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Foreign Affairs, Defence and Trade Legislation Committee—Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020—Report, dated November 2021


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November 2021

The Senate

Foreign Affairs, Defence and Trade Legislation Committee

Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020

© Commonwealth of Australia 2021

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Committee Members

Chair Senator the Hon Eric Abetz LP, TAS

Deputy Chair Senator Kimberley Kitching ALP, VIC

Members Senator Tim Ayres ALP, NSW

Senator the Hon David Fawcett LP, SA

Senator the Hon Concetta Fierravanti-Wells LP, NSW

Senator Jacqui Lambie JLN, TAS

Secretariat Lyn Beverley, Committee Secretary Christopher Sautelle, Principal Research Officer Emma Wannell, Research Officer Margaret Cahill, Research Officer Shannon Ross, Administrative Officer

Committee Webpage: http://www.aph.gov.au/senate_fadt

PO Box 6100 Phone: + 61 2 6277 3535

Parliament House Fax: + 61 2 6277 5818

Canberra ACT 2600 Email: fadt.sen@aph.gov.au

Australia

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Table of Contents

Committee Members ........................................................................................................................ iii

Chapter 1—Introduction .................................................................................................................... 1

Referral of the bill ................................................................................................................................. 1

Conduct of the inquiry ........................................................................................................................ 1

Background to the bill ......................................................................................................................... 1

Purpose of the bill ................................................................................................................................ 1

Financial implications .......................................................................................................................... 2

Scrutiny by other committees ............................................................................................................. 2

Structure of this report ....................................................................................................................... 2

Chapter 2—Key Issues ....................................................................................................................... 3

The power to declare war and deploy troops overseas .................................................................. 3

Support for the bill ............................................................................................................................... 4

Issues with the bill ............................................................................................................................... 8

Conclusion .......................................................................................................................................... 10

Australian Greens Dissenting Report ........................................................................................... 13

Appendix 1—Submissions .............................................................................................................. 21

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Chapter 1 Introduction

Referral of the bill 1.1 On 7 December 2020, the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020, (the bill) a private senator's bill sponsored by Senator Jordon Steele-John, was introduced into the Senate.1

1.2 On 2 September 2021, pursuant to the Senate Selection of Bills Report, the bill was referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee (the committee) for inquiry and report by 30 November 2021.2

Conduct of the inquiry 1.3 The committee advertised the inquiry on its website, calling for submissions by 15 October 2021. The committee also wrote directly to a range of organisations and individuals to invite them to make written submissions. Submissions

received are listed at Appendix 1.

1.4 The committee decided to prepare its report on the basis of submissions received and available information. The committee thanks those who made submissions.

Background to the bill 1.5 The Explanatory Memorandum (EM) notes that this bill is a revised version of the one introduced into the Senate in 1985 by Senator Colin Mason, a Democrat from NSW. The changes in this bill consist 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 the Parliament.3

1.6 The history of the bill is further detailed in the committee's 2010 report (see below).

Purpose of the bill 1.7 The core provision of the proposed legislation remains unaltered from earlier versions. The stated purpose of the bill is to amend the Defence Act 1903 to 'ensure that, as far as is constitutionally and practically possible, Australian

1 Journals of the Senate, No.78—7 December 2020, pp. 2737-2738.

2 Journals of the Senate, No. 121—2 September 2021, p. 4086.

3 EM, p. 2. Note: The Australian Greens took carriage of the bill after 2007.

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Defence Force personnel are not sent overseas to engage in warlike actions without the approval of both Houses of the Parliament'.4

1.8 Citing government decisions to deploy the Australian Defence Force (ADF) to Iraq and Afghanistan, Senator Steele-John argued the need for the bill:

It is no longer tenable that the decision to deploy into conflict zones should be left to the executive alone. Currently, the Defence Act 1903 does not allow for any level of transparent decision making, scrutiny and debate, but this is an artefact of legislation, not the natural order of things.

The Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020 inserts a new section 29A into the Defence Act 1903 to require that decisions to deploy members of the Australian Defence Force beyond the territorial limits be made not by the executive alone but by Parliament as a whole. This means debate in both houses, followed by a vote.5

Previous inquires 1.9 The most recent inquiry on an earlier version of the bill was undertaken by the Senate Foreign Affairs, Defence and Trade Legislation Committee which tabled a comprehensive report in 2010. The committee recommended that the bill not

proceed.6

Financial implications 1.10 The EM states that the bill would have no direct financial impact.7

Scrutiny by other committees 1.11 The Senate Standing Committee for the Scrutiny of Bills had no comment on the bill.8 The Parliamentary Joint Committee on Human Rights also had no comment on the bill.9

Structure of this report 1.12 Chapter 2 of this report provides an overview of issues raised in evidence and contains the committee's views and recommendation.

4 EM, p. 2.

5 Senator Jordon Steele-John, Senate Hansard, 7 December 2020, p. 6898.

6 Senate Foreign Affairs, Defence and Trade Legislation Committee, Defence Amendment

(Parliamentary Approval of Overseas Service) Bill 2008 [No. 2], Inquiry report, 25 February 2010.

