A call for war powers reform in Australia

Australians for War Powers Reform emerged out of the Campaign for an Iraq War Inquiry, established in 2012. That campaign called for an independent inquiry into the reasons behind Australia’s participation in the invasion of Iraq in 2003, to draw out what lessons can be learned for the future.

Australians for War Powers Reform takes these important questions of the original campaign forward into a renewed national examination of Australia’s war powers.

WHO WE ARE

AWPR Seminar

Legislating Reform of the War Powers

Please click below for a report on the 23 October 2015 seminar at the ANU Faculty of Law.

Australia urgently needs to change the war powers that allow troops to be committed to conflicts abroad whenever and for whatever reason a prime minister chooses.  The invasion of Iraq in 2003 was a catastrophe, with the decision for Australia’s involvement shrouded in secrecy and lack of  accountability.  By a similar undemocratic process, Australian forces are now re-deployed in Iraq and newly active in Syria.  The men and women of the Australian Defence Force deserve any proposal to send them to war to be exposed to much greater public scrutiny.

A growing number of Parliamentarians seek legislative change. To examine and support the process needed to bring it about, Australians for War Powers Reform (AWPR) held a seminar at ANU at which legal, defence, and international relations experts discussed the options. The result will be a set of recommendations to Members and Senators to help in drafting legislation.

Legislating for War Powers Reform: a report

 

On 23 October Australians for War Powers Reform held a one-day Seminar at the ANU in Canberra attended by around 20 former senior defence personnel, public servants and specialist academics.

It concluded that Parliament should become much more closely involved in government decisions to send Australian armed forces into combat abroad; that this parliamentary reform also needs support of several mutually reinforcing mechanisms, to spread the responsibility for war decisions and to safeguard against reckless decisions; and that Australia should return to the pre-2003 formal process of the Governor-General in Executive Council issuing war orders under the War Prerogative. The ‘short-cut’ practices in and since the 2003 Iraq War of the Prime Minister making such decisions alone, or in secret National Security Committee of Cabinet, and of these decisions then being given effect by the Minister of Defence using his/her administrative powers over the ADF under the Defence Act, bypass proper process, do not have a sound legal basis, and pose real dangers for ADF personnel sent into combat under such orders with duties to kill, capture and destroy the enemy forces.

The Seminar was opened by Melissa Parke MP who said Australia continued to muddle along with a ‘low-quality, low-integrity’ mode of decision-making on peace and war. We had helped to create the present Middle East military disaster by taking part in the 2003 Iraq War. There was no clear international legal basis for Australia’s present military operations against ISIS in Iraq or Syria. We had wasted our UN Security Council term of membership, in failing to take initiatives for UNSC-authorised peace action.

Six expert speakers from military, international law, government policy and media backgrounds presented discussion papers. Consensus was reached as follows.

The War Prerogative which passed from the Crown to the Governor-General in 1941-42 is still the only proper way to commit Australia’s armed forces to warlike operations abroad, either under UN Security Council authority or in ‘wars of choice’ without such authority.

Though Australia no longer declares wars, Australia’s obligations under the UN Charter and the developing ICC and ICJ international judicial regimes make any Australian warlike operations not under UN Security Council authorisation potentially illegal, and put at risk the ADF personnel ordered to fight in them. This is why such decisions should be shared, debated and supported as widely as possible. Under our system of parliamentary representative democracy, there must now be more thorough parliamentary and public debate on war-making decisions. These decisions should no longer be left to the whims of Prime Ministers, who do not under Australia’s constitution possess the War Prerogative.

AWPR does not propose that Parliament micromanage Australia’s future wars. But Parliament should engage in sober and informed debate on the strategic rationale and justification for deploying Australian soldiers into any armed conflict theatres of operation. A debate in Parliament could be initiated by a Government statement that provides a clear basis of the legal authority; the strategic justification for the overseas deployment, indicating the level of commitment, the goals and objectives of the mission and safeguards against mission creep, and the relationship of the size and means of Australian contribution to the overall mission goals; an indication of the likely timeframe of deployment and what would constitute success, in the event of which Australian soldiers could be withdrawn.

