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Australia’s war powers: codify precedents to create conventions

Posted By on November 21, 2022 @ 06:00

Australian House of Representatives - Canberra

The Labor government has given a ‘firm’ [1] view to the parliamentary inquiry on war powers [2]: don’t disturb the executive’s prerogative for sending Australia to war.

But the reference letter [3] to the committee says there’s room for more parliamentary scrutiny.

My positive reading of the two positions is that the inquiry has the chance to use parliamentary precedent to strengthen the Westminster system. Drawing on a series of columns I’ve written on the war powers, here is a four-part plan.

1. Codify parliamentary precedent to establish a set of conventions: use conventions, not law, to give parliament a proper role in Australia’s way of war.

Invoking precedent, convention and tradition is a means to establish legitimacy, set standards and guide future actions.

A small example is a mythic sign on a university noticeboard: ‘College tradition is that students do not walk on the grass in the main quadrangle. This tradition begins today.’ The sign has AAA provenance (apocryphal and anonymous), yet it illustrates the truth that tradition is a useful tool.

As the historian Eric Hobsbawm [4] noted, ‘“Traditions” which appear or claim to be old are often quite recent in origin and sometimes invented.’

The Joint Committee on Foreign Affairs, Defence and Trade doesn’t have to invent tradition, merely codify precedents set by previous prime ministers and governments. The purpose is to make these precedents conventions to be followed by future governments.

Turning to convention is a means around the two major parties’ aversion to changing the law, to give parliament a place in the use of the war powers.

The call for both houses of parliament to vote on war crashes against the fact that Australian governments seldom command a majority in the Senate. Neither Labor nor the Coalition will give another iota of power to the upper house.

A convention for a vote in the lower house on deploying the Australian Defence Force already exists. The inquiry should note the precedent in the House of Representatives and call on future governments to follow it.

2. A vote of the House of Representatives: adopt the precedent set by Prime Minister John Howard with his ANZUS and Iraq resolutions.

The ANZUS precedent is the eight-point motion that Howard moved in the House [5] on 17 September 2001, invoking the ANZUS Treaty following the 9/11 terror attacks on the US.

The motion didn’t go to the military actions that followed, but set out fundamental arguments for why Australia would act. That’s the place to start for all future motions on military action: state the principles and purposes.

A resolution for war should be considered by the House even if—as happened with Iraq—the government has already sent Australia’s military to fight.

Howard created the National Security Committee of cabinet, which is established at the heart of government. In the same way, the Howard precedent on a House resolution for war—before or after deployment—should be treated as a valuable convention in our Westminster system.

Governments are made in the House of Representatives, while the Senate is the house of review. The House of Representatives is where the vote on war should happen.

3. The mission and the means: set out the aims, the role of the ADF, the risks and Australia’s objectives—following the precedents of prime ministers Tony Abbott and Julia Gillard.

Howard’s ANZUS and Iraq resolutions are starting points for future deployment resolutions. Building on the Howard convention, the government should present the House with a motion that offers answers to the fundamental questions posed by Abbott on 1 September 2014.

In a statement to parliament [6] on the threat that ‘the death cult’ Islamic State posed to Iraq and Syria, Abbott said that if a request for Australian military help in Iraq came from the US and the Iraqi government, it would be considered against these criteria: ‘Is there a clear and achievable overall objective? Is there a clear and proportionate role for Australian forces? Have all the risks been properly assessed? And is there an overall humanitarian objective in accordance with Australia’s national interests?’

For a war against another nation, rather than terrorists, other big questions could be added to the Abbott criteria: What is the scope of the commitment? What are the aims? What forces are needed? What would victory would look like? What is the exit strategy?

Add to the Abbott points the set of questions outlined by Gillard in her Afghanistan speech [7] on 19 October 2010. Gillard told parliament that she would ‘answer five questions Australians are asking about the war’:

– why Australia is involved in Afghanistan;
– what the international community is seeking to achieve and how;
– what Australia’s contribution is to this international effort—our mission;
– what progress is being made; and
– what the future is of our commitment in Afghanistan.

