Nick Xenophon (SA, Nick Xenophon Team) Share this | Hansard source

I advise on behalf of my colleagues that we support this motion. It is critical that we debate this issue as a matter of urgency, because the impact on Australia of being involved in a conflict in the Korean Peninsula and beyond, including the possibility of a nuclear conflict, would be profound. It would have the most profound effect on Australia since World War II. We can't sleepwalk into a war. We need to heed the words of former heads of Defence in this country who have expressed caution on the need for a parliamentary debate. But I want to make it clear that we believe that, while the debate is urgent and essential, there is a different approach that should be taken. I'm grateful for the considered work of Professor Clinton Fernandes of the University of New South Wales and others in relation to this. I believe that parliamentary authorisation is workable and can be formulated in a suitably flexible way that takes a variety of contingencies into account, protects the security of classified information and copes with the time-sensitive nature of emergency military deployments.

Flexibility can be preserved by distinguishing between wars of choice and wars of necessity. Wars of necessity refer to military actions taken in self-defence that require the use of rapid and/or covert military force. Such wars may involve deployments beyond the territorial limits of Australia. The executive must have the freedom to act without parliamentary authorisation when it does so in self-defence. This is provided for in article 51 of the UN charter. The executive must also have the freedom to act pre-emptively without parliamentary authorisation when the threat to Australia is instant and overwhelming, leaving no choice or means and no moment for deliberation, as the UN charter reflects. In time-sensitive wars of choice, defined as coalition operations under chapter 7 of the UN charter, with a request for assistance from a legitimately constituted government of a state, the executive must be required to provide parliament with a certification that an instantaneous response is needed. This would notify parliament of the reasons for the deployment, the legal authority, the expected geographical extent, the expected duration and the number of ADF personnel involved. Parliament can then choose to persist with or revoke a deployment post facto. Such a rule would bring Australia up to the same standard as Germany and Norway—both NATO allies, with far more compelling treaty obligations than ANZUS.

In terms of security, given the need to preserve tactical and strategic surprise, no parliamentary approval need occur when military commitments take the form of special forces deployments or a decision to send Australia's submarines to a conflict. A consistent objection over 30 years of legislative proposals is that only the executive has access to or can be trusted with the intelligence information required to decide whether to deploy troops. A solution to this would be to empower the Parliamentary Joint Committee on Intelligence and Security, the PJCIS, or the foreign affairs and defence subcommittees of the Joint Standing Committee on Foreign Affairs, Defence and Trade or the Senate Standing Committees on Foreign Affairs Defence and Trade such that they have access to the relevant intelligence information. Such a move would put us in line with the USA, with the intelligence committees and judiciary committees in the Senate and House of House of Representatives being regularly briefed about all authorised intelligence collection programs and relevant members of congress receiving detailed briefings prior to such reauthorisation.

In addition, the US executive is required to brief select groups of congress men and women on specific types of operations before they take place. Members of the so-called Gang of Four, comprising the chairpersons and the most senior opposition members of the House and Senate intelligence committees, receive briefings on sensitive non-covert intelligence programs, such as highly sensitive intelligence collection programs. The Gang of Eight, comprising the Gang of Four and speakers and opposition leaders of the House and the Senate, receive briefings from the executive on forthcoming covert actions without having the power to approve or veto executive plans. This preserves executive freedom while ensuring a check on executive over-reach. Furthermore, all members of the House and Senate intelligence committees and their key staffers are regularly provided with extended footage of completed operations involving, for example, drone strikes. No such provision exists in Australia. Such a system of oversight would also bring Australia up to the same standard as NATO states such as Norway and Germany. Thus, in contrast to objections that Australia's ANZUS obligations constitute a special case that makes special legislative involvement unworkable, it can be seen that Norway and Germany, which have much more demanding treaty obligations through NATO, are perfectly able to ensure legislative involvement. Unlike Canada or the US, Australian senators are directly elected; thus a joint sitting of parliament would be a possible option. That is why we support this motion.