The following is the text of a presentation I delivered to the Sydney Chapter of the Australian Institute of International Affairs, on the evening of Tuesday 10 February 2015.
Here we go again.
Australia is once more embarked upon military operations in the Middle East, again at the behest of the United States, and again without a clear definition of what the aims are or what we might hope to achieve.
Australia’s stance in relation to this conflict shifted so rapidly – from air-dropping humanitarian supplies to delivering arms and then positioning Special Forces on the ground in a training and advisory role – that it is difficult to imagine that the decision-making was accompanied by the kind of sober decision-making and considered analysis that ought to accompany any decision to deploy the Australian Defence Force (ADF) into international armed conflict.
This evening I want to talk to you about three things:
1. How Australia goes to war. This has changed over the century and a bit since Federation.
2. The risks to which the current system exposes us.
3. My proposed solution, and why the arguments against that solution don’t in my view stand up to scrutiny.
How Australia goes to war
Needless to say Australian practice in relation to the power to declare war has its roots in British practice. In Britain, as legislative and judicial powers were detached from the sovereign over the centuries and given to Parliaments, the power to make war remained clearly within the executive power of the English sovereigns. Today’s practice is a residue of the once theoretically absolute power of the sovereign, but in modern times would only be exercised on the advice of the Government of the day.
This is our starting point, but since Federation there has been 114 years of evolution of Australian practice.
The Commonwealth Constitution does not say expressly who is responsible for declaring war or deploying troops, and for many years after Federation it was uncertain whether Australia even had the power to declare war.
At Federation Australia did not gain full independence. Although section 61 of the Constitution vested executive power in the monarch, exercisable by the monarch, this did not include the power to make war. In both world wars, when the king declared war on the advice of his UK advisers, Australia was automatically at war as well.
In 1942 Australia adopted the 1931 Statute of Westminster, became independent and hence transferred the war power to the governor-general. The operation of the statute was made retrospective to the start of the War. Acting on the advice of the Australian Cabinet, the Governor-General declared war against four belligerents.
To put the matter beyond doubt, Attorney-General HV Evatt arranged for a formal delegation of war-making power from the King to the Governor-General under Section 2 of the Constitution.
The point of all this detail is to illustrate that we were very meticulous in those days. We formally declared war, and were scrupulously careful to ensure that the declaration would be legally effective.
We have not declared war since World War II, but until the start of the 21st Century the understanding had been that the formal power to authorise the deployment of the Australian Defence Force into warlike activity lay with the Governor-General, who under our constitution is not only the monarch’s delegate but the commander-in-chief of the ADF. In 2003, most constitutional lawyers expected that the political decision to invade Iraq would be taken by Cabinet as a whole or its National Security Committee, but legally authorised by the Governor-General on advice from the Prime Minister, either exercising the royal prerogative or through the Federal Executive Council.
People with that expectation (and they included the Governor-General himself, Peter Hollingsworth) were not taking into account the trickiness of John Winston Howard. Asked by Hollingsworth the direct question what instruments were required to “invoke such an action or ratify the decisions of the Government”, Howard advised him in relation to Afghanistan that no order from the Governor-General was required, that the ANZUS Treaty was the basis for action by the Government.
Howard got away with advising an archbishop in such terms; he wouldn’t have got away with it with anyone with a substantial legal background.
Regarding the legal basis for the invasion of Iraq, it appears that the decision was effected through a statutory power vested in the Defence Minister under a 1975 amendment to the Defence Act, which vests “the general control and administration of the Defence Force” in the hands of the Minister for Defence and requires the military to exercise its powers “in accordance with any directions of the Minister”.
This does not sound to me like a delegation to the Defence Minister of the power to make war. There is no hint of such an intention in the Tange Report which recommended the amendment, and in the Parliamentary debate that accompanied it there were assurances that the Governor-General’s powers would be unaffected.
The Australian Labor Party opposed the deployment to Iraq, but not, apparently, the process by which the decision was made. On 26 February 2008 Mr Gary Quinlan, the Prime Minister’s Senior Adviser (Foreign Affairs, National Security, Defence and Trade) responded to representations from Dr Kristine Klugman, President, Civil Liberties Australia, in the following terms:
The Government takes its responsibility in committing to any military operation extremely seriously. The process is legally valid and has been followed by successive Australian Governments. Any decision to commit Australian Defence Force personnel into a conflict involves extensive consultation with various organisations and agencies. The emphasis of all parties in this robust and enduring process is to safeguard Australia’s national interest. The government is satisfied with the existing procedure and has no intention of revising it.
