing an effective defence. Wars of necessity can occur either on Australian territory or anywhere else in the world. No parliamentary approval would be required because the danger is “instant, overwhelming, leaving no choice of means, and no moment for deliberation.[45]

2.46The definition of a ‘war of choice’, he contrasted, involves any form of armed conflict ‘for any reason other than self-defence of Australia’. Situations that might come under this category were said to include:

• humanitarian operations
• peacekeeping missions or peace enforcement missions
• coalition operations
• any operation conducted in conjunction with another country as part of a security treaty
• any armed conflict operation which would require notification to the UN Security Council as per Article 51 of the UN Charter[46]
  47. Similarly, Mr Cameron Leckie submitted that proposals for operations intended to defend ‘national interests’ should be subject to a different threshold, while self-defence operations require immediate response.[47]
  48. ProfessorFernandes further explained what kinds of situations could fall either side of the threshold:

If a foreign country were to seize Ashmore Reef or Christmas Island or Cocos Island, there’s no parliamentary debate. You would send an amphibious tactical task force, which would conduct a lodgement. You wouldn’t discuss anything; you would just go and try and destroy the enemy. If you had an urgent, time sensitive overseas hostage recovery situation, there would be no parliamentary debate. But if you distinguish between those wars of necessity and wars of choice, such as coalition operations, all I’m suggesting is we should be on the same footing as other countries that we respect and admire, like, for example, Norway, Germany, the Netherlands. These are all NATO members, which require a higher level of treaty commitments. If a NATO member is attacked, there’s no parliamentary debate; it’s done by NATO itself. But if they need to send troops to Afghanistan or renew their commitment to Afghanistan, then the Netherlands parliament has to first approve it. The US can’t just say, ‘Do it’' and they just go and do it. That’s the difference between a war of choice and a war of necessity.[48]

Intelligence issues

2.49For the Parliament to be able to make fully informed decisions there would have to be access to the intelligence that are being relied upon for the decision. To this end, stakeholders were sharply divided in their views regarding the extent to which access should be permitted, although most recognised that full access to all levels of highly classified intelligence should not be available to the entire Parliament.

2.50Some submitters suggested that the Parliament should have access to ‘the maximum possible information to make a well-informed decision’.[49] The Australians for War Powers Reform took a slightly different view, arguing that the information required for parliamentarians to make an informed decision does not need to be highly classified. While recognising that certain kinds of information should remain secret (such as targets, strategies, and tactics of warfare), they argued that certain details were essential for public accountability and informed choice:

What would be disclosed would be the nature of the threat, the capacity of Australia to meet it and the necessity for Australia to do so. None of that needs to be classified information. If that information is not known, then it should be known and it should be made clear to the representatives of the Australian people.[50]

2.51Mr Behm agreed that certain forms of highly classified intelligence should not be revealed in broader parliamentary debate, but that in his experience with the Department of Defence that it is:

…entirely possible for the ADF to conduct operations successfully with a much higher level of general accountability to the parliament and not necessarily accountability about the specifics of the way in which those operations are conducted.[51]

2.52On the other hand, other stakeholders expressed strong concerns about any proposal involving the public disclosure of intelligence. Defence stated:

The provision of the full suite of policy, military, and intelligence advice to Parliament to enable informed decisions risks the disclosure of highly classified information in the public domain, most prominently through discussion during open parliamentary debate. This in turn could severely compromise the safety and security of ADF operations. For example, any public pre-notification of the nature of a potential ADF deployment – timing, size, or geographical location – could provide adversaries with the kind of tactical advantage that could place ADF personnel in harm’s way in otherwise avoidable situations. Such operational information could also limit the ADF’s ability to undertake clandestine activity, including activities necessary to reduce risks to ADF personnel.[52]

2.53Mr Justin Bassi, Bec Shrimpon and Dr Alex Bristow similarly expressed concern in relation to intelligence matters. They suggested that the Executive:

…must retain discretion about whether and how to report certain types of deployment, even retrospectively. Such discretion is, for example, likely to be appropriate around the deployment of special forces, submarines, or surveillance aircraft, where secrecy may be paramount even after a mission is complete.[53]

2.54Some witnesses also argued that intelligence, even in the best of circumstances, is imprecise and thus should not be the main determinant of whether to engage in hostilities. Mr Scott MacInnes warned that intelligence should always be scrutinised carefully, as it is by its nature ‘partial, incomplete and predictive about a future that can’t be known’. He recommended that questions regarding whether to share intelligence with the broader Parliament should be referred to a specially empowered committee for decision (see below).[54]