7 EM, p. 2.

8 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 1 of 2021, 29 January 2021, p.

52.

9 Parliamentary Joint Committee on Human Rights, Report 1 of 2021, 3 February 2021, p. 46.

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Chapter 2 Key Issues

2.1 This chapter covers the key issues raised in evidence as well as the committee's conclusions and recommendation.

The power to declare war and deploy troops overseas 2.2 As the committee noted in 2010:

Australian legal experts generally acknowledge that while the power to declare war and deploy troops overseas is not specified in the Constitution, it currently forms part of the executive power under section 61 of the Constitution.1

2.3 The Department of Defence (Defence) stated that the 'decision to commit the ADF to combat or warlike operations is a prerogative of the Executive exercisable under Section 61 of the Constitution'. It added:

Longstanding Westminster convention allows executive government to exercise the discretion to commit forces to operations overseas. In practice, this power is exercised by the Prime Minister and the Cabinet. This longstanding practice is consistent with Australia’s representative democracy and civilian authority over the ADF.2

2.4 A 2010 Parliamentary Library Background Note highlighted that:

Former royal prerogatives - including 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.3

2.5 However, in 2015, the former Minister for Defence, the Hon Brendan Nelson MP pointed out:

Although the government is not legally required to consult parliament when declaring war or deploying forces overseas, on most occasions the prime minister or defence minister has informed parliament of cabinet’s decision

1 Senate Foreign Affairs, Defence, Trade and Legislation Committee, Defence Amendment

(Parliamentary Approval of Overseas Service) Bill 2008 [No. 2], Inquiry report, 25 February 2010, p. 3.

2 Defence, Submission 23, p. 2.

3 Ms Deidre McKeown and Mr Roy Jordan, Parliamentary Library, Background Note, 'Parliamentary

involvement in declaring wars and deploying forces overseas', 22 March 2010, pp. 1-2.

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through a ministerial statement or tabled papers. This invariably is followed by debate and vote on a motion.4

Support for the bill 2.6 As with the 2008 bill, the majority of the submissions were in favour of the intent of the bill, however, support by many was at the level of broad principle with no close analysis or consideration of the bill's provisions.

The significance of the decision to deploy the ADF overseas 2.7 Again as for the 2008 bill, most submissions endorsed the principle that such an important decision should not be left in the hands of one person or a select few but should involve parliament.

2.8 The importance of considering the significant human, economic and environmental costs of war was highlighted by the Medical Association for Prevention of War (Australia).5

Approaches in other democratic countries 2.9 Several submissions highlighted the approaches taken in other jurisdictions involving their parliaments. The Australia Institute put forward their support for this approach:

It is clear that there is a growing tendency on the part of democracies that are aligned with Australia for their national Executives to refer matters of critical national importance to their parliaments. This is not simply a response to the growing need for proper accountability by governments for their decisions and action. It is also a recognition that the legitimacy of an Executive’s decisions and actions is increasingly dependent on the support of the Parliament, the people’s representatives.6

2.10 The Australia Institute pointed to a review of 49 democracies which found that:

30% had a parliamentary ex ante veto as of 2004, with a further 5% inconclusive. Many more had other parliamentary involvement in decision-making around war, including the right to be consulted or the power to cut short a deployment.7

2.11 Humanists Victoria also noted the approach taken in some other jurisdictions:

The Defence Act 1903, which this Bill seeks to amend, does not stipulate that parliament should approve a decision to deploy troops overseas. By contrast, Italy, Austria, Sweden and the Netherlands have legislated that their parliaments must do so. Many other countries require strenuous

4 The Hon Brendan Nelson, The Role of Government and Parliament in the Decision to Go to War,

Papers of Parliament No. 63, 2015, p. 4.

5 Medical Association for Prevention of War (Australia), Submission 21, pp. 2-4.

6 The Australia Institute, Submission 12, p. 9.

7 The Australia Institute, Submission 12, p. 4.

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debate and investigation by parliament before any decision about the use of military force is made.8

2.12 Professor George Williams AO noted that while Australia's 'approach to declarations of war is taken from the UK…that nation has since changed its approach':

Britain did so [changed its approach] after Prime Minister Tony Blair committed forces in support of the United States in Iraq in 2003. An independent inquiry found that the nation went to war after Blair promised President George W Bush: ‘I will be with you, whatever.’ This commitment was honoured despite evidence that Iraqi leader Saddam Hussein did not pose an imminent threat.

Soul-searching after the United Kingdom’s decision to go to war in Iraq led to recognition that it is dangerous to leave the decision to the prime minister and their cabinet. A prime minister can be blindsided by their close relationship with the leader of another country, may neglect key facts or exercise poor judgement. The decision to commit troops may also be distorted by political factors, such as a hope that war against an external threat will bolster a government’s popularity.

Conservative Prime Minister David Cameron recognised the need to restore trust in the community by improving transparency and political accountability when sending soldiers overseas. His government included a new convention in the Cabinet Manual in 2011 to check the power of prime ministers to go to war. The manual states that, except in an emergency, troops will not be committed until the House of Commons has had an opportunity to debate the matter.

