The constitutional power to make war: Domestic legal issues raised by Australia's action in Iraq

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Title The constitutional power to make war: Domestic legal issues raised by Australia's action in Iraq
Author Sampford, Charles John; Palmer, Margaret
Journal Name Griffith Law Review
Year Published 2009
Place of publication Australia
Publisher Griffith University
Abstract The legal power to declare war has traditionally been a part of a prerogative to be exercised solely on advice that passed from the King to the Governor-General no later than 1942. In 2003, the Governor General was not involved in the decision by the Prime Minister and Cabinet to commit Australian troops to the invasion of Iraq. The authors explore the alternative legal means by which Australia can go to war - means the government in fact used in 2003 - and the constitutional basis of those means. While the prerogative power can be regulated and/or devolved by legislation, and just- possibly by practice, there does not seem to be a sound legal basis to assert that the power has been devolved to any other person. It appears that in 2003 the Defence Minister used his legal powers under the Defence Act 1903 (Cth) (as amended in 1975) to give instructions to the service head(s). A powerful argument could be made that the relevant sections of the Defence Act were not intended to be used for the decision to go to war, and that such instructions are for peacetime or in bello decisions. If so, the power to make war remains within the prerogative to be exercised on advice. Interviews with the then Governor-General indicate that Prime Minister Howard had planned to take the matter to the Federal Executive Council 'for noting', but did not do so after the Governor-General sought the views of the then Attorney-General about relevant issues of international law. The exchange raises many issues, but those of interest concern the kinds of questions the Governor-General could and should ask about proposed international action and whether they in any way mirror the assurances that are uncontroversially required for domestic action. In 2003, the Governor-General's scrutiny was the only independent scrutiny available because the legality of the decision to go to war was not a matter that could be determined in the High Court, and the federal government had taken action in March 2002 that effectively prevented the matter coming before the International Court of Justice.
Peer Reviewed Yes
Published Yes
Publisher URI
Copyright Statement Copyright 2009 Griffith Law School. The attached file is reproduced here in accordance with the copyright policy of the publisher. Please refer to the journal's website for access to the definitive, published version.
Volume 18
Issue Number 2
Page from 350
Page to 384
ISSN 1038-3441
Date Accessioned 2010-05-26
Language en_AU
Research Centre Key Centre for Ethics, Law, Justice and Governance
Faculty Griffith Law School
Subject Law
Publication Type Journal Articles (Refereed Article)
Publication Type Code c1

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