There is no sign that Tony Abbott went anywhere near the Governor-General in relation to the latest deployment to Iraq, so it seems settled bipartisan policy that all that is required to exercise the executive’s power to deploy the ADF into international armed conflict is resort to the Minister for Defence’s power of “general control and administration of the Defence Force” under s.8 of the Defence Act.
The fact that the power to deploy rests with the executive, with or without reference to the Governor-General, exposes the nation and especially the members of the ADF to extraordinary risks of capricious and/or ill-considered decision-making, which I think has been evident on several occasions: Vietnam, Afghanistan (twice) and Iraq (twice).
The citizen in the street probably takes at face value Gary Quinlan’s statement on behalf of Kevin Rudd that the Government would take its responsibility in committing to any military operation extremely seriously. Pursuant to that, they would I think assume that any such decision would be the outcome of a robust and thorough debate in Cabinet.
On that I would have to say:
· Debates in Cabinet are rarely if ever robust or careful, and whatever care or passion is on display is usually directed to the politics and how any decision is to be presented, rarely to the content.
· No national security matter would come to full Cabinet other than for pro-forma ratification. Such deliberations as take place would be in the National Security Committee, which is attended by the CDF and Service Chiefs and relevant officials. In my experience NSC debates under John Howard’s chairmanship were in fact fairly careful and thorough, on the aspects he wished to discuss.
· It needs to be borne in mind, however, that Cabinet has neither constitutional status nor legal power. Political decisions reached there are legally executed by Ministers, officials, the Governor-General or the Federal Executive Council.
· This means that there is no need to take a matter to Cabinet or a Cabinet Sub-Committee at all if a strong or wilful Prime Minister does not wish to do so, and cabinet discussion can be limited by the Prime Minister to matters which he/she wishes to discuss.
· The evidence in relation to the 2003 Iraq invasion indicates that the threshold question – is it a good idea to invade Iraq? – was never put to Cabinet at any level. Former Defence Secretary Hugh White wrote later words to the effect “They didn’t ask us and we didn’t tell them”, a position which was confirmed to Paul Kelly by three departmental heads he interviewed for his 2009 book The March of the Patriots. The discussions started from the position that we would be participating in the invasion, and were directed to modalities and intelligence.
So whatever the citizen in the street might think, deployment of the ADF into international armed conflict can be initiated on the basis of a “captain’s call” by Tony Abbott followed by a formal direction from Kevin Andrews to the CDF.
The current deployment to Iraq
To go back to the current deployment to Iraq, the timelines are as follows:
· At a press conference on 9 August 2014 the Prime Minister foreshadowed assistance to a US humanitarian mission, based on the fact that we had two C-130 aircraft based at Al Minhad in the UAE.
· In response to a question about whether he might be considering the despatch of peacekeepers Mr Abbott said that this was about joining our international partners in doing what we could to render humanitarian assistance.
· Prime Ministerial Media Release of 14 August announced that an RAAF C-130J aircraft had been brought into action for the purpose of dropping ten pallets of supplies, mainly in the form of high-energy biscuits and bottled water, to ‘Yezidi civilians trapped on Mount Sinjar by encircling ISIL forces’.
· At a Prime Ministerial press conference on 15 August it emerged that the ADF assets used in this operation had amounted to more than just the assets that happened to be on hand in the UAE:
“We didn’t just deploy a C-130 Hercules aircraft, but we also had a very large team – a support team – that made humanitarian work possible. The fact that this team was assembled from many parts of Australia and deployed to the Middle East within about 72 hours is a sign of the capability of our armed forces at need”.
The Prime Minister went on to say:
“The situation in Mount Sinjar itself has somewhat eased, but the overall security situation in Iraq remains perilous and while I certainly don't envisage Australian combat troops in Iraq, we are consulting with our allies and partners on what Australia can usefully contribute to try to ensure that the situation in the Middle East improves rather than deteriorates.
· By 31 August, however, all that had changed. On that day (a Sunday), in an announcement that startlingly stretched the definition of humanitarian assistance, the Prime Minister announced that “Australia will join international partners to help the anti-ISIL forces in Iraq”:
Following the successful international humanitarian relief effort air-dropping supplies to the thousands of people stranded on Mount Sinjar in northern Iraq, the Royal Australian Air Force will now conduct further humanitarian missions.