The change in the United Kingdom means that, so long as Parliament is sitting and there is not an emergency, the nation’s elected representatives will debate whether their military is deployed overseas. The wide acceptance of this convention means that the United Kingdom will not likely go to war without parliamentary support, even if this is contrary to the view of the prime minister.9

2.13 The Australia Institute also spoke about the current approach in the UK noting it was applied in 2013 when the House of Commons debated a government motion that the UK join the USA-led strikes in Syria:

While going to war is an executive prerogative, it is a convention (albeit a new one) that the UK Government gives the House of Commons an opportunity to debate the matter before troops are committed. The results of the debate are not binding, but are respected: when the House of Commons voted “No” in 2013, the Cameron Government did not proceed with its planned military intervention in Syria.10

8 Humanists Victoria, Submission 14, p. 1.

9 Professor George Williams, Submission 1, p. 2.

10 The Australia Institute, Submission 12, p. 5.

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2.14 However, Professor Williams noted that:

Prime Minister Theresa May ordered military action in Syria in 2018 without a debate in Parliament, which at the time was in recess.11

2.15 In second reading speeches, it was noted that caution should be exercised when making direct comparisons with other countries as this is complicated by major differences in the constitutional frameworks.12

Previous decisions to send troops overseas 2.16 Those in support of the bill also cited government decisions to send troops to other conflicts as a reason why this legislation is needed. For example, Mr Max Atkinson argued:

The need for Parliament to authorise war is not hard to demonstrate. When John Howard and Alexander Downer decided to join the international coalition to invade Iraq they relied on advice from US President George W Bush that Iraq shared responsibility for the 9:11 attack with Al Quaeda. They also relied on his claim that Iraq possessed weapons of mass destruction that posed a security threat to Australia and the US. They saw the request to join as within the scope of the ANZUS mutual defence treaty between the two nations.13

Public opinion 2.17 Public opinion supporting reform was also cited to support the bill.14 Some submissions noted a Roy Morgan poll from late 2020 which found that 83.3 per cent of Australians want parliament to decide whether troops are sent into

armed conflict abroad.15 Australians for War Powers Reform submitted that the percentage 'has since grown to 87 percent'.16

11 Professor George Williams, Submission 1, p. 2.

12 Senator Kristina Keneally, Senate Hansard, 30 August 2021, p. 16; Senator David Fawcett, Senate

Hansard, 30 August 2021, pp. 14-15.

13 Mr Max Atkinson, Submission 13, p. 1. See also Mr Wayne Richmond, Submission 3, p. 1; Dr

Malgorzata Schmidt, MD, PhD, Submission 5, p. 1; Mr Geoff Taylor, Submission 9, pp. 1-3; Mr Justin Tutty, Submission 17, p. 1; Marrickville Peace Group, Submission 18, pp. 1-2; and Medical Association for Prevention of War (Australia), Submission 21, p. 2.

14 Humanists Victoria, Submission 14, p. 1.

15 Quaker Peace and Legislation Committee, Submission 8, p. 1. Note: this was a survey of 1052 people.

See https://www.besureonwar.org.au/overwhelming-support-for-war-powers-reform-roy-morgan-poll/ accessed 1 November 2021. See also Humanists Victoria, Submission 14, p. 1; Ms Lorel Thomas, Submission 16, p. 3; Marrickville Peace Group, Submission 18, p. 1; Independent and Peaceful Australia Network, Submission 19, p. 2.

16 Australians for War Powers Reform, Submission 11, p. 4.

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Other suggestions 2.18 However, there was not unanimous agreement on the bill with submitters suggesting alternative processes or additional amendments.

2.19 While agreeing that 'the prerogative power of the Commonwealth in this area should be altered by legislation', Professor George Williams, was of the view that the bill should not be enacted in its current form. Instead, Professor Williams suggested that the bill should provide 'that a resolution of a joint sitting of both Houses is required'. He added that this would:

…emphasise the importance of the decision and would involve all Members and Senators. However, it would also generally allow the government of the day, with its greater majority in the lower house offsetting its deficit in the Senate, to gain the outcome it wishes so long as it can maintain party discipline. This would involve an appropriate measure of symbolism and deliberation. It would not, however, remove the capacity of the executive in most cases to determine the course for which it will ultimately have to answer at the ballot box. An alternative to this approach would be to require a positive resolution only by the House of Representatives.17

2.20 The suggestion of the joint sitting was supported by Mr Scott MacInnes18 who also suggested a number of other amendments, including: a conscience vote; a list of relevant criteria for determining such decisions; and ensuring the fullest possible access to advice the executive is relying on, consistent with national security requirements.19

2.21 Emeritus Professor Louise Edwards argued that a decision to send troops overseas to participate in military conflict requires:

…the fullest consideration of our elected representatives in both houses of parliament. Members of the public whose lives will be directly impacted by the decision and whose tax dollars will be spent waging a war, should have the time and the mechanisms to express their views to their elected representatives in the House and the Senate. And, those elected parliamentarians should have adequate time to give due consideration and conduct open debate in public forums before participating in a conscience vote in the Australian Parliament.20

