Defence Legislation Amendment (Parliamentary Approval of Overseas Service) Bill 2014 Bills

I too rise to address the Defence Legislation Amendment (Parliamentary Approval of Overseas Service) Bill 2014. This is the bill that was introduced into the Senate this July by the Greens through Senator Ludlam. I note that the bill essentially is unchanged from the 2008 bill of the same name, which was also introduced by Senator Ludlam. Just to give an outline, the bill proposes that the ADF not be permitted to serve outside the territorial limits of Australia except in accordance with a resolution agreed to by each house of parliament or in accordance with a number of specific circumstances. And the bill goes through to list a number of specific circumstances in which members of the Australian Defence Force may serve outside our territorial regions. The bill contains some provisions for emergency situations in which the Governor-General can proclaim that an emergency exists that may require ADF service. But the essential part is that the proclamation has to go before each house of parliament, allowing for debate and a vote within two days.

Given that this has its origins in previous bills—indeed, as the leader of the Greens has just stated, this stems all the way back to a bill that was put before the parliament by the Democrats some years ago—I think it is instructive to go back and look at the Senate Foreign Affairs, Defence and Trade Legislation Committee inquiry that examined that bill put forward by the Democrats. The inquiry was reasonably comprehensive. At the time, Senator Faulkner was the Minster for Defence. A number of people, including the department and people from the community and other organisations, made submissions. In the concluding remarks of its report the committee, which obviously is a bipartisan committee of the parliament, made comments that those supporting the bill believed that any such decision required debate and approval by the parliament. While acknowledging the critical importance of parliamentary debate, most opponents of the bill stopped short of accepting the requirement that both Houses of parliament to approve the deployment of Australian troops. They held misgivings about the practical application of some provisions, and I will go to that in terms of practical applications a little later, but I think this bill suffers from the same deficiencies. Going back to the concluding remarks in that report:

Since 1986, when the Defence Amendment Bill 1985 was debated, a number of shortcomings in the proposed legislation have been raised consistently.

There are a number of things they talked about whether or not the parliament is in session, but they came particularly to the issue around the treatment of classified material, as well as constraints on the ability of Defence to mobilise its forces safely and effectively. They also noted some problems with definitions.

On the issue of the disclosure of classified or sensitive intelligence, they went on to say:

…may well compromise an operation and the safety of Australian forces or those of their allies.

The report also makes the point that if in order to protect our forces or our allies:

…information were necessarily withheld from the Parliament, then those required under the proposed legislation to make critical decisions about the deployment of forces would not be fully informed—an equally concerning situation for the security of the nation and its forces.

The committee found, after some deliberation, that:

…the legislation does not address these concerns adequately.

It went on to say that:

Although the proposed legislation allows for emergency situations, the committee is concerned that the process of seeking Parliamentary approval may, in some circumstances, cause difficulties for the effective and safe deployment of Australian forces. … It also has concerns about possible unintended consequences that may arise including implications for the Defence Force should approval not be forthcoming after forces have been dispatched in response to an emergency.

I notice that this current bill has similar provisions, whereby the Prime Minister can advise the Governor-General, who can make a declaration of an emergency. Forces can be dispatched, and you can then have a debate, but then you face the possibility of parliament not approving. That means that you then have to go through the sometimes dangerous—not to mention logistically difficult—act of withdrawing forces who, by then, may be engaged with some opponent. It also will fundamentally affect Australia’s reliability as an ally—our alliances with other parties, with whom Australia has defence and security agreements, and not just the US.

Finally, the report goes on to talk about a range of other activities where Australia does deploy its forces in a situation where they may have to use force. Anti-piracy is a good example at the moment and is one of just a number of examples that are laid out in this committee report. It discusses the complexity of the legislation, how it would be applied and why the executive still needs to hold the ability to deploy forces.

The reason I think it is important to go back and reread these reports is that here we have the legislation brought before the parliament. It is now being debated. Yet this particular piece of legislation has not had the opportunity of the review that the previous one did. The previous legislation—which was very similar in nature to the last bill from the Democrats, to Senator Ludlam’s last bill and to this one—had a number of flaws that were identified that have yet to be addressed from the last committee report. I think it does not behove the Senate to look at passing this without a similar level of scrutiny and without addressing the concerns in that report.

To go to the second reading speech by Senator Ludlam, one of his opening statements was:

Australia is one of the few remaining democracies that can legally deploy its defence force into a conflict zone without recourse to the parliament.

If we look at a number of our allies, that is not actually the case. Here in Australia, it is true that there is no requirement in the constitution or Defence legislation for parliamentary involvement in most acts of declaring war and deploying troops:

…the power to make war, deploy troops and declare peace-are now part of the executive power of the Commonwealth exercised by the Governor-General on the advice of the Federal Executive Council or responsible ministers. Contemporary practice, however, is that decisions to go to war or deploy troops are matters for the Prime Minister and Cabinet and do not involve the Governor-General or the Federal Executive Council.

Since the establishment of the National Security Committee of Cabinet in 1996, this body is probably the primary body that has access to all the classified information and briefs from departments. They then made the decision on behalf of the government. Let’s look at our allies—and this goes back to the comment that Australia is one of the few remaining democracies that does this—and start with Canada. Under Canadian constitutional law:

The Federal Cabinet can, without parliamentary approval or consultation, commit Canadian forces to action abroad, whether in the form of a specific current operation or possible future contingencies resulting from international treaty obligations. Under the Canadian Constitution [Constitution Act, 1867, sections 15 and 19], command of the armed forces … is vested in the Queen and exercised in her name by the federal Cabinet acting under the leadership of the Prime Minister.

