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
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.
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.
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.
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 through a ministerial statement or tabled papers. This invariably is followed by debate and vote on a motion.
Support for the bill
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
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.
The importance of considering the significant human, economic and environmental costs of war was highlighted by the Medical Association for Prevention of War (Australia).
Approaches in other democratic countries
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.
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.
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 debate and investigation by parliament before any decision about the use of military force is made.
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.
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.
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.
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.
Previous decisions to send troops overseas
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.
Public opinion supporting reform was also cited to support the bill. 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. Australians for War Powers Reform submitted that the percentage 'has since grown to 87 percent'.
However, there was not unanimous agreement on the bill with submitters suggesting alternative processes or additional amendments.
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.
The suggestion of the joint sitting was supported by Mr Scott MacInnes 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.
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.
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;
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.
Issues with the bill
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
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.
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.
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.
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.
Risks to the ability of Defence to respond flexibly and in a timely manner
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.
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'.
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'.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
The committee recommends that the bill not proceed.
Senator the Hon Eric Abetz