2.22 Australians for War Powers Reform recommended the following process:

 The recent practice of dispatching Australian forces under a provision of the Defence Act should not continue;  In advance of the deployment of Australian forces, the matter should be considered by a security-cleared Parliamentary Committee, and be

debated and voted on by both houses of Parliament;

17 Professor George Williams, Submission 1, p. 1.

18 Mr Scott MacInnes, Submission 7, p. 2.

19 Mr Scott MacInnes, Submission 7, p. 2.

20 Emeritus Professor Louise Edwards, Submission 15, p. 1.

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 The Government should set out clearly the political and strategic considerations involved in any deployment of troops, its legal basis, purpose, likely duration and estimated costs, including the likely humanitarian impacts, plans for addressing them, and for post-war rehabilitation;

 If a proposal for armed deployment is carried, the Governor-General should be asked to consider it and have the opportunity to seek more information before commanding the Government to act on it;  The Government should be required to report to the Parliament at regular

intervals on the progress of a conflict, including its human costs;  At a specified time, a further debate and vote in the Parliament should determine whether the deployment should continue or not;  After the conflict, an independent inquiry should present a full, public

report, including recommendations to guide Governments in future deployments.21

Issues with the bill 2.23 Since the earlier versions of this bill were introduced, during debates, some Senators have identified what they believe are serious deficiencies in the proposed legislation. In the following section, the committee considers the

extent to which the drafters of the legislation have responded to matters raised during the consideration of earlier bills. These concerns have centred on the disclosure of classified material, the constraints that the bill may impose on Defence activities and also the scope of the bill.

Risks to operational security 2.24 The Committee's 2010 report noted concerns about the disclosure of classified or sensitive intelligence which may compromise an operation and the safety of Australian or allied forces.22

2.25 Defence was of the view that these issues have not been ameliorated in the current bill, adding:

If Parliamentary approval was required to deploy Defence members overseas, it would be necessary to limit the amount of sensitive material available to support Parliamentary decision-making because such material could be referred to in an open parliamentary debate. Without the benefit of the full disclosure of all the relevant material pertaining to the need to deploy Defence members overseas, parliament's ability to make an informed decision could be affected.23

21 Australians for War Powers Reform, Submission 11, pp. 3-4. See Also the Australia Institute,

Submission 12, p. 3.

22 Senate Foreign Affairs, Defence and Trade Legislation Committee, Report on Defence Amendment

(Parliamentary Approval of Overseas Service) Bill 2008 [No. 2], p. 26.

23 Defence, Submission 23, p. 4.

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2.26 Defence stressed that:

If such information were necessarily withheld from the Parliament, then Members of Parliament required under the proposed legislation to make decisions about the deployment of forces would not be fully informed. This would have adverse implications for Australia's national security and the safety of its service members.24

2.27 Defence also noted that the bill proposes under new subsection 29A that a report be tabled alongside any Proclamation by the Governor-General as provided under new subsection 29A(3). Defence submitted that:

Disclosure of classified or sensitive intelligence may well compromise an operation and the safety of Australia forces or those of their allies. The requirement to provide such a report as part of parliamentary process could provide adversaries with advance notice of the expected geographical extent of a proposed deployment and the expected duration and the number of members of the ADF proposed to be deployed. Exploitation of this sensitive information could place ADF members in unnecessary danger.25

Risks to the ability of Defence to respond flexibly and in a timely manner 2.28 Defence highlighted concerns that requiring parliamentary approval for each ADF deployment risks 'undermining Australia's ability to pre-position the ADF overseas to respond to contingencies in a timely fashion and prevent unintended

escalation'. Defence added:

Delays would yield tactical advantage to our adversaries, jeopardising military success and exposing ADF members to increased danger. Further, requiring Parliamentary approval to respond to each and every development that arises in the cause of a deployment would impair Defence's ability to respond flexibly to contingencies and could affect allied confidence in us as an agile and capable security partner.26

2.29 While the bill provides that the Governor-General may by Proclamation declare that an emergency exists requiring the deployment of the ADF, Defence noted that proposed subsections 29A(8) and (9) place time limits on it. Defence submitted that these limitations would 'further risk Australia's ability to respond with certainty, and in a timely manner, to overseas contingencies'.27

24 Defence, Submission 23, p. 4.

25 Defence, Submission 23, p. 4.

26 Defence, Submission 23, p. 3.

27 Defence, Submission 23, p. 3.

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Scope 2.30 Defence also highlighted that it is 'investing in space and cyberspace capabilities, in recognition that both domains underpin all effective military operations', noting:

The geographic restrictions under the Bill in the proposed new subsection 29A(2) do not capture the domains of space and cyberspace, creating uncertainty regarding Parliamentary approvals for decision-making in these domains'.28

Conclusion 2.31 As in its 2010 report, the committee acknowledges that the authority of the government to make decisions regarding the commitment of Australian forces overseas follows a long-established convention.

2.32 While noting that some countries, to varying degrees, require parliamentary approval before their military forces can be deployed, the committee also notes that such comparisons are complicated by the major differences in the political history and constitutional frameworks of these countries together with their various nuanced positions.