2.55Similarly, Professor Fernandes suggested that the Parliamentary Joint Committee on Intelligence and Security (PJCIS), or a similarly constructed committee, be empowered to receive highly classified information in relation to decisions to go to war and engage in warlike operations.[55] He observed that such a model would be similar to that which is practiced in the United States, where the Intelligence Committees and Judiciary Committees of the Senate and House of Representatives receive regular briefings on ‘all authorized intelligence collection programs’. Further, specific types of operations require that the United States Executive is required to brief the Chairs and most senior opposition members of the Intelligence Committees but are not empowered to approve or veto any proposed operations. Professor Fernandes suggested that this kind of model would be well-suited to the Australian context, particularly in the context of Australia’s ANZUS obligations.[56]

Time-sensitive situations

2.56Time-critical scenarios were a contentious issue in considering potential reforms to parliamentary engagement in international armed conflict decision-making. One of the main arguments against reform – particularly which would require the Parliament to meet, consider and vote to authorise any operations or conflict – was that there could be strategic challenges caused by lengthy time delays.

2.57Defence argued that the current arrangements allow for flexibility and rapidly evolving needs of the armed forces. It stated:

The efficacy of ADF deployments overseas for international conflicts is in part a function of their timeliness and flexibility. In some emergency situations, Australian troops will deploy to a foreign country within 24 hours. For example, following a decision by the Executive to evacuate Australian citizens and visa holders from Afghanistan in August 2021, an ADF aircraft departed Australia to commence operations within 24 hours. Similarly, Australian governments require the ability to flexibly and rapidly pre-position the ADF overseas to deter and, if necessary, effectively respond to military contingencies during periods of tension or crisis. Such scenarios underscore the reality that modern conflict is fluid and dynamic, with the potential for security incidents to escalate and de-escalate in a matter of days and even hours.[57]

2.58The Department warned that there would be significant negative consequences if Parliament’s powers regarding war were broadly expanded. It posited that requiring parliamentary approval, for instance, could significantly undermine the ADF’s capacity to operate quickly and flexibly, if hindering factors such as the recall of Parliament or the provision of adequate time for consideration before voting were to be introduced. Defence pointed to two major potential impacts that such a scenario would result in:

• Australia being unable to rapidly respond to fast-emerging threats
• The loss of confidence in Australia’s capacity to engage effectively on the part of Australia’s strategic partners[58]
  59. Dr Alex Bristow similarly argued that the proposal to require prenotification prior to operations would not be ‘consistent with Australia’s national security interests’.[59]
  60. In contrast to these concerns, some stakeholders put the view that it was unlikely that a delay to the beginning of a conflict would substantially alter Australia’s tactical position. Mr Leckie stated that while there may be a ‘short-term risk of increased casualty’ by introducing new requirements that may delay action (particularly regarding parliamentary preauthorisation), this would likely ‘be much less than the longer-term consequences of making the wrong decision’.[60]
  61. Similarly, some submitters argued that likely threats, even in new situations such as a nationwide cyber-attack, there would likely be sufficient warning leading up to the attack which would allow the Executive to bring the matter before the Parliament. Professor Sampford stated:

When it comes to dealing with … cyberattacks and so forth or things where it’s not a war of choice, it obviously needs to be simpler, but it is unlikely to just come out of the blue. It’s likely governments won’t know exactly what’s going to happen, but they’ll know that there are threats. I think it’s very important that [a proposed] security subcommittee of cabinet and their shadows be engaged in active discussion of those threats and understand them in the lead-up … they need to be involved in discussion and to be ready.[61]

2.62Professor Ben Saul agreed with this perspective, arguing that the majority of ADF deployments since 1945 have ‘almost all been preceded by often months of public debate, including discussion by the government itself’.[62]

2.63However, this point was contested by Associate Professor Cameron Moore, who observed that while such concerns were reflective of events such as in the 2003IraqWar, a more likely scenario that Australia may face in future may be more complex in terms of its lead-up:

I don’t agree with the view that we’ve had lots of lead time. The situation in Kabul in August last year had very little lead time. The situation in Honiara last year had very little lead time. The situation in the South China Sea will have very little lead time if anything happens now. A laser in a P-8 cockpit happens right there and then. That’s the situation we’re in now. It might be a blockade of Taiwan. They’re not the defence of Australia, but they’re not wars of choice either. We’re not looking at luxurious peacekeeping deployments where there’s lots of time and the ability to get things together and debate them in parliament. I just don’t think that’s the situation we’re in now.[63]

2.64Professor Clinton Fernandes observed that time issues may pose challenges in requiring that Parliament meet to consider and vote on a proposed operation, even in conflict situations which did not arise out of direct threat (or ‘wars of choices’, as discussed above). He suggested that:

In such circumstances, the Executive should have the freedom to deploy troops into action but must still notify Parliament of the reasons for the deployment, the legal authority, the expected geographical extent, the expected duration, the approximate number of ADF personnel involved, and a certification that an instantaneous response was needed. Parliament can then choose to persist with (or revoke) a deployment post facto. If Parliament decides to revoke the deployment, the military would advise the government on how such a withdrawal should occur – exactly as it would if the government itself had decided to withdraw.[64]