Canada still, essentially, has the same executive power that exists here in Australia.

Let’s go to New Zealand:

The formal right to declare war was clearly part of the Royal Prerogative inherited from Great Britain in 1840 and it remains an acknowledged part of New Zealand law. Defence and wartime prerogatives include the right to declare war and peace, and the deployment and armament of defence forces.

The Royal Prerogative is primarily exercised by the Governor-General on the advice of elected ministers or executive by authority of the Letters Patent Constituting the Office of the Governor-General of New Zealand 1983 (SR 1983/225).

If we go the United Kingdom, a case which is often quoted:

The deployment of troops and the issuing of orders to engage in hostilities are matters of Royal Prerogative, exercisable by Ministers. The Government has liberty of action in this field, and Parliament need not give its approval.

I repeat that: parliamentary approval is not required in the UK.

…it is usual for Governments to keep Parliament well informed of decisions to use force and of the progress of campaigns.

It is also true that in the UK:

Since 2003 there have been calls for aspects of the Royal Prerogative, including the monarch’s war powers, to be codified and subject to parliamentary scrutiny.

A draft bill to modify the UK legislation is before the House of Lords. It is far narrower in scope than this proposed Australian bill, and the draft bill there applies only to decisions by the government to authorise the use of force by UK forces if the use of force is both outside of the UK and regulated by the law of armed conflict. The UK bill also includes key exceptions for emergency security and special forces. Despite there being no legal requirement to consult or seek approval, the Cameron government sought in-principle support from the House of Commons in 2013 for United Kingdom military action against the Syrian government. It was a decision that the Prime Minister made; but in that case he was defeated and accepted that advice. Whilst he used his discretion to do that, the claim that Australia is one of the few remaining democracies where the executive has the power to commit forces to war is clearly not correct.

In the United States, the Constitution, under article 1 section 8 clause 11, grants to Congress the power to declare war, ‘to raise and support armies’ and ‘to provide and maintain a navy’. While the President is made the Commander-in-Chief of the Armed Forces, under article 2 section 2 clause 1, the specific power to deploy US Armed Forces is covered by the War Powers Resolution 1973, also known as the ‘war powers act’. The War Powers Resolution imposes on the President thus:

The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances.

This is where it gets messy. The terms in ‘every possible instance’ and ‘consult’ are not defined by the resolution and have been interpreted in different ways at different times by different parties. Notably, the term ‘consult’ does not equate to the approval of Congress, a matter that is contemplated by this bill before the Senate today. Many US presidents have claimed that the War Powers Resolution is an unconstitutional infringement on their authority as the Commander-in-Chief and have refused to be bound by it. The US courts, likewise, have been reluctant to accept jurisdiction in matters seeking to enforce the resolution, asserting that it is a political rather than judicial matter. In one case in 2003, a judge of the District Court rejected the contention that the President must have congressional authority to order American forces into combat, saying that ‘case law makes clear that the Congress does not have the exclusive rights to determine whether or not the United States engages in war’.

The opening premise of this bill before us is that Australia is one of the few remaining democracies, even amongst our allies, where the executive has the legal authority to deploy forces to war. But in comparative nations with whom we have close defence ties like Canada, the United Kingdom, the United States and New Zealand, the executive retains the right to deploy forces without having to seek congressional or parliamentary approval.

One of the key concerns raised in the committee report that I referred to earlier is the competence of parliament to be engaged and involved in military decisions. Senator Milne’s contribution before, in a very minor way, illustrates this. She quoted from a book by Major General Cantwell. While it is superficial to point out that the difference between a major and a major general is substantial, it does point to the fact that, unless people have had an involvement in defence related matters, it is easy to not understand the importance of language, terms and considerations. Whilst, at a broad level, I understand that the parliament has an interest in what is occurring and has a moral obligation to hold the government to account, I have deep concerns with the parliament being involved in executive decisions around the use of force.

Often in this debate, people have referred to the Iraq War. But in that case, would parliamentary debate have made a difference in whether forces were deployed and, more particularly, in the outcomes that were achieved? When most experts look at the outcomes in Iraq, they conclude that the decision to remove the Ba’ath Party and all its structures destroyed governance within Iraq and that it was the subsequent power vacuum that led to much of the dysfunction. I, along with many other people, agree with that. But it raises the question: if the parliament had given approval to deploy forces, would we have had a different outcome? No, because that was subsequent to the actual action. The logical question then is: how deeply will parliaments become involved in the strategic, operational and tactical decisions of armed forces when approaching the issue?

You could argue that requiring a post-war plan is a strategic consideration, but it opens a grey area about how deeply parliaments reach into decisions beyond the decision to commit troops—that is, what they do in theatre and how they act. From conflicts in the past, we have seen poor outcomes on the ground; Vietnam is a case in point where there was a lot of political interference in how that war was fought, as opposed to setting a clear military objective and then allowing the military to use the most effective means to achieve the outcome. So the role of the parliament, if it were involved beyond the decision to deploy forces, is a grey area that this bill opens up. I think Iraq proves that we would not have had a different outcome if the parliament had approved the deployment, unless it were also involved in subsequent decisions about how the war was fought.

It is important that we do not remove from the executive the powers that it currently has on the basis of false assumptions. The assumption that our allies and other democracies do not give the executive this power is not correct. There has been a consideration in detail of similar bills that have been moved by the Democrats, and by Senator Ludlam in the past, and the consideration of committees from multiple parties reached the conclusion that the bill should not be supported. In the absence of details that address the concerns of those committees and in the absence of further detailed consideration, I cannot, and will not, support this bill.