The resolution that goes to the House, even if the government has already ordered war, should address those fundamentals—the aims, the means and the ends.

4. Answer to parliament and the people: require the prime minister and defence minister to give parliament (and Australia) regular formal reports on the conflict. Revive the convention that major government statements on Australian strategy and defence should be presented and tabled in parliament.

A significant precedent in Gillard’s Afghanistan speech was her promise of regular formal statements to parliament: ‘[T]oday I announce as Prime Minister that I will make a statement like this one to the House each year that our Afghanistan involvement continues. This will be in addition to the continuing ministerial statements by the Minister for Defence in each session of the parliament.’

While building fresh conventions on parliament’s role, it’s time to revive conventions that have been so ignored they’ve fallen into disuse. Major government announcements on defence and strategy should be presented and tabled in parliament. That was the convention that prevailed from the first defence white paper in 1976, then in 1987 and 1994, and again when Howard presented his defence white paper to the House [8] in 2000.

In this century, however, parliament is bypassed in order to serve the TV cameras.

Defence white papers haven’t been presented in parliament. Instead, they’ve been unveiled on a navy ship at Garden Island in Sydney (Kevin Rudd), in an air force hangar in front of a fighter jet and two lines of ADF uniformed personnel (Gillard) or at the Australian Defence Force Academy (Malcolm Turnbull). Turnbull’s 2017 foreign policy white paper was released in the foyer of the Department of Foreign Affairs and Trade, while Scott Morrison went to ADFA to release the 2020 defence strategic update. The politics and pictures of these performances were presidential, not parliamentary.

Governments have developed an absent-minded habit of not bothering to make policy documents also papers of the parliament.

A test of the government’s view of parliament will be whether the defence strategic review to be released next year is presented to the TV cameras or tabled and debated in the House of Representatives.

The parliament must do more work if it’s to have more say and play a more consistent and continuing role in thinking about the nation’s defence. To have a greater voice in the Australian way of war, parliament should do more of the thinking.

The joint committee should hold regular hearings to review Australian military missions (monitor the checklist). And building on Senate estimates, in each parliament the joint committee should review Australian strategy and defence equipment programs.

Taking recent precedents and codifying them as conventions means the parliament could test policy, shape thinking and record the detail that makes the history. Building such tradition grounds the issues of trust and democratic legitimacy where it belongs, in our parliament.

In war, a government must convince its own people; it must give reasons for the sacrifice, make sense of the death. As ever, parliament must be where the power and the policy meet the people.

Article printed from The Strategist: https://www.aspistrategist.org.au

URL to article: https://www.aspistrategist.org.au/australias-war-powers-codify-precedents-to-create-conventions/

URLs in this post:

[1] ‘firm’: https://www.aspistrategist.org.au/parliaments-power-and-the-war-powers/

[2] inquiry on war powers: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Foreign_Affairs_Defence_and_Trade/Armedconflict/Terms_of_Reference

[3] reference letter: https://www.aph.gov.au/DocumentStore.ashx?id=147af261-3c2a-4757-ba1f-0d9bc5aa8d20

[4] Eric Hobsbawm: https://www.google.com.au/books/edition/The_Invention_of_Tradition/sfvnNdVY3KIC?hl=en&gbpv=1&dq=Eric+Hobsbawm+and+Terence+Ranger+(Beds),+The+invention+of+tradition&printsec=frontcover

[5] moved in the House: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=CHAMBER;id=chamber%2Fhansardr%2F2001-09-17%2F0004;query=Id%3A%22chamber%2Fhansardr%2F2001-09-17%2F0000%22

[6] statement to parliament: https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=CHAMBER;id=chamber%2Fhansardr%2F8fd8920a-0076-4086-896a-7402223f6f5d%2F0125;query=Id%3A%22chamber%2Fhansardr%2F8fd8920a-0076-4086-896a-7402223f6f5d%2F0000%22

[7] Afghanistan speech: https://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansardr/2010-10-19/0036/hansard_frag.pdf;fileType=application%2Fpdf

[8] presented his defence white paper to the House: https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:%22chamber/hansardr/2000-12-06/0037%22

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