‘Emergency situations’

2.65Comparative jurisdictions generally recognise exceptions to the requirement to engage the legislative body. For example, the formal conventions contained in the United Kingdom’s Cabinet Manual recognise that parliamentary involvement may not be practical in emergency situations that require quick response.[65] The Cabinet Manual states that the UK Government had accepted that parliamentary authorisation is required ‘except when there [is] an emergency and such action would not beappropriate’.[66]

2.66A number of submitters argued that the proposed requirements to consult the Parliament should be relaxed in emergency situations.[67] The Australians for War Powers Reform conceded that some situations may require an emergency response which would prevent the Executive from consulting the Parliament within the suggested timeframe:

In the case of an emergency we have always said, and most other democracies also say, that if there is a genuine threat to the country, like an attack or an imminent attack, and it is—I stress—genuine, then of course you respond at once. That’s an emergency situation and nobody is suggesting that you should take weeks or even months debating it…[68]

2.67However, it was not clear in evidence that such scenarios would be always easily identifiable as an ‘emergency’ or something lesser. It was also not clear whether a scenario such as an imminent cyber-attack would qualify as an ‘emergency’, and by what or whose definition would an ‘emergency’ be defined.

Role of the Parliament in providing scrutiny

2.68Some witnesses argued that, due to Australia’s general bipartisanship on matters relating to defence, it was ‘implausible’ that (outside the most extreme circumstances) there would not be bipartisan support for military action relating to a genuine threat.[69]

2.69The Australians for War Powers Reform further added that the Parliament served as a means for the Government to convince the Australian public regarding the necessity for the war and holds parliamentarians accountable to their electorates for any decisions they make.[70]

Requirement for vote to authorise action

2.70While most submitters agreed that increased parliamentary engagement with the decision to go to war or conduct warlike operations, there was significant division amongst stakeholders on whether the Parliament should be required to authorise military action.

2.71On one hand, many submitters and witnesses called for reforms to require that the Parliament holds a vote to authorise engagement in armed conflict.[71] GraemeDobell noted the previous example of former Prime Minister John Howard, who introduced a parliamentary resolution in the wake of the September11,2001, terrorist attacks in the United States, which outlined the ‘fundamental arguments for why Australia would act’.[72]

2.72Submitters put forward a range of models in which this could occur, including:

• a House of Representatives-only vote, following the precedent set by the UK House of Commons’ parliamentary convention
• individual votes of both Houses of Parliament
• a joint sitting of both Houses of Parliament[73]
  73. The importance of parliamentarians being permitted to vote without constraint by party direction, or being allowed a ‘conscience vote’, was also highlighted.[74]
  74. The Australians for War Powers Reform recognised that a parliamentary vote in the House of Representatives would likely approve any military decision proposed by the Government of the day due to the almost certain Government majority and the likelihood that parliamentarians would vote in accordance with party lines. However, they argued that the mechanism of a vote would mean that ‘the democratic process has been satisfied’, noting that their proposal to require a vote was not designed to prevent the Parliament voting on war but to ensure a process which is ‘open, transparent and public, not private’.[75] Nonetheless, Professor Williams observed that such an outcome was not to be assumed; in 2013, the UK Government lost its House of Commons motion to engage in armed conflict in Syria by 13 votes due to a number of Government members of parliament voting against the proposed action.[76]
  75. On the other hand, other stakeholders raised significant concerns regarding proposals to require parliamentary authority for decisions involving armed conflict or warlike operations. For example, Mr Justin Bassi, Ms Bec Shrimpton and DrAlex Bristow, Australian Strategic Policy Institute, submitted that some limitations should remain in regard to notification requirements prior to proposed action and parliamentary authorisation of war or warlike operations.[77]
  76. Professor Fernandes outlined that his research suggests that it was ‘not feasible’ to introduce parliamentary authorisation of decisions relating to armed conflict or warlike operations except under certain circumstances.[78] He stipulated that in time-pressured situations, where a speedy response was required, it may not be possible for the Parliament to vote to authorise operations (see section below on ‘Time issues’).[79]
  77. Concerns were also raised that the likely reality of a future war may not lend itself to preauthorisation by the Parliament. Professor Cameron Moore gave the following example:

