The release of the Brereton report shocked the nation. The investigation uncovered alleged war crimes perpetrated by Australian SAS troops in Afghanistan, of which 39 were recommended for possible prosecution. The inquiry also exposed the “warrior culture” operating within special forces.
US president Joe Biden has only just announced that his nation will be withdrawing its final combat troops from Afghanistan in September, ending a war that was sparked by 9/11 and entered into on the pretext that Washington was seeking to flush out Al-Qaeda operatives.
Australia followed the US into the Central Asian country in late 2001. Our nation commenced what became our it’s longest war not based on a decision made by the people, but one made by then PM John Howard and the few ministers that made up his National Security Committee of Cabinet.
Federal Labor, however, has just resolved to establish a parliamentary inquiry into whether the power to send troops to foreign theatres of war should rather be a matter for both houses of parliament to vote on if it takes out the coming election.
An antiquated practice
The ability to send troops overseas is referred to as war powers. If Australia had to decide on going to war today, it would be Scott Morrison, Michael McCormick, Josh Frydenberg, Marise Payne, Peter Dutton, Simon Birmingham, Karen Andrews and Michaelia Cash making the decision.
This arrangement is based on a centuries-old British royal practice. And since the mid-1980s, more progressively minded MPs have been attempting to reform this decision-making process, so it resides with parliament, which would in turn engage public opinion.
The Australian Democrats introduced war powers legislation in 1985, 1988 and 2003, while the Australian Greens have since tabled three of their own such bills. Greens Senator Jordon Steele-John introduced his war powers bill in December last year, in the wake of the release of Brereton.
And now, Anthony Albanese has put the issue on Labor’s agenda, with his party having decided at its recent national conference to establish a Joint Standing Committee on Foreign Aﬀairs, Defence, and Trade inquiry into war powers if elected.
For parliament to decide
Established in 2012, Australians for War Powers Reform (AWPR) welcomes Labor’s decision. AWPR has long been campaigning for war powers to reside within the chambers of parliament. And it’s been raising public awareness around an issue that many remain in the dark about.
Former diplomat and ANU Department of Asian Studies visiting fellow Dr Alison Broinowski is the vice president of AWPR. She has long been campaigning against Australia’s involvement in futile wars and she ran on the WikiLeaks Senate ticket for NSW in the 2013 federal election.
Sydney Criminal Lawyers spoke to Dr Broinowski about why Australia continues to permit the PM and a few ministers to make these life and death decisions, her thoughts on the decision-making process as is, and why it’s necessary to bring about war powers reform as soon as possible.
Since the release of the Brereton report last November, the war powers debate has resurfaced. The report recommended that 39 alleged war crimes committed by Australian SAS troops in Afghanistan be investigated for possible prosecution.
Dr Broinowski, what are your thoughts on the Brereton report?
The Brereton report was way overdue. It took about six years to get it up. Australians for War Powers Reform had been campaigning for an inquiry into the Iraq War for a lot longer than that. But we still haven’t had it.
At the heart of what Brereton found was the problem with the nature of the war itself. In not only Afghanistan, but also in Iraq, both those wars were illegal wars of expeditionary force, which Australia didn’t need to be involved in.
There was no clear purpose or understanding of what a successful outcome might be. And when you send troops into wars like that, there’s bad morale. You cannot avoid it. People don’t know what they’re there for. They don’t know what they’re supposed to be doing.
So, inevitably, people start to do things that they ought not to be doing. As a result of that, it goes from bad to worse. And on top of that, both in Iraq and Afghanistan, troops were sent on multiple tours of duty going back to the same scenario. That doesn’t help either.
The bad behaviour is bad for Australia’s reputation in the country. You can’t imagine why they would be welcomed, when numerous villages have seen what the Australian troops do. The word goes around.
Nobody is grateful to them for being there. The Australians know this. The only people who welcomed the Australian presence were the corrupt and dysfunctional government in Kabul, and, yet still, when the report came our government in Australia tried to bury these facts.