Most decisions to send the ADF into combat operations abroad have long public lead times, sufficient to set up parliamentary committee hearings and to obtain expert advice, by which the Parliament as a whole can become better informed. The seminar looked at how this might have been done in the case of the 2003 Iraq War.  With the media doing its job of informing the public, issues involved in Prime Ministerial decisions to go to war could be more widely shared in the Australian community, whose children have to fight these wars, through the parliamentary process.

The final recommended safeguard against bad decision-making would be that the Governor-General, at the Prime Minister’s request, issue formal War Orders in Executive Council. The Seminar looked at how such Orders might have been drafted in recent cases. A former Chief of the Defence Force opined that he would be comfortable to lead ADF war operations on the authority of such an Order.

The Seminar reached no agreed view on whether it would be desirable to record such recommended policy changes in specific legislation; or whether AWPR’s proposed reforms in war decision-making might be achieved more simply, for example by consensus commitments of party leaders. It might not be necessary to amend the Defence Act, which Sir Arthur Tange’s historic reforms had conceived as primarily about the administration and supply of the ADF.

The Seminar agreed that the next step would be for AWPR committee members to offer to present these findings for discussion with representatives of the political parties.

Tony Kevin, Rapporteur.

How does Australia go to war?

  • Chapter 1

    Background: Australia’s historical practice in going to war.

    Richard Broinowski

  • Chapter 2

    How did Australia enter the Great War in 1914?

  • Chapter 3

    Anzackery, Anzustry, and the war next time.

  • Chapter 4

    Alliance ideology: the myth of sacrifice and the national security culture.
    Michael McKinley

  • Chapter 5

    Odious comparisons: how Australia and some other countries go to war.
    Alison Broinowski

  • Chapter 6

    The ‘war powers’ in Australia: why reform is needed.
    Paul Barratt

  • Chapter 7

    Issues and options: changing the Constitution and complying with International Law.
    Charles Sampford

  • Chapter 8

    ‘We go to war when our cousins do’: the countries Australia consults.
    Tony Kevin

  • Chapter 9

    Australia’s Middle-Power war-mongering.
    Allan Patience

  • Chapter 10

    To war, like it or not: the ‘joint facilities’, interoperability, and the erasure of independent war powers.
    Richard Tanter

  • Chapter 11

    Parliamentary involvement in the 2003 decision for Iraq War II.
    Margaret Swieringa

  • Chapter 12

    The mission creep to Iraq War III.
    John Menadue

  • Chapter 13

    Ways of Avoiding War: Peacekeeping and Peace Measurement.
    Pera Wells

Download Book

We are very grateful to all the contributors who helped make the publication of this book possible. They include:

David Stephens * Michelle Farran * Peter Jones * David Miller * Carolyn Schofield * Janette McLeod * John Langmore * Lyn Stephens * Paul Barratt * Nick Deane * Peter Wesley-Smith * Vicken Babkenian * Felicity Ruby * Helen Bayes * Julie Kimber * Willy Bach * Julian Cribb * Judith Downey * Tom Sevil * Pera Wells * Carolyn Stone * Helen Catelotti * Claudia Woodroffe * Dawn Emrys * Michael McKinley * Chris OBrien * Jim Kable *John M Courtney * Peter McCawley * Suzanne Langker * Tognetti * Michael and Gail Truter * Bill Williams * Ruth Mitchell * Liz Tearii * Tony Zilles

RT HON MALCOLM FRASER AC
How did Australian armed forces come to be involved in the US-led invasion of Iraq in 2003, and why? What were the decision-making processes that led to that commitment? Were those processes adequate in terms of our system of government as we understand it and for the future?
RT HON MALCOLM FRASER AC

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We believe there needs to be an informed public discussion of the lessons to be learned from Australia’s role in the 2003 invasion of Iraq, and improvements to the process by which Australian institutions respond to future conflicts. Sign up here to receive updates from the campaign.

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