11 April 2010

War Powers Bill: disclosure of intelligence

In War Powers Bill crushed by major parties I commented on the release of the report (downloadable from here) of the Senate Foreign Affairs, Defence and Trade Committee on its inquiry into the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2]. I made a submission to the inquiry jointly with my colleagues Andrew Farran and Garry Woodard (submission downloadable from here).

The majority report's argumentation in support of the preservation of the status quo was flimsy, and in one case bordering on a wilful misunderstanding of a point made in our submission.

The relevant paragraphs of the report state:

2.35     In a submission to the inquiry, Paul Barratt AO, Andrew Farran and Garry Woodard rejected the contention that sensitive information which is known to the Government could not be disclosed to the Parliament. They argued:

...there has been a long tradition in this country, and other countries governed under a Westminster system, of briefing the Leader of the Opposition at times of national peril. If the Prime Minister were unable to convince the Leader of the Opposition of the merits of a proposed deployment, then we would submit that the need for the proposed deployment would be by definition less than compelling.

2.36     They did not mention how classified information would then be conveyed to all parliamentarians including independents and members of minor parties and then discussed publicly without increasing the risk of some form of disclosure of security sensitive material.

The words quoted in paragraph 2.35 refer only to briefing the Leader of the Opposition; there is no reference to disclosure to all parliamentarians.  One would expect the Leader of the Opposition to have appropriate security clearances, and the purpose of briefing him/her would be to obviate the necessity to disclose sensitive information to people who have not been security cleared to the appropriate level.  The concept is that the Leader of the Opposition would serve, on a matter of profound national importance, as a trusted intermediary between the Government and the Opposition. This has ample precedent in Westminster systems.

The extent to which the Leader of the Opposition was willing to serve in that role would depend upon the circumstances at the time and what passed between the Prime Minister and/or Defence Minister and the Opposition Leader, and as we said in our submission, if the Prime Minister were unable to convince the Opposition Leader of the merits of the proposed deployment, then the need for it would be by definition less than compelling.

As for what the Opposition Leader could disclose to the Opposition party room, that could be a matter for discussion and agreement between the Prime Minister and the Leader of the Opposition. Often there would not be much need for disclosure. The Government’s claims about the reasons for a proposed deployment would be in the public domain; the question to be addressed would usually be, how convincing is the evidence?

Provided that the Leader of the Opposition can be convinced to persuade the Opposition to support the Government when the proposed deployment comes to a vote in the Parliament, what the independents and minor parties think becomes irrelevant.

It will be argued by parliamentary purists that this is not an ideal way in which to bring the Parliament into the question of whether to deploy the Australian Defence Force, and of course it is not – there is no ideal way to reconcile the conflicting interests of having a fully informed Parliament, and the requirement to protect sensitive information and the means by which it is gathered. What we are proposing is a practical reconciliation of the conflict to enable the decision making power to be transferred from the Executive to the Parliament, and enable the Parliament to make its decision on an adequately informed basis.

The alternative is to leave the power in the hands of the Executive, limit Parliament’s role to the ritual of a debate about a decision already taken, and leave the Australian community with continuing exposure to the risk of being deceived about the basis for a deployment.

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