Those who thought the federal Labor Party supported reforming the antiquated war powers would be startled to hear foreign affairs minister Penny Wong make it clear the government does not.
Wong told the Senate on February 9 that “That’s not a view that I share”, adding, “It’s not a view that the government shares”.
“The executive should be accountable to the parliament for such a decision. But it is, in our view, important for the security of the country that that remains a power, a prerogative of the executive.”
By “executive”, she means one person — the prime minister, who, in most instances, has signed off on Australia entering into wars.
Wong looked sheepish. That’s because, in opposition, Labor promised a public inquiry into reforming how Australia goes to war. (Former Labor leader Bill Shorten was among those pushing for change.) It knew it was popular — polls show 87% support war powers reform — to spruik it during the election campaign. Now, however, it has made its intentions clear.
Wong is preparing the ground before the Joint Standing Committee on Foreign Affairs, Defence and Trade inquiry reports back.
By the close of submissions, 94 of 111 supported MPs and senators having a say on overseas deployments. One hundred and nine submissions favoured updating the Defence Act 1903 to ensure a parliamentary debate before troops are sent to war.
Australians for War Powers Reform (AWPR), which evolved from the Campaign for an Iraq War Inquiry, said in its submission: “A prime minister can still send Australian troops into action without democratic constraint, parliamentary debate, or public accountability.
“We can only prevent recurrence of such unilateral decisions by spreading awareness of their dire implications, and encouraging politicians to move for change.”
Many anti-war/peace organisations and individuals contributed submissions, including Pax Christi — a Christian peace organisation — and Medical Association for the Prevention of War (MAPW).
Pax Christi national president Claude Mostowik pointed out that Australia’s involvement in US-led wars in Vietnam, Afghanistan and Iraq had “strategically disastrous outcomes for the people of those countries, for returning [Australian Defence Force] ADF personnel and their families”.
Given this, he said, the government must provide “clear reasons for the proposed engagement”, its aims and goals, an estimate of the finances and “a prediction of the circumstances under which Australia would withdraw”.
“Because the decision to go to war should be made by the whole Parliament rather than by an executive group, there should be free vote of members, not along party lines,” Mostowik added.
“Any decision about Australia going to war should require a vote of 75% of Members present, with voting in both the House of Representatives and the Senate.”
MAPW pointed out that the Vietnam and Iraq wars are “two examples of disastrous wars where Australia’s involvement could have been prevented by a requirement for parliamentary approval of ADF deployments to overseas wars”.
“The prime minister should inform parliament of matters including the purpose of the deployment, its legality, the diplomatic efforts that have been undertaken to address the crisis, advice from key humanitarian organisations as to the likely human impacts of the proposed war and how they would be met, and the likely economic costs of the proposed deployment.”
MAPW argued that governments also had a responsibility towards ADF personnel to demonstrate that their deployment has the strong support of the Australian people. “A decision by a PM alone, with or without Cabinet, does not do this,” it said.
Professor Clinton Fernandes, a defence academic at the University of New South Wales, supported parliament voting “yes” or “no”, but argued against it having a say in military operations. He also put the arguments against three usual objections to any change: time-sensitivity, secrecy and flexibility.
He said he supported a change because Australia’s “long presence in Afghanistan” was more tied to “US domestic politics rather than the military situation”.
“If the Australian government’s objectives were to reduce the threat of terrorism, then the last two decades have been a failure,” he said. “But if the government’s real objectives — as opposed to its declared ones — were to uphold US power and demonstrate Australia’s relevance to the US, then the Afghanistan deployment was a success.”
Professor Ben Saul, from the University of Sydney Law School, argued for a statutory codification rather than reliance on political convention. The principle should be that parliament is asked to approve. If there was an emergency, where prior approval is not feasible, then parliamentary approval should be sought retrospectively, he said.
A proposal to enter into conflict should contain “detailed legal reasons explaining whether the decision is consistent with the prohibition on the use of military force under article 2(4) of the United Nations Charter and its legally recognised exceptions”, Saul said.
He said parliament “should have the opportunity to debate”, including by “tabling independent legal opinion, or holding a committee inquiry to call legal experts to consider” the decision to deploy troops.
Saul said the debate over whether Australia should join the Coalition of the Willing to invade Iraq in 2002–03 showed the government has to ensure “participation in foreign conflict accords with international law”. This is only way to assure people that sending troops is “consistent with Australia’s international legal obligations” and “its professed commitment to a ‘rules-based international order’”.
Not only parliament, but all Australians “must be assured that sufficient protective legal structures are in place to avoid a repeat of the numerous alleged war crimes committed by Australian forces in Afghanistan, as exposed by the Brereton Inquiry”.
Department of Defence
Predictably, the Department of Defence’s submission, a slim few pages, argued that MPs and senators should continue to have no decision-making role on whether Australia joins overseas wars. Its late submission (number 100) said its opinion reflected advice from the Office of National Intelligence and the Defence Intelligence Group, which said reforming war powers would be a “risk to national security”.
It said that World War I and II “arrangements”, whereby the executive makes the decision, are “timely”, “flexible” and contain the “necessary confidentiality of highly classified information”. Parliamentary approval would reduce this, it argued, as well as “our credibility as a security partner”.
It warned that an “informed parliamentary decision-making process would require access to sensitive information and generate risks to ADF operational security and key intelligence relationships”. This is despite acknowledging that a decision on joining an armed conflict is “one of the most serious decisions available to Government”.
Since the mid-1980s there have been multiple attempts to make the decision-making process more democratic — the Department of Defence has opposed each one.
AWPR President Dr Alison Broinowski was scathing about the department’s opposition. “Giving our MPs and Senators a vote on the crucial issue of war is not a risk or a threat. It’s democracy,” she said.
“The department’s submission repeats the absurd suggestion, recently put by Senator Linda Reynolds, that war powers reform could risk the lives of ADF personnel,” she said. “This is despite the fact that several large democratic nations have had parliamentary oversight for years, without incident.”
She said the current “captain’s call” system, which allows the PM and the executive the power to decide on war, has “failed us time and time again, the Iraq disaster being the most glaring example”.
Labor should not have been believed when, desperate to win government, it implied it supported reforming war powers. When Greens Senator Jordan Steele-John tabled his 2020 bill to amend the Defence Act, Labor senator Kristina Keneally sounded a lot like mealy-mouthed Wong.
“We on this side oppose this bill, we are firmly of the belief that openness and transparency in government are at the heart of any democracy,” she said.