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.
