Julian Hill (Bruce, Australian Labor Party) Share this | Hansard source

On behalf of the Joint Standing Committee on Foreign Affairs, Defence and Trade, I present the committee's report, incorporating a dissenting report, entitled Inquiry into international armed conflict decision making.

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—On behalf of the Joint Standing Committee on Foreign Affairs, Defence and Trade, as the Chair of the Defence Subcommittee, I present the committee's report entitled Inquiry into international armed conflict decision making. This report examined how Australia makes decisions to send service personnel into international armed conflict. I asked leave of the House to make a 'shortish' statement, because this report was tabled out of session but the nature of the report and the topic and the recommendations, committee members felt, warrant the courtesy and the formality of the presentation to parliament in person, and I think, with the exception of one member who made a dissenting report, these comments reflect the sincere and unanimous views of the committee.

The power to declare war and send military personnel into conflict is arguably the most significant and serious institutional power, and the gravest decision that any government can ever make. The committee carefully considered fundamental questions regarding decision-making in relation to international armed conflict and parliamentary oversight, both preceding and during the commitment of the Australian Defence Force.

The committee made seven carefully considered and crafted recommendations, inclusive of the role of the government and the requisite level of appropriate parliamentary oversight; that proposed amendments be made to the Cabinet Handbook;and the opportunity to introduce legislation to establish a joint statutory committee on defence. The committee recommended that the government reaffirm that decisions regarding armed conflict, including war or warlike operations, are fundamentally a prerogative of the executive, while acknowledging the key role of the parliament in considering such decisions and the value of improving the transparency and accountability of such decisions. The committee recommended in particular:

… that the Cabinet Handbook be amended to clarify that:

and also that—

In the event of war or warlike operations the committee noted it is preferable—this is a shift—that section 68 of the Constitution be utilised, particularly in relation to any conflicts that are not supported by resolutions of the United Nations Security Council or by the invitation of a sovereign nation, given that complex matters of legality may arise in public international law. The committee further recommended that a written statement be published and tabled in the parliament, setting out the objectives of such major military operations, the orders made and their legal basis.

The committee further recommended that the government include a new section in the Cabinet Handbook outlining expectations for practices to be followed in the event of a decision to engage in international armed conflict, including war or warlike operations. This should include, firstly, a requirement for parliament to be recalled as soon as possible to be advised, unless this was not possible due to extenuating or inappropriate circumstances; secondly, a requirement that the executive then facilitate a debate in both houses of parliament at the earliest opportunity, either prior to the deployment of the Australian Defence Force or within 30 days of such deployment; and, thirdly, that a debate should occur in the parliament after a formal ministerial statement is made which explains the reasons for the operation as well as a statement of compliance with international law and advice as to the legality of the operation. In practical terms, that draws on precedents that we identified from Prime Minister Howard's time but also from Prime Minister Gillard's time. Also, they should be codified. The committee maintained that these practices should contain the caveat that the Governor-General is able to approve deferral of any of these requirements in specific circumstances such as high risk to national security or imminent threat to Australian territories or civilian lives.

The committee made further recommendations to keep the parliament advised of war or warlike operations, including, firstly, that the government introduce standing resolutions of both houses of parliament to establish parliament's expectations in relation to accountability for decisions in relation to international armed conflict; secondly, that a statement to both houses of parliament be made at least annually from the Prime Minister and government Senate leader and a debate facilitated, the Gillard precedent; and, thirdly, that an update to both houses of parliament be provided at least twice during the year from the Minister for Defence and the Minister Representing the Minister for Defence in the other chamber and, again, debate facilitated. The committee noted that these practices, which, as I said, we suggest be embedded through standing resolutions of both houses, also be replicated in the Cabinet Handbook.

Further, it was recommended that the government revert to a traditional approach whereby defence white papers and national security or strategy updates should be tabled in both houses of parliament within 30 days of their presentation to the minister. We also recommended that the government consider and apply mechanisms to codify this practice such as embedding them in the Cabinet Handbook or by standing resolutions of both houses of parliament. Finally, an important recommendation of the committee was to establish via legislation a new joint statutory defence committee modelled on the Parliamentary Joint Committee on Intelligence and Security. The proposed new defence committee would be able to receive classified information to improve parliamentary scrutiny of defence strategy, policy, capability, development, acquisition and sustainment, contingency planning and major operations. Our report sets out thoughtful and very detailed proposed design parameters for such a committee to ensure the protection of classified information while improving parliamentary scrutiny of defence and national security matters.

In closing, this was a very complex inquiry. It certainly challenged my brain in the understanding of constitutional law, and the committee examined historical precedent going back centuries. Some have said that some of these executive prerogative really flow from the days of monarchs but in our exercise collectively in a democratic context. On behalf of the committee, I extend my thanks and my personal thanks to the many stakeholders and submitters who contributed incredibly thoughtfully to the inquiry and whose carefully formed expert views are acknowledged with respect and were drawn upon in this report. I pay particular tribute to veterans of past conflicts who took the time to come to Canberra and share their thoughts. I know that many of those submitters may not agree in full with where we landed, but, again, we heard them very respectively and have done our best to manage the competing considerations. I also thank colleagues on the committee, who took this inquiry seriously and engaged in the matters of principle as well as the detail.

The final observation I'd make is that there has been some stakeholder and media commentary that somehow the committee was 'leant' on by the executive, or this is a foregone conclusion. I just want to put on the record that we took this seriously. We looked at the evidence, and the report we're tabling represents our considered views—not dictated by anyone outside the committee—and we stand by them. I thank the House.

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