Iraq and the PM’s profound prerogative
18 Mar 2013|

 SYDNEY, Australia (July 5, 2007) - Rear Adm. Rick Wren, commander of Carrier Strike Group 5, and Australian Prime Minister John Howard talk about flight operations while touring the flight deck aboard USS Kitty Hawk.The way Australia goes to war hasn’t changed in a century.

The Prime Minister declares the deployment or announces the conflict and the troops march and the ships sail. This is the leader’s most profound prerogative.

The constraint on the prerogative is that in making the declaration, the Prime Minister must be sure of the support of the Cabinet and of the numbers in the House of Representatives. The political test is the only limit. The PM confident of cabinet and party can act without need to consult Parliament. No new law is needed. The Parliament can be the stage for high drama, fine speeches and argument of great political import, but the policy substance rests with the executive. The war powers belong to the Prime Minister.

Nothing in our history or experience has placed any other check on this prerogative—from WWI to Iraq, the experience has been the same.

The base reality of the prerogative and the way it’s always been used is the context for the previous column I wrote on the great Canberra system’s silence over the Iraq war and for the response from Peter Jennings, who argued that ‘my arguments are well wide of the mark’ and ‘remarkably harsh’ on the public service.

My reaction on reading Peter’s reaction was, ‘You little beauty! Now we can really kick this around.’ Arguments don’t come much more important than this. As always, Peter’s excellent piece was cogent and well argued. When taking a whack at the boss, always compliment the excellence of his argument: in this case, though, the compliment is sincere because Peter’s piece gives an admirable account of the way the modern Canberra system conceptualises its role in great matters of war, alliance and diplomacy.

In a later column, I’m going to turn back on Peter his account of the Canberra process, his thoughts on the role of a smaller ally, and what all this says about how the Canberra system served John Howard in his use of the leader’s most profound prerogative. To set that ground, it’s necessary to do some thinking about that leader’s right to declare war and whether it’s possible to define it or limit it in any way, beyond the demands of Cabinet and Parliamentary numbers.

The short answer is that it’s extremely difficult to see how legal limits could be imposed: on the conduct of war, perhaps, maybe, possibly—but not on the initial power to act and to dispatch forces. It is hard to imagine (make that almost impossible to envisage) Australia’s major parties agreeing to any requirement for formal Parliamentary approval before troops are mobilised. An abiding reality of Australian politics for several generations has been that governments seldom command a majority in the Upper House. A legislative limit on the Prime Minister’s prerogative raises the very real prospect of the government-controlled House of Reps voting for war but the Senate voting for peace, negotiation and delay. That’s unworkable. For a detailed discussion of these issues, see the Senate Foreign Affairs Committee report giving the thumbs down to a law that Australian Defence Force personnel could serve overseas in warlike service only if both Houses of Parliament approved the deployment.

Accepting that the Prime Minister’s prerogative won’t be constrained by statute, we have to turn to that other great Westminster invention, the role of custom and convention. Here we start to approach the argument about what the Canberra system did or did not do in the preparation and debate (or non-debate) for the 2003 Iraq war. Time to invent some new conventions.

The Iraq lesson is that Australia needs to confront systemic weakness, if not failure, and build in some stronger requirements for the future use of its armed forces. Mounting such a Westminster argument means looking at the history of the way Australia’s Prime Minister has used the war power and seeking lessons that could be applied by both the Parliament and the public service. The history would lead to discussions about some of the relatively low benchmarks any government should be required to meet in the use of the profound prerogative, especially as it applies to the operation of alliances.

Further, history might offer some clues about the different requirements an Australian government should meet in responding to wars of necessity versus wars of choice. This is an argument that is, most definitely, to be continued.

Graeme Dobell is the ASPI journalism fellow. Image courtesy of the United States Navy.