So, you can see what we are up against.
Australians for War Powers Reform (AWPR) advocates for the decision on whether our troops should be sent into foreign combat be voted on by the entire parliament, rather than just left as a decision for the executive.
Why is this reform necessary? What’s the issue with how the decision-making process takes place at present?
What you said is correct. But some of your readers may be surprised that’s how it’s done.
Quite a lot of people say, “For goodness’ sake, don’t we do that already? Isn’t there debate and a vote in parliament? Don’t politicians want to know what governments are proposing to do when sending Australians off to where they could be killed, and spending huge amounts of money?”
They’re amazed when we tell them that the prime minister – in effect alone – can make that decision. That the PM can say “tomorrow” to the troops and they go.
This is a very unusual situation in modern democracies. Australia, Canada and New Zealand have constitutions which allow this.
These constitutions were written in colonial days, based on the British model, when the Brits wanted their colonies to provide troops for their wars without question.
That same situation persists in our constitutions, even though, now, the power that tells us when they want us to go to war is America.
So, what we have is a situation where the prime minister sits in the National Security Committee of Cabinet and says that the Americans have said they want us here.
The committee is composed of senior ministers, who are there by the grace and favour of the prime minister. They’re not going to say “no” to this. They’re not going to say, “We need to understand more about this.” They just say “yes”.
Many people would think that what we need to change this ridiculous situation is a change in the constitution, because it allows this to happen. It makes it perfectly legal for the prime minister to do what I have described.
But a change to the constitution is a big ask. It would be unlikely that we would get a majority of states in favour of it, and a majority of voters within those states in favour of a constitutional change.
What Australians for War Powers Reform are talking about is a simple change in the Defence Act, which the prime minister relies on to do this.
The Act needs to be changed so that the prime minister of the day cannot simply ask the defence minister to send the troops abroad.
It would be modified in such a way to say that only after there has been a vote in both houses of parliament in favour of sending troops overseas that they can be sent. That’s what we’re after.
Federal Labor has resolved to hold a war powers inquiry if it takes out the next federal election. What’s the reaction of AWPR to this news?
We welcome it, of course. The ALP made a similar decision at its 2018 national conference. So, their current decision that has just been made is really confirming that earlier decision.
In our view, it’s the right move. They would have to draft their own legislation. There’s already a bill before parliament to make the change. But the ALP would want their own bill.
Labor would also need to bring others on board to get this through. The review would have to decide there was a need for the change. Then they would have to draft their bill. They would have to talk with crossbenchers and independents about how to successfully legislate this.
They would also need to raise public awareness of the issue. And that process is good for us because it would mean that at last our issue would get reported in the media much more than it does. So, more people would say, “Oh, that sounds like something we should be doing.”
The push for war powers reform has been going on since the mid-1980s. Over that time, the Australian Democrats introduced war power reform legislation on three separate occasions, while the Greens have also tabled three such bills.
In your opinion, why has there been such an overall resistance in federal parliament to this reform over the last three and half decades?
The current bill before the house has been proposed by Senator Steele-John and Adam Bandt. It modifies the previous attempts, making it more specific. But still there was resistance in the major parties to that bill.
The fundamental reason for this resistance is that Australia lacks independence in foreign policy and defence policy and always has. Nothing has changed since 1901.
The process I described earlier of the colonial constitution being used to send troops abroad to other allies’ wars is the underlying cause of why this continues to happen.
Australia supports its allies in war in the hope that if we were exposed to some sort of threat, they would do the same for us.
It’s very simple. It’s schoolyard bully tactics. If I suck up to the bully, maybe the bully will protect me from my enemies. It’s as crude as that.
And it’s as lacking in national interest terms as it possibly can be, because Australia has been involved again and again in expeditionary wars at our allies’ request ever since Vietnam, with a complete lack of success.
You know the old adage of repeating the same behaviour that doesn’t achieve the desired result being a sign of insanity. Well, Australia is certifiably insane, because ever since Vietnam that’s what we have been doing.
