During a segment on war powers reform on ABC TV’s current affairs program Lateline (25 August – see http://www.abc.net.au/news/2016-08-25/mps-call-for-iraq-war-inquiry/7786424 ) Australian Strategic Policy Institute Executive Director Peter Jennings expressed opposition to parliamentary involvement in decision-making about deployment of the ADF, saying:
If you look at how parliaments are structured, you’re really saying that you’re going to leave decisions to go to war to a handful of crossbenchers in the Senate,” he said.
So if we were to have a debate today about deploying, that means it’s going to be Jacqui Lambie, Pauline Hanson and her supporters. It’s going to be Nick Xenophon. Are they the people we want to give Australia’s war powers to?
This argument is disingenuous to put it at its most charitable. The key determinant of whether or not a motion to deploy the ADF into international armed conflict would pass both Houses of Parliament is whether or not the Government of the day can persuade the Opposition that our national security and/or the nation’s vital interests are at stake. If the Opposition votes with the Government, the views of the minority parties cannot affect the outcome.
If the Government cannot persuade the Opposition, the case for the use of armed force can hardly be a compelling one and we would be well advised to desist. The two occasions on which the Opposition opposed a deployment were Vietnam and the 2003 invasion of Iraq. I rest my case.
Four principal arguments against Parliamentary involvement are raised by those who wish to preserve the status quo.
The first of these is the argument that minor parties might block the necessary resolution in the Senate. For the negative vote of a minor party to be effective, however, it would be necessary that there also be a negative vote from the major Opposition party: the combined votes of Government and Opposition would make the views of the minor parties irrelevant (see above). As it is difficult to conceive of a major (or indeed a minor) party voting against deployment of the ADF at a time when the nation is genuinely under threat, this sounds more like a concern that the involvement of the Parliament would make it more difficult for the Government of the day to inject the ADF into wars of choice – which is of course the whole point of the exercise.
Another argument is that the Parliamentary process will take too long. This reveals a lack of understanding of the readiness levels at which most of the Australian Defence Force is held. Apart from the Ready Reaction Force at Townsville most combat elements of the ADF are held at a low state of readiness. Quite properly, most units are not maintained in a battle-ready state, and before they can be deployed a major investment in both personnel training and materiel is required in order to bring them up to the required standard.
A third argument – one often regarded as the supreme card to play – is that the Government might have access to information or intelligence which it cannot reveal.
This is an argument that simply cannot be accepted within the framework of a Westminster-style Parliamentary system. While it is certainly true that a government may be in possession of information that cannot be used in Parliamentary debate, it is fundamental to our system that today’s Opposition Leader could be tomorrow’s Prime Minister – even without an election. All that is required for the government to fall is for it to fail to win a confidence motion on the floor of the House of Representatives, at which point the Prime Minister of the day will normally advise the Governor-General to prorogue Parliament and call a general election, but the Governor-General would have the alternative of giving the Opposition Leader an opportunity to test the confidence of the House – as happened in 1975.
This being the case, it is fundamental to our national security that at the very least relevant leading members of the opposition not only be cleared to deal with national security classified information, but that at times of looming threat they be made privy to the available intelligence so that both government and opposition can conduct themselves in relation to the matter in an informed way.
That this is normal procedure is borne out by the fact that, in its uncritical support of the Government’s 2014 redeployment to Iraq, the Opposition made much of the fact that it had received briefings from Government.
There is a more subtle point to be made here. While secret intelligence can be very valuable in giving early warning of and filling out the detail of an emerging threat, situations will be rare in which a direct threat to Australia would emerge without any warning signs being discernible from open sources. Thus whatever secret intelligence the government might possess which confirms its suspicions about an emerging threat, it is safe to assume that for Parliamentary purposes it will be able to follow the commonplace practice of presenting a rationale which derives from open sources, and perhaps simply stating that this picture is confirmed by classified information in the government’s possession, which information has been shared with the Opposition leadership.
Finally, there is the argument that the process would be nugatory because everyone would simply vote on party lines. This may be so, but cannot be assumed to be so. Certainly the history shows that on the occasions when deployments have been debated in Parliament, members have voted on party lines. Historically, however, these debates have taken place against the backdrop of a decision already taken. This brings into play two dynamics. First, there is the feeling of obligation towards the members of the ADF who are being put into harm’s way, the feeling that we should not undermine the morale of the troops by suggesting that they should not be participating in the conflict.
Second, there is the defensive shield: “It doesn’t matter what I think, the decision has already been taken by Cabinet and my job now is to support it and to support the young men and women of the ADF”.
I believe, however, that if Parliament itself were to be the place where the matter is decided, quite a different dynamic would come into play. If the matter is to be put to a vote in both houses, each and every member of Parliament would have to participate in that process knowing that their vote would be recorded and would be a matter of history for all time, no matter how the matter turned out. People who felt strongly about it could not absolve their consciences with the thought that the matter had been taken out of their hands; the matter is very much in their hands, and we may see what looks very much like a conscience vote.
If it turns out that the matter is decided on party lines and the government of the day wins the day, one can hardly complain that there has been a failure of the democratic process.
The Australian public needs to be much more vigilant about the circumstances in which the Australian Government deploys the Australian Defence Force and for what purpose. This vigilance is unlikely to become habitual while a decision to send troops remains the prerogative of the executive — that is, Cabinet, meaning in practice the Prime Minister and a very small group of key ministers — an arrangement which means that a decision, once taken, can be acted upon without significant debate. Vigilance is much more likely to develop if we embrace the republican notion, one which seems fitting also for a constitutional monarchy, that the power to make war should be vested in the legislature. In any polity founded on the principle that power flows from the people to the state, rather than from the state to the people, the spectacle of the executive clinging to the ancient privileges of the sovereign is both an anachronism and an anomaly. We are increasingly out of step with countries to which we like to compare ourselves, and it is high time we made the change to requiring Parliamentary approval for deployment of the ADF into international armed conflict.
Paul Barratt AO, President, Australians for War Powers Reform, Former Secretary, Department of Defence