PAUL BARRATT: Time to involve Parliament in decisions about sending the ADF into combat.

Mar 20, 2018

Today 20 March is the 15th anniversary of the invasion of Iraq by the so-called “Coalition of the Willing” which was led by the US and included the UK, Australia and others. Far from making the world safer, and establishing Iraq as “a shining beacon of democracy” as its proponents proclaimed it would, the invasion has left in its wake violence, instability, the rise of ISIS (directly attributable to the invasion and occupation) and a permanent reshaping of the political order in the Middle East. We never undertook a Chilcot-type inquiry here, but one lesson is clear – we cannot afford to leave decisions about sending the ADF to war in the hands of Executive Government – which means, in effect, the Prime Minister.

The invasion of Iraq is a good exemplar of why we cannot afford to leave the power in the hands of so few people. The alleged weapons of mass destruction did not exist, the war was illegal (43 Australian experts on international law said so at the time, as did former Solicitor-General Gavan Griffith), and the Government failed to obtain the authorisation of the Governor-General as required by the Constitution.

The only way to ensure that future combat deployment decisions are based on sound evidence and sound law is to require that they cannot take place without the authorisation of Parliament, and to establish procedures by which Parliament could take a fully informed decision.

My ideal version of the legislation to provide for this would state that members of the Australian Defence Force (ADF) may not be required to serve beyond the territorial limits of Australia except in accordance with a resolution by both Houses authorising the service.

I would then carve out certain standing exceptions to the rule requiring Parliamentary authorisation. For the purposes of the legislation, service beyond the territorial limits of Australia would not include service:

  • pursuant to their temporary attachment to the defence force of another country
  • as part of a United Nations Security Council authorised peacekeeping force
  • for the provision of humanitarian assistance following a natural disaster
  • as part of an Australian diplomatic or consular mission
  • on an Australian vessel or aircraft not engaged in hostilities, or in operations during which hostilities are likely to occur
  • for the purpose of their education or training
  • for purposes related to the procurement of equipment and stores

Regarding the deployments for which authorisation is required, it is fundamental to the purpose of the legislation that Parliament be put in a position to make an informed decision. Accordingly, the legislation would provide that prior to any resolution being put to the vote, the Prime Minister and the Leader of the Government in the Senate would table in their respective houses a document which sets out the reasons for the proposed deployment, the end-state that the deployment is intended to achieve (what success would look like), the expected geographical extent of the proposed deployment, the expected duration, the number of ADF members to be deployed, and the expected cost.

The document should also contain the Government’s best estimates of impacts, and means of mitigating them or making restoration: humanitarian impacts, environmental and human security impacts, and the likely impacts on ADF personnel themselves.

The Government’s advice to the two Houses would be required to include:

  • An unclassified report prepared by a Joint Committee of the Parliament that is able to receive classified information, advising the Parliament on the matters noted above, including advice from relevant humanitarian agencies regarding humanitarian impacts. This process would ensure that Parliament has access both to the Government’s official assessments – a useful accountability measure – and a cross-party assessment.
  • Jointly written advice from the Attorney-General and Solicitor-General on the legality of the proposed military operations under international law and Australian domestic law. In the event that the Attorney-General and the Solicitor-General are unable to agree, the advice from each should be tabled, with an exposition of the points of law at issue.

In the event of an emergency which renders it inexpedient for the required Parliamentary resolutions to be obtained the Governor-General, after receiving a written report from the Prime Minister advising on the matters at noted above – including the legal advice – may by Proclamation declare that an emergency exists, and the ADF could be deployed in accordance with that Proclamation. The legislation would require that the Proclamation and the Prime Minister’s advice be published within 24 hours, and laid before each House within 48 hours. If it is proposed that the operation continues beyond 30 days from the date of the Proclamation, authorisation would have to be obtained in accordance with the normal procedures set down in the legislation.

While members of the Defence Force are serving beyond the territorial limits of Australia the Minister for Defence would be required to report regularly in writing to each House of the Parliament, commencing within 2 months after each deployment, including in the report information on the following:

  • the status of each such deployment, including its legality, scope and anticipated duration;
  • what efforts have been, are being, or are to be, made, to resolve the circumstances which required such deployment;
  • whether there is any reason why the Parliament should not resolve to terminate such deployment.

If our deployment decisions were to be taken in accordance with a scheme such as the above, there would be much better prospects for sober decision-making which takes account of all the available information and expert opinion, both Parliament and public would be far better informed as to the reasons for the decision. By such means, we would hope in the future to avoid such catastrophes as Vietnam and the invasion of Iraq.

Paul Barratt AO is President of Australians for War Powers Reform. He is a former Secretary of the Department of Defence.

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