We haven’t won a single war. And I can tell you now that if we got involved in a war with China, we wouldn’t win that either.
You were a WikiLeaks senate candidate for NSW in the 2013 federal election. Julian Assange revealed great numbers of US war crimes. He also pointed to the lies that prop up the decisions of western governments to enter into wars in foreign countries.
What would you say Assange’s legacy tells us about the need for greater transparency around sending Australian troops into foreign theatres of war?
I should explain that the WikiLeaks Party never expected to win seats in parliament. It was a pious hope.
The intention was to draw Australian voters’ attention to what Julian Assange had said. And I was number two on the Senate ticket for NSW, so I had no chance in hell of being elected.
What Assange had shown was that our governments had repeatedly lied to us about war, and what he exposed were their lies.
What Wikileaks did was to keep on revealing more and more of the phoney excuses for war, and the phoney accounts of what was going on in them.
Naturally enough, governments hated that. Governments lie and they don’t like to have their lies revealed.
So, what’s happened to Julian – and it was clear even then it was going to happen – is that he has been comprehensively punished, not because he has done anything illegal or wrong, but because he published the material he was given in the same way as a journalist or publisher does.
It was because he revealed their lies, and they don’t like that. What they wanted to do was send a message to anyone else who had such an idea, that this is what will happen to you.
It’s fairly amazing that we claim that we’re fighting for freedom and democracy, when what actually happens when somebody exposes that our governments are lying is they then find themselves deprived of both freedom and democracy, and they’re locked up for as long as it takes.
This is happening in Britain. It will happen to Julian when he gets sent to the United States. This is happening in Canberra, where at least four people that we know of who have told the truth about government lies are facing closed courts that can’t be reported on by the press.
This is what can happen to anybody who reveals the way in which governments lie to us. People are closing their eyes to what’s happening and could happen to anybody. That’s what we are on about.
And lastly, Dr Broinowski, according to reformists, if war powers were in the hands of parliament, rather than just a few ministers, it’s questionable whether Australia would have become involved in the last Iraqi War and the prolonged war in Afghanistan.
Looking at the international political climate of the day, why would you say it’s important to implement war powers reform now?
Largely because what you have just described could happen again, and very easily. I mention these remote expeditionary wars that we’ve been involved in ever since Vietnam without success and all of them have been in support of the American Empire.
Why it’s important to implement the changes that I’m talking about now is to prevent that happening again.
All of those wars were disasters. We don’t need any more disastrous wars. And worst of all, the next one, as I said, could be against China. And that’s certainly going to be a disaster.
So, it’s more important than ever that we make that change. Think of the disastrous consequences if Australia was used as an exemplary target by China to show the United States what could happen if they chose to attack American territory.
That is to say China could attack American bases in Australia and destroy them, possibly with nuclear weapons. Think about that. It’s a real possibility.
Quite apart from any of the other issues about trade, our neighbourhood and breaking international law, Australia needs to stay out of a war against China at all costs. There would be absolutely nothing served by Australia going to war with China.
We need to use our democracy in the way that it has always been intended to be and say to the people of Australia, “Put pressure on your local member and your state senator to make sure this doesn’t happen.”
If we have war powers reform so all of them have to vote, then they would have to go back to their electorates and explain why they have done what they have done.
If the war was an emergency, that can be dealt with very quickly. But no war is an emergency. Every war takes months and years in the preparation.
There’s very little danger that out of a clear blue sky Australia will find itself at war. Governments know exactly what’s being planned for ages in advance.
However, what we want is for the members and senators to be responsible to their constituents, who say, “Hey, you voted for that. Now look what’s happened.” That will change minds.
That will lead people to think very seriously and say, “We can’t just take this upstairs and let the prime minister deal with it, because successive prime ministers have done the wrong thing.”
It would be foolish to assume anything has changed. So, that’s why we want change.
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Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.