A new era of legal transparency for Australian military operations?

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The publication of a summary of the legal basis upon which the government has made the decision to extend the scope of Australian military operations against Islamic State in Iraq, into Syria, is applauded. Regardless of whether or not the legal analysis is agreed (as it happens, we generally do agree), it is vital that Australia be clear and public in its assessment.

The federal Attorney-General, Senator George Brandis, has clarified ("It's a War of Self-Defence", The Australian, September 10) the earlier legal ambiguity which was inherent in the comments made by the former prime minister, Tony Abbott, and Foreign Affairs Minister Julie Bishop regarding the legality of any extension of Australian military operations into Syria.

The explanations from Mr Abbott and Ms Bishop relied upon such legally uncertain concepts as "Daesh doesn't respect borders so why should we", and the "moral" correctness of dealing with the clear threat to peace and security emanating from the region, in which the Daesh insurgency plays a prominent part. Neither of these statements discloses any authoritative or clear legal basis upon which Australia could legitimately extend the scope of military operations.

So why is this important? There are three immediate reasons.

First, Australia has an important role to play as a leading middle power in terms of ensuring that actions taken by our nation on the international stage are in conformity with valid international legal principles. This has now occurred and the legal basis upon which Australian operations are being conducted is now clearly stated. The explanation by the Attorney-General that Australia would be extending its military operations into Syria as part of Australia's response to the request by Iraq for assistance under the legal principle of collective self-defence will not be viewed without criticism. However, the fact that the government has clearly articulated the legal reasoning which underpins this decision means that those who support the government's legal position, and those who do not, have a firm understanding of the legal factors which have been taken into account.
 

The second reason why the transparency of this decision is so important arises from consideration of past Australian practice in committing military forces to hostile environments. In Australia, unlike some closely aligned military allies, the decision to commit military forces on active operations to further the national interest has not generally been subject to parliamentary approval.

Rather, such decisions are based in the executive power of the Commonwealth under section 61 of Australia's Constitution – usually with bi-partisan support from the major political parties. Therefore, a clear public interest in having the legality of such operations open to scrutiny means that public statements on the issue by the government should be routinely provided.

The third, and perhaps most important, reason relates to the obligation which is owed to the servicemen and women who will be directly tasked to carry out the expanded roles which the government has now assigned them. Australia has had a chequered history, at least since the Vietnam War, in terms of the public support provided to the men and women of the defence forces who have been sent to pursue the government's objectives in armed conflict.

Although it can be reasonably assumed that the vast majority of Australians have little sympathy for the vile behaviour of IS in Iraq and Syria, there is nevertheless an overwhelming need to ensure that those who are at the forefront of these military operations have legal certainty regarding the basis for the tasks they are directed to undertake.

Legitimate criticism has been made of some aspects of the Abbott government's use of the Australian Defence Force since assuming power in 2013, most notably in the area of border protection, where a lack of transparency regarding the legality of operations still exists. However, in the case of operations in support of Iraq's request for assistance in collective self-defence against the activities of IS, there can now be no such criticism. The publication of the legal basis upon which the government has relied for these operations, both within Iraq and as now extended into Syria, is a welcome development.

Associate Professor David Letts and Associate Professor Rob McLaughlin are Co-Directors of the Centre for Military and Security Law at the ANU College of Law. This article was originally published in The Sydney Morning Herald.

Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team