2.33 While submitters focused on the seriousness of committing to deploy the ADF overseas, the committee notes that there was not unanimous agreement on who should make the decision. The bill requires both Houses of Parliament to agree but other suggestions were that a joint sitting of parliament should be held or that the House of Representatives alone approve the decision.

2.34 The key issue before the committee, however, is whether this bill provides an effective alternative to the current practice. The committee notes that while supporting the intent of the bill, as for the 2008 bill, the support from many of the submissions was at the level of broad principle and did not refer to the provisions of the bill and how it would work in practice. This approach did not assist the committee in its analysis of the practical application of the provisions. As in 2010, the committee is again left with concerns about how certain provisions of this bill would operate in practice as deficiencies listed in the 2010 report have not been ameliorated in this bill. The committee also has concerns about unintended or unforeseen consequences.

2.35 Concerns remain about the disclosure of classified or sensitive intelligence which may compromise an operation and the safety of Australian or allied forces. The committee notes that it remains unclear how parliamentary debate and decision making under the circumstances proposed by the bill would be any more informed and effective than the status quo as there is likely to be intelligence of a sensitive or classified nature which cannot be provided to all parliamentarians for public debate due the risk of disclosure. As in 2010 the

28 Defence, Submission 23, p. 3.

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committee is not convinced that the bill appreciates security implications and the need to take account of the appropriate and secure use of classified material. The committee also stresses that members of parliament would be asked to make this important decision without a full understanding and appreciation of all the circumstances which could compromise the safety of the ADF.

2.36 The committee also is left with concerns that the process outlined in the bill would reduce the flexibility needed in Australia's complex and uncertain strategic environment. The process also risks providing a tactical and strategic advantage to adversaries in terms of broadcasting key information during debate and by the two-monthly reports to the parliament proposed in the bill. Also the bill would reduce the flexibility for the ADF to undertake covert or pre-emptive activity which may reduce the risk to ADF personnel. The committee does not condone the possibility of compromising operations or the operational security of ADF personnel.

2.37 Concerns about unintended consequences also remain where forces have been dispatched in an emergency but parliamentary approval is not forthcoming which would fundamentally affect Australia's reliability as an ally.

2.38 The committee also notes the advice from Defence that the geographic restrictions under the bill do not reflect the modern strategic environment as they do not capture the domains of space and cyberspace.

2.39 The committee observes that ultimately the government is accountable to parliament and the Australian people. There are checks and balances on executive power through the normal parliamentary process and there is nothing preventing parliamentary discussion of an overseas deployment. As in 2010, the committee is not against the involvement of both Houses of Parliament in open and public debates about the deployment of Australian service personnel to warlike operations or potential hostilities. Indeed there are many parliamentary processes that allow for debate and scrutiny.

2.40 In the absence of detailed measures that have been analysed and found to address the previous and ongoing concerns of the committee, the committee cannot support this bill.

Recommendation 1

2.41 The committee recommends that the bill not proceed.

Senator the Hon Eric Abetz Chair

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Australian Greens Dissenting Report

Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020

Summary  As we reflect on the war in Afghanistan and its aftermath it is vital that we create the space for critical discourse so that we understand the failures that led us there. Part of that work is to safeguard Australia from repeating those

failures and strengthening our democratic processes by building-in accountability measures and dispersing decision-making powers to a greater number of elected leaders.  This is the motivation for the Australian Greens in our proposal for war powers reform under the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020.  Currently, the Defence Act 1903 does not allow for any level of transparent decision making, scrutiny and debate in relation to troop deployment. It is our view that this legislation needs to be amended to enable a more representative and robust decision-making process.  The Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020 inserts a new section 29A into the Defence Act 1903 to require that decisions to deploy members of the Australian Defence Force beyond the territorial limits be made not by the executive alone but by Parliament as a whole. This means debate in both houses, followed by a vote.  This bill also contains a section which provides that, when members of the Defence Force are deployed overseas in the circumstances covered by the section, the Minister for Defence must report in writing to each House of the Parliament every two months on the status, legality, scope, and anticipated duration of the deployment, on efforts to resolve the circumstances requiring the deployment, and on any reasons why the Parliament should allow the deployment to continue. This provision is designed to ensure ongoing transparency and accountability, as well as an opportunity for the parliament to reconsider the decision should the circumstances change.  The Australian Greens believe that retaining a tradition of keeping the prerogative to deploy our defence forces within the decision-makers of the executive is antiquated and undemocratic. Instead, we must undergo a process of change that would see all elected leaders within our federal parliament accountable for this decision. The outcome of such an evolution in process is that our democracy is strengthened as the capacity for a small group of people to make erroneous and deeply consequential decisions is