The United States Government has requested that Australia help to transport stores of military equipment, including arms and munitions, as part of a multi-nation effort.
Royal Australian Air Force C-130 Hercules and C-17 Globemaster aircraft will join aircraft from other nations including Canada, Italy, France, the United Kingdom and the United States to conduct this important task.
So within the space of three weeks we had gone from dropping biscuits and bottled water to landing arms and munitions for one party to the conflict – under the rubric of alleviating “the humanitarian situation in Iraq”. Remarkably, these deliveries of arms and munitions to unnamed forces were at the request of the United States, not at that stage the Government of Iraq – not surprising as they were bound for Kurdish Peshmerga forces which, when the day comes that the current insurgency dies down, will no doubt be very keen to protect Kurdish independence from the Government of Iraq.
It emerged almost immediately that there would be SAS soldiers on the RAAF transport aircraft, to provide protection to the crew when they land and to assist in the event that an emergency exit became necessary. Fairfax media also reported that the SAS could in future be stationed on the ground in Iraq if Australia joins any air strike campaign against the Islamic State militants. They would be there to find and rescue pilots and crews in the event that a RAAF plane is shot down, rather than for combat missions. This is a nice distinction to draw. Certainly the preferred position in crew rescue would be to avoid combat, but there is a very good reason that this role is assigned to the SAS.
The Prime Minister’s media releases to this point make no mention of Australian forces operating other than as a participant in the “humanitarian” operations in Iraq. By the time President Obama addressed the people of the US on the evening of 10 September, however, it became explicit that this conflict could not and would not be confined to “humanitarian operations”, nor would it be confined to Iraq. President Obama announced that the US would extend its efforts “beyond protecting our own people and humanitarian missions” and would start hitting ISIL targets “as the Iraqis go on offense”, and that he would not hesitate to take action in Syria as well as in Iraq. Further, the US had ramped up its military assistance to the Syrian opposition.
On 14 September the Prime Minister disclosed to the Australian public what we would really be up for, as a contribution to “an international coalition to counter the ISIL terrorist threat”: we would deploy up to eight F/A18 combat aircraft; an E-7A Wedgetail Airborne Early Warning and Control aircraft; and a KC-30A Multi-Role Tanker and Transport aircraft. We would also send a Special Operations Task Group as military advisers that could assist Iraqi and other security forces.
The situation escalated dramatically when on Monday 21 September the US conducted its first air strikes against ISIL targets in Syria, both in collaboration with Gulf Sunni Arab States and in US-only missions.
This turn of events creates a situation of amazing complexity. The US has had an attitude of profound hostility towards Iran for decades, and has worked assiduously throughout that time to isolate that country from any role in negotiating an overall solution to the problems of the region. Since the Assad regime in Syria began cracking down on its rebel movements three years ago the US has insisted that it has lost legitimacy and Assad must stand down, and has been flirting with the idea of arming and assisting “moderate” rebel movements, whoever they might be. Iran is, of course, a key supporter of the Assad regime.
ISIL, a breakaway group from Al Qaeda in Iraq, is not only a threat to the Government of Iraq, and to the effectively autonomous Kurdistan region of Northern Iraq, but is the toughest nut the Assad regime has to crack. It will be a profound relief to Bashar al-Assad and his Iranian helpmates to know that the United States and its new Coalition of the Willing are going to degrade and destroy ISIL, because that leaves them free to concentrate on crushing the other, more moderate elements of the uprising. Spin clever words as you may, you cannot crush ISIL without helping Assad and reducing the cost to Iran of its support for him.
ISIL is a critical threat to the Kurdish region of Iraq, and we are already engaged in delivering arms and ammunition to its Peshmerga forces – initially at the request of the Kurdish Regional Government but then at the request of the Government of Iraq. Assuming ISIL can be removed as a threat to the geographical integrity of Iraq, those same arms might be used by the newly strengthened and seasoned Peshmerga fighters to protect the Kurdish region’s autonomy or even to support a declaration of independence.
The legalities are also complex. The war against ISIL is a war that straddles borders – at this stage the border between Syria and Iraq, although some ISIL shells are landing in Turkish territory. Remarkably, the Prime Minister announced at first that we were joining the coalition at the request of the United States, which has no licence to invite anyone to conduct operations inside the territory of another sovereign state. The legality of the operations inside Iraq to which the Australian Government says it intends to confine itself were subsequently retrofitted with a request from the Government of Iraq.
