Parliament and the Australian way of war
22 Aug 2022|

The way Australia goes to war needs new conventions to give parliament a greater role in the weightiest choice any nation can make.

Creating parliamentary customs or conventions is the only realistic way to touch the prime minister’s almost unfettered power to launch war.

The parties of government—Labor and Liberal—will not give parliament any legal hold over the prime minister’s profound prerogative for war. Convention will have to be created, instead. Much history—both military and political—informs this understanding.

Since federation, war has been a defining element of Australia’s identity and the way we approach the world. In a span of nearly 90 years—from 1914 to 2003—Australia chose to go to war nine times.

The political truth is that prime ministers and governments—creatures of the House of Representatives—are usually fighting the Senate, where the government of the day seldom commands a clear majority. The parties of government will not give the Senate any more power, especially over the war powers.

The Senate experience means that politics pushes against the logic of putting into law the proposal in 2010 from a former Australian Army chief, Peter Leahy, that a resolution of each house of parliament should authorise overseas service. Leahy’s recommendation for parliamentary ratification for military deployments reads:

Both Houses of Parliament should be required to authorise by resolution any decision to commit the Australian Defence Force to warlike operations or potential hostilities within sixty days of the decision to commit forces. Given that the contemporary kinds of conflict tend to run for many years, ADF deployments should then be reconsidered by the Parliament on an annual basis.

A resolution of parliament within 60 days of war or deployment draws on a similar period in the US War Powers Act. Skip by the question of how much the US Congress has checked the president’s war powers to consider Leahy’s equally important call for clear public statements of national interests and strategy. Here his wording shifts from parliamentary resolution to government statement:

For each military deployment, the Australian Government should provide and routinely update a clear statement of national interests and strategy. The strategy statement should include the elements of power to be used, the end state to be achieved, an indication of the exit strategy and likely time frame for the commitment of force.

The many parallels between Australia’s entry into the Vietnam and Iraq wars offer the history for seeking benchmarks the parliament can apply to the executive’s profound prerogative. If not aspiring to legal checks, let’s at least have a good checklist.

Former Australian ambassador Garry Woodard’s examination of how the prerogative worked in deciding to commit in Vietnam and Iraq showed ‘the dominance of the Prime Minister, decisions made in secret by a small group of ministers obedient to him, minds closed against area expertise, preference for party political advantage over bipartisanship, and willing subservience to and some credulity about an ally, the United States’.

As usual, Woodard shows his deep understanding of the Canberra system. The caution also offered by history, though, is that greater parliamentary involvement would not have stopped Australia going to Vietnam, Afghanistan or Iraq. Parliament can give greater transparency about Australia’s march to war and set benchmarks for judging the course of war. But parliament might not curb the war habit.

Wedging Labor on the Vietnam commitment in 1965, the Coalition government rode initial voter enthusiasm for the war to increase its majority in the 1966 election, arguing that Labor’s opposition to Vietnam showed it was weak on the US alliance. Both sides of Australian politics supported the 2001 invasion of Afghanistan and any greater parliamentary involvement would have been an expression of that unanimity.

Iraq divided the parliament just as it split Australia from the very start. John Howard used his prerogative as prime minister with the precision of a master politician. He held his cabinet and party together (Labor was again wedged), and Australia joined the Iraq invasion—lots of alliance loyalty but few smarts in committing early with few questions.

The idea of more smarts and more questions is where a bigger role for parliament comes in.

Australian researcher Peter Mulherin pursues this in ‘War-power reform in Australia: (re)considering the options’, arguing for a new war-powers convention as a small step towards democratising the decision of going to war: ‘While not legally binding, this constitutional convention would represent an agreement by the major parties that overseas combat operations will be properly debated in Parliament.’

Beef up the informal rules that guide the parliament so it can impose informal constraints on the executive’s power. Express what parliament and the people are owed, perhaps codified in a non-binding resolution. Strengthening parliamentary convention would be an improvement on the status quo, Mulherin concludes:

Despite some arguing that legislative reform is preferable, it may also be impossible, given the reluctance of the Coalition and ALP to change the law. Therefore, a new constitutional convention would be an important step towards strengthening debate when Australia goes to war.

In ‘Going to war democratically: lessons for Australia from Canada and the UK, Mulherin argues that Canada and the UK have taken steps this century to ‘parliamentarise’ their war powers, while in Australia the prerogative remains absolute.

Citing Canada and the UK as comparable parliamentary democracies with close alliance and historical ties, Mulherin lays out a three-step argument about what Canberra can learn from London and Ottawa: ‘(1) a more democratic foreign policy formation is a normative “good”; (2) war-power reform is one way to democratise foreign policy formation; and (3) lessons drawn from the examples of Canada and the United Kingdom may help Australia reform its war-power arrangements’.

So, no law, but stronger conventions in the House of Representatives offering more detailed benchmarks for the powers of review held by the Senate.

Over the past two decades, prime ministers as diverse as Howard, Tony Abbott and Julia Gillard have offered small footholds on which parliament could build. My next column will draw wordage from those footholds to do some convention drafting.