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checked against the will of the public through robust parliamentary scrutiny and transparency.  The Australian Greens would like to thank those who made submissions to the inquiry as well as the broader community who continue to campaign for

war powers reform. The momentum for change is building and the Greens are proud to work alongside those in our community who understand the urgent need for change.  War is a political decision which carries with it the most profound risks and consequences. We cannot continue to allow for such a significant decision to be made by a few powerful politicians. This bill presents the Australian parliament and the public with the opportunity to meaningfully debate what an alternative could be.  It is, therefore, incredibly frustrating to have this conversation and debate about war powers stifled by an inquiry process that refuses the opportunity for public hearings. We submit that this would invariably allow for greater scrutiny and analysis of the current process and the proposal before us.  The majority committee report relies on the same set of untested concerns raised during the 2010 inquiry in which this same committee refused the Greens request for a public hearing. Those concerns are that this bill presents insurmountable challenges predicated on the practical concerns of the disclosure of sensitive intelligence and the potential diminished flexibility needed for deployment. The Greens do not agree that these questions jeopardise the effectiveness and need for this bill, and we further submit that these challenges could have been effectively addressed through a public hearing process.  Instead, however, as we saw with the 2010 inquiry, we again see the majority membership of this committee dismiss the need to open this inquiry up for public hearings. This is not democratically sound, and it suggests the continued unwillingness of the Labor and Liberal/National parties to concede the principle that the decision to go to war must stretch beyond the remit of their respective executive leadership when in government.  The Australian Greens reiterate the fundamental need for war powers reform and the merits of this proposal that have previously been highlighted, including through the Greens dissenting report to the 2010 inquiry.  We believe the proposed reform will ensure that a peace-focused approach is brought to our defence force and that members of parliament will be held to account for the consequences of sending Australians to war.

The impetus for change  Australia fought a long, costly, and ultimately futile war in Afghanistan. The heaviest cost was carried by the Afghan people with thousands of

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civilians killed and injured as the US-led campaign transitioned into a long, untenable occupation.  Further, data collections demonstrating the extent of damage from the post 9/11 wars paints a harrowing picture of the scale of loss and suffering

caused by US-led wars. The Cost of War project at Brown University data shows that as of April 2021, approximately 71 000 Afghan and Pakistani civilians had lost their lives as a result of the war in Afghanistan,1 and between 184 382 - 207 156 civilian deaths occurred during the illegal occupation and war in Iraq.2  Successive Australian governments of both major parties share the decision-

making responsibility for Australia’s involvement in the 20-year war in Afghanistan. This seemingly endless conflict persisted without clear, overarching objectives to the detriment of the Afghan people and to the Australian troops who deployed there for so many years.  The release of the Inspector-General of the Australian Defence Force

Afghanistan Inquiry Report (the Brereton report) has provided invaluable insight into some of the most serious consequences of Australia’s protracted involvement and unclear purpose in the war. The findings of the report demonstrated that in lieu of an overarching strategic objective Australian Special Forces soldiers may not have acted lawfully in carrying out their mission. In his report, Justice Paul Brereton detailed both cultural and leadership failings, as well as 36 separate incidents, involving 25 special forces soldiers, resulting in the potential murder of 39 Afghan civilians, including children, and the torture of two others. Justice Brereton also found that commanding officers either turned a blind eye to sanitised reporting, failing to ask the right questions about high kill counts and questionable evidence, or were so disengaged from the troops on the ground that they simply did not know what was going on. Both of these scenarios account for the failures of individual perpetrators, an ineffectual chain of command, and an uncritical political leadership who continued the deployment for so long.  The volatile and secretive nature of military deployment decisions in

Afghanistan makes it very clear that no leader alone should make decisions such as this on behalf of the whole nation.

1 See The Cost of War Project, Brown University,

https://watson.brown.edu/costsofwar/figures/2019/direct-war-death-toll-2001-801000, accessed 24 November 2021.

2 See The Cost of War Project, Brown University,

https://watson.brown.edu/costsofwar/figures/2019/direct-war-death-toll-2001-801000, accessed 24 November 2021.

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 The Australian Greens believe that involvement in military actions has broad and long-lasting consequences, including economic and social costs to those directly involved, their families and the community. As was stated by the Independent and Peaceful Australia Network in their submission to the inquiry:

“The deployment of troops overseas, outside of Australia’s territorial landmass and waters, is a matter of extreme importance, and should be avoided at all costs, except for peacekeeping activities. War is the epitome of the failure of human relations and causes untold death and misery, including leading to millions of refugees worldwide, as well as causing destruction of the built and natural environment.”3

 The majority of the submissions made to the inquiry gave support for the intentions of this legislation and for war powers reform. Further, there is now overwhelming public consensus on the need for war powers reform in Australia. As was noted in several submissions to the inquiry, and indeed in the majority committee report, a recent Roy Morgan poll from late 2020 found that 83.3 per cent of Australians want parliament to decide whether troops are sent into armed conflict abroad.4 Australians for War Powers reform submitted that this number was now at about 87 percent. 5  Further, as was stated by Emeritus Professor Louise Edwards in her

submission to the inquiry:

“In promoting the importance of democratic governance, Australia needs legislation that reflects the values of consultation and open debate. Currently we do not manifest these values in our laws on participating in military conflict. We are out-of-step with our global peers and democratic norms in this respect.”6

