Pearls and Irritations

In a series of baby but not blindfolded steps, our Government is making Australia ready for war. The latest of these appeared in the small print of a memorandum on 27 November.

Most Australians weren’t watching when a long-awaited inquiry into how our armed forces are sent to war reported in March 2023. It had taken more than 100 submissions, the majority favouring reform of the present unconstitutional, undemocratic practice. This came as no surprise, because the Defence Minister and Foreign Minister had stated from the start, in September 2022, that they favoured the status quo, which allows the Executive – composed of a small circle of ministers around the prime minister – to decide to send Australia to war.

So why did we need the latest Memorandum on Government Conventions Relating to Overseas Armed Conflict Decision Making?

We didn’t need to hear yet again that committing troops to war is the most serious decision a government can make. We knew already that Australian governments intend to keep that decision to themselves, and not expose it to the Parliament for a debate or vote in advance of their announcement. We noted the establishment of a new Statutory Committee on Defence, with capacity to receive classified documents, and members appointed by the prime minister. Promoting Defence was a knee-capping move against the Joint Standing Committee on Foreign Affairs Defence and Trade (JSCFADT).

The new Memorandum follows the ASPI submission to the war powers inquiry in favour of ‘codifying convention’. It amends the Cabinet Handbook which, if it was already consistent with the Constitution, wouldn’t need amendment. It does this in three important ways.

First, it says nothing about the role of the Governor-General, who as Commander-in-Chief under S68 of the Constitution, acts on the advice of his or her ministers to commit Australian armed forces to war overseas. Not since World War II has the Governor-General been consulted – not about the commitments to Korea, Konfrontasi, Vietnam, Gulf War I, the ‘War on Terror’ (including Afghanistan), the Iraq War, or Australia’s current operations in the Philippines and Yemen. All such decisions were made by the Executive under S8 of the Defence Act.

This gubernatorial process looks like a mere formality, so why does the Memorandum not insert it in the Cabinet Handbook just to be sure? The Governor-General ought not to authorise illegal wars, but the new Memorandum omits him or her completely, thereby codifying what has already become a convention.

The JSCFADT committee inquiring into war powers recommended that under S68 of the Constitution the Governor-General’s assent should be sought, particularly in relation to conflicts that are not supported by resolution by the United Nations Security Council, or an invitation of a sovereign nation. It warned that ‘complex matters of legality in public international law may arise in respect of an overseas commitment of that nature’.

Second: state or non-state actors.

If Australia is under direct attack, a self-defence response is legitimate and justified. Australians for War Powers Reform (AWPR) describe ‘conflicts that are not supported by the UN Security Council’ against state or non-state actors as deeply alarming. For Australia, such conflicts appear to anticipate a war against China over Taiwan or the South China Sea.

But by simply declaring a group to be terrorists, as Australia has just done in Syria, and did years ago about Hezbollah and Hamas, we are automatically and illegally at war with them, whether such groups threaten Australia or not.

Yet States can be terrorist organisations, just as non-state groups are. Australia has not declared Israel’s government to be terrorists, despite the asymmetric, genocidal, and terrorist war the IDF is waging against Hamas, the elected authority in Gaza.

This is the consequence of the American war on terror to which John Howard as Prime Minister committed Australia in 2001, consulting only Alexander Downer. Terrorism is an arbitrary concept which, with no internationally agreed definition, manufactures Australia’s consent against whoever our allies declare is our enemy.

During the inquiry into war powers, and then the AUKUS debate, ‘sovereignty’ fell like confetti from the lips of Richard Marles. Both problems remain unresolved, while loss of Australian sovereignty compounds by the day.

Third: the 30-day information vacuum.

The Memorandum promises the Australian people that no later than 30 days after the deployment of Australian forces, a Ministerial Statement will be delivered to both Houses advising them of the conflict, ‘to facilitate debate’. The government also offers the Parliament an unclassified statement ‘outlining the objectives of the deployment in question, the orders made, and its legal basis’.

This, rather than making progress towards the enhanced transparency and accountability promised by Richard Marles in March 2023, is a step back from them. When Howard committed the ADF to Iraq, a debate was at once memorably addressed in dissenting terms by Opposition leader Simon Crean. Now, a month of ‘cooling off’ may pass before the people’s representatives can do the same.

Because a debate will not result in a vote that changes the commitment to war, the only carrot offered by the Memorandum, in exchange for its otherwise stick-heavy promises, is that there will be regular reports to the Parliament on the progress of the war. But again, if that is unsatisfactory, our elected representatives will have no vote against it.

The same applies to the Government’s offer to table Defence strategy documents, ‘to inform the Parliament and allow for debate’ within 30 days of publication.

A lot of time and effort is being put into these complex matters. Governments always say sending Australians to war is their most serious decision, and it looks as if they are putting a lot of effort into preparing to do so.

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