Greens, AWPR resume 35-year-long fight for parliamentary powers over armed conflicts

By Chris Woods

Wednesday December 9, 2020

Greens Senator Jordon Steele-John (AAP Image/Mick Tsikas)

Weeks after ADF chief Angus Campbell released a redacted version of the devastating Brereton report, the Greens have introduced the latest in a series of bills to empower both houses of parliament, not the executive, to make any future decision on Australia joining armed conflict.

As former Defence minister Brendan Nelson explained in his parliamentary paper ‘The Role of Government and Parliament in the Decision to Go to War‘, the Australian Constitution specifies that former royal prerogatives — “including the power to make war, deploy troops and declare peace” — are part of the executive power of the commonwealth.

The contemporary practice that sees such decisions made by the prime minister and cabinet has survived attempts to devolve this power to parliaments by the Australian Democrats in 1985, 1988 and 2003, and later by the Greens in 2003 and 2014.

“I find it pretty extraordinary that in the modern world, people claim themselves to be republicans still support the executive government enjoying the ancient privileges of the monarch,” president of Australians for War Powers Reform and former Defence secretary Paul Barratt says. “Now, what history has shown is that this is a very dangerous privilege, because we’ve had three very important occasions where prime ministers decided on their own — not even in consultation with cabinet — to send the ADF into war: one was Vietnam, one was Iraq in 2003, and another Afghanistan in 2001, and then again in 2003. We also had Tony Abbott agreeing to extend our operations in Iraq into Syria in 2014.”

“These are wars, which in the case of Iraq was an illegal war, and in the case of Vietnam was a very ill-conceived war, and in the case of Afghanistan and Iraq proved to be futile wars,” he says. “We really need parliament to be told, why are we doing this, what’s at stake, what’s the evidence for what you say, and, most importantly, what would victory look like?”

Now, Greens peace spokesperson Senator Jordon Steele-John has submitted a revised version of former Democrats Senator Colin Mason’s 1985 bill in the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020.

The bill would insert a new section into the Defence Act 1903 under which “service of members of the Defence Force beyond the territorial limits of Australia in warlike actions would require the approval of both houses of the parliament,” with exceptions for emergency situations.

Improvements on Mason’s original bill include more detailed provisions for emergency situations where the parliament is not meeting, as well as information that would then be required to be provided to the public and the parliament.

“After the strategic failures in Iraq and Afghanistan, the executive cannot be trusted to make the decision alone to enter into armed conflict overseas,” Steele-John said. “There is currently no legislative provision checking the Australian government’s ability to send troops to another country.”

“It is unacceptable that the prime minister and cabinet are able to make these decisions without allowing the Australian parliament, and by extension the Australian people, to examine the case for war.”

Greens leader Adam Bandt also called on Australia to join countries such as the US, Germany, and Sweden “that protect against unilateral decisions by the government”, and the party cites a 2010 study by the Parliamentary Library that found that 9 of 13 European countries had similar powers.

The push also follows a nationwide Roy Morgan opinion poll, released on Thursday, that found 83.3% of Australians — and more more than 75% of all Labor, Coalition and Greens voters — want parliament to vote on whether our troops are sent into armed conflict abroad. This demonstrates a 6% increase since the last poll was undertaken in 2014.

Paul Barratt on the political disincentives and hidden advantages of parliamentary oversight

The new legislation follows years of campaigning for parliamentary authority over armed conflicts from Australians for War Powers Reform, a body launched by the late Malcolm Fraser in 2012 that has also sought independent reviews of Australia’s wars in Iraq and Afghanistan.

Barratt has welcomed the latest bill, calling it both reasonable and balanced with appropriate exemptions; if, for example, Australia were under direct attack, the prime minister would only be required to write to the governor-general explaining why it is not practical to seek an authorising resolution. The proposal would also allow for routine military activity, like going overseas for training exercises, weapons purchasing etc.

While emphasising the organisation is non-partisan and works with parties across the political spectrum, Barratt says AWPR will be advocating “that people give the Greens bill proper respect, not because it’s a Green bill but because it’s a thoughtful piece of legislation that tends to deal with the issues.”

“In 2009, the major parties just were quite dismissive of the legislation and said, ‘there’s been legislation like this before and this bill has the problems of the previous one — without without identifying what those problems were, and without making any suggestions as to how they could be fulfilled,” Barratt says. “Now, I would hope this bill — particularly in the light of the Brereton report, which gives you an idea of what happens when you go into an aimless conflict — I would hope that the major parties would treat this bill with respect and deal with it on merits.”

However, he claims that Labor members have, with some exceptions, shown to be happy with the existing system, while “it’s very hard to find anyone who’s even prepared to discuss it” in the Coalition.

For context, the 2018 Labor conference resolved that a Shorten government would have referred the issue to an inquiry by the Joint Standing Committee on Foreign Affairs, Defence and Trade.

But, per Barratt’s complaint, then-Foreign Affairs minister Julie Bishop rejected the Greens’ push in 2014 by claiming historical precedent:

We will adopt the usual convention of past governments and that is that the government of the day has the ultimate responsibility for making decisions involving our military. There is an opportunity to debate the issue in the Parliament, but governments of both sides have always adopted a convention of making the decisions in relation to military activity – I’m thinking of the Hawke government in the original Gulf War – so we will do what has always been done.

As to why governments have rejected reforms beyond precedent, the former secretary of Defence — and before that, Primary Industries and Energy — speculates that prime ministers “like to be the one that the American president rings up and says, ‘We need your help’,” but that this need to be seen as the decision-maker actually sacrifices leverage that could be used to obtain further information in future calls for military intervention.

“I think it would be much smarter, from an Australian public interest point of view, for the Prime Minister to say, ‘that’s very interesting, Mister President, and I’m generally sympathetic to what you’re saying, but I’ve got to get this through my parliament. So could you tell me more about what you what your plan is, and what what you’re hoping to get out of this, and why we should expect to be successful, etc, etc?’. Just use the fact you need to get it through parliament, as a bit of leverage to extract necessary information and necessary undertaking.”

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