The Investigation: leak exposes real war
US intelligence records reveal civilian killings, ‘friendly fire’ deaths and shadowy special forces.
The interactive: IED attacks
16,000 improvised explosive devices are recorded in the logs. See where and who they hit over those five years
‘They show the true nature of this war’
Julian Assange, the founder of Wikileaks, explains why he decided to publish thousands of secret US files on the war in Afghanistan
Tasmanian Times has a permanent link to Wikileaks … under Campaigns in TT Links
Meanwhile TT reader and sometime writer John Ward has this take:
In a speech entitled “Remembering the Declaration of Human Rights”, former Australian High Court Judge Ms Mary G. Gaudron (Australia), President of ILO Admin Tribunal ( All about Mary Gaudron HERE ), said:
“the Universal Declaration recognises there is no protection of human rights without the rule of law”.
“Well, if Australia was tardy in implementing or giving effect to Article 7 of the Universal Declaration, it was more than ingenious in recognising the rule of law. The genius of the Australian Constitution lies in a little subsection called section 75(5). Its terms are probably meaningless to those of you non-lawyers who are present here today. It gives the High Court original jurisdiction in which any person, citizen or non citizen seeks mandamus, prohibition or an injunction against an officer of the Commonwealth.
“As a result of that tiny little subsection, ministers of the federal government, federal public servants, their agents and others acting on their behalf may be compelled to perform their Constitutional and legal duty and may be restrained from acting in excess of their constitutional or legal power.
“The section, is all our own; our own peculiar genius.
“Not surprisingly, governments of both sides have sought from time to time to cut down the operation of that little subsection; and equally not surprisingly, High Court has resisted their attempts every time. That little subsection is quite unique. It has no equivalent, as far as I know, in any other Constitution. Certainly it has no equivalent in the United States of America.
“And it is only because America hasn’t got that equivalent provision that we have that legal black hole known as Guantanamo Bay”.
Perhaps her reference gives constitutional lawyers an avenue to challenge this ALP/ Liberal view that the decision to go to war (Iraq, Afghanistan) is the sole responsibility of the executive arm of the Commonwealth Government. Therefore beyond the scope of the Parliament.
This is dangerously arrogrant in my view and certainly ignores the separation of powers.
Decisions about war and the deployment of Australian forces, have, therefore, has ultimately become a matter for the Prime Minister of the day.
This issue is too important to be left to one person.
Our service men and women face legal jeopardy, when a Prime Minister overreaches his or her authority under the law I am particularly concerned, regarding the flouting of the doctrine of the separation of powers. I do not presume to lecture on the doctrine; rather I describe the doctrine to make my case.
Under our political system all three arms of Government exist separately yet none may have unbridled power unto itself or untrammeled power over any other. This is known as the doctrine of the separation of powers.
The separation of powers is a convention we adopted from the United States of America as part of our constitutional arrangements.
The doctrine of the separation of powers was described by Montesquieu in his L’Esprit des Lois in 1748. In this political treatise Montesquieu advocates constitutionalism and the separation of powers, the abolition of slavery, the preservation of civil liberties and the rule of law, and the idea that political and legal institutions ought to reflect the social and geographical character of each particular community.
He said that a nation’s liberty depended on the separation of the three types of power, legislative, executive and judicial with each having their own separate institution.
This doctrine is central to the Australian Constitution.
Under the Federal Constitution the people of Australia are the sovereign power. It (the Constitution) sets out the legal rules and functions of the three arms of government.
They are; The Parliament (Senate, the House of Representatives and the Queen).
The Executive (The Prime Minister, the various Ministers and their Departments), and The Judicature.
The system works in this way. Parliament makes the law, the Executive carries it out and the Judiciary, (in this case the High Court), determines the law is legal and constitutional.
The High Court is charged with the responsibility of determining whether a Government is acting legally and within the Constitution.
This division of power is intended to stop one person or group of people taking over all power to govern Australia.
I find it strange indeed, that a Prime Minister, any PM, can take it on himself or herself to make a decision to send our armed forces to war, without the checks and balances established by the separation of powers.