The concern over war powers arises primarily because of Australia’s participation in the invasion of Iraq in 2003 and a strong desire not to be drawn into United States led military misadventures. This is understandable, but it is not the situation we are facing now. If China blockaded Taiwan, as it practised doing in August, or if the ongoing incidents in the South China Sea turned deadly, or if civil war erupted again in the Solomon Islands—as it threatened to do only a year ago, and the ADF deployed there—these situations would pose a direct threat to Australia’s interests, but they would not need the direct defence of Australia. The government would have to make difficult decisions with limited time and with limited information. A current challenge to the rules based order seeks to undermine it by creating uncertainty and ambiguity both domestically and internationally. This would be the likely context in which any Australian government would need to make a decision to use military force in the foreseeable future. This will likely be very difficult and will be equally likely to evoke a range of responses in parliament. We need to find a way to ensure that the executive government can be decisive in such situations but also accountable to the parliament.[80]

2.78Professor Moore further observed that requiring prior parliamentary authorisation before engaging in conflict could create resentment amongst serving personnel who may feel that parliamentarians have the capacity to make decisions that have a direct impact on tactical conditions.[81]

Legislation or codification?

2.79The question of how to implement reforms to parliamentary engagement is complex. The most accepted avenues suggested during the inquiry comprised of either legislating the required changes (such as via the Defence Act) or codifying the new requirements and obligations via frameworks such as parliamentary resolutions. Evidence was divergent in determining which route was most appropriate.

2.80Professor Sampford, called for a legislated process rather than reliance on convention due to the prerogative powers of the Governor-General to authorise military action. He argued that, without legislative codification, a government intent on going to war wanting to bypass the Parliament could avoid consultation by going directly to the Governor-General for authorisation. Legislative requirements were said to prevent such a situation occurring.[82]

2.81Professor Williams and Ms Hall argued for a legislative framework which ensures that the executive is required to consult and potentially obtain approval from Parliament when considering war or warlike operations. They highlighted that among the benefits of such a system would be that it could define the scope of parliamentary involvement, including in emergency situations, and defining the extent to which the Parliament will be able to consider sensitive material such as classified information.[83]

2.82In contrast, Mr Graeme Dobell argued that current precedents should be codified via conventions, which would mean that ‘the parliament could test policy, shape thinking and record the detail that makes the history’.[84] Further, formally recognised conventions could be argued to be more flexible in adapting to new practices and may offer a ‘testing ground’ for the Parliament in deciding whether to legislate changes.

2.83While conventions are developing across parliaments worldwide in relation to armed conflict, Professor Sampford noted that compliance mechanisms – that is, consequences for breaching the conventions – are critical to their effectiveness.[85] Therefore, how breaches of any conventions (either in legislation or in codification) are managed are also a matter which must be considered during implementation.

The United Kingdom and parliamentary codification

2.84The United Kingdom (UK) has recently made significant changes in the last decade in relation to the Parliament’s role in war or warlike decision-making processes. Williams and Hall submitted that the UK Government had recognised the importance of transparency in decision-making in relation to war and warlike operations. In a 2007 Policy Paper, the UK Government expressed the view that the prerogative to exercise these powers without a form of parliamentary approval ‘is now an outdated state of affairs in a modern democracy’.[86]

2.85Since 2011, a new parliamentary convention has been emerging that the House of Commons should have ‘an opportunity to debate’ any proposals for war or warlike operations. The convention was incorporated into the United Kingdom Cabinet Manual in October 2011. It was further developed in 2013 to also include that Parliament should approve the deployment of armed forces internationally, with exceptions recognised for emergencies and where such action ‘would not be appropriate’.[87]

2.86Under the convention, the criteria for situations where the convention will be engaged has been identified:

On the basis of the evidence, one could make the argument that, at the very least, prior parliamentary approval will be sought under the convention if any of the following applies:

• The possibility of premeditated military action exists.
• Military forces are to be deployed in an offensive capacity.
• Deployments for training, humanitarian aid or logistical assistance would not meet these threshold criteria. However, should an existing non-combat operation evolve into one which offensive action is envisaged (mission creep), then it could feasibly be expected that the threshold would be reached and fresh approval would have to be sought from Parliament.[88]
  87. In cases which involved urgent or emergency action where consultation prior to deployment was not possible, the Convention stipulates that the House could be consulted retrospectively.[89]
  88. Williams and Hall argued that the existing UK parliamentary convention is insufficient due to the possibility of it not being appropriately followed. They noted the example of the April 2018 Syrian airstrikes ordered without parliamentary debate or approval by the May Government. The response provided by former Prime Minister ThereseMay at the time drew considerable criticism and caused uncertainty as to the extent of the convention, given the action taken was ultimately the same type previously considered and not supported by Parliament in votes in 2013, 2014 and 2015. Williams and Hall asserted that this incident illustrates that ‘the boundaries of the convention continue to be uncertain because, in the absence of legislation modifying the prerogative, the executive can assert exceptions to the convention’. They further argued that the capacity for the executive to ‘reinterpret’ the convention raises the risk that it will ultimately be ignored.[90]

Committee Comment

2.89The Committee has carefully and seriously considered the arguments put by stakeholders during the inquiry and acknowledges most submitters have strongly argued that Executive power be constrained by the requirement for parliamentary approval or ratification.

