In Reply on behalf of the Attorney-General I presented the text of a letter of 18 June received from Mr Paul O’Sullivan, Chief of Staff to the Attorney-General, Senator the Hon. George Brandis QC.
Below is the text of my reply:
4 July 2014
Senator the Hon. George Brandis, QC
CANBERRA ACT 2600
Dear Senator Brandis,
I refer to a letter of 18 June 2014 I have received from Mr Paul O’Sullivan, your Chief of Staff, writing on your behalf in response to my letter to you of 16 May.
In his letter Mr O’Sullivan states that ‘the legal basis for Australia’s participation is a matter of public record’ and cites the opinion provided by two lawyers, one an officer of the Attorney-General’s Department and the other an officer of the Department of Foreign Affairs and Trade.
As you are no doubt aware, the legality of an action is not determined by the legal counsel employed by the initiator of the action.
You are no doubt aware also that there are many other views on this matter on the public record, that the Australian government’s views were very much in the minority, and that much more senior international lawyers took the opposite view. If you are unaware of these we can supply a sample of them – along with the statement of one of the few international lawyers who supported the war that she was very much in the minority.
There are several major questions in the minds of our membership about how this advice was generated:
1. Why did the government choose advice and/or advisors whose views were so clearly in the minority?
2. What was the brief (formal or informal) given to the lawyers? What were they asked to do? What was said to them about their role?
3. Were other lawyers approached for their views before those chosen?
4. Why did the Attorney-General not give an opinion (even when asked by the Governor General)?
5. Why was the Solicitor-General not asked for an opinion?
6. Why was the advice of former head of the Office of International Law and then Chief General Counsel of the Attorney-General's Department Henry Burmester QC not provided? Mr Burmester was at that time the most senior and experienced international lawyer in Commonwealth service. If he was not consulted, why not, and if he was consulted what was his opinion?
7. Was there any other opinion available, in draft or other form, to the Department of Foreign Affairs and Trade or to the Attorney-General’s Department?
8. Were lawyers at the Department of Foreign Affairs and Trade or the Attorney-General’s Department in contact with the international legal advisors to the British government? If so, were they aware of the very different views held there? If so, to whom did they communicate those views and what was the response?
9. What advice had the then Prime Minister received at the time he stated in Parliament that there was ample authority in international law for the action contemplated?
10. Had the Government been made aware of the legal doubts of others?
11. Why did the opinion not consider contrary arguments or the likely outcome of those arguments in a court of competent jurisdiction?
12. Was the then Attorney-General aware, or are you aware, of any legal opinions as to the outcome of a case in a court of competent jurisdiction or was the Government relying on an assumption that no case could come before a court of competent jurisdiction?
13. Are you aware that Australia changed its recognition of the compulsory jurisdiction of the ICJ a year before the Iraq war commenced, in a way that would prevent Australia being sued in the ICJ as Serbia sought to sue those countries bombing it in 1999? Why was this change instigated and were those who instigated it aware of the 1999 Kosovo case?
14. Is it your view that the invasion of Iraq in March 2003 by the “Coalition of the Willing” was legal under international law? If you think that it was legal, will you join us in urging the British and Australian governments to seek vindication in a court of competent jurisdiction or before a genuinely independent Royal Commission?
As indicated, the legality of an action is not determined by the legal counsel employed by the initiator of the action. It is determined by a court of competent jurisdiction. The inability of such a court to hear the case does not make the action legal. In international law, the opposite may be the case. The long standing limitations of international tribunals has been one of the factors which have given greater weight to academic opinion – raising it to a source of law. Where the vast majority of international law professors (and an even larger majority of the senior ones) endorse a legal proposition and are not contradicted by a superior source of law, we can say that international law includes that proposition. It may be that the only way that it can be displaced by the minority who differ is if the matter is taken to an international court of competent jurisdiction.
It can hardly pass notice that the Government in 2003 did not put the then Attorney General to his proof on the issue; nor did it seek a formal opinion from the Solicitor-General, so lacking in confidence was it as to the legality of the action about to be taken. As implied by our questions above, it cannot said that legal advice given by subordinates to Constitutionally responsible officers of the Crown can substitute for their superiors, given the high probability that such advice could have a self-serving purpose. Moreover, in this case no advice was offered to the Governor-General himself on the question.
