Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020 Bills

I’ll just point out to Senator Steele-John that Australia, since Federation, has not participated in colonial wars of aggression. I remind listeners to this debate of the connection between the Taliban, al-Qaeda and Jemaah Islamiyah. I can give 2,977 reasons, the lives lost in the US, and 202 reasons, the lives, including 88 Australians, lost in Bali, as to why Australia was involved in that conflict in Afghanistan.

As I commence my contribution to the debate on this draft legislation that has been introduced on behalf of the Greens by Senator Steele-John, I do note that I have spoken on previous Greens bills seeking to reform war powers. Given that this bill, the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020, does not address the concerns that were raised with previous attempts, including concerns highlighted by the scrutiny of the Senate Foreign Affairs, Defence and Trade Legislation Committee, I will flag upfront that I will not be supporting the bill.

This bill is a revised version of the one introduced in the Senate in 1985 by Senator Colin Mason, a Democrat from New South Wales. The changes in this bill consists mainly of detailed provisions relating to emergency situations which occur when the parliament is not meeting and the information which is required to be provided to the public and to the parliament. This bill would insert a new section in the Defence Act 1903 under which the service of members of the Defence Force beyond the territorial limits of Australia in warlike actions would require the approval of both houses of parliament, with some exceptions. The bill is similar in effect to a bill which was introduced in the Senate in 2014 by Senator Ludlam. As I noted when I spoke in 2014, his bill then was essentially unchanged from the 2008 bill of the same name which was also introduced by Senator Ludlam.

Given that this bill has origins in previous bills, it is instructive to go back and look at the Senate Foreign Affairs, Defence and Trade Legislation Committee inquiry that examined the bill put forward by the Greens in 2008; the report also referred to the original bill put forward by the Democrats. The Senate committee inquiry was comprehensive. It received a range of submissions from civil society and the department. In the concluding remarks of its report, the committee, whilst acknowledging ‘the critical importance of parliamentary debate’, ‘stopped short in accepting the requirement for both houses of the parliament to approve the deployment of Australian troops’. It particularly focused on the issue of the treatment of classified material, observing:

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

The report also made the point that if in order to protect our forces or our allies classified information had to be withheld from the parliament then those that this bill would require to make the critical decisions about deployment of forces would not be fully informed, and that would be ‘an equally concerning situation for the security of the nation and its forces’.

Some proponents of reform have suggested that a small group of opposition MPs could be briefed and that this would facilitate an informed parliamentary debate. An example of that is the article in August 2013 by the group Be Sure On War. But to accept this premise actually supports the current situation, whereby a small group is briefed and the majority of members and senators have to take their word for the veracity of the information upon which the decision to deploy was made. It’s unclear how parliamentary debate under the circumstances proposed would be any more informed and effective than the status quo.

The committee found, after some deliberation, that ‘the process of seeking Parliamentary approval may, in some circumstances, cause difficulties for the effective and safe deployment of Australian forces’. It also had ‘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 could advise the Governor-General, who can make a declaration of an emergency and forces can be dispatched and then you can have the debate. But this creates the possibility of parliament not approving the deployment after troops are already in combat. That means you then have to go through the dangerous, logistically difficult and morale-sapping act of withdrawing forces who may be tactically engaged with the enemy. It would also fundamentally affect Australia’s reliability as an ally at a time when the strategic update of 2020 has highlighted that our alliances with other nations with whom Australia has a defence and security agreement are more important than ever.

Finally, the report talked about a range of activities where Australia deploys forces in a situation where they may have to use force. Antipiracy operations are a classic example. The report concluded that the executive must retain the ability to deploy forces. Let me turn to how these decisions are made here in Australia.

Here the power to make war, deploy troops and declare peace are part of the executive power of the Commonwealth. The executive power is recognised in section 61 of the Constitution. While executive power of the Commonwealth is exercised by the Governor-General on the advice of the federal Executive Council or responsible ministers normally, it is contemporary practice that decisions to go to war or deploy troops are matters for the Prime Minister and cabinet. The National Security Committee of Cabinet was established in 1996. This body is now the primary body—in fact, I would argue the only body—that has access to all the classified information and briefs from departments to inform decisions.

A common argument from proponents of war power reform is that Australia is one of the few remaining democracies, particularly Westminster democracies, that can legally deploy its defence force into a conflict zone without recourse to the parliament. As I outlined in 2014, that is incorrect. Let’s look at the Five Eyes partners, starting 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—and that’s their act of 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. So Canada has exactly the same executive power that exists here in Australia.

