Creating parliamentary conventions for the Australian way to war

Australia’s parliament has little chance to place legal limits on the profound prerogative of the prime minister and the executive to take the country to war.

Instead of pushing against the constitution, look to build new conventions into the Australian way to war. Seek to ‘parliamentarise’ the war powers.

Aim for a checklist if not a legal check when war is launched. And use the checklist for greater parliamentary oversight of the way war is waged.

Stronger conventions in the House of Representatives can offer more detailed benchmarks at the threshold moment when the prime minister and cabinet mobilise the Australian Defence Force. Benchmarks can then be used by both houses of parliament, especially 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 footholds on which parliament could build conventions.

To use those footholds, parliament must edge closer to the strategic and diplomatic space dominated by the prime minister and cabinet.

What’s 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 2015 paper. It was also at the conceptual heart of the Senate lecture on parliament and national security Bergin delivered in 2017 after Trood’s death.

To get closer to the profound prerogative, parliament has to build more day-to-day muscle. Move the needle in the direction of change, Trood and Bergin argued, to:

enhance respect for parliament as the forum for consideration of national security issues
develop parliamentarians’ education in national security by providing a new members’ orientation program focused on national security
examine parliament’s exercise of war powers
encourage ‘parliamentary diplomacy’
increase the cash and cachet (more human and financial resources) of parliament’s national security committees
examine the way parliament does intelligence oversight.

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

Governments are elected to govern, and that authority extends to making difficult decisions about the appropriate use of military force. Other salient factors are the need for timeliness in decision-making, the unique knowledge that governments possess about often complex foreign affairs issues and the challenges in securing an appropriate resolution from a possibly fractious legislature.

Rather than a futile frontal attack on executive prerogative, dial up what parliament can rightfully expect—and properly do.

Existing precedents and habits can be made conventions in the House of Representatives. Strengthened habits in the Senate could feed the powers of review it already holds (and inform the way it grills defence leadership in regular estimates hearings).

In the House of Representatives, use the existing prime ministerial footholds. Build on the ANZUS precedent set by Howard with his parliamentary resolution after the September 11 attacks on the US; Howard’s Iraq war resolution; Abbott’s criteria as the basis for future resolutions on war; and the Afghanistan conventions established by Gillard.

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

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. Australian troops were in action in Iraq on 20 March 2003, when the House voted to approve the Iraq motion moved by Howard (and defeat Labor’s rival motion). Howard’s resolution was a damnation of Iraq as a rogue state and an assertion that Australia was acting under clear authority of the United Nations. Labor’s opposition motion argued that Australia didn’t have UN authority to commit troops.

Viewed today, the two resolutions frame Australia’s Iraq argument—and failure.

In the debate on the Iraq resolution, Howard said Australia’s forces would be part of the US-led coalition but operate under separate national command with separate rules of engagement and separate targeting policies.

After the war, in ‘the post-conflict stage, the phase 4 stage,’ Howard said, there could be a role for parliament’s ‘Joint Standing Committee on Foreign Affairs, Defence and Trade in relation to oversighting the Australian involvement in the phase 4 process’. The committee never played such a detailed role in Australia’s Iraq experience, but the ‘oversight’ thought is a parliamentary foothold for all stages of future wars.

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

In a statement to parliament 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’d 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 should the scope of the commitment be and what are the aims? What forces are needed? What would victory would look like, or what is the desired end? What should the exit strategy be?

The resolution that goes to the House, even if the government has already ordered war, should address those fundamental issues—of aims, means and ends. The executive has the power to give the order, but it isn’t asking too much that it give parliament and the people a clear account of what’s to be done.

If those precedents become conventions, we would see a House of Representatives resolution on committing Australian forces overseas that sets out the objectives and conditions of the deployment. That resolution should declare the mission, the aims (Abbott’s clear and achievable objectives), the forces that could be used, and the end point and anticipated exit strategy.

The initial resolution and all the regular government statements that must follow should draw on Gillard’s Afghanistan speech on 19 October 2010. She 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.

A significant Gillard marker 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.’

Using those benchmarks, there should be a standing reference to the Joint Parliamentary Committee on Foreign Affairs and Defence whenever Australian forces are deployed. At the least, the committee should hold hearings once a year in which it calls the secretary of defence and the chief of the defence force to give evidence on the deployment or conflict and to testify how the terms of the mission resolution are being met.

With such a framework in place, the regular Senate estimates hearings could become the venue to review progress against the stated aims. Parliament would be doing some of the heavy lifting on behalf of the people.

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

In committing to future wars, Edwards wrote, Australians should hope ‘both the government of the day and any who opposed it might display greater political maturity, social responsibility and diplomatic awareness than did some of their predecessors between 1965 and 1975’.

That sounds like a job for the House and Senate. Build parliamentary habits to hold the hubris and help Australia understand its way to war.