Regarding the other matter, I am surprised that Mr O’Sullivan would cite the Parliamentary Joint Committee on Intelligence and Security’s 2004 report Inquiry into Intelligence on Iraq’s Weapons of Mass Destruction (the “Jull Report”) and the 2004 report of the subsequent Inquiry into Australian Intelligence Agencies (the “Flood Report”) in support of the view that a further inquiry is not required. While this might look to the less-informed observer like an answer to our call for an inquiry, it is not, and by failing to mention the thrust of these inquiries’ findings, it is grossly misleading.
The first point to be made is that these inquiries, as their names suggest, were confined by their terms of reference to the intelligence picture which was available to the Australian Government and an examination of the performance of the Australian intelligence agencies. They were not charged with conducting, and nor did they conduct, inquiries into the matter about which I wrote my letters to you of 13 March and 16 May, namely, the decision-making process which led to Australia participating in the invasion of Iraq.
Second, the outcomes of these inquiries are hardly conducive to confidence in the decision-making process which led to that invasion. The Jull Inquiry found
The case made by the government was that Iraq possessed WMD in large quantities and posed a grave and unacceptable threat to the region and the world, particularly as there was a danger that Iraq’s WMD might be passed to terrorist organisations. This is not the picture that emerges from an examination of all the assessments provided to the Committee by Australia’s two analytical agencies.
The Inquiry led by former DFAT Secretary Philip Flood found that the evidence for Iraqi WMD was ‘thin, ambiguous and incomplete’.
Accordingly, far from obviating the necessity for a further inquiry, we think the outcomes of these inquiries strengthen the case for a comprehensive inquiry of the kind we are advocating.
To summarise our position:
· If the Government believes that Australia’s actions in Iraq in 2003 were legal under international law, then the only way that this view can be validated is by establishing a truly independent commission to consider the matter. We urge the Government to do this to clear the name of the Government of which you were a part.
· With respect, while you assert that the "legal basis" of Australia's participation in the Iraq War of 2003 is a matter of public record, underpinned by departmental level advice, the legality of an action is not determined by legal counsel employed by the initiator of the action in question. It is determined by a court of competent jurisdiction. The opportunity to put it to this test is unlikely given the Government's stance on the matter now and previously.
· Clearly the Government's actions were politically motivated and justified to the public on that basis, relying largely on questionable assertions from the US and Britain in this regard. It is common knowledge that the initial, tentative British advice was modified to fit the political case. No authoritative adviser within or without the formal British legal establishment was or has been prepared to advise categorically on this question. Furthermore opinion within the UN Security Council could not have been more divided than it was then and since. The scope of its resolutions at the time fell well short of authorising an invasion.
For Australia's purposes the only available and credible means for determining the issue is to convene a Royal Commission comprising very senior judicial personnel well grounded in international law. It is best that this be done before Australian forces are again deployed in a combat role in foreign countries.
I would reiterate the view expressed in my earlier letters that, given the gravity of any decision to commit the Australian defence force to international armed conflict, the Australian people are entitled to know how that decision was made, and what evidence informed the decision. The Australian Government owes to those it puts in harm’s way a duty to evaluate the quality of the processes by which it decides to put them in harm’s way, to identify and document the lessons learned, and improve the decision making process for the future.
As matters stand, while Britons will have the chance to learn from past decisions once the Chilcot Inquiry hands down its recommendations, Australians will still be deprived of a comprehensive account of the processes leading to our involvement in Iraq. As I said in my earlier letter, an independent inquiry into the decision making process which led to Australia’s involvement in the Iraq War would also allow for a public discussion of the appropriateness of Australia’s current ‘war powers’, which concentrate power in the executive branch. This could provide a framework for reforming how the decision is made to go to war. The current process produced very flawed decisions in relation to Vietnam, Afghanistan and Iraq, and is clearly overdue for careful reconsideration.
Accordingly, the Campaign for an Iraq War Inquiry urges you to support not only an independent inquiry into Australia’s involvement in the Iraq War, but also a commitment on the part of the Government to reforming the ‘war powers’.
Paul Barratt AO
 Commonwealth of Australia Parliament, Intelligence on Iraq’s weapons of mass destruction (“Jull Report’), Parliamentary Joint Committee on ASIO, ASIS and DSD, December 2003, 93.
 Commonwealth of Australia, Report of the Inquiry into Australian Intelligence Agencies (“Flood Report”), Canberra, 2004, 34.