I believe that, as the Constitution was being written, the framers of the constitution were focused on building a federation of colonies to create the Commonwealth of Australia.
The concepts of World Wars and the changes that came with twentieth century were beyond the imagination of the Australians of the 1890’s.
If England went to war, we went with her, just as we had done in the Boer war.
On 31 July 1914, the day after the Governor-General received official advice that war was imminent, both Andrew Fisher (ALP) and Joseph Cook (Liberal) pledged support to the Empire. Fisher delivered his famous phrase, repeated in many speeches:” Australians’ will stand beside our own to help and defend her to our last man and our last shilling”. Four days later, Britain declared war on Germany. For Australians, this meant their nation too was at war.
Menzies broadcast to the nation, announcing his; “melancholy duty to inform you officially that, in consequence of a persistence by Germany in her invasion of Poland, Great Britain has declared war on her, and that, as a result, Australia is also at war”. This practice became almost a convention.
We are not living in a dictatorship and this situation is not a democratic one. We need to be sure of our Constitutional Legality when we risk going to war.
No one has yet set in place a sound legal basis for us to make this gravest of all decisions. International law is moving closer and closer to the point where national leaders like Tony Blair are coming under forensic scrutiny and it would certainly be prudent to put our house in order now.
The Question to be asked is. What if in the future, decisions to go to a war are found to be illegal and service men and women, who are in need of compensation or legal protection, are put beyond the protection of the law by an action of one person?
For example, what if we find that a future government or the High Court decides that there are no grounds to continuing to pay compensation to war widows or veterans because the actions of previous Prime Ministers were not constitutional?
The Australian Constitution vests ‘command in chief’ of the Commonwealth’s military forces in the Governor- General who exercises this power on advice of the Prime Minister.
Decisions about war and the deployment of Australian forces, have, therefore, has ultimately become a matter for the Prime Minister of the day.
We, the people, deserve a more democratic process in place before making this, grave decision.
I believe that the decision to go to war can only ever be made by a joint sitting of both houses, sitting as the Parliament of Australia, including the Governor General representing the Queen, and as Chief of the Armed Forces.
This would remove such assumed power from the Executive and in particular from the Prime Minister.
To make absolutely sure, the High Court should then decide that the Parliament acted legally and within the Constitution.
Our Armed Forces should never again invade a Sovereign Nation without the authority and full agreement of the United Nations Security Council, in a joint task force, and then, only as a separate and distinct fighting unit directly under Australian Command.
To illustrate the inappropriateness of past decisions, I cite the case of the Korean War. The Deputy Prime Minister, the Country Party Leader, made this decision before informing Prime Minister, Robert Menzies.
On 9 July 1950, Prime Minister Menzies had left Australia on an overseas trip to Britain and the United States. Menzies heard nothing in London that caused him to change his mind (not to send troops). The British had given him the impression that they had no intention of committing ground troops either.
In fact, the British were considering making such a commitment. As Menzies then travelled on to New York aboard the Queen Mary, Canberra was informed by London that they (the Brits) had decided to send troops to Korea and that an announcement was imminent.
Concerned that Australia was about to be upstaged, Percy Spender badgered Arthur Fadden to get in first and make an immediate announcement that Australia would be committing ground troops. The decision was made without consulting Menzies (or the rest of the Cabinet) and broadcast on ABC radio an hour before the British announcement.
Spender told Menzies of the decision by radiotelephone. By the time Menzies spoke to reporters’ quayside in New York, he was giving every indication that he had been a party to the decision.
Coming only hours after the announcement from Canberra, Menzies’ arrival in the United States turned out to be particularly propitious. He was invited to lunch at the White House, spoke to the National Press Club and addressed both Houses of Congress.
Never before had an Australian Prime Minister received such an enthusiastic welcome in Washington. Menzies also took every opportunity to assert Australian primacy in the decision to commit ground troops to Korea. He brazenly told Congress that he expected British and New Zealand troops soon to be joining Australians and Americans in fighting the communists in Korea.
Is it possible that if you are touched by my concerns, that you would join a debate to democratise the decision-making process of commitment to war?
