The Albanese government has been accused of prejudicing the outcome of a parliamentary inquiry into the long-standing power of the prime minister to declare war or enter international armed conflicts without parliamentary oversight.
Last week, Foreign Affairs Minister Penny Wong told the Senate that neither she nor the government supported reform to war powers that would subject their exercise to parliamentary approval.
“The executive should account to the Parliament for such a decision,” she said. “But it is, in our view, important for the security of the country that that remains a power and prerogative of the executive.”
Her observations broadly correspond with those of Defence Minister Richard Marles last October when he told the investigating committee leading the war powers inquiry that he was “firmly” of the view existing arrangements “should not be disturbed”.
Taken together, the two interventions appear to lend credibility to growing criticism that the government has already condemned the prospect of significant reform, despite having initiated the inquiry as part of an election commitment.
Notably, Wong’s comments were a response to questions from Greens Senator Jordon Steele-John regarding the release of the strategic advice underpinning the Howard government’s decision to join the illegal US-led invasion of Iraq 20 years ago.
Pointing out that Howard’s decision to join the “catastrophic” war lacked any parliamentary oversight or scrutiny, Steele-John said he found it unusual that Wong appeared to have pre-empted the outcome of the inquiry.
“Over 87% of the community supports the Parliament voting to deploy troops overseas and it’s [Labor] party policy,” he told Crikey. “So, I was surprised to hear Penny Wong announce that the government supports the status quo before an ongoing inquiry has [concluded].”
In a climate marked by growing bipartisan rhetoric around rising regional tensions and the possibility of conflict between the US and China, Steele-John said he was urgently pushing for the release of Iraq invasion advice to shed light on the flawed decision-making process that underpins the exercise of war powers.
“Australians still don’t know how we became part of the US-led, illegal invasion of Iraq,” he said. “Yet the Albanese government is asking Australians to believe, when so much is on the line, that we somehow won’t make the same mistakes again.”
It’s a sentiment shared by Australians for War Powers Reform president Dr Alison Broinowski, who said the 20th anniversary of the Iraq invasion next month exemplified the need for immediate reform.
“The legality of our wars under international law is important — much more important to Australia than to our American allies — and yet there’s no transparency, there’s no accountability around the way we go to war,” the former diplomat told Crikey.
“For whatever reason, Richard Marles and now Penny Wong have completely prejudiced the outcome of the inquiry. This issue is a matter of life and death, but it looks as though we’ll remain stuck with whatever the prime minister of the day and a couple of his hand-picked colleagues decide behind closed doors.”
In the view of international law experts, the prevailing idea that the power to declare war is or remains an unfettered prerogative of the executive has been under strain since Australia became a party to the United Nations Charter nearly 80 years ago.
The charter expressly forbids international armed conflict subject to certain exceptions, meaning Australia, like other signatories, is ordinarily required to justify decisions to go to war before the UN Security Council.
Speaking to Crikey, University of Sydney Challis Professor of International Law Ben Saul said this was one of the primary reasons the government should subject decisions to enter armed conflict to some form of parliamentary scrutiny.
“As we’ve seen with really controversial wars, like Iraq in 2003, the public is deeply concerned about the use of military force in situations that could be illegal under international law,” he told Crikey. “It’s why I think the government should be expected to justify its decision to go to war as consistent with international law and to do that openly and publicly before the Parliament.”
Saul said reform of that kind could reduce the likelihood of Australia being drawn into a conflict with the US against China over Taiwan.
“There’s lots of talk about potentially defending Taiwan, but neither Australia nor the US has ever explained what would be the legal basis for doing so,” he said. “Taiwan — Australia and the US both say — is not a state but a province of China, and therefore can’t draw on the right of self-defence and collective self-defence [under international law].
“So you would want to know Australia is on very solid legal grounds if it is to make a decision to go to war in a case like Taiwan.”
Broinowski agreed, but added recent experience showed the US was not above “contriving circumstances” to justify a war.
“Any conflict over Taiwan would be an acid test about whether we mean what we say about an international rules-based order,” she said. “We’d be breaking international law if we joined the Americans in such a war unless — and here’s the worry — they contrive an attack and invoke the ANZUS treaty.”
To this end, she warned the increased presence of US military bases in northern Australia and rotations of US forces around the country, coupled with the loss of sovereignty attached to the AUKUS deal, had rendered the nation more vulnerable than most realise.
“In all these ways, it’s more important than ever before that our war powers change,” she said.
Her comments follow Marles’ insistence last week that the AUKUS project would in no way involve a derogation of Australia’s sovereignty — as some, including former prime ministers Paul Keating and Malcolm Turnbull, have suggested — but would instead enhance it.
The final report into the war powers inquiry is expected to be published at the end of next month.
Wong was contacted for comment.
Should going to war be a decision made by Parliament, not just the executive? Let us know by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.
The thing that the ‘Labor’ Party is second to none at, is its ability to pretend that it is really different from its sister organization, the Liberal Party.
Yep. Starting to look like Liberal Light.
Moot point. When it comes to foreign policy our major parties cede our foreign policy to either US Republican or Democratic governments foreign policy wishes and their warmongering is bipartisan. We are not a sovereign nation.
The only aspect of Australian foreign and defence policy that the Americans have allowed us to retain is the title – “The Morrison Doctrine”.
the reason the executive doesn’t want democracy getting in the way of going to war, is that they don’t want to antagonise our masters in Washington
Absolutely correct. We’ve been burdened by incompetent, gormless governments…forever.
