Create parliamentary conventions for the Australian way of war

Australia’s parliament is unlikely to place legal limits on the prime minister’s and executive’s deep prerogative to lead the country into war.

Instead of pushing against the constitution, seek to build new conventions in the Australian way of waging war. Seeking to “parliamentarize” the powers of war.

Aim for a checklist if not a legal check when war is on. And use the checklist for better parliamentary oversight of how war is fought.

Stronger conventions in the House of Representatives can offer more detailed cues at the critical moment when the prime minister and cabinet mobilize the Australian Defense Force. The benchmarks can then be used by both Houses of Parliament, particularly the Senate, to monitor and review the course of military action.

Over the past two decades, prime ministers as diverse as John Howard, Tony Abbott and Julia Gillard have offered fulcrums on which Parliament could build conventions.

To use these points of support, the Parliament must move closer to the strategic and diplomatic space dominated by the Prime Minister and the cabinet.

What is needed is more “creative tension” between the executive and parliament, the phrase used by former liberal senator and international relations scholar Russell Trood and ASPI’s Anthony Bergin in their article of 2015. It was also at the conceptual heart of the Senate lecture on parliament and national security that Bergin delivered in 2017 after Trood’s death.

To get closer to the deep prerogative, parliament must muscle up on a daily basis. Move the needle in the direction of change, argued Trood and Bergin, to:

  • build respect for Parliament as a forum for considering national security issues
  • develop national security training for parliamentarians by offering an orientation program for new parliamentarians focused on national security
  • examine the exercise of war powers by parliament
  • encourage “parliamentary diplomacy”
  • increase the cash and cachet (more human and financial resources) of parliamentary national security committees
  • review how parliament oversees intelligence.

Trood and Bergin argued that Parliament never thoroughly considered how to extend its authority over the overseas deployment of the ADF. They were, however, cautious about the idea that parliament should be responsible for declaring war, doubting that it would improve the way Australia makes policy:

Governments are elected to govern, and that authority extends to making tough decisions about the appropriate use of military force. Other salient factors are the need for speed in decision-making, the unique knowledge that governments possess about often complex foreign affairs issues, and the challenges of getting a proper resolution from a potentially split legislature.

Rather than a vain frontal attack on the prerogative of the executive, compose what parliament can legitimately expect and do right.

Existing precedents and habits may be the subject of conventions in the House of Representatives. Reinforced habits in the Senate could fuel the review powers it already wields (and shed light on how it toasts defense leadership during regular budget estimates hearings).

In the House of Representatives, use the Prime Minister’s existing bases. Build on the ANZUS precedent set by Howard with his House resolution after the 9/11 attacks in the United States; Howard’s resolution on the war in Iraq; Abbott’s criteria as the basis for future war resolutions; and the Afghan conventions established by Gillard.

The ANZUS precedent is Howard’s eight-point motion introduced in the House on September 17, 2001, invoking the ANZUS treaty in the wake of the September 11 attacks on the United States.

The motion did not address subsequent military actions, but set out fundamental arguments as to why Australia would act. This is the starting point for all future motions on military action.

A war resolution should be considered by the House even if, as happened with Iraq, the government has already sent the Australian army into combat. Australian troops were in action in Iraq on March 20, 2003, when the House voted to approve Howard’s proposed Iraq motion (and reject the rival Labor motion). Howard’s resolution was a damnation of Iraq as a rogue state and an assertion that Australia was acting under the clear authority of the United Nations. The opposition Labor motion argued that Australia lacked UN authority to commit troops.

Viewed today, the two resolutions frame the Iraq argument in Australia – and its failure.

During the Iraq resolution debate, Howard said Australian forces would be part of the US-led coalition but would operate under a separate national command with separate rules of engagement and targeting policies.

After the war, in “the post-conflict phase, phase 4”, Howard said, Parliament’s “Joint Standing Committee on Foreign Affairs, Defense and Trade” could play a role in terms of oversight of Australian involvement in the Phase 4 deal’. The committee has never played such a detailed role in Australia’s Iraq experience, but ‘control’ thinking is a parliamentary fulcrum for all stages of future wars.

The ANZUS and Iraq resolutions are starting points for future war resolutions that seek more detail on war aims. The House should ask for a motion that offers answers to the fundamental questions posed by Abbott on September 1, 2014.

In a statement to parliament on the threat the Islamic State ‘death cult’ posed to Iraq and Syria, Abbott said that if a request for Australian military aid in Iraq came from the United States and Iraqi government, it would be considered against them. Criteria:

Is there a clear and achievable overall goal? Is there a clear and proportionate role for Australian forces? Have all risks been properly assessed? And is there an overarching humanitarian objective consistent with Australia’s national interests?

For a war against another nation, rather than terrorists, other big questions could be added to Abbott’s criteria: What should be the scope of the engagement and what are the objectives? What forces are needed? What would victory look like, or what is the desired end? What should be the exit strategy?

The resolution that is presented to the House, even though the government has already ordered war, should address these basic questions—goals, means, and ends. The executive has the power to direct, but it is not too much to ask that it give Parliament and the people a clear account of what needs to be done.

If these precedents were to become conventions, we would see a House of Representatives resolution on the deployment of Australian forces overseas which sets out the objectives and conditions of deployment. This resolution should state the mission, the goals (Abbott’s clear and achievable goals), the forces that could be used, and the end point and early exit strategy.

The initial resolution and all regular government statements to follow are expected to draw inspiration from Gillard’s speech on Afghanistan on October 19, 2010. She told parliament that she would “answer the five questions Australians are asking about the war ” :

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

An important marker of Gillard was his promise of regular formal statements in parliament: ‘[T]oday, as Prime Minister, I am announcing that I will make a statement like this in the House each year to mark our continued commitment to Afghanistan. This will be in addition to ongoing ministerial statements by the Minister of Defense at each session of parliament.

Based on these criteria, there should be a permanent reference to the Parliamentary Joint Committee on Foreign Affairs and Defense whenever Australian forces are deployed. At the very least, the committee should hold hearings once a year in which it calls the secretary of defense and the chief of defense forces to testify about the deployment or conflict and to testify about how the terms of the resolution of the mission are respected.

With such a framework in place, regular Senate Estimates hearings could become the venue for reviewing progress against stated goals. Parliament would do some of the heavy lifting on behalf of the people.

In crafting stronger conventions on the war, parliament should be guided by the final words of Peter Edwards’ official history of the Vietnam War.

In engaging in future wars, Edwards wrote, Australians should hope that “the government of the day and all who oppose it might show greater political maturity, greater social responsibility and of a greater diplomatic conscience than some of their predecessors between 1965 and 1975”.

It looks like a job for the House and the Senate. Build parliamentary habits to maintain pride and help Australia understand its path to war.

About Thomas Brown

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