A boom-gate falls across the highway to reform

Apr 5, 2023
The word of REFORM on building blocks.

Reform has its limits. Even as the Labor Government makes good several of its promised changes in economic and social policy, the boom-gate has dropped on defence and foreign affairs.

Anticipated by Labor in Opposition since 2018, a review of how Australia goes to war began last September. A Parliamentary Committee worked hard for six months, struggling to reconcile MPs and Senators who wanted no change with an overwhelming majority of public submissions pressing for reform. On the last sitting day it produced a rather small pre-Easter offering.

Labor’s Julian Hill, Chair of the Defence Sub-Committee, and his WA colleague Josh Wilson, prime movers for reform, are proud of achieving that amount of compromise. They point to restoring the role of Parliament in decisions for war, and requiring regular reports on its progress. They call for a new Committee on Defence to be added to the Parliament’s Joint Statutory Committee structure.

But the ground was cut from under them on day one when Defence Minister Richard Marles, who set up the Inquiry into How Australia Makes Decisions to send Service Personnel into Armed Conflict, said the present system, which allows a prime minister alone to decide that Australia is at war, shouldn’t change.

He was backed by Foreign Minister Senator Penny Wong in Senate Estimates on 9 February, who re-stated that the Executive Government holds the war power and will continue to do so. Senator Steele-John’s bill for reform was rejected. Foreign and Defence policy are bipartisan, so no change to the status quo was ever going to be permitted.

That left Hill and Wilson to find something that looked and sounded like reform without really being reform. To their credit, the Committee recommends more transparency and accountability in the way decisions for war are communicated, with a written statement to Parliament setting out the objectives for a war, and its legal basis. The new Joint Statutory Defence Committee – whose members will be appointed by the prime minister – is intended to improve scrutiny of defence matters.

But the Committee’s report has built in a mini-reform about the role of the Governor-General. Admitting that the Constitutional role of the Commander in Chief has fallen into disuse for at least the past two decades, they recommend that its ‘primacy’ should be restored.

So far so good, but the idea is for the Governor-General to ‘give effect to decisions of government’ about wars that are not subject to a UN Security Council resolution or in which Australia is not invited by another ‘sovereign nation’. That sounds like Iraq.

Sovereignty has been on the tip of many Ministers’ tongues lately. The question of Taiwan, which is clearly not a sovereign nation, must have engaged the Committee, and that too will interest international lawyers.

Whatever the Committee’s recommendation about what the Governor-General means in practice, it will alarm legal experts. It seems to create a Track Two choice for war, which could include expeditionary wars or wars of aggression. It could pose a challenge for a government which, under the 2010 Gillard model, should provide Parliament with a statement of compliance with international law and advise it that a proposed military operation is legal.

What happens if MPs and Senators don’t agree that such a war is lawful? Will the Governor-General ‘give effect’ to it anyway?

Reform doesn’t have to be so complicated. The straight and narrow road to change in the war powers is through a simple amendment to s8 of the Defence Act, requiring a proposal for war to be debated and approved by both Houses before armed forces are deployed. Without the Parliament having a vote, the war powers are not reformed.

But this practice, which many other democracies have written into their constitutions or legislation, remains a road less travelled for Australia.

Further changes are possible, according to close observers. The Committee may have taken a first step towards reform, hoping in time to reassure those dead set against it. Another inquiry cannot be expected from Labor in this term in government, but the war powers question is not resolved, and may need to be revisited after another election.

Meanwhile, the barricades on the road to reform of how Australia goes to war aren’t likely to be lifted by the forthcoming Defence Strategic Review, the AUKUS agreement, or Matt Thistlethwaite’s review of the Defence Act.

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