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 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 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, and between 184 382 - 207 156 civilian deaths occurred during the illegal occupation and war in Iraq.
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.
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.”
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. Australians for War Powers reform submitted that this number was now at about 87 percent.
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.”
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:
“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.”
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.”
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 Committeeʹs 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 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 countryʹs 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 DʹHage 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. 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.”
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 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.
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.”
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