Short of a UN Security Council resolution there can be no such legality for the operations the US and some of its allies are conducting inside Syria: they will receive no invitation from Bashir al-Assad. And while we can maintain for a while the fiction that we are only participating in half a war, the fact is that whatever we do in Iraq will free up resources for other countries to conduct operations in Syria which, except for the case of Iraq which is under direct attack, are of very dubious legality under international law. And I wonder how particular the Government will be about ensuring that the RAAF KC-30A Tanker, already on operations in support of Coalition missions, will only refuel aircraft operating against targets in Iraq.
One is left wondering to what extent the rapid shifts of Australian policy reflected equally rapidly shifts in US policy, a policy which Time magazine – hardly a journal renowned for leftish sentiments – described on 23 September as a piecemeal approach that suggests an improvised mission, and one whose objectives and justifications have repeatedly shifted over the past six weeks. Was Tony Abbott deliberately taking the Australian public a slice at a time, getting us used to each step before creating “new facts on the ground”, or was he himself struggling to keep up with the play, and always finding himself unable to say “No”?
Either way, it is a very poor way to conduct the business of one of the oldest continuing democracies on the planet. In this desperately complex situation, the nature and extent of Australian involvement is effectively in the hands of just three people – Prime Minister Tony Abbott, Foreign Minister Julie Bishop, and Defence Minister Kevin Andrews. As two of these are appointed on the recommendation of the third, it is reasonable to suppose that the Prime Minister will always get his way, so effectively whatever we do will come down to what one man decides.
This is a precarious way of making such an important decision, and as such is a problem for the Australian body politic and especially for the members of the Australian Defence Force who might be put in harm’s way.
An important part of the solution to this problem is to involve the Parliament in any future decision to deploy the Australian Defence Force into international armed conflict. This is something that both the Coalition and the ALP will resist, as each likes when in office to have in its back pocket the right to make and announce decisions on war and peace. Indeed, on 1 September, following the Prime Minister’s 31 August announcement that we would be transporting military stores to Iraq, the two parties combined in both the House of Representatives and the Senate to prevent moves by The Greens and Independent MP Andrew Wilkie to have the matter debated in Parliament.
This insistence on the status quo is driven by considerations of party political advantage, not the national interest. A Prime Minister who had to put a motion to the Parliament would be in a much stronger position to demand answers from the United States about what the aims and objectives are, what end-state is to be achieved, and what are the prospects for success.
A Private Member’s Bill to relocate the so-called “war powers” in the Parliament, the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2], was introduced into the Senate in 2009 by Greens Senator Scott Ludlam, but it was treated with scant respect by the major parties.
Four principal arguments against Parliamentary involvement are raised by those who wish to preserve the status quo.
The first of these is the argument that minor parties might block the necessary resolution in the Senate. For the negative vote of a minor party to be effective, however, it would be necessary that there also be a negative vote from the major Opposition party: the combined votes of Government and Opposition would make the views of the minor parties irrelevant (see above). As it is difficult to conceive of a major (or indeed a minor) party voting against deployment of the ADF at a time that the nation is genuinely under threat, this sounds more like a concern that the involvement of the Parliament would make it more difficult for the Government of the day to inject the ADF into wars of choice – which is of course the whole point of the exercise.
Another argument is that the Parliamentary process will take too long. This reveals a lack of understanding of the readiness levels at which most of the Australian Defence Force is held. Apart from the Ready Reaction Force at Townsville most combat elements of the ADF are held at a low state of readiness. Quite properly, most units are not maintained in a battle-ready state, and before they can be deployed a major investment in both personnel training and materiel is required in order to bring them up to the required standard.
A third argument – one often regarded as the supreme card to play – is that the Government might have access to information or intelligence which it cannot reveal.
This is an argument that simply cannot be accepted within the framework of a Westminster-style Parliamentary system. While it is certainly true that a government may be in possession of information that cannot be used in Parliamentary debate, it is fundamental to our system that today’s Opposition Leader could be tomorrow’s Prime Minister – even without an election. All that is required for the government to fall is for it to fail to win a confidence motion on the floor of the House of Representatives, at which point the Prime Minister of the day will normally advise the Governor-General to prorogue Parliament and call a general election, but the Governor-General would have the alternative of giving the Opposition Leader an opportunity to test the confidence of the House – as happened in 1975.
