The case for war powers reform: aide-memoire

Introductory statement by Australians for War Powers Reform, to the Joint Standing Committee on Foreign Affairs, Defence and Trade on 23 February 2015.

Who we are:

Australians for War Powers Reform includes among its members former senior military officers, diplomats, defence officials and academics. It is an Australian Registered Body which was incorporated in Victoria in 2012 to campaign, inter alia, for reform of the so-called ‘war powers’ – the power to deploy elements of the Australian Defence Force into armed international conflict.

Our proposal:

Our central proposition is that the Parliament should be involved in any decision to expose members of the ADF and the nation itself to the perils and uncertainties of armed conflict. The war power is the quintessential executive power – once exercised by the sovereign alone, then by the sovereign on advice but now by the Defence Minister formally implementing a decision by Cabinet under a section of the Defence Act in a way that was not contemplated by its drafters. The momentous decision is not subject to prior authorisation, third party sign off or judicial review of the kind expected of much more mundane decisions. The Parliament has no formal role and its power subsequently to withdraw confidence in the Prime Minister is made even less likely by the opening of hostilities. Following a decision of the government to restrict the jurisdiction of the International Court of Justice in March 2002, the legality under international law is unlikely to be tested. The Governor-General is no longer even asked to sign off on the decision (with no ability to ask questions, satisfy him/herself of the legality of the proposed action or fulfil the role of the Crown to ‘counsel, advise and warn’). We argue that the decision to go to war must be made by the most democratically elected body at the heart of our democracy.  Our Westminster system delegates much to the executive but the most important decisions must come back to the Parliament for prior approval.

The members of the ADF and the Australian public deserve in our view to know that the decision to embark on a war-like course is the result of careful deliberation by their elected representatives with at least the leaders having full access to all relevant legal, intelligence and military information. This will not only generate better decisions but will legitimate those occasions when we must do what states sometimes have to do – to kill and be killed on a potentially industrial scale.

The counter arguments

Four principal arguments against Parliamentary involvement are raised by those who wish to preserve the status quo.

  • Minor parties might block the necessary resolution in the Senate.

For the negative vote of a minor party to be effective, however, it would be necessary that there also be a negative vote from the major Opposition party: the combined votes of Government and Opposition would make the views of the minor parties irrelevant. As it is difficult to conceive of a major (or indeed a minor) party voting against deployment of the ADF at a time that the nation is genuinely under threat, this sounds more like a concern that the involvement of the Parliament would make it more difficult for the Government of the day to inject the ADF into wars of choice – which is of course the whole point of the exercise.

  • The Parliamentary process will take too long.

Apart from the Ready Reaction Force at Townsville (essentially the 3rd Brigade, consisting of the 1st, 2nd and 3rd Battalions, Royal Australian Regiment, in aggregate about 4,000 civilian and military personnel), most combat elements of the ADF are held at a low state of readiness. Quite properly, most units are not maintained in a battle-ready state, and before they can be deployed a major investment in both personnel training and materiel is required in order to bring them up to the required standard. So there is ample time for Parliament to consider and vote on the question.

  • The Government might have access to information or intelligence which it cannot reveal.

This is an argument that cannot be accepted within the framework of a Westminster-style Parliamentary system. While it is certainly true that a government may be in possession of information that cannot be used in Parliamentary debate, it is fundamental to our system that today’s Opposition Leader could be tomorrow’s Prime Minister – even without an election. All that is required for the government to fall is for it to fail to win a confidence motion on the floor of the House of Representatives, at which point the Prime Minister of the day will normally advise the Governor-General to prorogue Parliament and call a general election, but the Governor-General would have the alternative of giving the Opposition Leader an opportunity to test the confidence of the House – as happened in 1975.

This being the case, it is fundamental to our national security that at the very least relevant leading members of the opposition not only be cleared to deal with national security classified information, but that at times of looming threat they be made privy to the available intelligence so that both government and opposition can conduct themselves in relation to the matter in an informed way. This is what happens in practice and has happened in recent times in relation to Syria.

There is a more subtle point to be made here. While secret intelligence can be very valuable in giving early warning of and filling out the detail of an emerging threat, situations will be rare in which a direct threat to Australia would emerge without any warning signs being discernible from open sources. Thus whatever secret intelligence the government might possess which confirms its suspicions about an emerging threat, it is safe to assume that for Parliamentary purposes it will be able to follow the commonplace practice of presenting a rationale which derives from open sources, and perhaps simply stating that this picture is confirmed by classified information in the government’s possession, which information has been shared with the Opposition leadership.

Beyond this, arrangements could be made for closed briefings to be provided to, say, the Joint Committee on Intelligence and Security, or indeed closed sessions of the two Houses, as happened on occasion with the House of Commons during World War Two when much more was at stake.

  • The process would be nugatory because everyone would simply vote on party lines.

This may be so, but cannot be assumed to be so. Certainly the limited Australian history shows that on the occasions when deployments have been debated in Parliament, members have voted on party lines. Historically, however, these debates have taken place against the backdrop of a decision already taken. This brings into play two dynamics. First, there is the feeling of obligation towards the members of the ADF who are being put into harm’s way, the feeling that we should not undermine the morale of the troops by suggesting that they should not be participating in the conflict.

Second, there is the defensive shield: “It doesn’t matter what I think, the decision has already been taken by Cabinet and my job now is to support it and to support the young men and women of the ADF”.