 Australia is one of the few remaining democracies that can legally deploy its defence forces into conflict zones without recourse to the parliament, instead, this power is held in the hands of our executive. As was stated in submissions made to the inquiry, this is inconsistent with the practices of other democracies around the world who have enacted reforms which empower elected parliaments to have a material stake in the decision to go to war.  To this end, the Australia Institute submitted that:

3 Independent and Peaceful Australia Network, Submission 19, p. 1.

4 Majority Committee Report, p. 6. See also Independent and Peaceful Australia Network,

Submission 19, p.2; Quaker Peace and Legislation Committee, Submission 8, p. 1; Humanists Victoria, Submission 14, p. 1; Ms Lorel Thomas, Submission 16, p. 3; Marrickville Peace Group, Submission 18, p. 1. See details of the survey conducted at https://www.besureonwar.org.au/overwhelming-support-for-war-powers-reform-roymorgan-poll/ accessed 24 November 2021.

5 Australians for War Powers Reform, Submission 11, p. 4.

6 Emeritus Professor Louise Edwards, Submission 15, p. 1.

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“It is clear that there is a growing tendency on the part of democracies that are aligned with Australia for their national Executives to refer matters of critical national importance to their parliaments. This is not simply a response to the growing need for proper accountability by governments for their decisions and action. It is also a recognition that the legitimacy of an Executive’s decisions and actions is increasingly dependent on the support of the Parliament, the people’s representatives. Untrammelled power is a danger to any democracy. It is also a danger to the Executive itself, since the refusal to seek the endorsement of the Parliament undermines the authority and credibility of the Executive and will almost certainly, in any healthy democracy, precipitate the expression of no-confidence in the Executive and its inevitable fall.”7

 The Australian Greens are deeply concerned that in the absence of war powers reform we risk the possibility of repeating the mistakes of the past. As was stated by former Senator Scott Ludlam in his second reading speech to this bill in 2008:

“The absence of appropriate checks and balances on this decision-making power saw the Australian Prime Minister rapidly deploy troops to an illegal war in Iraq in 2003 without consulting the people’s representatives in Parliament. A lesson can and must be learned from this kind of mistake, which is more easily made when a handful of people take closed and secret decisions on behalf of a nation without due consultation or participation. The Howard government was the first government in Australia’s history to go to war without the support of both houses of Parliament. This bill provides an opportunity to ensure this never happens again.”8

Addressing concerns with the current proposal

 The majority committee report restates the opposing arguments of 2010 inquiry: that this bill gives insufficient weight to the operational necessities of secrecy and flexibility needed for deployment of the ADF abroad. However, the Greens disagree with these arguments for several reasons. We reiterate the analysis provided in our 2010 dissenting report which directly addressed these concerns.

 Firstly, in relation to the concern about the disclosure of sensitive information in the public domain, the Greens 2010 dissenting report states that:

“An argument made by opponents of the Bill is repeated in the Committee's report implying that a parliamentary debate necessarily involves the disclosure of classified military and strategic information. Proponents of this argument miss the point that it is not a military decision to go to war, it is a

7 The Australia Institute, Submission 12, p. 9. See also The Australia Institute, Submission 12, pp. 4-6;

Professor George Williams AO, Submission 1, pp.1-2.

8 Senator Scott Ludlam, Australian Greens, Second Reading Speech, Proof Senate Hansard,

https://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansards/2008-09-17/0086/hansard_frag.pdf;fileType=application%2Fpdf , p. 2.

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political decision. This Bill calls for the government of the day to make the case as to why peaceful diplomatic efforts are exhausted and force is the only option. This is a political debate, not a military one. Arguments, clear goals, a risk and cost benefit analysis is envisaged, not the disclosure of classified military information about the placement of military assets or personnel that would compromise the country's security.”

 The Greens maintain this view and submit that operational concerns and the safety of ADF personnel are not jeopardized by the current proposal.  Secondly, in relation to the concern about flexibility and rapid deployment. The current bill makes exemptions to avoid interfering with the non-warlike

overseas service with which Australian troops are engaged - referring in particular to new subsection 29A(11). There are also appropriate exemptions in the Bill to provide for the practicalities of situations where Parliament cannot immediately meet - referring to subsections 29A(3) and (7), which provide for the Governor-General to be able to make a proclamation regarding the declaration of war, provided that Parliament is then recalled within a period of two days.  Further, expert evidence provided during the course of the 2010 committee

inquiry by Brigadier (retired) Adrian D'Hage and former Defence Secretary Paul Barrett AO, both of whom had senior responsibilities for Australia’s engagement in East Timor, provided strong support for the feasibility of parliamentary debates and votes ahead of any military deployment abroad.9 It is our view that their perspectives on the practical and logistical realities of deployment remain relevant today and should be considered in contrast to evidence provided by Defence.  The majority committee report states that:

“The committee observes that ultimately the government is accountable to parliament and the Australian people. There are checks and balances on executive power through the normal parliamentary process and there is nothing preventing parliamentary discussion of an overseas deployment. As in 2010, the committee is not against the involvement of both Houses of Parliament in open and public debates about the deployment of Australian service personnel to warlike operations or potential hostilities. Indeed there are many parliamentary processes that allow for debate and scrutiny.”10

 This view suggests that the status quo is satisfactory. The Australian Greens and the broader community do not share this view. We submit that existing parliamentary processes such as Matters of Public Importance/Urgency debates, questions and motions are often dismissed by the major parties for being too complex or sensitive and therefore aren’t given appropriate time and consideration. Further, existing processes do not allow for the

9 See Foreign Affairs, Defence and Trade Committee Majority Committee Report, Defence

Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2], p. 31-32.