2.90Putting aside serious doubts as to the Constitutional validity of legislation purporting to constrain the Governor-General’s Constitutional prerogatives, the Committee accepts and respects the fact these positions are strongly and genuinely held, but nevertheless disagrees that Executive decision-making in relation to armed conflict including war or warlike operations should be made subject to parliamentary approval or ratification.

2.91The Committee concludes that to make decisions regarding armed conflict subject to parliamentary approval or ratification would unacceptably diminish Australia’s national security including by:

• providing an asymmetric advantage to potential adversaries by complicating, constraining, and slowing Australia’s decision-making processes
• being inappropriate with respect to the increasingly complicated nature of Australia’s strategic circumstances and the nature of grey-zone and cyber conflict, including:

• an increasingly outdated and simplistic binary notion of being ‘at war’ (i.e. major kinetic armed conflict) or ‘at peace’ (i.e. the absence of major kinetic armed conflict) given the dynamic spectrum of contestation, competition, confrontation and conflict which may manifest in our region
• the difficulty in codifying the point at which parliamentary approval or ratification of action may be required – for example one submitter suggested that if a cyberspace operation required an exercise of executive prerogative power that should be subject to approval by Parliament which is unrealistic

• providing enormous scope for disinformation campaigns and political interference by potential adversaries during prolonged decision-making processes
• holding critical national security decisions, that can only be made with the benefit of full and classified information, hostage to the vagaries of partisan politics via parliamentary processes which can never receive the full scope of intelligence briefings available to a government’s most senior Ministers
  92. The Committee is not persuaded that requiring parliamentary approval or ratification is, on balance, a better democratic outcome, especially because parliamentary democracy involves, in different circumstances, both decision-making and the consideration, review and oversight of decisions.
  93. Executive Government is formed in – and can fall in – the House of Representatives and is accountable to both Houses of Parliament. There should be some confidence in the proposition that if the government of the day does not have the support of the Parliament or of the community it represents, a different government in due course will be formed.
  94. War is inherently and unavoidably political; indeed, war or state sponsored violence is in some respects the greatest failure of politics. The Committee agrees that decisions of this gravity should not be taken based on partisan interests but does not consider that past decisions have been determined on what could properly be called a ‘partisan’ basis. In any case it is noted that all parliamentary processes can be regarded as partisan to the extent that they involve members of parties taking and exercising generally collective positions.
  95. The Committee is also concerned that a requirement for parliamentary ratification would diminish the critical ability of the Opposition and of Parliament as a whole to hold a government to account for its decisions, and for the conduct of operations and achievement of outcomes in the national interest. The political pressure on an Opposition to support the Government of the day would in the short term likely be overwhelming, as it has been in most previous major conflicts. Yet an Opposition’s ability, and even the ability of Parliament as a whole, to scrutinise a government’s war effort is diminished to a considerable degree if the initial decision to engage in armed conflict has been sanctioned by the Parliament.
  96. In concluding that there is no basis for overturning established Executive prerogative in relation to armed conflict, the Committee recognises that our practice of parliamentary democracy has and can evolve for the better. Hence the Committee accepts the way in which Executive Government is accountable to the Parliament could be improved. The majority of submitters, including civil society representatives and Defence/security experts argued for greater transparency and accountability. As discussed in Chapter 3, the Committee considers the exercise of prerogative powers in relation to armed conflict should be subject to stronger parliamentary accountability and oversight than is currently provided.

2.97The Committee recommends that in implementing these recommendations the Government reaffirm that decisions regarding armed conflict including war or warlike operations are fundamentally a prerogative of the Executive, while acknowledging the key role of parliament in considering such decisions, and the value of improving the transparency and accountability of such decision-making and the conduct of operations.

2.98The balance of evidence indicates the primary source of power by which a government can make decisions regarding international armed conflict is executive power provided to the Governor-General pursuant to section 61 of the Constitution. In the modern era, such power is exercised by convention via decisions of the National Security Committee of Cabinet.

2.99In terms of giving effect to such decisions in the case of war or warlike operations, s68 of the Constitution could then be used to advise the Governor-General as Commander-in-Chief of the ADF. Alternatively, s 8 of the Defence Act 1903 (Defence Act) could also be used to give administrative effect to decisions by executive government. Section 8 is not a power of command but was added in the 1970s to make clear that the Defence diarchy (the Chiefs of the Australian Defence Force and the Secretary of Defence) is subject to civilian control by the Minister for Defence.

2.100In the ordinary day-to-day administration of Defence and the ADF, s8 appears to be appropriate in outlining where the divisions of power and responsibility lie and to give effect to decisions by executive government regarding the deployment of military capabilities and force. However, in major recent conflicts such as Iraq and Afghanistan – clearly war or warlike operations – evidence suggests that s 8 was relied upon.