Yes, that is a concern. I certainly don’t want the Greens to have any say whatsoever in Australian military matters (or immigration, etc), but I shudder to think that an AUKUS arrangement may mean that we follow a criminal, megalomaniac lunatic like Trump into a war, with no pause for thought. Mind you, the UN is now a tool of the left and the corrupt, so for Australia’s sake we really need to disavow many of the ‘conventions’ we are currently a party to. I also don’t want the Security Council telling us what to do, as if the US, UK and, at times, France, say today is Tuesday, China and Russia will argue that it’s Saturday!
If it takes the Greens or Dad and Dave to keep us out of unconscionable behaviour, then i welcome it. The Aukus arrangement is purely for the supply of submarines. Even the ANZUS treaty legally allows only for consultation.
You make some outlandish claims about the UN – perhaps it’s time to pop your head out of the rabbit hole of conspiracy theories ?
If you are worried about criminal megalomania in the US government then Biden should be your chief concern at this time.
Agree Exadios. But it will bring the Taswegians into line as they would be scared of him blowing up the Bass Straight Power Link.
If you examine Australian history I think you would find that the problem is deeper than wishing to please Washington. So, for instance, if you were writing in 1923 you might have said something like, “they don’t want to antagonize our masters in London.”
It is true that since WWII Australia has switched from being a vassal of England to being a vassal of the US. But what Australia needs to do is switch from a vassal to a sovereign state. It would help if you abandoned the royalist junta form of government in favor of some form of democratic form.
If you think becoming a Republic would make us a “sovereign state” you really need to stop drinking or smoking whatever you are on. Australia is already a vassal state of the US and that won’t change other than we would become totally dependent on the Yanks (at least in our racist minds). Royalist junta (no doubt pronouncing junta with a J like most of the idiots in the media do)? Really? We have a Westminster Parliamentary democracy which is a democratic form (even though there are so many forms of “democracy” as to make the term “democratic form” meaningless).
So, I didn’t say a republic would make “us” a sovereign state. I said it would help.
It would not help one iota to become a republic.
Well, New Zealand seems to be behaving sensibly. But then – they don’t have Rupert. Makes me wonder if that’s our nemesis.
Similarly Canada is uninfected – whereas both their large neighbours are beyond redemption due to years of toxicity from the NewsCorpse.
Albanese, Marles and Wong are Yankee stooges . The Labor party was put to death by Hawke and Keating.
Absolutely correct, John!
yep
And the weapons companies are now at the heart of it. Boeing, LockheedMartin, – also the others – Rheinmetall and Thales. Marles will go on to work for the weapons corporations like his predecessors – Nelson, Pyne, Beazley, Hill, – smith too works for the US.
And exactly what influence do you ascribe to these people, even were there any truth to your rant ?
ASPI for one
How so ? Merely making unsubstantiated assertions does not prove or even indicate a case.
Bill, you could begin by looking at what has happened to the AWM, which weapons companies sponsor it, and the roles of Nelson, Pyne, Beazley et al.
If you actually have something to say, then say it rather than making innuendos.
Do you not grow weary of rabble-soothing?
Err, at least
they have the saving grace of not being Howard, Abbott or Morrison. But perhaps that is damning them with faint praise…
Good article, understandably focussed on the legality of a decision to go to war and whether the parliament should by law have a say. The other side of the question is summed up in the remark by a colleague of Talleyrand in the French revolutionary government when they were reviewing how their agents had kidnapped a prominent opponent who had fled to Germany, brought him back to France and he had been killed after a show trial. Someone pointed out it was a crime. “It is worse than a crime, it is a mistake,” was the famous retort. The invasion of Iraq was, in addition to its illegality, one of the greatest foreign policy mistakes in the past several decades. The decision about a response if China invades Taiwan has at least as much potential for a mistake. The bigger question that we should perhaps be asking is how the risk of such mistakes would change with parliamentary involvement in such decisions.
At least they’d have to argue their case in Parliament, like in the UK.
I’m in agreement, SSRat, but one thing we do know is that Labor has never gotten Australia into a war and indeed has mostly fought vigorously against the cons doing so as well as pulling us out ASAP.
Even if we feel that a Labor government would never do so, in principle the concept is to my mind a good one: it may keep the forelock-tuggers and warmongering sycophants of the cons in check in the future.
If that means the Teals and the Greens would effectively have the last say, well, that’s democracy.
Good reason to keep voting Labor, even if they do/don’t do stuff that we would like always.
Indeed.
As all Australian PMs for the past 60 years have been in the thrall of the USA we can predict that the next handful will be likewise. An invitation to the White House, a State Dinner or a visit to Camp David are very effective seduction methods to gain a PM’s undying loyalty. Dare I say Australia is a cheap date?
To have the fate of our Defence Force decided by a biased PM & a similarly invested Executive is a chilling prospect. We’ve committed to wars instigated by the USA more than once since WW11 & it didn’t work out too well.
yes, and hot most egregious was Howard taking us to Iraq – if there had been anyone in power here with a skerrick of strength, that would hav been the time to say NO. I couldn’t believe Howard making such friends with the idiot Bush. If Howard had said no, he actually might have persuaded Bush to conduct a surgical operation against the Saudi Terrorists rather than attacking a country they thought couldn’t fight back.