10 Majority Committee Report, p. 11.

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parliament to have genuine decision-making power in relation to this issue. Neither the House of Representatives, nor the Senate hold the power to vote and decide on deployment.  It is the Greens’ view that the decision to go to war must be one taken by the

whole of the parliament. Like many other aspects of our democracy, this process must evolve to reflect the will of the community, and it must evolve to safeguard against the abuse of such a significant power.

Conclusion  It is well past time that the Australian parliament committed itself to war powers reform. This bill is currently the only proposal before the parliament that seeks to remedy the disconnect between community expectations and

the reality of our existing decision-making processes for deploying the Australian Defence Force abroad.  The Greens note the constructive and positive engagement that many submitters have made to the inquiry, and we thank those who have sought

to strengthen this reform to ensure long-term effectiveness and relevance.  As was stated by Senator Steele-John in his second reading speech to the bill:

“The Australian Greens have the view, alongside the community, that we should, as I say, never again participate in one of these colonial wars of aggression. Our goal must always be peace, and it is not lost on any member of our community that at the time of both of these engagements there was great community uprising and opposition to them, which was blunted again and again by the absence of an opportunity to pressure members of parliament into reflecting that view in the parliament, in their chambers. This bill would ensure that, should America or any other power ever ask us to go with them into war, should an Australian Prime Minister ever again come before the nation and make a case for war, that would have to be fully and transparently scrutinised by the parliament not once but continually over the life of the deployment, the goal being to bring that deployment to an end and restore peace.

Perpetual war at the behest of the United States must be a thing of the past. We must consign it to the dustbin of history. The blood that has been spilt, the lives that have been ruined, the countless decimated villages of Afghanistan and Vietnam and Iraq call on us to take this action, as do the mortally wounded, the maimed psyches of so many of our returned service personnel, who did a job that they should never have been asked to do, in an environment they should never have been asked to work in, to an unclear brief that was beyond their skillset or their training. The worst thing of it all, the worst shame of it all, is that prime minister after prime minister, defence minister after defence minister, one after another, the politicians in this place, knew. They knew that there was no point to these conflicts other than serving America's interests. They knew that there was no way out. They knew that there was no clear purpose, yet they kept sending Australian personnel over there and they kept a presence in a nation which caused incredible harm and damage.

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There must be political transparency. There must be political accountability. This parliament, representative of the community, must take upon its shoulders the full responsibility of ADF deployment. It is not good enough that the closest many MPs get to the reality of warfare is shaking the hand of a veteran on Anzac Day or participating in carefully stage-managed exchanges in nations like Afghanistan. It is not good enough. If the families of Australian service personnel have to sit up through the night wondering whether their loved ones are okay, if the families of folks in Afghanistan have to sit up through the night wondering whether the throw of that chopper means the Red Beards are inbound, that of their loved ones is going to be taken, then MPs too should sit with that burden, should sit up through the night wondering if the case was good enough, feeling the responsibility. This we must do. This is what this legislation is focused on, and I commend it to the Senate.”11

Recommendation

 That the Foreign Affairs, Defence and Trade Committee and federal parliament commit to conducting a future inquiry which allows for public hearings so that the discussion of this legislation and the broader issue of war powers reform can take place in earnest.

 That this legislation pass.

Senator Jordan Steele-John Australian Greens

11 Senator Jordon Steele-John, Australian Greens Spokesperson for Peace and Disarmament, Proof

Senate Hansard, https://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansards/81b7ec3e-54cf-41ce-afdf-ee4406fb40c6/0019/hansard_frag.pdf;fileType=application%2Fpdf , p. 3.

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Appendix 1 Submissions

1 Professor George Williams 2 Mr Robert Heron 3 Mr Wayne Richmond 4 Mr Peter Valentine 5 Dr Malgorzata Schmidt MD, PhD 6 Name Withheld 7 Mr Scott MacInnes 8 Quaker Peace and Legislation Committee 9 Mr Geoffrey Taylor

 9.1 Supplementary to submission 9  9.2 Supplementary to submission 9

10 Mr Nick Deane 11 Australians for War Powers Reform 12 The Australia Institute 13 Mr Max Atkinson

 13.1 Supplementary to submission 13

14 Humanists Victoria 15 Emeritus Professor Louise Edwards 16 Mrs Lorel Thomas 17 Mr Justin Tutty 18 Marrickville Peace Group 19 Independent and Peaceful Australia Network 20 Mr Benjamin Cronshaw 21 Medical Association for Prevention of War 22 Name Withheld 23 Department of Defence