The parliamentary inquiry examining the power to enter armed conflict and declare war has drawn rebukes for recommending reforms critics say are designed to lend a veneer of legitimacy to otherwise illegal wars.
The report, published last Friday, dismissed the vast weight of submissions to the inquiry, which — in line with community sentiment — had called for the prime minister to be stripped of the unilateral power to send troops into conflict without parliamentary approval.
Instead it recommended moves to “clarify” the role and power of the governor-general (acting on the prime minister’s advice) in the cabinet handbook to authorise conflicts that “are not supported by the United Nations Security Council, or an invitation of a sovereign nation”.
Clinton Fernandes, a professor in international and political studies and a former military intelligence officer, said the scope of the recommendation appeared to give expression to at least two, possibly three, scenarios of illegal conflict.
The first centred on those conflicts analogous to the Iraq War, which lacked a legal footing due to an absence of UN Security Council approval, and the second — focusing on the words “sovereign nation” — conversely appeared to contemplate involvement in a US-China war over Taiwan.
“This clause is saying that we reserve the right to deploy forces when a non-state actor, like Taiwan, that we deem legitimate has invited us [to intervene] regardless of any United Nations Security Council resolution,” Fernandes told Crikey, pointing out that non-state actors cannot avail themselves of a right to self-defence under international law in most circumstances.
“It’s bypassing international law and giving a back door to further military interventions overseas.”
Dr Alison Broinowski, a former diplomat and president of Australians for War Powers Reform, broadly echoed this sentiment, telling Crikey the “perilous clause” had come “out of left field”.
“It’s clear [the recommendation has] been very carefully and deliberately worded, and the government knows what the purpose of it is — and that’s my concern. I’m afraid they’re preparing for a false-flag event,” she said.
Against the backdrop of recent AUKUS announcements, she said the clause seemed to envisage Australia being drawn into a US-led conflict with China occasioned or “contrived [by] something to look like an attack on the United States”.
“We know the United States is not above doing something like this, and [the clause] would get around the UN Security Council,” she said.
Though the war powers inquiry was prompted by a Labor election commitment to address concerns over lack of transparency and accountability, senior ministers had from its outset repeatedly flagged the government’s opposition to any substantial reform.
As recently as last month, Prime Minister Anthony Albanese reiterated that stance, saying he had “made clear” his view that politicians ought to be allowed to express views on decisions to go to war but only after cabinet had made the decision.
Broinowski said such statements, which find reflection in the report’s recommendations, were little more than a nod to the status quo, with the consequence that other recommendations — such as the requirement to furnish Parliament with the reasons for deciding to go to war and their legal basis — were “largely cosmetic”.
“As far as we’re concerned the changes that they’ve recommended don’t go anywhere near towards what we’re aiming at,” she said, adding that the intention of the report, to her mind, was merely to give the appearance — as opposed to the reality — of more accountability: “Nothing about the way Australia decides to go to war will change as a result of these small changes.”
Fernandes was of the same view, describing the entire inquiry as little more than an “elaborate theatrical façade”.
“These [inquiries] are stitch-up jobs designed to provide a veneer of consultation but with a predetermined outcome,” he said. “It allows members of Parliament to make performative statements about the importance of Australian sovereignty without delivering what’s needed — namely, parliamentary authorisation on wars of choice.”
By “wars of choice”, Fernandes said he meant all military interventions — including humanitarian operations, peacekeeping missions and coalition operations, such as Australia’s controversial military operations in the South China Sea — barring those that directly invoke the right of self-defence, which he labelled “wars of necessity”.
When pressed on why the government was reticent to follow the lead of other Western democracies, including the United Kingdom, that had given Parliament a say over such matters, he said it was a common misconception to suppose Australia subscribed to international law and norms.
“We are not a supporter of international law; we are a supporter of US-led rules-based order — there’s an explicit difference between the two, as I’ve recently written,” he said. “The term ‘international rules-based order’ is just a euphemism for US supremacy, and Australia sees its sovereignty as subservient to that world order.”
To that end, Fernandes said the report’s contents were not surprising: “Nothing changes. The decision to send Australian troops, as usual, will ultimately be telegraphed by the United States embassy or US State Department to the Australian ambassador and our defence minister here.”
Broinowski agreed, pointing out her discomfort with the inquiry’s separate recommendation to reconstitute the joint standing committee on foreign affairs, defence and trade into two separate joint standing committees, with defence to stand alone.
The report said the shift would enhance parliamentary oversight over defence operations, but Broinowski argued it pointed to the looming primacy of defence over foreign affairs: “Make no mistake, this would be a massive addition in bureaucratic terms to defence and a weakening of foreign affairs and diplomacy.”
The report’s release coincided with the defeat of the latest bill to reform war powers, which was on this occasion introduced by Greens Senator Jordon Steele-John. During the debate, Steele-John said the need for reform was particularly pertinent given “we have seen, again and again, prime ministers lie to the community” about the stated reasons for war.
“Do you really want to give Peter Dutton the unilateral power to declare war? Do you really think that is a good idea? We can fix this right here,” he said.
In answer, Labor Senator Nita Green accused the Greens of “seeking to campaign on this issue”, which she labelled “pretty distasteful”.
“I did want to keep the tone of my contribution pretty respectful, but I don’t think there is a more self-indulgent, self-righteous, self-interested group in this Senate chamber,” she said. “These are people who should never, ever be involved in making national security decisions.”
Green’s statements, however, are at odds with a Guardian Essential poll published this week, which found 90% of Australians are in favour of subjecting the exercise of war powers to parliamentary approval.
The government is considering the report.
Would you be comfortable leaving the decision to go to war up to the prime minister of the day? 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.