In 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 exercised by the Governor-General of New Zealand on the advice of elected ministers or executive by the authorities of the letter patent constituting the office of the Governor-General.

In the United Kingdom—and this is the case that’s often quoted by people who think Australia is out of step—the deployment of troops and the issuing of orders to engage in hostilities are matters of royal prerogative exercisable by ministers. The government has freedom of action in this regard and the parliament does not need to give its approval. I repeat that: parliamentary approval is not required in the UK. It is true that Labour MP Tam Dalyell introduced the Military Action Against Iraq (Parliamentary Approval) Bill in 1999. That was the first of a number of bills challenging the royal prerogative, including the monarch’s war powers, to be codified and subject to parliamentary scrutiny. None of these bills have passed the House of Commons.

It’s also true that, despite there being no legal requirement to consult or seek approval, both the Blair and Cameron governments have sought in principle support from the House of Commons for potential UK military action. While some, including Prime Minister Cameron, have described this practice now to be a convention, it is not codified in law and the scope of obligation and the application of this practice are not universally supported.

In the case of the United States, their constitution—article I, section 8, clause 11—grants the Congress the power to declare war, to raise and support armies and to provide and maintain a navy. The President is made the Commander in Chief of the armed forces under article II, section 2, clause 1. The specific power to deploy US armed forces is covered by the War Powers Resolution of 1973, also known as the war powers act. The War Powers Resolution imposes on the President that the President in every possible instance shall consult with Congress before introducing US forces into hostilities or into a situation where imminent involvement in hostilities is clearly indicated by the circumstance, but the terms ‘every possible instance’ and ‘consult’ are not defined by the resolution and they’ve been interpreted in different ways at different times. Notably, the term ‘consult’ does not equate to approval of Congress—a matter that is contemplated by this bill before our 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 courts likewise. 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 the case law makes it clear that the Congress does not have the exclusive rights to determine whether or not the United States engages in war.

Whilst at a broad level I understand that our parliament has an interest in what is occurring and a moral obligation to hold the government to account, I have deep concerns about the unintended consequences of the parliament being involved in executive decisions around the use of force. In this debate and previous debates people have referred to the wars in Afghanistan and Iraq. But in those cases would parliamentary debate really have made a difference as to whether forces were deployed or, more particularly, in the outcomes that were achieved? I, along with many others, will doubtless analyse and debate the decision to withdraw NATO alliance troops in the time frame and manner we have witnessed in recent weeks, but it raises the question: if the parliament had to give approval to deploy forces, would we have had a different outcome? The answer is: not necessarily, because the decisions regarding the withdrawal were taken by the US decades after the context of the initial response to the 9/11 attacks, which had widespread support around the globe.

If the ongoing approval of the legislature is required, 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 postwar plan is a strategic consideration, but it opens a grey area about how deeply parliaments will reach into decisions beyond the decision to commit troops. That is what they do in theatre. Vietnam is a case in point where political interference in how the war was fought resulted in bad outcomes, as opposed to just setting a clear military objective and then allowing the military to use the most effective means to achieve the outcome,.

As I draw my contribution to a close, I note for the benefit of people listening to this debate who have an interest in this subject that, since I last spoke on a Greens bill—which was in 2014—Dr Brendan Nelson, who was defence minister when I was a member of the House of Representatives in the Howard government, has published in Papers on Parliament No. 63 in 2015 a very informed discussion on this issue, titled ‘The role of government and parliament in the decision to go to war’. I commend his paper to those who are interested in the subject.

In conclusion, it’s important for Australia’s ability to shape, deter and respond to threats to Australia and our national interest that we do not remove from the executive the powers that it currently has, particularly if doing so is on the basis of false assertions. The assumption that our allies and the majority of democracies do not give their executives this power is not correct. There has been consideration in detail of similar bills that have been moved by the Democrats and the Greens in the past. The consideration of committees with members from multiple parties has reached the conclusion that the bills in question should not be supported.

Senator Steele-John made the point that many members of parliament don’t have much contact with the military. As somebody who spent over two decades in the military and who has spent most of his time in the parliament involved with foreign affairs, defence and trade and intelligence and security work, I support the measures that we currently have in place. In the absence of detailed measures that have been analysed and found to address the concerns of previous committees, and the concerns that I have raised previously, I cannot and will not support this bill.