2.101The Committee considers there is merit in seriously considering the arguments put forward by submitters in favour of restoring the primacy of s 68 of the Constitution in relation to war or warlike operations, especially in circumstances where there is no UN Security Council Resolution or invitation of a sovereign nation. While not entirely unique to s 68, this approach appears to have some advantages over the administrative power conferred by s 8 of the Defence Act including:

• potentially greater clarity and transparency including the possibility of a public document clearly stating the authority to use lethal force and a specific record of the decision which can be debated in parliament or pleaded in defence to a disciplinary or criminal prosecution
• in the case of war, a clear statement of who the enemy might be which may be relevant to the pleading of the combat immunity doctrine in domestic law or claiming combatant immunity (or privilege) in international law, as well as the prosecution of military disciplinary offences such as conduct in relation to the enemy, and civilian criminal offences involving the enemy, such as trading, treason etc
• clarity that such decisions of the Governor-General are not justiciable, unlike a minister’s direction which may be subject to judicial review and an administrative law remedy such as an injunction or declaration of unlawfulness
• greater legitimacy arising from an open constitutional s 68 process invoking the duty of members of the ADF
  102. The Committee notes that this approach would not prevent initial use of s 8 for reasons of convenience and speed and the subsequent making of a s 68 order by the Governor-General, which could be backdated to take effect from the date of the ministerial direction. In any case, it would be a likely and preferable course of action to have a ministerial direction under s 8 prior to obtaining any s 68 order from the GG. The CDF still can contest any ministerial direction, and even resign, before the making of any subsequent s 68 order by the Governor-General.
  103. The Committee acknowledges that much of the complexity regarding this debate is due to an absence of documentation detailing the way in which decisions have been given effect in previous conflicts. This is a significant gap in transparency and accountability of the Executive and hence in the nation’s collective understanding of how Australia took its path to war, particularly in reference to Iraq and Afghanistan. Shining a light on this issue is critical to both understanding the legal basis for Australia’s actions in war, but also in understanding our history.
  104. To overcome this deficiency, a written Statement should be published and tabled in the Parliament setting out the objectives of such major military operations, the orders made and its legal basis, understanding that a government may prefer not to publish its actual legal advice (though may choose to).
  105. The Committee notes the Governor-General’s power to call-up the ADFReserves was until 2001 subject to the recall of the Parliament within ten days of a Proclamation. The Second Reading Speech for the amending legislation is silent on why this caveat was removed. While a case can be made to reinstate that requirement, given the broad arguments for ensuring greater parliamentary opportunity to consider and debate decisions to involve Australia in war or warlike operations, the Committee is also aware there are a range of non-warlike circumstances in which the ADF Reserve can be called upon, and there is a difference between a ‘call out’ and a ‘call for’ in relation to the Reserve. On that basis, the Committee believes on balance that reinstating the earlier provision is not required, considering the range of other recommended improvements that if accepted by government would significantly improve parliamentary debate and scrutiny.

2.106The Committee recommends that the Cabinet Handbook be amended to clarify that:

• Executive power in relation to armed conflict and the deployment of military force flows from section 61 of the Constitution
• In the modern era, Executive power is in practice exercised collectively via the National Security Committee of the Cabinet, whose decisions can be given effect via section 8 of the Defence Act or by advice to the Governor-General as Commander in Chief under section 68 of the Constitution
• In the event of war or warlike operations:

• It is preferable that section 68 of the Constitution be utilised, particularly in relation to conflicts that are not supported by resolution by the United Nations Security Council, or an invitation of a sovereign nation given that complex matters of legality in public international law may arise in respect of an overseas commitment of that nature
• A written Statement be published and tabled in the Parliament setting out the objectives of such major military operations, the orders made and its legal basis

Footnotes

[1]Attorney-General’s Department, submission 113, 1.

[2]Deirdre McKeown and Roy Jordan, Parliamentary involvement in declaring war and deploying forces overseas, Parliamentary Library, Background Note, 22 March 2010 (2009-10), 1.

[3]Air Commodore Patrick Keane, Director General, Military Legal Service, Department of Defence, Committee Hansard, 9 December 2022, 44; Attorney-General’s Department, submission 113, 1.

[4]Cameron Moore and Jo Brick, ‘Australian civil-military relations: distinct cultural and constitutional foundations’, Australian Journal of Defence and Strategic Studies, 2022, 4(2): 224-225. https://defence.gov.au/ADC/publications/AJDSS/documents/volume4-number2/civil-military-cultural-constitutional-foundation.pdf (accessed 22 March 2023)

[5]Associate Professor Cameron Moore, School of Law, University of New England, Committee Hansard, 9 December 2022, 15.

