War Powers Inquiry: “just as Britain has the Gurkhas, the Americans have us?”

The Parliamentary Inquiry into War Powers heard the pros and cons of a parliamentary vote to go to war versus the status quo, that is, the Prime Minister alone can make the call. Zacharias Szumer reports on the hearings and the big points of concern.

Civil society groups, veterans and all who have long fought for a greater democratisation of the way Australia goes war finally got their day in parliament on Friday, with what may be the one and only hearing of the Inquiry into International Armed Conflict Decision Making.

Over five hours, those both for and against reform were questioned on the arguments made in their submissions by members of the defence subcommittee of the Joint Standing Committee on Foreign Affairs, Defence and Trade (JSCFADT). Debates ranged from complex Constitutional questions to the toll of war on veterans’ mental health. However, there were several themes that consistently loomed over the proceedings. 

Intelligence and secrecy 

One of the primary arguments made against parliamentary war powers was that, for the parliament to make informed military decisions, it would need access to confidential intelligence. Ostensibly, this intelligence would feature in parliamentary debates over a potential military deployment and would thus become public knowledge. 

A submission made by the Australian Strategic Policy Institute (ASPI) argued that “important operational concepts requiring high levels of secrecy … are incompatible with pre-notification. Government discretion on when to notify, taking into account intelligence agency and allies’ security assessments, is vital to Australia’s defence.”  

At Friday’s hearing, a Department of Defence representative said that “understanding … what a potential adversary’s objectives may be, the manner by which they pursue those objectives, the timelines or intent and insights that we may have into their plans to achieve them—most often that information is derived from highly sensitive information or intelligence.” 

A public discussion “risks the sensitive information that has been provided, often by countries other than our own, who may source it,” he added. 

Secrecy excuse

Australians for War Powers Reform President Dr Alison Broinowski pushed back on this argument, saying that classified information “is not the kind of thing that we would necessarily expect to be shared with each and every parliamentarian.” Instead, “what would be disclosed would be the nature of the threat, the capacity of Australia to meet it and the necessity for Australia to do so. None of that needs to be classified information.” 

“I used to be a diplomat. I was top security cleared too… A lot of the stuff that is highly classified has to do much more with what I said about the sources of information … and about what to about it in a strategic or tactical fashion, than the matters that I was just referring to,” she added.

Referring to the intelligence about the “weapons of mass destruction” used to justify the Iraq War, Dr Broinowski added that “when we talk about the value of intelligence, and how important it is to protect it in the parliament, it needs to be reliable intelligence or it’s not worth having.” 

I hope they don’t mean that, just as Britain has the Gurkhas, the Americans have us. If that’s what they mean, their view should be rejected in favour of Australian sovereignty and parliamentary authorisation

Grave concerns  

Those opposed to reform often argued that parliamentary approval would delay the type of swift action that gave a nation tactical advantage in combat. Potential hold-ups combined with the public release of confidential intelligence would lead to greatly increased risk for Australian soldiers, it was argued.

The ASPI submission expressed “grave concerns about any mandated requirement for pre-notification of deployment, as it would put ADF personnel at addition risk and damage Australia’s national security.” The Department of Defence submission said that further democratic control could “lead to potential implications for the ADF’s operational security” and “the ADF’s relative strategic and tactical advantages over adversaries”.

At one point in the hearings, Greens Senator Jordon Steele-John pressed members of ASPI to provide specific examples of instances in which parliamentary approval in other countries had brought harm to military personnel. 

ASPI and Defence duck the questions

Dr Alex Bristow, ASPI’s Deputy Director of Defence, Strategy and National Security, said he would prefer “to stick to examples that are relevant to Australia” and referred to the argument made in ASPI’s submission that “comparisons between democratic systems are fraught with risk of misinterpretation and false equivalence”. He parried repeated attempts by Senator Steele-John to redirect him towards providing specific examples. 

Neil James, executive director of the Australia Defence Association, said that “the countries that have these types of restrictions, generally speaking, are Western European NATO countries, that haven’t been in a serious war since 1945”.  After asking for a fourth time, the Senator requested that the participants take the question on notice, saying that he’d prefer “to be actually engaging in a debate around actual tangible examples, rather than a theoretical discussion.” 

The question was asked again in a later session with Department of Defence personnel. The department’s acting deputy secretary of strategy, policy and industry Stephen Moore said that there was “evidence on the public record where restrictions that have been placed on countries’ militaries have resulted in their ability to operate effectively with partners.” When asked if he’d share those examples, Moore said that he would “leave that to the committee to look at” as “it would be impolite” to point these examples out.

Are we America’s Gurkhas? 

Another point of contention concerned the effect of parliamentary war powers on Australia’s standing as an ally. The Department of Defence submission argued that parliamentary approval “could undermine the confidence of our international partners as a reliable and timely security partner in support of regional and global stability, with significant diplomatic impacts.” Similar arguments were made by members of ASPI during the hearings. 

The precise nature of this concern was called into question by Professor Clinton Ferdandes, who said, “I hope they don’t mean that, just as Britain has the Gurkhas, the Americans have us. If that’s what they mean, their view should be rejected in favour of Australian sovereignty and parliamentary authorisation.” Gurkhas are soldiers from Nepal and Northeastern India who have regularly served in the British military over the last 200 years. 

Fernandes has previously argued that war powers reform has long been stymied by Australia’s sub-imperial relationship with the US. “Australian strategic planners understand that [not giving the Australian parliament war powers] means a reduction in sovereignty, but they accept it because it achieves a higher objective — upholding US imperial power,” he told MWM earlier this year.  

Fernandes also argued that countries such as Germany, Norway and the Netherlands have remained partners of the North Atlantic Treaty Organisation (NATO) despite having higher levels of parliamentary approval. “If a NATO member is attacked, there’s no parliamentary debate … but if you need to send troops to Afghanistan, or renew a commitment to Afghanistan, then the Netherlands’ parliament has to first approve it,” he said.

Compromise and consensus 

At several points in the hearings, the committee members and guests explored the idea of broadening democratic participation in military matters without legislating a requirement for parliamentary approval.

“We could have legislation that would require the executive to consult parliament and seek its support prior to the executive making the final decision,” said Scott MacInnes, a retired Barrister and Solicitor, government lawyer, former part-time consultant to The Human Rights and Equal Opportunity Commission.  

“This wouldn’t affect the ability of the executive to make the final decision, but it would give the executive the opportunity to seek the wisdom of parliament … and that, I hope, would aid its decision-making capacities,” said Mr McInnes, who still considers a requirement for parliamentary approval to be his preferred option.

Senator David Fawcett made several references to a 2018 JSCFADT policy proposal called “Contestibility and Consensus”, which recommended the establishment of a statutory Joint Parliamentary Committee on Defence to improve engagement between the Parliament and defence force. At the hearings, it was argued that such a body could receive confidential intelligence with regard to potential military information. 

Some speakers, including MacInnes and Fernandes agreed that the “Contestibility and Consensus” proposal deserved further consideration. However, McInnes said that such a body should be “additional to, and not instead of, the requirement for parliamentary scrutiny.” 

Professor Fernandes said that if such a body received confidential information, “everybody in parliament could then watch and see, if those who have actually heard the intelligence and seen the intelligence, how are they going to vote? And that’s how everybody else would vote.” 

The committee gave no indication of when it was planning to release its final report. 

They represent us in parliament, but MPs say declaring war is above their pay grade