This being the case, it is fundamental to our national security that at the very least relevant leading members of the opposition not only be cleared to deal with national security classified information, but that at times of looming threat they be made privy to the available intelligence so that both government and opposition can conduct themselves in relation to the matter in an informed way.
That this is normal procedure is borne out by the fact that, in its uncritical support of the Government’s stance, the Opposition has made much of the fact that it has received briefings from Government.
There is a more subtle point to be made here. While secret intelligence can be very valuable in giving early warning of and filling out the detail of an emerging threat, situations will be rare in which a direct threat to Australia would emerge without any warning signs being discernible from open sources. Thus whatever secret intelligence the government might possess which confirms its suspicions about an emerging threat, it is safe to assume that for Parliamentary purposes it will be able to follow the commonplace practice of presenting a rationale which derives from open sources, and perhaps simply stating that this picture is confirmed by classified information in the government’s possession, which information has been shared with the Opposition leadership.
Finally, there is the argument that the process would be nugatory because everyone would simply vote on party lines. This may be so, but cannot be assumed to be so. Certainly the history shows that on the occasions when deployments have been debated in Parliament, members have voted on party lines. Historically, however, these debates have taken place against the backdrop of a decision already taken. This brings into play two dynamics. First, there is the feeling of obligation towards the members of the ADF who are being put into harm’s way, the feeling that we should not undermine the morale of the troops by suggesting that they should not be participating in the conflict.
Second, there is the defensive shield: “It doesn’t matter what I think, the decision has already been taken by Cabinet and my job now is to support it and to support the young men and women of the ADF”.
I believe, however, that if Parliament itself were to be the place where the matter is decided, quite a different dynamic would come into play. If the matter is to be put to a vote in both houses, each and every member of Parliament would have to participate in that process knowing that their vote would be recorded and would be a matter of history for all time, no matter how the matter turned out. People who felt strongly about it could not absolve their consciences with the thought that the matter had been taken out of their hands; the matter is very much in their hands, and we may see what looks very much like a conscience vote.
If it turns out that the matter is decided on party lines and the government of the day wins the day, one can hardly complain that there has been a failure of the democratic process.
If we persist with the current system in which the Executive clings to the ancient prerogative of the sovereign, we will continue to face the risks of this small group decision making set out so eloquently by distinguished military historian Robert O’Neill in the final paragraph of his submission to the Senate Foreign Affairs, Defence and Trade Committee on the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2]:
In the past, especially in the cases of the Vietnam, Iraq and Afghanistan wars, the decision to commit forces was taken by a small group of ministers, in which the Prime Minister played a dominant role. In such a small group, inhibitions based on concerns about the major ally’s capacity to fight effectively and win within a period of a year or two (if perceived at all) can be easily swept aside by the desire of the Prime Minister, Foreign Minister or the Cabinet at large to remain close to whoever is the US President at the time of deciding. Also in this system of decision-making, broader issues such as the morality of the commitment, which was clearly a major public issue in the cases of Vietnam and Iraq, are relatively easy for the Government to ignore or set to one side. The small group setting also makes it easier to believe faulty intelligence reports, or even to dismiss them where they are inconvenient for the government’s preferred policy. Australia’s decisions on commitment to any of these three conflicts would almost certainly have been improved had the proposal been debated in both Houses of the Parliament.
The Australian public needs to be much more vigilant about the circumstances in which the Australian Government deploys the Australian Defence Force and for what purpose. This vigilance is unlikely to become habitual while a decision to send troops remains the prerogative of the executive — that is, Cabinet, meaning in practice the Prime Minister and a very small group of key ministers — an arrangement which means that a decision, once taken, can be acted upon without significant debate. Vigilance is much more likely to develop if we embrace the republican notion, one which seems fitting also for a constitutional monarchy, that the power to make war should be vested in the legislature. In any polity founded on the principle that power flows from the people to the state, rather than from the state to the people, the spectacle of the executive clinging to the ancient privileges of the sovereign is both an anachronism and an anomaly.
In the UK, Prime Minister Cameron submitted the matter for debate in the House of Commons, which both authorised the deployment of UK forces and restricted its geographical scope – no authorisation for operations in Syria. We are increasingly out of step with countries to which we like to compare ourselves, and it is high time we made the change to requiring Parliamentary approval for deployment of the ADF into international armed conflict.