David Johnston (WA, Liberal Party) Share this | Link to this | Hansard source

My question is to the Attorney-General, Senator Brandis. Can the Attorney advise the Senate of the legal basis for Australia's decision to extend military action against Daesh into eastern Syria?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Yes, I can, Senator Johnston. I can assure you and the chamber that the decision to do so is firmly grounded in international law. As you know, Senator Johnston, article 51 of the Charter of the United Nations recognises that all member states have an inherent right of individual and collective self-defence against armed attack. When Australia decided to respond to the request by the government of Iraq to join the US-led international coalition to defend Iraq from the Daesh insurgency, it relied, as did other participating members of the international community, upon the principle of collective self-defence in article 51. That principle applies to non-state actors and can extend, in an appropriate case, beyond the borders of the requesting state.

The Daesh insurgency has been utterly unambiguous about its ambition to displace the government of Iraq. In doing so, and in engaging in military activity to that end, it does not recognise the border between Iraq and Syria. As we know, many of the Daesh military bases and supply lines are located in eastern Syria. Many attacks are launched from beyond the Syria-Iraq border. I can advise the Senate that earlier this morning the Australian permanent representatives to the United Nations wrote to the President of the Security Council giving notice under article 51 reporting that Australia would be taking measures against Daesh in eastern Syria in support of the collective self-defence of Iraq.

David Johnston (WA, Liberal Party) Share this | Link to this | Hansard source

Mr President, I ask a supplementary question. I further ask the Attorney: what are the conditions necessary to invoke the doctrine of collective self-defence in this case?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

In this particular case, where we are concerned with cross-border activity, there are four conditions. First, the requesting state must have been subjected to or imminently at risk of armed attacks from elements beyond its borders; second, there must be no effective means reasonably available to address those attacks or imminent threats other than the use of force; third, the host state, in this case Syria, must have demonstrated that it is either unwilling or unable to restrain the attacks originating from within its borders; and, finally, the state under attack, in this case Iraq, must have requested the assistance of other states to defend itself. In this particular case, all four of the requirements of public international law are plainly satisfied.

David Johnston (WA, Liberal Party) Share this | Link to this | Hansard source

Mr President, I ask a further supplementary question. Can the Attorney-General advise the Senate of the international effort against Daesh and in particular the legal basis of the international coalition?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

As you well know, Senator Johnston, having been the defence minister who was responsible at the time of the initial deployment—you showed great leadership, if I may say so—this is a very broad international coalition led by the United States of America in which Australia is one of the principal contributors. Many of the members of that coalition, including the United States, the United Kingdom and Canada, have also relied on the doctrine of the collective self-defence of Iraq as the legal basis for their response to the Iraqi government's request for assistance. Those governments have also given article 51 notices to the President of the UN Security Council. I should say that some of those governments have relied on other bases as well, but they have all relied on the principle of collective self-defence, as has Australia, as we do now for the extended mission in eastern Syria.