War powers reform inquiry says PM must continue to call the shots

April 13, 2023
Soldiers marching in a line. Inset: Prime Minister Anthony Albanese
The federal government’s war powers reform inquiry recommends leaving the decision whether to go to war with the prime minister. Inset: Anthony Albanese.

The federal government’s inquiry into international and conflict decision-making, tabled on March 31, recommended no fundamental reform to war powers.

While most submissions argued for parliamentary oversight before committing the country to war, its key recommendation is to “reaffirm that decisions regarding armed conflict are fundamentally a prerogative of the Executive”.

Under pressure from a broad public mood for change, it suggested parliament be more regularly briefed.

Labor MP Julian Hill, who chaired the Joint Standing Committee on Foreign Affairs, Defence and Trade (JSCFADT), admits in the report’s foreword that: “There is a clear need to improve the transparency and accountability of government decision-making in relation to armed conflict.”

However, his first “key recommendation” is to “reaffirm that decisions regarding armed conflict are fundamentally the prerogative of the Executive” — the prime minister.

The United States requires congressional approval for the formal declaration of war and military funding. France requires parliament to decide on sending troops abroad. Britain’s House of Lords debates sending the country to war. Germany, Denmark, Ireland, Spain, Norway and Sweden require parliamentary approval for overseas troop deployments.

JSCFADT made seven recommendations — all of which avoided improving accountability and transparency of the “executive” using “national interest” as cover.

The inquiry's committee members were from Labor, Liberal, National, Liberal-National Party (Queensland) and United Australia parties.

Greens’ dissenting report

The Greens tabled a dissenting report, with Senator Jordon Steele-John saying Australia is “relatively unique among democratic countries in its lack of parliamentary authorisation or oversight on military deployments overseas”.

Australians for War Powers Reform (AWPR) president Alison Broinowski said on March 31 that the JSCFADT report “reaffirms the status quo by insisting that decisions regarding armed conflict are fundamentally up to the PM and the executive...

“In effect, this means that the Prime Minister and a small group of ministers will still make the decisions just as John Howard did in 2003 with his ‘captain’s call’ on going to Iraq.”

Broinowski supported the idea that a “statement of compliance with international law” about military action be tabled in parliament, but said: “Such advice is not much use if parliamentarians are only ‘consulted’.”

“The sad fact is that even if the Albanese government accepted all of the committee’s recommendations, Australia could still be sent to a ‘war of choice’ overseas and our elected representatives — MPs and Senators, would have almost no say.”

Another recommendation calls for the “primacy of the Governor General under section 68 of the Australian Constitution” to be  restored “to give effect to decisions of government in relation to war or warlike operations, particularly in relation to conflicts that are not supported by resolution of the United Nations [UN] Security Council, or an invitation of a sovereign nation”.

AWPR said this makes it clear that there is a lack of constitutional support for the PM, “the Executive”, to take the country to war.

“There is no constitutional support for a Prime Minister to arrogate to themselves war powers,” AWPR said, not in Section 61 of the Constitution and not in the Defence Act.

“The government should face the bald fact that the Constitution does recognise a Parliament, but it does not mention a Prime Minister.”

AWPR expressed alarm about the report’s reference to “conflicts that are not supported by the UN Security Council”.

“Unless such conflicts are a matter of self-defence with our nation under direct attack — in which case there would be no need for any discussion about a military response — such wars are illegal under international law,” AWPR said.

“We should be reaffirming that principle, not setting up a mechanism whereby Australia could engage in illegal wars. The report’s recommendation that there is a role for the Governor-General in authorising such wars must be totally rejected.”

Wong, Marles demand no change

Before the committee had even tabled its report, Foreign Affairs Minister Penny Wong and Defence Minister Richard Marles made it clear that the current arrangements should “not be disturbed”.

The Greens support recommendations for greater reporting to parliament, saying that they are the “bare minimum”.

Steele-John said he had concerns about the government’s interpretation of Section 8 of the Defence Act as an alternative to Section 68 of the Constitution, regarding decisions over conflict. The Greens suggest the High Court be asked to consider it.

The Greens want the Defence Act to be amended to “explicitly limit ministerial power from unilaterally deciding on offensive troop deployments” and for the legal advice given to the Howard government to be made publicly available.

Howard and Iraq

Interestingly, the JSCFADT report’s own appendices convincingly put the case for parliamentary debate before any participation in a war.

It compiled a list of decisions on Australia’s entries into wars, and their context.

In relation to Australia’s participation in the illegal war on Iraq, then-PM Howard told a media conference on January 10, 2003, about “some forward deployment” of the Australian Defence Force (ADF) to the Middle East.

On January 22, Defence Minister Robert Hill announced that HMAS Kanimbla, special forces officers and a Royal Australian Air Force reconnaissance team were being deployed to the Middle East.

On January 23, the pre-deployment, known as Operation Bastille, was announced.

On March 13, Howard told the National Press Club that Iraq had weapons of mass destruction. On March 17, he advised that cabinet would meet that evening to discuss Iraq and Australia’s military participation.

Journalists asked Howard about the role of parliament in the decision to join the “coalition of the willing”. He replied: “I have no desire at all to deny Parliament the full opportunity of debating this.”

On March 18, Howard moved a motion that included endorsement of the government’s decision to “commit Australian Defence Force elements in the region to the international coalition of military forces prepared to enforce Iraq’s compliance with its international obligations under successive resolutions of the UN Security Council, with a view to restoring international peace and security in the Middle East region”.

This prompted debate, with Labor opposition leader Simon Crean saying: “Labor opposes your commitment to war. We will argue against it, and we will call for the troops to be returned.”

On March 20, the motion passed the House of Representatives with 83 votes to 63. On the same day, the Senate passed an amended motion opposing the cabinet’s decision without a UN resolution authorising force and called for the ADF to be returned home. It passed 37 to 32.

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