[6]Cameron Moore and Jo Brick, ‘Australian civil-military relations: distinct cultural and constitutional foundations’, Australian Journal of Defence and Strategic Studies, 2022, 4(2): 225-226. https://defence.gov.au/ADC/publications/AJDSS/documents/volume4-number2/civil-military-cultural-constitutional-foundation.pdf (accessed 22 March 2023)

[7]Deirdre McKeown and Roy Jordan, Parliamentary involvement in declaring war and deploying forces overseas, Parliamentary Library, Background Note, 22 March 2010 (2009-10), 1; Air Commodore Patrick Keane, Director General, Military Legal Service, Department of Defence, Committee Hansard, 9 December 2022, 43.

[8]Air Commodore Patrick Keane, Director General, Military Legal Service, Department of Defence, Committee Hansard, 9 December 2022, 43.

[9]Defence Legislation Amendment Act 1992, s 7.

[10]Professor Ernst Willhelm, submission 6, 16.

[11]Associate Professor Cameron Moore, School of Law, University of New England, Committee Hansard, 9December 2022, 13

[12]Professor Charles Sampford, submission 109, 1.

[13]Associate Professor Cameron Moore, School of Law, University of New England, Committee Hansard, 9 December 2022, 13.

[14]Professor Charles Sampford, Director, Accountability Round Table, Committee Hansard, 9December2022, 13.

[15]Associate Professor Cameron Moore, School of Law, University of New England, Committee Hansard, 9 December 2022, 11.

[16]Air Commodore Patrick Keane, Director General, Military Legal Service, Department of Defence, Committee Hansard, 9 December 2022, 43.

[17]Attorney-General’s Department, submission 113, 2.

[18]Charles Sampford and Margaret Palmer, The constitutional power to make war: Domestic legal issues raised by Australia’s actions in Iraq¸ Griffith Law Review (2009) Vol 18, No 2, 350.

[19]Charles Sampford and Margaret Palmer, The constitutional power to make war: Domestic legal issues raised by Australia’s actions in Iraq¸ Griffith Law Review (2009) Vol 18, No 2, 350.

[20]Charles Sampford and Margaret Palmer, The constitutional power to make war: Domestic legal issues raised by Australia’s actions in Iraq¸ Griffith Law Review (2009) Vol 18, No 2, 364.

[21]Associate Professor Cameron Moore, School of Law, University of New England, Committee Hansard, 9 December 2022, 15.

[22]Attorney General’s Department, submission 113, 1.

[23]Department of Defence, submission 110.2, 1.

[24]Deirdre McKeown and Roy Jordan, Parliamentary involvement in declaring war and deploying forces overseas, Parliamentary Library, Background Note, 22 March 2010 (2009-10), 2.

[25]Professor George Williams, Private capacity, Committee Hansard, 9 December 2022, 12.

[26]Professor George Williams and Winsome Hall, submission 19, 2.

[27]Professor George Williams and Winsome Hall, submission 19, 1-2.

[28]Professor George Williams, Private capacity, Committee Hansard, 9 December 2022, 12

[29]Professor George Williams and Winsome Hall, Submission 19, 1.

[30]Major Cameron Leckie, Submission 22, 6; Mr Nick Deane, submission 78, 1.

[31]Mr John Phillips, Private capacity, Committee Hansard, 9 December 2022, 26.

[32]Professor George Williams and Winsome Hall, submission 19, 2.

[33]Dr Alex Bristow, Private capacity, Committee Hansard, 9 December 2022, 31.

[34]Dr Alex Bristow, Private capacity, Committee Hansard, 9 December 2022, 31.

[35]Department of Defence, submission 110, 2.

[36]Vice Admiral David Johnston AC, Vice Chief of the Defence Force, Department of Defence, Committee Hansard, 9 December 2022, 42.

[37]Australian Government Directory, ‘National Security Committee’, 13 July 2022, https://www.directory.gov.au/commonwealth-parliament/cabinet/cabinet-committees/national-security-committee, accessed 24 February 2023.

[38]Department of Defence, submission 110, 2.

[39]Mr Noel Turnbull, Private capacity, Committee Hansard, 9December 2022, 22.

[40]Mr John Phillips, Private capacity, Committee Hansard, 9December 2022, 23.

[41]Mr Scott MacInnes, Private capacity, Committee Hansard, 9December 2022, 27.

[42]Dr Sue Wareham, Australians for War Powers Reform, Committee Hansard, 9 December 2022, 6.

[43]Mr Justin Bassi, Ms Bec Shrimpton and Dr Alex Bristow, submission 86, 1.

[44]Professor George Williams AO and Winsome Hall, submission 19, 5.

[45]Professor Clinton Fernandes, submission 31, 1-2.