We believe, however, that if Parliament itself were to be the place where the matter is decided, quite a different dynamic would come into play. If the matter is to be put to a vote in both houses, each and every member of Parliament would have to participate in that process knowing that their vote would be recorded and would be a matter of history for all time, no matter how the matter turned out. People who felt strongly about it could not absolve their consciences with the thought that the matter has been taken out of their hands; the matter is very much in their hands, and we may see what looks very much like a conscience vote.

The British experience of prior authorisation has shown that MPs take the decision very seriously and there is there is a great deal of voting across party lines. With such prior votes having been taken Iraq, Libya and Syria (twice) it is very close to a convention.

If it turns out that the matter is decided on party lines and the government of the day wins the day, one can hardly complain that there has been a failure of the democratic process.

Implementation issues

Australians for War Powers Reform has recently been addressing the key issues that would need to be resolved in framing legislation to give effect to this reform, and last October we convened a workshop at the ANU involving senior military figures, senior legal experts, and others with relevant knowledge. The outcome of that workshop has been circulated to members of the Committee.

Some of the key issues to arise are:

  • Independent legal professional advice on the legality of the proposed military action should be provided and, in most cases, released.

If the Attorney-General does not feel in a position to provide completely independent advice (the duty of all lawyers), this would be from an independent statutory officer such as the Solicitor-General, or from a panel of independent legal experts who hold practising certificates and hence must comply with the relevant code of ethics. In any case the relevant parliamentary committee should be able to call on other advice.

  • Compulsory jurisdiction of the ICJ

In all cases, Australia should accept the compulsory jurisdiction of the ICJ on the legality of the war or publicly acknowledge that it is not certain of its case and give reasons for nonetheless proceeding.

  • Looming jurisdiction of the ICC

Following the agreement of Australia and others to define the crime of aggression and make it justiciable before the ICC and local courts with potential effect as soon as 2017, our politicians need to know whether they are taking Australia into an illegal war.

  • Role of the Governor-General

There needs to be an immediate return to the previous practice of acting through the prerogative and Governor-General rather than through the Defence Act and the Minister for Defence. Until the Statute of Westminster was ratified in 1942, declarations of war and peace treaties were approved by the British Crown. This was transferred to the Governor-General. To the surprise of some recent Governors-General, they were not involved in decisions to go to war. It appears that Australia has gone to war in two major wars (1991 and 2003) through the use of section 8 of the Defence Act, which deals with general control and administration of the armed forces and that does not appear to have been drafted with that intention. While it might be unlikely that the High Court would invalidate a decision to go to war under section 8, there is absolutely no doubt about the constitutional validity of going through the Governor-General or the Governor-General in Council. Using the latter method would incorporate some limited but potentially important safeguards (eg. the Cabinet handbook requires the Attorney General to certify the legality of any proposed actions taken – and the Governor-General can ask questions of the ministers present and ask for further advice).

  • Legal basis for command

It is of vital interest to the Defence Minister and all members of the ADF that any decision to engage in war-like activity be constitutionally bullet-proof.  To have the ‘war powers’ slip imperceptibly from being the subject of solemn declaration by the Governor-General, to being only a secret Cabinet decision implemented by the Minister for Defence under his/her Defence Act administrative powers raises serious questions about the military duty of obedience in war under the war prerogative. This is not a hypothetical issue. The court martial of two commandos in 2011 raised the important question of what was the authority for them to be using lethal force in combat in Afghanistan. In Australian law, only the war prerogative could possibly authorise the deliberate offensive causing of death, destruction or capture against the enemy.  The Governor-General is the only official to whom the power to exercise the war prerogative has been given and, having command-in-chief, is the only one who can issue orders to the ADF to exercise powers under that prerogative.

What we are not proposing

Before concluding I should make a couple of remarks about matters we are not proposing:

  • Inability to act in an emergency

We are not proposing that the Government of the day be deprived of the capability to respond to an emergency without the prior consent of Parliament. The Ready Reaction Force exists for a reason, and ships at sea might find themselves under attack. We would expect the legislation would give the Government the power to respond to emergencies, with a report being made to the Parliament within a reasonable time thereafter.

  • Running the war out of the Parliament

We are not proposing any scheme to attempt to run the war out of the Parliament. Parliament would simply authorise the use of military force. The authorisation would probably define the geographical coverage to which it applied, and probably speicify a time period after which it would need to be renewed. Following this the Governor-General would issue an order to the CDF to use force for certain purposes, in accordance with such directions as his/her ministers shall give.

Conclusion

To sum up, we propose that the power to deploy the ADF into international armed conflict be transferred from the Executive to the Parliament.

We acknowledge that there are important implementation issues to be considered, but we believe that it is not beyond the capacity of our sophisticated polity and our Parliamentary draughtspeople to transfer this general proposition into effective and workable legislation.

We would be joining a significant number of liberal democracies in establishing such a system.

We believe that if this is not done, the circumstances which gave rise to our problematic deployments to Vietnam, Afghanistan and Iraq will persist.

Whatever is decided in that regard, we suggest there is an urgent need to ensure that all armed military deployments are triggered by an order from the Governor-General to the CDF.

More broadly, there is very strong bi-partisan support for a global rules-based order. If we are going to continue to urge others to accept such an order, we must too – starting with the 1928 Treaty of Paris and the 1945 UN Charter.

 

Australians for War Powers Reform, 23 February 2016.

by AWPR

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