The definitive choice for a nation is sending its troops to war, so the surprise in the parliamentary review of Australia’s war powers is the questioning of the legal process used to go to war in Afghanistan and Iraq.

Setting the executive right on that big point of process is a vivid illustration of the need for a clearer view of the Australian way of war.

The report on international armed conflict decision-making ^[1] by the parliament’s Joint Committee on Foreign Affairs, Defence and Trade finds that the war powers are not broken but could work better. It cites ‘a clear need to improve the transparency and accountability of government decision-making’.

The committee judges that much of the complexity in the war powers debate is due to an absence of documentation detailing decisions:

This is a significant gap in transparency and accountability of the Executive and hence in the nation’s collective understanding of how Australia took its path to war, particularly in reference to Iraq and Afghanistan. Shining a light on this issue is critical to both understanding the legal basis for Australia’s actions in war, but also in understanding our history.

In deciding to go to Afghanistan and Iraq, cabinet relied on the minister’s power to direct the Australian Defence Force under the Defence Act 1903. Using the Defence Act departed from the way it was done in World War II, when war was declared using the governor-general’s constitutional power as commander in chief of the military. Of course, that was a different era with different views on Australia’s relationship with the United Kingdom and the role of the governor-general, so questioning ongoing relevance and practicality is vital.

With a focus on the need for certainty—for the political class and the public—the committee recommends that, in decisions to deploy troops, cabinet rely on the constitution rather than the Defence Act.

Specifically, the review recommends that the government amend the cabinet handbook to ‘restore the primacy of the Governor-General under Section 68 of the Australian Constitution’ in decision-making on ‘war or warlike operations, particularly in relation to conflicts that are not supported by resolution by the United Nations Security Council, or an invitation of a sovereign nation’.

Using the constitutional power would provide ‘greater clarity and transparency’ and give ‘greater legitimacy’ to members of the ADF doing their duty under the constitution. A governor-general’s decisions are ‘not justiciable, unlike a minister’s direction’ under the Defence Act, which can be challenged in the courts.

While recommending reliance on the constitution, the report acknowledged the prime minister’s most profound prerogative ^[2]: the executive’s exclusive power ^[3] to decide whether and how to deploy the ADF.

The first recommendation reaffirms that decisions on war are ‘fundamentally a prerogative of the Executive, while acknowledging the key role of parliament in considering such decisions, and the value of improving the transparency and accountability of such decision-making and the conduct of operations’. Therefore, the key outcome is that the prime minister has the power to send troops to war through the legal mechanism and protection of the constitution.

The report is a bipartisan effort by Labor and the Coalition—a coming together of the parties of government on their use of the war powers when in office. The counterview is a dissenting report ^[4] by the Australian Greens, arguing that the deployments to Afghanistan and Iraq showed a ‘vague and unaccountable system’ that makes Australia an ‘international outlier on transparency’.

In finding against a greater role for parliament in cabinet’s war prerogative, the review cites several aspects of the submission by ASPI’s ^[5] Justin Bassi, Bec Shrimpton and Alex Bristow. The committee noted their ‘significant concerns’ about proposals requiring parliamentary authority for decisions on armed conflict or warlike operations.

On calls for the public release of defence intelligence, the committee quoted their view that the executive ‘must retain discretion about whether and how to report certain types of deployment, even retrospectively. Such discretion is, for example, likely to be appropriate around the deployment of special forces, submarines, or surveillance aircraft, where secrecy may be paramount even after a mission is complete.’

The Bassi, Shrimpton and Bristow submission pointed to the finding of previous inquiries that parliamentary processes already provided a multitude of ways to scrutinise the deployment of ADF troops via question time, motions, Senate estimates and committee inquiries. These tools, the committee noted, were said to form ‘part and parcel of Government accountability to Parliament and the Australian people’.

The big step for parliamentary oversight is that the Joint Committee on Foreign Affairs, Defence and Trade recommends stripping out its own defence function to create a new joint statutory committee on defence.

The new committee would have six government members and five non-government members. It would consider ‘white papers, strategy, planning and contingencies’; inquire into matters referred by the defence minister or either house of parliament; and have general parliamentary oversight of military operations.

The report outlines the kinds of information the committee would have available to it:

The proposed committee should be explicitly permitted to request and receive classified information and general intelligence briefings while also being subject to clear legislative constraints to its mandate, including restrictions on access to:

– individual domestic intelligence reports

– intelligence sourced from foreign intelligence bodies where such provision would breach international agreements

– detail regarding operational matters or information regarding highly sensitive capabilities or protected identities, except where specifically authorised by the Minister for Defence.

The defence minister would retain ‘an overarching power to veto the provision of any classified information to the committee’.

To help parliament do a better job, the report makes three recommendations drawing on another ASPI submission, from me ^[6]. I argued for greater use of parliamentary conventions, not law, to strengthen the parliament’s role in the Australian way of war:

Codify existing precedents to make them conventions: the John Howard precedent—a motion of the House of Representatives to send the Australian Defence Force to war; the Tony Abbott and Julia Gillard precedents— set out the mission and its aims. Then give parliament, and Australia, regular formal reports on the conflict. Revive the convention that major government statements on Australia strategy and defence should be presented and tabled in parliament.

The review recommends a new section in the cabinet handbook requiring a debate in both houses of parliament either prior to deployment of the ADF or within 30 days of its deployment: ‘Debate should occur after a formal ministerial statement is made which explains the reasons for the operation, based on the 2010 Gillard model, as well as a statement of compliance with international law and advice as to the legality of the operation.’

The next recommendation is for standing resolutions in the House of Representatives and Senate (replicated in the cabinet handbook) providing for an annual statement on war or warlike operations from the prime minister, plus updates at least twice a year from the defence minister.

A further recommendation is for the government to ‘revert to a traditional approach whereby defence white papers and national security or strategy updates should be tabled in both Houses of Parliament within 30 days of their presentation to the Minister’.

In the 20th century, defence white papers and updates were presented in parliament. In this century, however, a tendency to follow presidential practice means that parliament is bypassed in order to serve the TV cameras; to unveil defence reports, prime ministers have had backdrops of military aircraft, ships and uniforms.

The committee concludes that its inquiry into how Australia goes to war is ‘timely and even somewhat belated’, stating in its final paragraph: ‘The evidence to the Committee sustains a conclusion that the transparency and parliamentary consideration of such decision making has become less clear and less substantial in recent decades.’

The biggest choice a nation faces is being right about war. And this frame for getting the war powers right will make the choices clearer.