[46]Professor Clinton Fernandes, submission 31, 2.

[47]Mr Cameron Leckie, Private capacity, Committee Hansard, 9 December 2022, 25.

[48]Professor Clinton Fernandes, Private capacity, Committee Hansard, 9 December 2022, 29.

[49]Mr Scott MacInnes, Private capacity, Committee Hansard, 9 December 2022, 28.

[50]Dr Broinowski, Australians for War Powers Reform, Committee Hansard, 9 December 2022, 3.

[51]Mr Allan Behm, Director, International and Security Affairs Program, The Australia Institute, Committee Hansard, 9 December 2022, 3.

[52]Department of Defence, submission 110, 3-4.

[53]Mr Justin Bassi, Ms Bec Shrimpton and Dr Alex Bristow, Submission 86, 2.

[54]Mr Scott MacInnes, Private capacity, Committee Hansard, 9 December 2022, 28.

[55]Professor Clinton Fernandes, Private capacity, Committee Hansard, 9 December 2022, 29.

[56]Professor Clinton Fernandes, Submission 31, 3.

[57]Department of Defence, submission 110, 3.

[58]Department of Defence, submission 110, 2-3.

[59]Dr Alex Bristow, Private capacity, Committee Hansard, 9 December 2022, 31.

[60]Mr Cameron Leckie, Private capacity, Committee Hansard, 9 December 2022, 24.

[61]Professor Charles Sampford, Australians for War Powers Reform, Committee Hansard, 9 December 2022, 8.

[62]Professor Ben Saul, private capacity, Committee Hansard, 9December 2022, 14.

[63]Associate Professor Cameron Moore, School of Law, University of New England, Committee Hansard, 9December 2022, 15.

[64]Professor Clinton Fernandes, submission 31, 2.

[65]Professor George Williams, Private capacity, Proof Committee Hansard, 9 December 2022, 16.

[66]Cabinet Office (United Kingdom), The Cabinet Manual, 1st edition (October 2011), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/60641/cabinet-manual.pdf (accessed 13 January 2023), 44.

[67]Mr Cameron Leckie, Private capacity, Committee Hansard, 9 December 2022, 25.

[68]Dr Broinowski, Australians for War Powers Reform, Committee Hansard, 9 December 2022, 8.

[69]Dr Sue Wareham, Australians for War Powers Reform, Committee Hansard, 9 December 2022, 9.

[70]Dr Broinowski, Australians for War Powers Reform, Committee Hansard, 9 December 2022, 9.

[71]Professor Ben Saul, submission 53, 1.

[72]Mr Graeme Dobell, submission 92 , 8.

[73]Professor George Williams, Private capacity, Committee Hansard, 9 December 2022, 16.

[74]Mr Scott MacInnes, Private capacity, Committee Hansard, 9 December 2022, 24; Mr Robert Mathews, Submission 66, 3.

[75]Dr Alison Broinowski, Australians for War Powers Reform, Committee Hansard, 9 December 2022, 2.

[76]Nicholas Watt, Rowena Mason and Nick Hopkins, ‘Blow to Cameron’s authority as MPs rule out British assault on Syria’, The Guardian, 30 August 2013, https://www.theguardian.com/politics/2013/aug/30/cameron-mps-syria (accessed 13 February 2023).

[77]Mr Justin Bassi, Ms Bec Shrimpton and Dr Alex Bristow, submission x, 2.

[78]Professor Clinton Fernandes, Private capacity, Committee Hansard, 9 December 2022, 23.

[79]Professor Clinton Fernandes, submission 31, 2.

[80]Associate Professor Cameron Moore, School of Law, University of New England, Committee Hansard, 9 December 2022, 11.

[81]Associate Professor Cameron Moore, School of Law, University of New England, Committee Hansard, 9 December 2022, 20.

[82]Professor Charles Sampford, Australians for War Powers Reform, Committee Hansard, 9 December 2022, 4.

[83]Professor George Williams and Winsome Hall, submission 19, 5.

[84]Mr Graeme Dobell, submission 92, 12.

[85]Professor Charles Sampford, Accountability Round Table, Committee Hansard, 9 December 2022, 16.

[86]Cited in Professor George Williams and Ms Winsome Hall, submission 19, 2.

[87]United Kingdom Cabinet Manual cited in Professor George Williams and Winsome Hall, submission 19, 2.

[88]Claire Mills, House of Commons Briefing Paper CBP 7166, “Parliamentary approval for military action”, cited in Professor George Williams and Ms Winsome Hall, submission 19, 3.

[89]Claire Mills, House of Commons Briefing Paper CBP 7166, “Parliamentary approval for military action”, cited in Professor George Williams and Ms Winsome Hall, submission 19, 3.

[90]Professor George Williams and Ms Winsome Hall, submission 19, 3-5.